EXHIBIT 4
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GSAA HOME EQUITY TRUST 2005-4
ASSET-BACKED CERTIFICATES
SERIES 2005-4
TRUST AGREEMENT
between
GS MORTGAGE SECURITIES CORP.,
Depositor,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
Dated March 1, 2005
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions......................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.....................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..................
Section 2.03 Execution and Delivery of Certificates...........................
Section 2.04 REMIC Matters....................................................
Section 2.05 Representations and Warranties of the Depositor..................
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account................
Section 3.02 Investment of Funds in the Distribution Account..................
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution.......................................
Section 4.02 Monthly Statements to Certificateholders.........................
Section 4.03 Allocation of Applied Realized Loss Amounts......................
Section 4.04 Certain Matters Relating to the Determination of LIBOR...........
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.................................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.........................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates................
Section 5.04 Persons Deemed Owners............................................
Section 5.05 Access to List of Certificateholders' Names and Addresses........
Section 5.06 Maintenance of Office or Agency..................................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor.....................................
Section 6.02 Merger or Consolidation of the Depositor.........................
Section 6.03 Limitation on Liability of the Depositor and Others..............
Section 6.04 Servicing Compliance Review......................................
Section 6.05 Option to Purchase Defaulted Mortgage Loans......................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default................................................
Section 7.02 Trustee to Act; Appointment of Successor.........................
Section 7.03 Trustee to Act as Servicer.......................................
Section 7.04 Notification to Certificateholders...............................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee............................................
Section 8.02 Administration of the Servicers..................................
Section 8.03 Certain Matters Affecting the Trustee............................
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans............
Section 8.05 Trustee May Own Certificates.....................................
Section 8.06 Trustee's Fees and Expenses......................................
Section 8.07 Eligibility Requirements for the Trustee.........................
Section 8.08 Resignation and Removal of the Trustee...........................
Section 8.09 Successor Trustee................................................
Section 8.10 Merger or Consolidation of the Trustee...........................
Section 8.11 Appointment of Co-Trustee or Separate Trustee....................
Section 8.12 Tax Matters......................................................
Section 8.13 Periodic Filings.................................................
Section 8.14 Tax Classification of the Excess Reserve Fund Account and
the Interest Rate Corridor Agreement.............................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans............................................................
Section 9.02 Final Distribution on the Certificates...........................
Section 9.03 Additional Termination Requirements..............................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment........................................................
Section 10.02 Recordation of Agreement; Counterparts...........................
Section 10.03 Governing Law....................................................
Section 10.04 Intention of Parties.............................................
Section 10.05 Notices..........................................................
Section 10.06 Severability of Provisions.......................................
Section 10.07 Limitation on Rights of Certificateholders.......................
Section 10.08 Certificates Nonassessable and Fully Paid........................
Section 10.09 Waiver of Jury Trial.............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificates
Exhibit C Form of Class R-1 and R-2 Certificate
Exhibit D Form of Class X Certificates
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Certification to be provided with Form 10-K
Exhibit K Form of Certification to be provided to Depositor
Exhibit L Master Mortgage Loan Purchase Agreement, dated as of April 1,
2004, as amended by Amendment No. 1, dated as of July 1, 2004,
and as further amended by Amendment No. 2, dated as of January 1,
2005, between GreenPoint Mortgage Funding, Inc. and Xxxxxxx Xxxxx
Mortgage Company
Exhibit M Servicing Agreement, dated as of April 1, 2004, as amended by
Amendment No. 1, dated as of July 1, 2004, and as further amended
by Amendment No. 2, dated as of January 1, 2005, between
GreenPoint Mortgage Funding, Inc. and Xxxxxxx Sachs Mortgage
Company
Exhibit N Master Mortgage Loan Purchase Agreement, dated as of February 1,
2004, as amended by Amendment No. 1, dated as of December 1, 2004,
between IndyMac Bank, F.S.B, and Xxxxxxx Xxxxx Mortgage Company
Exhibit O Servicing Agreement, dated as of February 1, 2004, as amended by
Amendment No. 1, dated as of June 1, 2004, between IndyMac Bank,
F.S.B, and Xxxxxxx Sachs Mortgage Company
Exhibit P Master Mortgage Loan Purchase Agreement, dated as of July 1,
2004, between Countrywide Home Loans, Inc. and Xxxxxxx Xxxxx
Mortgage Company
Exhibit Q Master Mortgage Loan Purchase Agreement, dated as of November 1,
2003, between Countrywide Home Loans, Inc. and Xxxxxxx Sachs
Mortgage Company
Exhibit R Servicing Agreement, dated as of July 1, 2004, between
Countrywide Home Loans Servicing LP and Xxxxxxx Xxxxx Mortgage
Company
Exhibit S Servicing Agreement, dated as of November 1, 2003, between
Countrywide Home Loans Servicing LP and Xxxxxxx Sachs Mortgage
Company
Exhibit T-1 Authorized Representatives of Countrywide Home Loans Servicing LP
Exhibit T-2 Authorized Representatives of GreenPoint Mortgage Funding, Inc.
Exhibit T-3 Authorized Representatives of IndyMac Bank, F.S.B.
Exhibit U Request for Release
Exhibit V-1 Assignment, Assumption and Recognition Agreement, dated as of
March 30, 2005, between the Purchaser, GreenPoint Mortgage
Funding, Inc. and the Depositor
Exhibit V-2 Assignment, Assumption and Recognition Agreement, dated as of
March 30, 2005, among the Depositor, the Trustee and GreenPoint
Mortgage Funding, Inc
Exhibit V-3 Assignment, Assumption and Recognition Agreement, dated as of
March 30, 2005, between the Purchaser, IndyMac Bank, F.S.B and the
Depositor
Exhibit V-4 Assignment, Assumption and Recognition Agreement, dated as of
March 30, 2005, among the Depositor, the Trustee and IndyMac Bank,
F.S.B and the Depositor
Exhibit V-5 Assignment, Assumption and Recognition Agreement, dated as of
March 30, 2005, between the Purchaser, Countrywide Home Loans,
Inc., Countrywide Home Loans Servicing LP and the Depositor
Exhibit V-6 Assignment, Assumption and Recognition Agreement, dated as of
March 30, 2005, among the Depositor, the Trustee and Countrywide
Home Loans, Inc., Countrywide Home Loans Servicing LP
THIS TRUST AGREEMENT, dated as of March 1, 2005 (this "Agreement"),
is hereby executed by and between GS MORTGAGE SECURITIES CORP., a Delaware
corporation (the "Depositor"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, as
trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that two segregated asset pools within the
Trust Fund be treated for federal income tax purposes as comprising two REMICs
(each, a "Trust REMIC" or, in the alternative, the Lower-Tier REMIC and the
Upper-Tier REMIC, respectively). The Class X Interest and each Class of
Principal Certificates (other than the right of each Class of Principal
Certificates to receive Basis Risk Carry Forward Amounts), represents ownership
of a regular interest in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Class R-1 Certificates represent ownership of the sole class of
residual interest in the Upper-Tier REMIC and the Class R-2 Certificates
represent ownership of the sole class of residual interest in the Lower-Tier
REMIC for purposes of the REMIC Provisions. The Startup Day for each REMIC
described herein is the Closing Date. The latest possible maturity date for each
Certificate is the latest date referenced in Section 2.04. The Upper-Tier REMIC
shall hold as assets the several classes of uncertificated Lower-Tier Regular
Interests, set out below. The Lower Tier REMIC shall hold as assets the assets
described in the definition of "Trust Fund" herein (other than the Prepayment
Premiums, the Interest Rate Corridor and the Excess Reserve Fund Account). Each
such Lower-Tier Regular Interest is hereby designated as a regular interest in
the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2, Class LT-A-3, Class
LT-A-4, Class LT-A-5, Class LT-A-6, Class LT-M-1, Class LT-M-2, Class LT-B-1,
Class LT-B-4, Class LT-B-3 and Class LT-B-4 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes"). The Class P
Certificates represent beneficial ownership of the Prepayment Premiums, each
Class of Principal Certificates represents beneficial ownership of a regular
interest in the Upper-Tier REMIC and the right to receive Basis Risk Carry
Forward Amounts, and the Class X Certificates represent beneficial ownership of
a regular interest in the Upper-Tier REMIC, the Interest Rate Corridor Agreement
and the Excess Reserve Fund Account, which portions of the Trust Fund shall be
treated as a grantor trust.
Lower-Tier REMIC
Corresponding
Upper-Tier
Lower-Tier Lower-Tier Initial Lower-Tier Regular
Regular Interest Interest Rate Principal Amount Interest
------------------ --------------- ------------------------------ --------------
Class LT-A-1 (1) 1/2 initial Class Certificate A-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-2 (1) 1/2 initial Class Certificate A-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-3 (1) 1/2 initial Class Certificate A-3
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-4 (1) 1/2 initial Class Certificate A-4
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-5 (1) 1/2 initial Class Certificate A-5
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-6 (1) 1/2 initial Class Certificate A-6
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-3 (1) 1/2 initial Class Certificate B-3
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-4 (1) 1/2 initial Class Certificate B-4
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Stated Principal
Balance plus 1/2
Overcollateralized Amount
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(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap.
The Lower-Tier REMIC shall hold as assets all of the assets included
in the Trust Fund, other than Prepayment Premiums, the Interest Rate Corridor
Agreement, the Excess Reserve Fund Account and the Lower-Tier Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
may not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans shall be allocated (i) 50% to the Class LT Accrual Interest and (ii) 50%
to the LT-Accretion Directed Classes (principal payments shall be allocated
among such LT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the Lower-Tier Principal Amount of each of the
LT-Accretion Directed Classes is equal to 50% of the Class Certificate Balance
of its Corresponding Class, and (ii) the Class LT-Accrual Interest is equal to
50% of the aggregate Stated Principal Balance of the Mortgage Loans plus 50% of
the Overcollateralized Amount.
In addition to issuing the Lower-Tier Regular Interests, the
Lower-Tier REMIC shall issue the Class R-2 Certificates, which shall be the sole
class of residual interests in the Lower-Tier REMIC. The Class R-2 Certificates
shall have a principal amount of $100 and shall have no interest rate. Amounts
received by the Class R-2 Certificates shall be deemed paid from the Lower-Tier
REMIC.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier
Interest Rate Initial Upper-Tier
and Principal Amount
Corresponding and Corresponding Corresponding
Upper-Tier Class Pass-Through Class Certificate Class of
Class Designation Rate Balance Certificates
----------------- ------------------ ------------------ ---------------
Class A-1 (1) $185,000,000 Class A-1(14)
Class A-2 (2) $ 56,332,000 Class A-2(14)
Class A-3 (3) $ 59,769,000 Class A-3(14)
Class A-4 (4) $ 6,640,000 Class A-4(14)
Class A-5 (5) $214,912,000 Class A-5(14)
Class A-6 (6) $ 23,879,000 Class A-6(14)
Class M-1 (7) $ 16,958,000 Class M-1(14)
Class M-2 (8) $ 11,306,000 Class M-2(14)
Class B-1 (9) $ 6,248,000 Class B-1(14)
Class B-2 (10) $ 2,975,000 Class B-2(14)
Class B-3 (11) $ 2,975,000 Class B-3(14)
Class B-4 (12) $ 2,975,000 Class B-4(14)
Class X (13) (13) Class X(13)
------------
(1) The Class A-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.110% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
least of (i) LIBOR plus 0.220% and (ii) the WAC Cap.
(2) The Class A-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.210% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
least of (i) LIBOR plus 0.420% and (ii) the WAC Cap.
(3) The Class A-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.320% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
least of (i) LIBOR plus 0.640% and (ii) the WAC Cap.
(4) The Class A-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.360% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.720% and (ii) the WAC Cap.
(5) The Class A-5 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.220% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.440% and (ii) the WAC Cap.
(6) The Class A-6 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.270% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.540% and (ii) the WAC Cap.
(7) The Class M-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.440% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.660% and (ii) the WAC Cap.
(8) The Class M-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.700% and (ii)
the WAC Cap or (b) after the Optional Termination Date, the lesser of (i)
LIBOR plus 1.050% and (ii) the WAC Cap.
(9) The Class B-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.150% and (ii)
the WAC Cap or (b) after the Optional Termination Date, the lesser of (i)
LIBOR plus 1.725% and (ii) the WAC Cap.
(10) The Class B-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.250% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 1.875% and (ii) the WAC Cap.
(11) The Class B-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.900% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 2.850% and (ii) the WAC Cap.
(12) The Class B-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) 5.000% and (ii) the WAC Cap
or (b) after the first possible Optional Termination Date, the lesser of
(i) 5.500% and (ii) the WAC Cap.
(13) The Class X Interest has an initial principal balance of $5,058,422.05,
but it will not accrue interest on such balance but will accrue interest
on a notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower-Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2 and (ii)
the weighted average Lower-Tier Interest Rate of the Lower-Tier Regular
Interests, where the Lower-Tier Interest Rate on the Class LT-Accrual
Interest is subject to a cap equal to zero and each LT-Accretion Directed
Class is subject to a cap equal to the Pass-Through Rate on its
Corresponding Class. With respect to any Distribution Date, interest that
so accrues on the notional principal balance of the Class X Interest shall
be deferred in an amount equal to any increase in the Overcollateralized
Amount on such Distribution Date. Such deferred interest shall not itself
bear interest. The Class X Certificates will represent beneficial
ownership of the Class X Interest, the Interest Rate Corridor Agreement
and amounts in the Excess Reserve Fund Account, subject to the obligation
to make payments from the Excess Reserve Fund Account in respect of Basis
Risk Carry Forward Amounts. For federal income tax purposes, the Trustee
will treat the Class X Certificateholders' obligation to make payments
from the Excess Reserve Fund Account as payments made pursuant to an
interest rate cap contract written by the Class X Certificateholders in
favor of each Class of Principal Certificates. Such rights of the Class X
Certificateholders and Principal Certificateholders shall be treated as
held in a portion of the Trust Fund that is treated as a grantor trust
under subpart E, Part I of subchapter J of the Code.
(14) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Trustee will treat a Certificateholder's right to receive payments from
the Excess Reserve Fund Account as payments made pursuant to an interest
rate cap contract written by the Class X Certificateholders.
In addition to issuing the Upper-Tier Regular Interests, the Upper-Tier REMIC
shall issue the Class R-1 Certificates, which shall be the sole class of
residual interests in the Upper-Tier REMIC. The Class R-1 Certificates shall
have a principal amount of $100 and shall have no interest rate. Amounts
received by the Class R-1 Certificates shall be deemed paid from the Upper-Tier
REMIC.
The minimum denomination for each Class of the Principal
Certificates will be $50,000 initial Certificate Balance, with integral
multiples of $1 in excess thereof except that one Certificate in each Class may
be issued in a different amount. The minimum denomination for (a) the Residual
Certificates will each be $100 and each will be a 100% Percentage Interest in
such Class and (b) the Class P and Class X Certificates will be a 1% Percentage
Interest in each such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-6 Certificates,
collectively.
Class R Certificates......... The Class R-1 and Class R-2 Certificates.
ERISA-Restricted
Certificates............... Physical Certificates and any Certificate with a
rating below the lowest applicable permitted
rating under the Underwriters' Exemption.
Fixed Rate Certificates...... The Class B-4 Certificates.
LIBOR Certificates........... The Class A, Class M-1, Class M-2, Class B-1,
Class B-2, Class B-3 Certificates, collectively.
Offered Certificates......... All Classes of Certificates other than the
Private Certificates.
Physical Certificates........ Class P, Class X, Class R-1 and Class R-2
Certificates.
Principal Certificates....... Fixed Rate Certificates and LIBOR Certificates.
Private Certificates......... Class B-4, Class P and Class X Certificates.
Rating Agencies.............. Moody's and S&P.
Regular Certificates......... All Classes of Certificates other than the
Class R Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class B-1, Class B-2,
Class B-3 and Class B-4 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the applicable Servicing
Agreement or Sale Agreement. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
Account: Any of the Distribution Account or the Excess Reserve Fund
Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Principal Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.01(c).
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Trust Agreement and all amendments or supplements
hereto.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Assignment Agreement: A Step 1 Assignment Agreement or a Step 2
Assignment Agreement.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (without
duplication) (i) all scheduled installments of interest (net of the related
Expense Fees) and principal due on the Due Date on such Mortgage Loans in the
related Due Period and received by the applicable Servicer on or prior to the
related Determination Date, together with any Monthly Advances in respect
thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation
Proceeds received by the applicable Servicer during the related Principal
Prepayment Period (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure and unreimbursed Advances, if any);
(iii) all Principal Prepayments received by the applicable Servicer during the
related Principal Prepayment Period together with all Compensating Interest paid
in connection therewith; (iv) all amounts received with respect to such
Distribution Date in connection with a purchase or repurchase of a Deleted
Mortgage Loan; (v) all amounts received with respect to such Distribution Date
as a Substitution Adjustment Amount received in connection with the substitution
of a Mortgage Loan; and (vi) all proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 9.01; reduced by
(y) all amounts in reimbursement for Monthly Advances and Servicing Advances
previously made with respect to the Mortgage Loans, and other amounts as to
which the Servicers, the Depositor or the Trustee (or co-trustee) are entitled
to be paid or reimbursed pursuant to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal Certificates
is based upon the WAC Cap, the excess, if any, of (i) the amount of interest
such Class of Certificates would otherwise be entitled to receive on such
Distribution Date had such Pass-Through Rate not been subject to the WAC Cap,
over (ii) the amount of interest that Class of Certificates received on such
Distribution Date taking into account the WAC Cap and (B) the Basis Risk Carry
Forward Amount for such Class of Certificates for all previous Distribution
Dates not previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of Certificates for such
Distribution Date, without giving effect to the WAC Cap).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to reduction
for Basis Risk Payments).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York or California, (b) the State in which a Servicer's servicing operations are
located, or (c) the State in which the Trustee's operations are located, are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Principal
Certificates and the Residual Certificates, at any date, the maximum dollar
amount of principal to which the Holder thereof is then entitled hereunder, such
amount being equal to the Denomination thereof minus all distributions of
principal previously made with respect thereto and in the case of any
Certificates, reduced by any Applied Realized Loss Amounts allocated to such
Class of Certificates pursuant to Section 4.03; provided, however, that
immediately following the Distribution Date on which a Subsequent Recovery is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recovery distributed on such Distribution Date (up to the amount of Applied
Realized Loss Amounts allocated to such Class or Classes). The Class X and Class
P Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of the
Depositor.
Certification: As defined in Section 8.13(b).
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) the product of (x) 83.70% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class A-3 Certificates: All Certificates bearing the class
designation of "Class A-3."
Class A-4 Certificates: All Certificates bearing the class
designation of "Class A-4."
Class A-5 Certificates: All Certificates bearing the class
designation of "Class A-5."
Class A-6 Certificates: All Certificates bearing the class
designation of "Class A-6."
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), and (D) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 95.30% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), and (E) the Class Certificate Balance of the Class B-2 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 96.30% and (y) the aggregate Stated Principal Balances of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date), and (F) the Class Certificate Balance of the
Class B-3 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) the product of (x) 97.30% and (y) the aggregate Stated Principal
Balances of the Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class B-4 Certificates: All Certificates bearing the class
designation of "Class B-4."
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (F) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date), (G) the Class Certificate Balance of the
Class B-3 Certificates (after taking into account the distribution of the Class
B-3 Principal Distribution Amount on such Distribution Date), and (H) the Class
Certificate Balance of the Class B-4 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) the product of (x) 98.30% and (y)
the aggregate Stated Principal Balances of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 89.40% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) the product of (x) 93.20% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class R Certificates: As defined in the Preliminary Statement.
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1."
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2."
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement and
the related footnote thereto.
Closing Date: March 30, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in the
applicable Servicing Agreement.
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for the Distribution Date, with
respect to voluntary Principal Prepayments in full or in part by the Mortgagor
(excluding any payments made upon liquidation of the Mortgage Loan) during the
related Principal Prepayment Period, and (b) one-half of the applicable
Servicer's aggregate Servicing Fee payable for such Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attn: Trust Administration -GS0504, facsimile number
(000) 000-0000 and which is the address to which notices to and correspondence
with the Trustee should be directed.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Upper-Tier Corresponding
Lower-Tier Regular Interest Regular Interest Class of Certificates
--------------------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-A-4 Class A-4 Class A-4
Class LT-A-5 Class A-5 Class A-5
Class LT-A-6 Class A-6 Class A-6
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
Corridor Provider: Xxxxxxx Sachs Capital Markets LP, a Delaware
limited partnership, and its successors in interest.
Countrywide: Countrywide Home Loans, Inc., a New York corporation,
and its successors in interest.
Countrywide Mortgage Loans: The mortgage loans acquired by the
Purchaser from Countrywide pursuant to the applicable Countrywide Sale
Agreement.
Countrywide Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated as of July 1, 2004 between Countrywide and the Purchaser,
attached as Exhibit P hereto, or the Master Mortgage Loan Purchase Agreement,
dated as of November 1, 2004, between Countrywide and the Purchaser, attached as
Exhibit Q, as applicable.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors in interest.
Countrywide Servicing Agreement: The Servicing Agreement, dated as
of July 1, 2004, between Countrywide Servicing and the Purchaser, attached as
Exhibit R hereto, or the Servicing Agreement, dated as of November 1, 2003,
between Countrywide Servicing and the Purchaser, attached as Exhibit S, as
applicable.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the Trustee or which at any time comes into
the possession of the Trustee.
Cut-off Date: March 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date).
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by any Responsible Party, the Purchaser or the Depositor in
accordance with the terms of any Sale Agreement, any Assignment Agreement or
this Agreement, as applicable, or which is replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Xxxxx'x F1 + by Fitch and A-1 by Standard & Poor's, to the
extent they are designated as Rating Agencies hereunder.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the
Business Day immediately preceding the related Remittance Date.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.01(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company, in trust for registered holders of GSAA Home Equity Trust 2005-4,
Asset-Backed Certificates, Series 2005-4." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the next succeeding Business Day, commencing in April 2005.
Document Certification and Exception Report: The report attached
to Exhibit F hereto.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated "A-1+" by Standard & Poor's, F1
by Fitch and "P-1" by Xxxxx'x (or a comparable rating if another Rating Agency
is specified by the Depositor by written notice to the Servicer), to the extent
they are designated as Rating Agencies hereunder, at the time any amounts are
held on deposit therein, (ii) a trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity or (iii) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Party: Any party that is eligible to cause the Optional
Termination Date to occur at the direction of the Majority Class X
Certificateholder pursuant to Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
applicable administrative exemption granted by the U.S. Department of Labor.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the applicable Servicing Agreement.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.01(a) in the name of the
Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered holders of GSAA
Home Equity Trust 2005-4, Asset-Backed Certificates, Series 2005-4." Funds in
the Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Trustee Fee Rate and any
lender-paid mortgage insurance fee rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for that Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Mae: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in March
2035.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Fitch shall be Fitch Ratings, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAA Trust
2005-4, or such other address as Fitch may hereafter furnish to the Depositor
and the Trustee.
Fixed Rate Certificates: As specified in the Preliminary Statement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, and its successor in interest.
GreenPoint Mortgage Loans: The Mortgage Loans acquired by the
Purchaser from GreenPoint pursuant to the GreenPoint Sale Agreement.
GreenPoint Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated as of April 1, 2004, as amended by Amendment No. 1 dated as of
July 1, 2004, and as further amended by Amendment No. 2, dated as of January 1,
2005, each between GreenPoint and the Purchaser, attached as Exhibit L hereto.
GreenPoint Servicing Agreement: The Servicing Agreement, dated as of
April 1, 2004, as amended by Amendment No. 1, dated as of July 1, 2004, and as
further amended by Amendment No. 2, dated as of January 1, 2005, each between
GreenPoint and Purchaser, attached as Exhibit M hereto.
IndyMac: IndyMac Bank, F.S.B., a federal saving bank, and its
successor in interest.
IndyMac Mortgage Loans: The Mortgage Loans acquired by the Purchaser
from IndyMac pursuant to the IndyMac Sale Agreement.
IndyMac Sale Agreement: The Master Mortgage Loan Purchase Agreement,
dated as of February 1, 2004, as amended by Amendment No. 1, dated as of
December 1, 2004, between IndyMac and the Purchaser, attached as Exhibit N
hereto.
IndyMac Servicing Agreement: The Servicing Agreement, dated as of
February 1, 2004, as amended by Amendment No. 1, dated as of June 1, 2004, each
between IndyMac and Purchaser, attached as Exhibit O hereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to any Distribution Date, (i)
with respect to the LIBOR Certificates, the period commencing on the immediately
preceding Distribution Date (or commencing on the Closing Date in the case of
the first Distribution Date) and ending on the day immediately preceding the
current Distribution Date, and (ii) with respect to the Fixed Rate Certificates,
the calendar month immediately preceding the month which such Distribution Date
occurs. For purposes of computing interest accruals on each Class of LIBOR
Certificates, each Interest Accrual Period has the actual number of days in such
period and each year is assumed to have 360 days. For purposes of computing
interest accruals on the Fixed Rate Certificates, each Interest Accrual Period
has 30 days in such period and each year is assumed to have 360 days.
Interest Rate Corridor Agreement: The interest rate corridor
agreement, dated March 25, 2005, between the Purchaser and the Corridor
Provider, and its successors in interest, for the benefit of the Principal
Certificates.
Interest Rate Corridor Payment: For the first 56 Distribution Dates,
the amount, if any, equal to the product of (a) the excess, if any, of one-month
LIBOR (as determined pursuant to the Interest Rate Corridor Agreement) as of the
related reset date over a cap strike rate set forth on the interest rate
corridor agreement schedule attached to the Interest Rate Corridor Agreement, up
to 10.00% per annum, (b) the interest rate cap notional amount for such date set
forth on such schedule and (c) the actual number of days in the applicable
Interest Accrual Period divided by 360.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, that portion of Available Funds attributable to interest
relating to the Mortgage Loans.
Investment Account: As defined in Section 3.02(a).
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period (other than the initial Interest Accrual Period) for the LIBOR
Certificates, the second London Business Day preceding the commencement of such
Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage
Interest Rate during the terms of each adjustable rate Mortgage Loan shall not
at any time exceed the Mortgage Interest Rate at the time of origination of such
Mortgage Loan by more than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Principal Prepayment Period preceding the month of such Distribution Date and as
to which the applicable Servicer has certified that it has received all amounts
it expects to receive in connection with the liquidation of such Mortgage Loan
including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class LT-A-2,
Class LT-A-3, Class LT-A-4, Class LT-A-5, Class LT-A-6, Class LT-M-1, Class
LT-M-2, Class LT-B-1, Class LT-B-2, Class LT-B-3, Class LT-B-4 and Class
LT-Accrual Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the applicable Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b)
the address for notices to Moody's shall be Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to the Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of a
Sale Agreement and a Servicing Agreement, each Mortgage Loan originally sold and
subject to any Sale Agreement being identified on the Mortgage Loan Schedule,
which Mortgage Loan includes without limitation the Mortgage File, the Servicing
File, the Monthly Payments, Principal Prepayments, Prepayment Premiums,
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: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) Responsible Party's Mortgage Loan number; (2)
the address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgagor is self-employed; (4) a code indicating whether
the Mortgaged Property is owner-occupied, investment property or a second home;
(5) a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three-family residence, four-family residence,
condominium, manufactured housing or planned unit development; (6) the purpose
of the Mortgage Loan; (7) the Mortgage Interest Rate at origination; (8) the
current Mortgage Interest Rate; (9) the name of the applicable Servicer; (10)
the applicable Servicing Fee Rate; (11) the current Monthly Payment; (12) the
original term to maturity; (13) the remaining term to maturity; (14) the Stated
Principal Balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (15) the LTV at origination and if the Mortgage Loan has a second
lien, combined LTV at origination; (16) the actual principal balance of the
Mortgage Loan as of the Cut-off Date; (17) social security number of the
Mortgagor; (18) a code indicating whether the Mortgaged Property is a leasehold
estate; (19) the due date of the Mortgage Loan; (20) whether the Mortgage Loan
is insured by a PMI Policy and the name of the insurer; (21) the certificate
number of the PMI Policy (if applicable); (22) in the case of the GreenPoint
Mortgage Loans and the IndyMac Mortgage Loans, the amount of coverage of the
Primary Mortgage Insurance Policy; (23) the type of appraisal; (24) a code
indicating whether the Mortgage Loan is a MERS Mortgage Loan; (25) documentation
type (including, with respect to GreenPoint Mortgage Loans and IndyMac Mortgage
Loans, asset and income type); (26) first payment date; (27) with respect to
GreenPoint Mortgage Loans and IndyMac Mortgage Loans, the schedule of the
payment delinquencies in the prior 12 months; (28) FICO score; (29) whether the
Mortgage Loan has Monthly Payments that are interest-only for a period of time;
(30) the Gross Margin; (31) the Periodic Rate Cap; (32) the Lifetime Rate Cap;
(33) the first Interest Adjustment Date and the Interest Adjustment Date
frequency; (34) the Index; and (35) the lender-paid mortgage insurance fee rate,
if any.
Mortgaged Property. The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum of
the Compensating Interest payments made on such Distribution Date.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class P and Class X Certificates that are rated by one or
more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
Non-Permitted Transferee: As defined in Section 8.12(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith judgment of the Servicer or any successor Servicer including the
Trustee, as applicable, will not or, in the case of a proposed Monthly Advance,
would not be ultimately recoverable from related late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds on such Mortgage Loan or
REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith judgment of the Servicer or any successor Servicer
including the Trustee, as applicable, will not or, in the case of a proposed
Servicing Advance, would not, be ultimately recoverable from related Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of any Servicer or any Responsible
Party, and delivered to the Trustee, as required by any Servicing Agreement or
Sale Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for applicable Servicer, reasonably acceptable to the Trustee
(and/or such other Persons as may be set forth herein); provided, that any
Opinion of Counsel relating to (a) qualification of either the Lower-Tier REMIC
or Upper-Tier REMIC or (b) compliance with the REMIC Provisions, must be (unless
otherwise stated in such Opinion of Counsel) an opinion of counsel who (i) is in
fact independent of the applicable Servicer or the Trustee of the Mortgage
Loans, (ii) does not have any material direct or indirect financial interest in
the applicable Servicer or the Trustee of the Mortgage Loans or in an affiliate
of either and (iii) is not connected with the applicable Servicer or Trustee of
the Mortgage Loans as an officer, employee, director or person performing
similar functions.
Optional Termination Agreement: As defined in Section 9.02.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Principal Certificates and the Residual Certificates as of such
Distribution Date (after giving effect to the payment of the Principal
Remittance Amount on such Certificates on such Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: An amount equal to 0.50% of the Cut-off
Date Pool Principal Balance.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class A-1 Certificates, 0.110%; Class
A-2 Certificates, 0.210%; Class A-3 Certificates, 0.320%; Class A-4
Certificates, 0.360%; Class A-5 Certificates, 0.220%; Class A-6 Certificates,
0.270%; Class M-1 Certificates, 0.440%; Class M-2 Certificates, 0.700%; Class
B-1 Certificates, 1.150%; Class B-2 Certificates, 1.250%; Class B-3
Certificates, 1.900%; provided, however, that on the first Distribution Date
after the Optional Termination Date, the Pass Through Margins shall increase to:
Class A-1 Certificates, 0.220%; Class A-2 Certificates, 0.420%; Class A-3
Certificates, 0.640%; Class A-4 Certificates, 0.720%; Class A-5 Certificates,
0.440%; Class A-6 Certificates, 0.540%; Class M-1 Certificates, 0.660%; Class
M-2 Certificates, 1.050%; Class B-1 Certificates, 1.725%; Class B-2
Certificates, 1.875%; Class B-3 Certificates, 2.850%.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated F1+ by Fitch, P-1 by
Moody's and A-1+ by S&P, to the extent they are Rating Agencies designated
hereunder;
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and,
if rated by Fitch, at least "AA" by Fitch, to the extent they are Rating
Agencies designated hereunder; and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality of
the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by the
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Principal Prepayment Period, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: With respect to any Mortgage Loan, any
prepayment premium, penalty or charge collected by the applicable Servicer with
respect to such Mortgage Loan from the related Mortgagor in connection with any
Principal Prepayment pursuant to the terms of the related Mortgage Note.
Principal Certificates: As specified in the Preliminary Statement.
Principal Distribution Amount: For any Distribution Date, the sum
of (i) the Basic Principal Distribution Amount for such Distribution Date and
(ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (other than Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds) which is received in advance of its scheduled
Due Date, excluding any Prepayment Premium, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution
Date, the calendar month preceding the month in which that Distribution Date
occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication) with respect to the related Due Period: (i) each scheduled
payment of principal on a Mortgage Loan due during such Due Period and received
by the applicable Servicer on or prior to the related Determination Date,
together with any Monthly Advances in respect thereof; (ii) all Principal
Prepayments received by the applicable Servicer during the related Principal
Prepayment Period, (iii) all Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds on the Mortgage Loans allocable to principal received by the
applicable Servicer during the related Principal Prepayment Period, (iv) the
portion of the purchase price allocable to principal in connection with a
purchase or repurchase of a Deleted Mortgage Loan, with respect to such
Distribution Date, (v) all amounts received with respect to such Distribution
Date as the principal portion of all Substitution Adjustment Amounts with
respect to the substitution of a Mortgage Loan and (vi) the allocable portion of
the proceeds received pursuant to clause (a) of Section 9.01 (to the extent such
proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated March 24,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest.
Qualified Substitute Mortgage Loan: As defined in the related
Sale Agreement.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers' Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Advice Date: The 5th, 10th and 10th day of each calendar
month, respectively, with respect to GreenPoint, IndyMac and Countrywide,
respectively, or the immediately following Business Day if such day is not a
Business Day.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan, and (a) any
repurchase thereof by the applicable Responsible Party pursuant to the
applicable Sale Agreement, the "Repurchase Price" as defined in the applicable
Sale Agreement, or (b) any repurchase by the Depositor pursuant to Section 2.05
or pursuant to the Step 2 Assignment Agreement or (c) any repurchase by the
Purchaser pursuant to the Step 1 Assignment Agreement, an amount equal to the
sum of (i) the unpaid principal balance of such Mortgage Loan as of the date of
repurchase, (ii) interest on such unpaid principal balance of such Mortgage Loan
at the Mortgage Interest Rate from the last date through which interest has been
paid and distributed to the Trustee to the date of repurchase, (iii) all
unreimbursed Servicing Advances, (iv) all expenses incurred by the applicable
Servicer or the Trustee, as the case may be, in respect of a breach or defect,
including, without limitation, reasonable and customary expenses arising out of
the applicable Servicer's or Trustee's, as the case may be, enforcement of the
Purchaser's repurchase obligation, to the extent not included in (iii) and (v)
any costs and damages incurred by the Trust in connection with any violation by
such Mortgage Loan of any predatory lending law or abusive lending law.
Request for Release: The Request for Release submitted by the
applicable Servicer to the Trustee, substantially in the form of Exhibit U.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: Each of GreenPoint, IndyMac and Countrywide, as
the context may require, in its capacity as seller under the related Sale
Agreement.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreement: Each of the GreenPoint Sale Agreement, IndyMac
Sale Agreement and Countrywide Sale Agreement.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balances of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period.
Sequential Trigger Event: With respect to any Distribution Date, a
Sequential Trigger Event is in effect if, before the 37th Distribution Date, the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date exceeds 1.00%, or
if, on or after the 37th Distribution Date, a Trigger Event is in effect.
Senior Specified Enhancement Percentage: As of any date of
determination, 16.30%.
Servicer: Each of GreenPoint, IndyMac and Countrywide Servicing in
its capacity as servicer under the related Servicing Agreement, or any successor
servicer appointed pursuant to such Servicing Agreement.
Servicer Remittance Report: As defined in Section 4.02(d).
Servicing Advances: As defined in the related Servicing Agreement.
Servicing Agreement: Each of the GreenPoint Servicing Agreement,
the IndyMac Servicing Agreement and the Countrywide Servicing Agreement.
Servicing Fee: As defined in the related Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, a per annum
rate equal to 0.250% (for certain of these Mortgage Loans, increasing to 0.375%
after the after the first adjustment date of these Mortgage Loans), 0.375%,
0.440%, 0.500% (decreasing to 0.375% after the first adjustment date for these
Mortgage Loans) and 0.750% (decreasing to 0.375% after the first adjustment date
for these Mortgage Loans), as applicable.
Servicing File: As defined in the applicable Servicing Agreement.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 0.85% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 1.70% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Principal Certificates has been
reduced to zero, to a minimum amount equal to 0.50% of the Cut-off Date Pool
Principal Balance; provided, however, that if, on any Distribution Date, a
Trigger Event has occurred, the Specified Overcollateralized Amount shall not be
reduced to the applicable percentage of the then current aggregate Stated
Principal Balance of the Mortgage Loans until the Distribution Date on which a
Trigger Event is no longer occurring; and provided, further, that the Specified
Overcollateralized Amount shall be zero when the Class Certificate Balance of
each Class of Principal Certificates has been reduced to zero.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2005-4, or such other
address as Standard & Poor's may hereafter furnish to the Depositor and the
Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
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 remitted to
the Trustee with respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of scheduled payments of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any scheduled payments of principal
received or advanced prior to the related Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Principal Prepayment Period, and the Stated Principal Balance of any
Mortgage Loan that has prepaid in full or has become a Liquidated Mortgage Loan
during the related Principal Prepayment Period shall be zero.
Step 1 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of March 30, 2005, between the Purchaser,
GreenPoint and the Depositor, attached hereto as Exhibit V-1, (ii) Assignment,
Assumption and Recognition Agreement, dated as of March 30, 2005, between the
Purchaser, IndyMac and the Depositor, attached hereto as Exhibit V-3, and (iii)
Assignment, Assumption and Recognition Agreement, dated as of March 30, 2005,
between the Purchaser, Countrywide, Countrywide Servicing and the Depositor,
attached hereto as Exhibit V-5.
Step 2 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of March 30, 2005, among the Depositor, the
Trustee and GreenPoint, attached hereto as Exhibit V-2, (ii) Assignment,
Assumption and Recognition Agreement, dated as of March 30, 2005, among the
Depositor, the Trustee and IndyMac, attached hereto as Exhibit V-4, and (iii)
Assignment, Assumption and Recognition Agreement, dated as of March 30, 2005,
among the Depositor, the Trustee and Countrywide Servicing and Countrywide,
attached hereto as Exhibit V-6.
Stepdown Date: The earlier to occur of (a) the date on which the
Class Certificate Balances of the Class A Certificates have been reduced to
zero, and (b) the later to occur of (i) the Distribution Date in April 2008, and
(ii) the first Distribution Date on which the Senior Enhancement Percentage is
greater than or equal to the Senior Specified Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Substitution Adjustment Amount: An amount, if any, by which the
aggregate Stated Principal Balances of all Deleted Mortgage Loans (calculated
after application of scheduled principal payments due in the month of
substitution) exceeds the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution.
Tax Matters Person: The Holder of the Class R-1 and Class R-2
Certificates designated as "tax matters person" of the Upper-Tier REMIC and the
Lower-Tier REMIC, respectively, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
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Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the related
Determination Date) or advanced by the Servicer for the related Remittance Date
(net of Expense Fees) over (ii) the sum of the interest payable to the Principal
Certificates on such Distribution Date pursuant to Section 4.01(a)(i).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) on such Distribution Date the quotient (expressed as a
percentage) of (x) the rolling three month average of the aggregate unpaid
principal balance of 60+ Day Delinquent Mortgage Loans, and (y) the aggregate
unpaid principal balance of the Mortgage Loans as of the last day of the related
Due Period equals or exceeds 37% of the Senior Enhancement Percentage as of the
last day of the prior Due Period or (ii) the quotient (expressed as a
percentage) of (x) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the related Principal Prepayment Period
divided by (y) the Cut-off Date Pool Principal Balance exceeds the applicable
percentages set forth below with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
April 2008 - March 2009 1.000% for the first month, plus an
additional 1/12th of 0.500% for
each month thereafter (e.g.,
approximately 1.042% in May 2008)
April 2009 - March 2010 1.500% for the first month, plus an
additional 1/12th of 0.2500% for
each month thereafter (e.g.,
approximately 1.521% in May 2009)
April 2010 and thereafter 1.750%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Excess Reserve Fund Account, the Distribution Account, and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iii) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; (iv) the rights of the Trust under the Step 2
Assignment Agreements; (v) the Interest Rate Corridor Agreement and (vi) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest, and, if a successor trustee is
appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the related Trustee Fee Rate on the
Stated Principal Balance of such Mortgage Loan or, in the event of any payment
of interest which accompanies a Principal Prepayment made by the Mortgagor,
interest at the Trustee Fee Rate on the Stated Principal Balance of such
Mortgage Loan for the period covered by such payment of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0077% per
annum.
Trustee Float Period: With respect to the Distribution Date and the
related amounts in the Distribution Account, the period commencing on the
Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
Underwriters' Exemption: Any exemption listed in footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from Distribution Dates prior to the current Distribution
Date remaining unpaid immediately prior to the current Distribution Date and (b)
interest on the amount in clause (a) at the applicable Pass-Through Rate (to the
extent permitted by applicable law).
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to (a) the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans, (b) multiplied by, in the case of the LIBOR
Certificates, a fraction, the numerator of which is the actual number of days in
the related Interest Accrual Period and the denominator of which is 360.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Trustee for
the benefit of the Certificateholders the following documents or instruments
with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(iii) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if any);
(iv) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording (in the case of GreenPoint Mortgage Loans and the
IndyMac Mortgage Loans, the standard Xxxxxx Xxx/FHLMC condominium rider or
PUD rider must be attached to the Mortgage if the Mortgaged Property is a
condominium or is located in PUD);
(v) originals of any intervening Mortgage assignment or certified
copies in either case evidencing recording; provided that the assignment
may be in the form of a blanket assignment or assignments, a copy of which
with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(vii) except with respect to the Countrywide Mortgage Loans, an
original or copy of a title insurance policy or evidence of title;
(viii) to the extent applicable, an original power of attorney;
(ix) for each GreenPoint Mortgage Loan and IndyMac Mortgage Loan
with respect to which the Mortgagor's name as it appears on the note does
not match the borrower's name on the mortgage loan schedule, one of the
following: the original of the assumption agreement, or a certified copy
thereof, in either case with evidence of recording thereon if required to
maintain the lien of the mortgage or if otherwise required, or, if
recordation is not so required, an original or copy of such assumption
agreement; and
(x) for each GreenPoint Mortgage Loan, a security agreement, chattel
mortgage or equivalent document executed in connection with the Mortgage,
if any.
The Depositor shall deliver to the Trustee the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
From time to time, pursuant to the applicable Sale Agreement, the
Responsible Party may forward to the Trustee additional original documents,
additional documents evidencing an assumption, modification, consolidation or
extension of a Mortgage Loan, in accordance with the terms of the applicable
Sale Agreement. All such mortgage documents held by the Trustee as to each
Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each applicable Mortgage Loan. On the Closing Date, the Trustee shall
provide a written request to each Responsible Party to submit the Assignments of
Mortgage for recordation in the name of the Trustee on behalf of the Trust, at
the Responsible Party's expense, pursuant to the applicable Sale Agreement. The
Trustee shall deliver the Assignment of Mortgages to be submitted for
recordation to the applicable Responsible Party.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Trustee within the time period and in the manner specified in the
applicable Sale Agreement, the Trustee shall take or cause to be taken such
remedial actions under the Sale Agreement against the applicable Responsible
Party as may be permitted to be taken thereunder, including without limitation,
if applicable, the repurchase by the applicable Responsible Party of such
Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that
the Responsible Party cannot 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 the applicable Responsible Party shall instead
deliver a recording receipt of such recording office or, if such recording
receipt is not available, an officer's certificate of an officer of the
applicable Responsible Party, confirming that such document has been accepted
for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Trustee prior to the Closing Date of a copy of such
Mortgage or assignment, as the case may be, certified (such certification to be
an original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home Equity Trust
2005-4" and Deutsche Bank National Trust Company is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans are (a) covered by the Home Ownership and Equity Protection Act
of 1994 or (b) classified as "high cost," "threshold," "predatory" or "covered"
loans under any other applicable state, federal or local law (or a similarly
classified loan using different terminology).
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California,
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each Mortgage Loan. The Trustee shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all documents
required to be delivered to it are in its possession and shall deliver to the
Depositor an Initial Certification, in the form annexed hereto as Exhibit E, and
shall deliver to the Depositor a Document Certification and Exception Report, in
the form annexed hereto as Exhibit F, within 90 days after the Closing Date (or,
with respect to any Substitute Mortgage Loan, within 30 days after the receipt
of the Mortgage File by the Trustee) to the effect that, as to each applicable
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in such certification
as an exception and not covered by such certification): (i) all documents
required to be delivered to it are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items 2, 7, 12 and 30 of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; and (iv) each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement. The Trustee shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Trustee shall enforce the obligation of the Responsible Parties
to cure or repurchase Mortgage Loans that do not conform to the requirements of
Sections 2.01 and 2.02 as determined in the Trustee's review as required herein,
by notifying the applicable Responsible Party to correct or cure such default.
The Trustee shall also enforce the obligation of the Responsible Parties under
the Sale Agreements and the Servicing Agreements and of the Purchaser under the
Step 1 Assignment Agreement and the Depositor under the Step 2 Assignment
Agreement to cure or repurchase Mortgage Loans for which there is a defect or a
breach of a representation or warranty thereunder of which a Responsible Officer
of the Trustee has actual knowledge, by notifying the applicable party to
correct or cure such default. If any Servicer, any Responsible Party or the
Purchaser, as the case may be, fails or is unable to correct or cure the defect
or breach within the period set forth in the applicable agreement, the Trustee
shall notify the Depositor of such failure to correct or cure. Unless otherwise
directed by the Depositor within five (5) Business Days after notifying the
Depositor of such failure by the applicable party to correct or cure, the
Trustee shall notify such party to repurchase the Mortgage Loan. If, within ten
(10) Business Days of receipt of such notice by such party, such party fails to
repurchase such Mortgage Loan, the Trustee shall notify the Depositor of such
failure. At the expense of the Trust, the Trustee shall pursue all legal
remedies available to the Trustee against the Servicers, the Responsible
Parties, the Purchaser and the Depositor, as applicable, under this Agreement,
the Servicing Agreements, the Step 1 Assignment Agreement or the Step 2
Assignment Agreement, as applicable, if the Trustee has received written notice
from the Depositor directing the Trustee to pursue such remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is March 25, 2035, which is the
Distribution Date in the month following the month in which the latest maturity
date of any Mortgage Loan occurs. Amounts paid to the Class X Certificates
(prior to any reduction for any Basis Risk Payment) shall be deemed paid from
the Upper Tier REMIC in respect of the Class X Interest to the holders of the
Class X Certificates prior to distribution of Basis Risk Payments to the
Principal Certificates.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
Trustee, constitutes or will constitute the legal, valid and binding agreement
of the Depositor, enforceable against the Depositor in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder;
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 10.04 hereof; and
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Trustee or to a custodian, as the case may be,
and shall inure to the benefit of the Trustee. Within 30 days of the earlier of
either discovery by or notice to the Depositor of a default or a breach set
forth in clause (h) above that materially and adversely affects the value of any
Mortgage Loan or the interest of the Trustee or the Certificateholders therein,
the Depositor shall use its best efforts to promptly to cure such breach in all
material respects and if such defect or breach cannot be remedied, the Depositor
shall repurchase such Mortgage Loan at the Repurchase Price. The Depositor shall
repurchase each such Deleted Mortgage Loan within 30 days of the earlier of
discovery or receipt of notice with respect to each such Deleted Mortgage Loan.
Within 2-years of Closing Date, the Depositor may substitute any Mortgage Loan
that it is obligated to repurchase with a Qualified Substitute Mortgage Loan.
Any such repurchase or substitution shall be conducted in the same manner as set
forth in the applicable Sale Agreement. The obligations of the Depositor to cure
such breach or to purchase or substitute any Mortgage Loan constitute the sole
remedies respecting a material breach of any such representation or warranty to
the Holders of the Certificates and the Trustee. In the event the Depositor is
required to repurchase or substitute a Mortgage Loan pursuant to this Section
2.05, the Trustee shall assign to the Depositor all rights it has with respect
to such Mortgage Loan under the Step 1 Assignment Agreement and, solely to the
extent related to such Mortgage Loan, under the applicable Sale Agreement.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account. (a)
The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive any Basis Risk Payment and
any Interest Rate Corridor Payment and to secure their limited recourse
obligation to pay to the Principal Certificateholders any Basis Risk Carry
Forward Amounts. On each Distribution Date, the Trustee shall deposit the amount
of any Basis Risk Payment and any Interest Rate Corridor Payment for such date
into the Excess Reserve Fund Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the Trustee
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.01(a)(iii)(G), the lesser of (x)
the Class X Distributable Amount (without regard to the reduction in clause
(iii) of the definition thereof with respect to Basis Risk Payments) (to the
extent remaining after the distributions specified in Sections
4.01(a)(iii)(A)-(F)) and (y) the aggregate Basis Risk Carry Forward Amounts of
the Principal Certificates for such Distribution Date and (2) withdraw from the
Excess Reserve Fund Account amounts necessary (including Interest Rate Corridor
Payments) to pay to such Class or Classes of Certificates the related Basis Risk
Carry Forward Amount. Such payments shall be allocated to those Classes based
upon the amount of Basis Risk Carry Forward Amount owed to each such Class and
shall be paid in the priority set forth in Sections 4.01(a)(iii)(H)-(I).
The Trustee shall account for the Excess Reserve Fund Account as an
asset of grantor trust under subpart E, Part I of subchapter J of the Code and
not as an asset of either Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal income tax purposes, amounts transferred by
the Upper-Tier REMIC to the Excess Reserve Fund Account shall be treated as
distributions by the Trustee to the Class X Certificateholders in respect of the
Class X Interest and then contributed by the Class X Certificateholders to the
Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the Principal Certificateholders shall be accounted for by the Trustee, for
federal income tax purposes, as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest) and then to the respective
Class or Classes of Principal Certificates. In addition, the Trustee shall
account for the Principal Certificateholders' rights to receive payments of
Basis Risk Carry Forward Amounts as rights in a limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of the Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any distributions from the Excess Reserve
Fund Account except as expressly set forth in this Section 3.01(a) and Sections
4.01(a)(iii)(H) - (I).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicers to the Trustee
pursuant to the Servicing Agreements; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that any Servicer shall remit any amount not required
to be remitted pursuant to the applicable Servicing Agreement, and such Servicer
directs the Trustee in writing to withdraw such amount from the Distribution
Account, the Trustee shall return such funds to the applicable Servicer. All
funds deposited in the Distribution Account shall be held by the Trustee in
trust for the Certificateholders until disbursed in accordance with this
Agreement or withdrawn in accordance with Sections 4.01 or 6.03.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Trustee may (but shall not be obligated to) invest funds in the Distribution
Account during the Trustee Float Period (for purposes of this Section 3.02, such
Account is referred to as an "Investment Account"), in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, or maturing on such Distribution Date, in the case of an investment
that is an obligation of the Trustee in its commercial capacity, no later than
the Business Day immediately preceding the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement. On or after the
Remittance Date and prior to the Trustee Float Period, the Depositor may direct
the Trustee to invest funds in the Distribution Account in such Permitted
Investments. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee. The Trustee shall be entitled to sole
possession over each such investment, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trustee or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Trustee. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Trustee may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee during the Trustee
Float Period shall be subject to the Trustee's withdrawal in the manner set
forth in Section 8.06. All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee during any period
other than the Trustee Float Period shall be held for the benefit of the
Depositor, as compensation for the duties to be preformed by it to the extent
provided under this Agreement, and the Trustee shall distribute such funds to
the Depositor on the related Distribution Date.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings. Notwithstanding the foregoing, the Depositor shall be
liable to the Trust for any loss on any investment of funds in the Distribution
Account other than during the Trustee Float Period and the Trustee shall be
liable to the Trust for any such loss only during the Trustee Float Period, and
the Depositor or the Trustee, as the case may be, shall deposit funds in the
amount of such loss in the Distribution Account promptly after such loss is
incurred.
(d) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation is not payable or reimbursable under Section 8.06
of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee shall obtain and verify certain information and documentation
from the other party to this Agreement including, but not limited to, such
party's name, address and other identifying information.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall make the disbursements and transfers from amounts then
on deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) from the Interest Remittance Amounts, to the holders of each
Class of Principal Certificates in the following order of priority:
(A) from the Interest Remittance Amount, the related Accrued
Certificate Interest and any Unpaid Interest Amounts for the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-6
Certificates, allocated pro rata based on their entitlement to those
amounts;
(B) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(C) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amounts, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(G) from any remaining Interest Remittance Amounts, to the
Class B-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(ii) (A) on each Distribution Date (a) before the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of Principal Certificates then entitled to
distributions of principal as set forth below, from Available Funds
remaining after making distributions pursuant to clause (i) above, an
amount equal to the Principal Distribution Amount in the following order
of priority:
(a) first, concurrently to the Class R-1 and Class R-2
Certificates, allocated pro rata, until their respective Class
Certificate Balances have been reduced to zero, and second,
concurrently, and allocated pro rata based on the Class
Certificate Balances of the Class A-1, Class A-2, Class A-3
and Class A-4 Certificates, in the case of clause (1) below,
and on the Class Certificate Balances of the Class A-5 and
Class A-6 Certificates, in the case of clause (2) below:
(1) sequentially, to the Class A-1 Certificates,
until their Class Certificate Balance has been reduced
to zero, then to the Class A-2 Certificates, until their
Class Certificate Balance has been reduced to zero, and
then to the Class A-3 and Class A-4 Certificates,
allocated pro rata, based on their respective Class
Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero; and
(2) to the Class A-5 and Class A-6 Certificates,
allocated pro rata, based on their respective Class
Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero;
provided, that if a Sequential Trigger Event is in
effect (x) principal distributions described in clause
(1) above allocated to the Class A-3 and Class A-4
Certificates will be allocated first to the Class A-3
Certificates, until their Class Certificate Balance has
been reduced to zero, and then to the Class A-4
Certificates, until their Class Certificate Balance has
been reduced to zero, and (y) principal distributions
described in clause (2) above allocated to the Class A-5
and Class A-6 Certificates will be allocated first to
the Class A-5 Certificates, until their Class
Certificate Balance has been reduced to zero, and then
to the Class A-6 Certificates, until their Class
Certificate Balance has been reduced to zero;
(b) sequentially to the Class M-1, Class M-2, Class B-1, Class
B-2, Class B-3 and Class B-4 Certificates, in that order,
until their respective Class Certificate Balances are reduced
to zero;
(B) on each Distribution Date (a) on and after the Stepdown
Date and (b) as long as a Trigger Event is not in effect, to the
holders of the Class or Classes of Principal Certificates then
entitled to distribution of principal, an amount equal to the
Principal Distribution Amount in the following amounts and order of
priority:
(a) concurrently, and allocated pro rata based on the
Class Certificate Balances of the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates, in the case of clause (1)
below, and on the Class Certificate Balances of the Class A-5
and Class A-6 Certificates in the case of clause (2) below,
the lesser of the Principal Distribution Amount and the Class
A Principal Distribution Amount:
(1) sequentially, to the Class A-1 Certificate,
until their Class Certificate Balance has been reduced
to zero, then to the Class A-2 Certificates until their
Class Certificate Balance has been reduced to zero, and
then to the Class A-3 and Class A-4 Certificates
allocated pro rata based on their respective Class
Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero; and
(2) to the Class A-5 and Class A-6 Certificates,
allocated pro rata based on their respective Class
Certificate Balances, until their respective Class
Certificate Balances have been reduced to zero;
(b) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above and (y) the Class M-1 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(c) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above and to the Class M-1 Certificates in clause
(ii)(B)(b) above and (y) the Class M-2 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(d) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above and to the Class M-2 Certificates in clause
(ii)(B)(c) above, and (y) the Class B-1 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(e) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in clause
(ii)(B)(c) above and to the Class B-1 Certificates in clause
(ii)(B)(d) above and (y) the Class B-2 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(f) to the Class B-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in clause
(ii)(B)(c) above, to the Class B-1 Certificates in clause
(ii)(B)(d) above and to the Class B-2 Certificates in clause
(ii)(B)(e) above and (y) the Class B-3 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
(g) to the Class B-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in clause
(ii)(B)(c) above, to the Class B-1 Certificates in clause
(ii)(B)(d) above, to the Class B-2 Certificates in clause
(ii)(B)(e) above and to the Class B-3 Certificates in clause
(ii)(B)(f) above and (y) the Class B-4 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, shall be distributed in the following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class B-3 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the holders of the Class B-4 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(H) from funds on deposit in the Excess Reserve Fund Account
(not including Interest Rate Corridor Payments), an amount equal to
any Basis Risk Carry Forward Amount with respect to any Principal
Certificate for such Distribution Date first, concurrently to the
Class A Certificates, allocated pro rata based on their respective
Basis Risk Carry Forward Amounts, and second, sequentially to the
Class M-1, Class M-2, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, in each case up to their respective unpaid remaining
Basis Risk Carry Forward Amounts;
(I) from any Interest Rate Corridor Payments on deposit in the
Excess Reserve Fund Account with respect to such Distribution Date,
(x) first, concurrently to the Class A Certificates, allocated pro
rata based on their respective remaining unpaid Basis Risk Carry
Forward Amounts (provided that, if for any Distribution Date, after
the allocation of the remaining unpaid Basis Risk Carry Forward
Amounts to the Class A Certificates, the Basis Risk Carry Forward
Amount for any of the Class A Certificates is reduced to zero, any
amount of remaining unpaid Basis Risk Carry Forward Amount that
would have been allocated to that Class A Certificate for that
Distribution Date will instead be allocated, pro rata, based on
their respective remaining unpaid Basis Risk Carry Forward Amounts,
to the other Class A Certificates to the extent the other Class A
Certificates have any remaining unpaid Basis Risk Carry Forward
Amounts), (y) second, sequentially to the Class M-1 Certificates,
the Class M-2 Certificates, the Class B-1 Certificates, the Class
B-2 Certificates, the Class B-3 Certificates and the Class B-4
Certificates, in each case, up to their respective remaining unpaid
Basis Risk Carry Forward Amounts, and then (z) any remaining amounts
to the Class X Certificates;
(J) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.01(a)(iii)(A)-(I);
(K) to the holders of the Class R-1 Certificates, any
remaining amount, in respect of the Upper-Tier REMIC; and
(L) to the holders of the Class R-2 Certificates, any
remaining amount, in respect of the Lower-Tier REMIC.
(iv) Notwithstanding the foregoing, in the event that the Class
Certificate Balances of the Subordinated Certificates and the Class
Certificate Balances of the Class X Certificates have been reduced to
zero, any Principal Distribution Amount allocated to the Class A
Certificates pursuant to clause (ii) of this Section 4.02(a) is required
to be allocated pro rata to the Class A Certificates based on their
respective Class Certificate Balances, except that if a Sequential Trigger
Event is in effect, any principal distributions allocated (1) to the Class
A-3 and Class A-4 Certificates are required to be allocated first to the
Class A-3 Certificates until their Class Certificate Balance has been
reduced to zero and then to the Class A-4 Certificates until their Class
Certificate Balance has been reduced to zero and (2) to the Class A-5 and
Class A-6 Certificates are required to be allocated first to the Class A-5
Certificates until their Class Certificate Balance has been reduced to
zero and then to the Class A-6 Certificates until their Class Certificate
Balance has been reduced to zero.
(v) In the event the Class Certificate Balance of any Class of
Principal Certificates has been reduced to zero, that Class of
Certificates shall no longer be entitled to receive any related unpaid
Basis Risk Carry Forward Amounts except to the extent the Class
Certificate Balance is increased as a result of any Subsequent Recovery.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Principal
Prepayment Period shall be distributed by the Trustee to the holders of the
Class P Certificates.
(c) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
by the Trustee pro rata, as a reduction of the Accrued Certificate Interest
Distribution Amount for the Class A, Class M and Class B Certificates, based on
the Accrued Certificate Interest Distribution Amount to which such Classes would
otherwise be entitled on such Distribution Date.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Depositor and each Rating Agency a statement based upon
the information provided by the Servicers setting forth with respect to the
related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amount included in such distribution and any remaining Unpaid Interest
Amount after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Expense Fees (in the aggregate and separately
stated) paid to or retained by the Trustee and the Servicers with respect
to such Distribution Date or any amount paid to any lender-paid mortgage
insurance;
(vii) the Pass-Through Rate for each Class of Certificates with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicers as outstanding as of the close of business on the Determination
Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Monthly Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Monthly Payments (A) due on all Outstanding Mortgage
Loans on each of the Due Dates in each such month and (B) delinquent 60
days or more on each of the Due Dates in each such month;
(xi) with respect to each Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by or paid by the applicable
Servicer;
(xix) the amount distributed on the Class X Certificates; and
(xx) the amount of any Subsequent Recoveries for such Distribution
Date.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Trustee and the Depositor is
limited to the availability, timeliness and accuracy of the information derived
from the Servicers and the Responsible Parties. The Trustee shall provide the
above statement via the Trustee's internet website. The Trustee's website will
initially be located at xxxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the
website can be obtained by calling the Trustee's investor relations desk at
0-000-000-0000. A paper copy of the above statement will also be made available
upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), and (a)(ii) of this
Section 4.02 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Pursuant to Section 4.2 of the Servicing Agreements, each of the
Servicers has agreed to provide monthly information reports to the Trustee. On
the Closing Date, the Trustee shall request the Servicers to deliver, on a
monthly basis, no later than each Remittance Advice Date a monthly remittance
advice statement containing the information required by the Trustee to calculate
and provide the reports required by Section 4.02(a) as to the accompanying
remittance and the period ending on the close of business on the last Business
Day of the immediately preceding month (or the last day of the Due Period, as
applicable) (the "Servicer Remittance Report"). On an on-going basis, the
Trustee may reasonably request each Servicer to provide additional information
to be included in subsequent Servicer Remittance Reports.
On the Closing Date, the Trustee shall request each Servicer to
furnish an individual loan accounting report, as of the last day of the Due
Period of each month, to document Mortgage Loan payment activity on an
individual Mortgage Loan basis. With respect to each month, the Trustee shall
request each Servicer to furnish the corresponding individual loan accounting
report (in electronic format) to be received by the Trustee no later than the
Remittance Advice Date, 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, and any
Prepayment Premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with the applicable Servicing
Agreements);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) the individual and aggregate Stated Principal Balances of the
Mortgage Loans;
(iv) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to the applicable Servicing
Agreement;
(v) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired; and
(vi) any other information reasonably required by the Trustee to
enable it to prepare the monthly statements referred to in Section
4.02(a).
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated by the Trustee to the most
junior Class of Subordinated Certificates then outstanding in reduction of the
Class Certificate Balance thereof. In the event, Applied Realized Loss Amounts
are allocated to any Class of Certificates, their Class Certificate Balance
shall be reduced by the amount so allocated and no funds shall be distributed
with respect to the written down amounts or with respect to interest or Basis
Risk Carry Forward Amounts on the written down amounts on that Distribution Date
or any future Distribution Dates, even if funds are otherwise available
therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Certificates that has been previously reduced by Applied Realized Loss
Amounts will be increased, in that order or seniority, by the amount of the
Subsequent Recoveries (but not in excess of the Applied Realized Loss Amount
allocated to the applicable Class of Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
"LIBOR." Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided for
in this Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class P and
Class X Certificates in the name of the Depositor or its designee. On a date as
to which the Depositor notifies the Trustee, the Trustee shall transfer the
Class P and Class X Certificates in the name of the NIM Trustee or such other
name or names as the Depositor shall request, and to deliver the Class P and
Class X Certificates to Deutsche Bank National Trust Company, as NIM Trustee, or
to such other Person or Persons as the Depositor shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first class mail to such Certificateholder at the address of such
holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the designated office or agency of the Trustee.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute and authenticate and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the holder thereof or his attorney duly authorized in
writing. In the event, the Depositor or an Affiliate transfers the Class X
Certificates, or a portion thereof, to another Affiliate, it shall notify the
Trustee in writing of the affiliated status of the transferee. The Trustee shall
have no liability regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the initial transfer of the Class X or Class P Certificates
on the Closing Date, (ii) the transfer of the Class P or Class X Certificates to
the NIM Issuer or the NIM Trustee, or (iii) a transfer of the Class X or Class P
Certificates to the Depositor or any Affiliate of the Depositor, in the event
that a transfer of a Private Certificate which is a Physical Certificate is to
be made in reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer shall certify to the Trustee
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit H (the "Transferor Certificate") and either (i) there shall be
delivered to the Trustee a letter in substantially the form of Exhibit I (the
"Rule 144A Letter") or (ii) there shall be delivered to the Trustee at the
expense of the transferor an Opinion of Counsel that such transfer may be made
without registration under the Securities Act. In the event that a transfer of a
Private Certificate which is a Book-Entry Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such transfer will be deemed to have made as of the transfer date each
of the certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee shall cooperate with the Depositor
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor and each Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except with respect to (i) the initial transfer of the Class X or
Class P Certificates on the Closing Date, (ii) the transfer of the Class P or
Class X Certificates to the NIM Issuer or the NIM Trustee or (iii) a transfer of
the Class X or Class P Certificates to the Depositor or any Affiliate of the
Depositor, no transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate or a Residual
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I), to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to any Federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets of
any such plan or arrangement to effect such transfer, (ii) in the case of an
ERISA-Restricted Certificate other than a Residual Certificate or a Class P
Certificate that has been the subject of an ERISA-Qualifying Underwriting and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Residual Certificate or a Class P Certificate presented for
registration in the name of an employee benefit plan subject to Title I of
ERISA, a plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a plan subject to Similar Law, or a
trustee of any such plan or any other person acting on behalf of any such plan
or arrangement or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an
expense of the Trustee, the Depositor or the Trust Fund, addressed to the
Trustee and the Depositor, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee, any Servicer or the Depositor
to any obligation in addition to those expressly undertaken in this Agreement or
to any liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Private Certificate or a Residual
Certificate, in the event the representation letter referred to in the preceding
sentence is not furnished, such representation shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt to transfer to a plan or arrangement subject to Section
406 of ERISA, a plan subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement, without such Opinion of
Counsel, such attempted transfer or acquisition shall be void and of no effect.
Neither the Residual Certificates nor the Class P Certificates may
be sold to any employee benefit plan subject to Title I of ERISA, any plan
subject to Section 4975 of the Code, or any plan subject to any Similar Law or
any person investing on behalf of or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund or the Trustee, to the
effect that the elimination of such restrictions will not cause either REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding or
result in the imposition of any tax on the Trust Fund, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in, a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of definitive, fully-registered Certificates
(the "Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Trustee with an adequate inventory
of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Certificate Registrar in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor and the Trustee such
security or indemnity as may be required by them to hold each of them harmless,
then, in the absence of notice to the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor and
any agent of the Depositor or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Trustee, the Depositor or any agent of the Depositor
or the Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or a Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, such Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
offices of its agent for such purposes, located at DTC Transfer Agent Services,
00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Trustee
will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency. As of the Closing Date, the Trustee
designates the office of its agent located c/o DTC Transfer Agent Services, 00
Xxxxx Xxxxxx, Xxxxxxxx Xxxx Entrance, Xxx Xxxx, Xxx Xxxx 00000 for purposes of
transfers, exchanges or surrenders.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
and respectively imposed upon and undertaken by it herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
or federally chartered savings bank, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any person succeeding to the business of the Depositor,
shall be the successor of the Depositor, as the case may be, 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.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee or agent of the Depositor may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor
and any director, officer, employee or agent of the Depositor shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action (or direct the Trustee to
undertake such actions for the benefit of the Certificateholders) that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund and the Depositor shall be entitled to be
reimbursed therefor out of the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon receipt from
each Servicer of its annual statement of compliance and accountant's report
described in the applicable Servicing Agreement the Trustee shall furnish a copy
thereof to the Depositor. Promptly after the Depositor's receipt thereof, the
Depositor shall review the same and, if applicable, consult with such Servicer
as to the nature of any defaults by such Servicer in the fulfillment of any of
its Servicer's obligations under the applicable Servicing Agreement.
Section 6.05 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase (or
substitute with a Qualified Substitute Mortgage Loan if within 2 years of the
Closing Date) from the Trust any Mortgage Loan that is 90 days or more
delinquent. The purchase price therefor shall be 100% of the unpaid principal
balance of such Mortgage Loan, plus all related accrued and unpaid interest, and
the amount of any unreimbursed Servicing Advances made by the Servicers related
to the Mortgage Loan. For any Mortgage Loans that was substituted with a
Qualified Substitute Mortgage Loan, the Depositor shall remit to the Trustee any
Substitution Adjustment Amount.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
any Servicing Agreement shall occur with respect to the related Servicer then,
and in each and every such case, so long as such Event of Default shall not have
been remedied, the Trustee may, or at the direction of Certificateholders
entitled to a majority of the Voting Right, the Trustee shall, by notice in
writing to the applicable Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of such Servicer under the
applicable Servicing Agreement and in and to the Mortgage Loans and the proceeds
thereof. The Holders of Certificates evidencing at least 66% of the Voting
Rights of Certificates affected by an Event of Default may waive such Event of
Default; provided, however, that (a) an Event of Default with respect to any
Servicer's obligation to make Monthly Advances may be waived only by all of the
holders of the Certificates affected by such Event of Default and (b) no such
waiver is permitted that would materially adversely affect any non consenting
Certificateholder. On and after the receipt by such Servicer of such written
notice of termination, all authority and power of such Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee. The Trustee is hereby authorized and empowered to execute
and deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to 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.
Section 7.02 Trustee to Act; Appointment of Successor. Within 120
days after the Trustee gives, and the applicable Servicer receives, a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 7.03, and subject to the rights of the Depositor to
appoint a successor Servicer pursuant to this Section 7.02, become the successor
to the Servicer in its capacity as servicer under the applicable Servicing
Agreement and the transactions set forth or provided for herein and in such
Servicing Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
of such Servicing Agreement and applicable law including the obligation to make
Monthly Advances or Servicing Advances pursuant to such Servicing Agreement (it
being understood and agreed that if any Servicer fails to make an Advance, the
Trustee shall do so as successor servicer unless a determination has been made
that such Advance would constitute a Nonrecoverable Monthly Advance or a
Nonrecoverable Servicing Advance). As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans that the Servicer would
have been entitled to charge to the Collection Account if the Servicer had
continued to act under the Servicing Agreement including, if the Servicer was
receiving the Servicing Fee at the Servicing Fee Rate set forth in the Servicing
Agreement (as set forth in the Mortgage Loan Schedule with respect to the
related Mortgage Loans,) such Servicing Fee and the income on investments or
gain related to the Collection Account.
Notwithstanding the foregoing, the Trustee may, if it shall be
unwilling to so act, or shall, if it is prohibited by applicable law from making
Monthly Advances and Servicing Advances pursuant to the applicable Servicing
Agreement, or if it is otherwise unable to so act, or, at the written request of
Certificateholders entitled to a majority of the Voting Rights, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to such Servicer under the applicable Servicing Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities of
such Servicer. No such appointment of a successor to a Servicer hereunder shall
be effective until the Depositor shall have consented thereto other than
appointment by the court. Any successor to such Servicer shall be an institution
which is a Xxxxxx Xxx- and Xxxxxxx Mac-approved seller/servicer in good
standing, which has a net worth of at least $25,000,000, which is willing to
service the Mortgage Loans and which executes and delivers to the Depositor and
the Trustee an agreement accepting such delegation and assignment, containing an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of such terminated Servicer, (other than liabilities
of such terminated Servicer incurred prior to termination of such Servicer under
Section 7.01), with like effect as if originally named as a party to this
Agreement; provided that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced as a result of such assignment and delegation.
Pending appointment of a successor to a Servicer hereunder, the Trustee, unless
the Trustee is prohibited by law from so acting, shall, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it, the Depositor and such successor shall agree;
provided, however, that no such compensation shall be in excess of the Servicing
Fee Rate and amounts paid to the Servicer from investments. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor to a Servicer shall be deemed to be in default hereunder by reason of
any failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the predecessor Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor Servicer shall give notice to the Mortgagors of such
change of Servicer, in accordance with applicable federal and state law, and
shall, during the term of its service as servicer, maintain in force the policy
or policies that each Servicer is required to maintain pursuant to the
applicable Servicing Agreement.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor shall have the right to appoint a successor to a
Servicer upon termination of the servicing pursuant to Section 7.01. Any such
successor Servicer shall be required to satisfy the requirements of a successor
Servicer under this Section 7.02.
Notwithstanding the foregoing, the Trustee may not terminate a
Servicer without cause.
Section 7.03 Trustee to Act as Servicer. In the event that a
Servicer shall for any other reason no longer be the Servicer, the Trustee or
another successor Servicer, shall thereupon assume all of the rights and
obligations of the predecessor Servicer hereunder arising thereafter (except
that the Trustee shall not be (i) liable for investment losses of the
predecessor Servicer pursuant to the applicable Servicing Agreement or any acts
or omissions of the predecessor Servicer thereunder, or (ii) responsible for
expenses of the predecessor Servicer pursuant to the applicable Servicing
Agreement).
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Promptly after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance; provided, however, that:
(a) unless an Event of Default of which a Responsible Officer of the
Trustee obtains actual knowledge has occurred and is continuing, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance of
the duties and obligations specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee,
and the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming on their face to the requirements of
this Agreement which it believed in good faith to be genuine and to have been
duly executed by the proper authorities respecting any matters arising
hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 Administration of the Servicers. The Trustee shall (i)
enforce the obligations of the Servicers to service the Mortgage Loans as set
forth in Section 7.01 and (ii) as successor Servicer under Section 7.02, make or
cause to be made Servicing Advances or Monthly Advances in accordance with the
Servicing Agreements in the event a Servicer fails to do so. Notwithstanding the
foregoing, the Trustee, as successor Servicer or otherwise shall not be required
to make any Nonrecoverable Servicing Advance or Nonrecoverable Monthly Advance.
The Trustee shall furnish to the Servicers any powers of attorney in standard
form used by the Trustee or other such documentation (as may be provided from
time to time and in form acceptable to the Trustee), necessary and appropriate
to enable the Servicers to service and administer the related Mortgage Loans and
REO Property.
The Trustee shall provide access to the Mortgage Loan documents in
possession of the Trustee regarding the related Mortgage Loans and REO Property
and the servicing thereof to the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Trustee; provided, however, that, unless otherwise required by law
or any regulatory or administrative agency, the Trustee shall not be required to
provide access to such records and documents if the provisions thereof would
violate the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of the
Trust that covers the Trustee's actual costs.
Upon receipt of a Request for Release by the Servicer, the Trustee
shall release within five Business Days the related Mortgage File to the
Servicer and execute and deliver to the Servicer, without recourse, a request
for reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage (furnished by such Servicer),
together with the Mortgage Note.
The Trustee shall execute and deliver to the Servicers, upon their
request, any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or remedies
provided by the Mortgage Note or Mortgage or otherwise available at law or
equity.
Section 8.03 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
applicable Servicer or, if paid by the Trustee, shall be repaid by the Servicer
upon demand from the applicable Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security and except with respect to the investment of funds in the Distribution
Account not made at the direction of the Depositor during the Trustee Float
Period);
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of an Event of Default, the Trustee shall not be deemed to
have knowledge of an Event of Default, until a Responsible Officer of the
Trustee shall have received written notice thereof except for failure by any
Servicer to remit funds on the Remittance Date to the Trustee or to make Monthly
Advances; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder; and
(l) notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to a Servicer's request of assigning
the Servicing Agreement or the servicing rights thereunder to any other party.
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
countersignature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or any Servicer of any funds paid to the
Depositor or any Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account or the Distribution Account by the
Depositor or any Servicer.
The Trustee shall have no responsibility (i) for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Servicer) (ii) to see to any insurance (unless the Trustee shall have
become the successor Servicer), or (iii) to confirm or verify the contents of
any reports or certificates of the Servicers delivered to the Trustee pursuant
to this Agreement believed by the Trustee to be genuine and to have been signed
or presented by the proper party or parties.
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Trustee Fee for the Distribution Date and,
during the Trustee Float Period, any interest or investment income earned on
funds deposited in the Distribution Account. The Trustee and any director,
officer, employee, or agent of the Trustee shall be indemnified by the Trust
Fund and held harmless against any loss, liability, or expense (including
reasonable attorneys' fees) incurred in connection with any claim or legal
action relating to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of any
Servicer's obligations in connection with a Servicing Agreement for which that
Servicer has performed its obligation to indemnify the Trustee pursuant to
Servicing Agreement, (ii) resulting from any breach of the Responsible Party's
obligations in connection with any Sale Agreement for which it has performed its
obligation to indemnify the Trustee pursuant to the Sale Agreement, or (iii)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misfeasance, the Trust Fund shall pay or reimburse the
Trustee, for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee under this
Agreement or for any other expenses; provided, however, no expense shall be
reimbursed hereunder if it would not constitute an "unanticipated expense
incurred by the REMIC" within the meaning of the REMIC Provisions.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or with
the Servicer and its affiliates; provided, however, that such entity cannot be
an affiliate of the Depositor or of any Servicer other than the Trustee in its
role as successor to any Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicers and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.09, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.09 meeting the qualifications set
forth in Section 8.07. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.07 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, one copy of which shall be delivered to
the Trustee, one copy to the Servicers and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
by the successor Trustee to the Servicers, one complete set to the Trustee so
removed and one complete set to the successor so appointed. The successor
trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicers an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicers and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.07
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the applicable Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.11, such powers, duties, obligations, rights and trusts as the
applicable Servicer and the Trustee may consider appropriate. If either Servicer
shall not have joined in such appointment within 15 days after the receipt by
such Servicer of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of a Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to a
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
Trust REMIC containing such information and at the times and in the manner as
may be required by the Code or state or local tax laws, regulations, or rules,
and furnish to Certificateholders the schedules, statements or information at
such times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of the Lower-Tier REMIC and the
Upper-Tier REMIC be treated as a REMIC on the federal tax return for its first
taxable year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of either Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on either Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other person as may be required to sign such
returns by the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class R-1 and
Class R-2 Certificates shall act as Tax Matters Person for the Upper-Tier REMIC
and the Lower-Tier REMIC, respectively within the meaning of Treasury
Regulations Section 1.860F-4(d), and the Trustee is hereby designated as agent
of such Certificateholder for such purpose (or if the Trustee is not so
permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Trustee shall, as and when necessary
and appropriate, represent each Trust REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of each
Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of either
Trust REMIC, and otherwise act on behalf of each Trust REMIC in relation to any
tax matter or controversy involving it.
The Trustee shall treat the rights of the Class P Certificateholders
to receive Prepayment Premiums, the rights of the Class X Certificateholders to
receive Interest Rate Corridor Payments and amounts in the Excess Reserve Fund
Account (subject to the obligation to pay Basis Risk Carry Forward Amounts) and
the rights of the Principal Certificateholders to receive Basis Risk Carry
Forward Amounts as the beneficial ownership interests in a grantor trust and not
as an obligations of any REMIC created hereunder, for federal income tax
purposes. The Trustee shall file or cause to be filed with the Internal Revenue
Service Form 1041 or such other form as may be applicable and shall furnish or
cause to be furnished, to the Class P, Class X Certificateholders and the
Principal Certificateholders, the respective amounts described above that are
received, in the time or times and in the manner required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value, if any, to each
Class of Certificates of the right to receive Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account. Thereafter, the Depositor shall provide to
the Trustee promptly upon written request therefor any additional information or
data that the Trustee may, from time to time, reasonably request to enable the
Trustee to perform its duties under this Agreement provided, however, that the
Depositor shall not be required to provide any information regarding the
Mortgage Loans after the Closing Date or any information that any Servicer is
required to provide to the Trustee pursuant to the applicable Servicing
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide pursuant to this paragraph accurate information or data to the
Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of either Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to either Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on either Trust REMIC pursuant to Sections 23153 and
24874 of the California Revenue and Taxation Code, if not paid as otherwise
provided for herein, the tax shall be paid by (i) the Trustee if such tax arises
out of or results from negligence of the Trustee in the performance of any of
its obligations under this Agreement, (ii) a Servicer, in the case of any such
minimum tax, and otherwise if such tax arises out of or results from a breach by
the Servicer of any of its obligations under the applicable Servicing Agreement,
(iii) a Responsible Party if such tax arises out of or results from the
Responsible Party's obligation to repurchase a Mortgage Loan pursuant to the
applicable Sale Agreement or (iv) in all other cases, or if the Trustee, the
Servicer or the Responsible Party fails to honor its obligations under the
preceding clause (i), (ii), or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
4.01(a).
For as long as each Trust REMIC shall exist, the Trustee shall act
as specifically required herein, and the Trustee shall comply with any
directions of the Depositor or the Servicer stating that such directions are
being given to assure such continuing treatment. In particular, the Trustee
shall not (a) sell or permit the sale of all or any portion of the Mortgage
Loans or of any investment of deposits in an Account (the maturity of any such
investments shall not be considered a sale hereunder) unless such sale is as a
result of a purchase or repurchase of the Mortgage Loans pursuant to this
Agreement and (b) accept any contribution to either Trust REMIC after the
Startup Day without receipt of a REMIC Opinion.
Section 8.13 Periodic Filings. (a) The Trustee shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying the
reporting requirements under the Exchange Act. The Trustee shall prepare on
behalf of the Trust any Forms 8-K and 10-K customary for similar securities as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder, and the Trustee shall sign and file (via the
Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) such Forms on behalf of the Depositor, if an officer of the Depositor
signs the Certification pursuant to paragraph (b) of this Section 8.13, or
otherwise on behalf of the Trust. In the event the Trustee is signing on behalf
of the Depositor pursuant to the preceding sentence, the Depositor hereby grants
to the Trustee a limited power of attorney to execute and file each such
document on behalf of the Depositor. Such power of attorney shall continue until
the earlier of either (i) receipt by the Trustee from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust.
Notwithstanding the foregoing, the Trustee shall prepare such Form 10-K to be
signed by the Depositor and the Depositor shall sign such form, unless the
Securities and Exchange Commission has indicated that it will accept a
Certification signed by the Depositor where the related Form 10-K is signed by
the Trustee on behalf of the Depositor.
(b) Each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year (or such earlier date as may be required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission),
the Trustee shall file a Form 10-K in substance as required by applicable law or
applicable Securities and Exchange Commission staff's interpretations, with
respect to the Trust Fund. Such Form 10-K shall include as exhibits the
Servicer's annual statement of compliance described in the applicable Servicing
Agreement (upon which the Trustee may rely in delivering its certification
hereunder) and the accountant's report described in the applicable Servicing
Agreement, in each case to the extent they have been timely delivered to the
Trustee. If they are not so timely delivered, the Trustee shall file an amended
Form 10-K including such documents as exhibits reasonably promptly after they
are delivered to the Trustee. The Trustee shall have no liability with respect
to any failure to properly prepare or file such periodic reports resulting from
or relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The Form
10-K shall also include a certification in the form attached hereto as Exhibit
J, with such changes as may be necessary or appropriate as a result of changes
promulgated by the Securities and Exchange Commission (the "Certification"),
which shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Trustee shall sign a certification (in the form attached
hereto as Exhibit K with such changes as may be necessary or appropriate as a
result of changes promulgated by the Securities and Exchange Commission) for the
benefit of the Depositor and its officers, directors and Affiliates in respect
of items 1 through 3 of the Certification; provided, however, that the Trustee
shall not undertake an analysis of the accountant's report attached as an
exhibit to the Form 10-K. Such certification shall be delivered to the Depositor
by March 20th of each year (or if not a Business Day, the immediately preceding
Business Day). The Certification attached hereto as Exhibit J shall be delivered
to the Trustee for filing by March 25th of each year (or if not a Business Day,
the immediately preceding Business Day). In addition, the Trustee shall
indemnify and hold harmless the Depositor and its officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Trustee's obligations
under this Section 8.13(c) or the Trustee's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Depositor, then the Trustee
agrees in connection with a breach of the Trustee's obligations under this
Section 8.13(c) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification with respect to the Trust.
Section 8.14 Tax Classification of the Excess Reserve Fund Account
and the Interest Rate Corridor Agreement. For federal income tax purposes, the
Trustee shall treat the Excess Reserve Fund Account and the Interest Rate
Corridor Agreement as beneficially owned by the holder of the Class X
Certificates and shall treat such portion of the Trust Fund as a grantor trust
under subpart E, Part I of subchapter J of the Code. The Trustee shall treat the
rights that each Class of Principal Certificates has to receive payments of
Basis Risk Carry Forward Amounts from the Excess Reserve Fund Account as rights
to receive payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each Class. Accordingly, each Class of Principal
Certificates will be comprised of two components--a regular interest in the
Upper-Tier REMIC and an interest in an interest rate cap contract and the Class
X Certificates will be comprised of three components--a regular interest in the
Upper-Tier REMIC, an interest in the Interest Rate Corridor Agreement and
ownership of the Excess Reserve Fund Account, subject to an obligation to pay
Basis Risk Carry Forward Amounts. The Trustee shall allocate the issue price for
a Class of Certificates among these components for purposes of determining the
issue price of the Upper-Tier Regular Interest component based on information
received from the Depositor. Unless otherwise advised by the Depositor in
writing, for federal income tax purposes, the Trustee is hereby directed to
assign a value of zero to the right of each Holder of a Principal Certificate to
receive the related Basis Risk Carry Forward Amount for purposes of allocating
the purchase price of an initial Principal Certificateholder between such right
and the related Upper-Tier Regular Interest.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of (a) the purchase, on or after the Optional
Termination Date, by GreenPoint or any other Eligible Party at the direction of
the Majority Class X Certificateholder of all Mortgage Loans (and REO
Properties) at the price (the "Termination Price") equal to the greater of (1)
the sum of (i) 100% of the unpaid principal balance of each Mortgage Loan (other
than in respect of REO Property) plus accrued and unpaid interest thereon at the
applicable Mortgage Interest Rate, and (ii) the lesser of (x) the appraised
value of any REO Property as determined by the higher of two appraisals
completed by two independent appraisers selected by the party exercising the
right to purchase the Mortgage Loans, at its expense, plus accrued and unpaid
interest on the related mortgage loans at the applicable mortgage rate and (y)
the unpaid principal balance of each Mortgage Loan related to any REO Property,
in each case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate and (2) the aggregate fair market value of each Mortgage Loan and
any REO Property, as determined by the highest bid received by the Trustee from
closed bids solicited by the Depositor or its designee from at least three
recognized broker/dealers (one of which may be an affiliate of the Depositor)
that deal in similar assets) as of the close of business on the third Business
Day preceding the date upon which a Notice of Final Distribution is furnished to
Certificateholders pursuant to Section 9.02, plus accrued and unpaid interest on
the Mortgage Loans at the applicable Mortgage Interest Rate; and (b) the later
of (i) the maturity or other liquidation (or any Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. If the Depositor
or its affiliate is a Class X Certificateholder, the Depositor may only exercise
its right to direct GreenPoint or any other Eligible Party to purchase the
Mortgage Loans pursuant to this Section 9.01 with at least one other
unaffiliated Person that holds at least a 10% interest in the Class X
Certificates. In no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Section 9.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicers notify the Trustee that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Trustee shall promptly send a Notice of
Final Distribution to the applicable Certificateholders. If the Majority Class X
Certificateholder elects to direct GreenPoint or any other Eligible Party to
terminate the Trust Fund pursuant to clause (a) of Section 9.01, at least 20
days prior to the date the Notice of Final Distribution is to be mailed to the
affected Certificateholders, the Majority Class X Certificateholder shall enter
into an agreement with GreenPoint or such other Eligible Party ("Optional
Termination Agreement"), which, among other things, shall require GreenPoint or
such other Eligible Party to notify the Trustee of the date the Majority Class X
Certificateholder intends to terminate the Trust Fund and of the applicable
repurchase price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not later than the 15th day of the month of
such final distribution. Any such Notice of Final Distribution shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event GreenPoint or any such other Eligible Party purchases
the Mortgage Loans (and REO Properties) pursuant to Section 9.01(a) prior to the
Remittance Date, Optional Termination Agreement shall require the Majority Class
X Certificateholder to remit to GreenPoint or any such other Eligible Party the
applicable Termination Price on the Business Day immediately preceding the
Remittance Date of the related month and require GreenPoint or any such other
Eligible Party to remit such funds to the Trustee on such Remittance Date. In
the event GreenPoint or any such other Eligible Party purchases the Mortgage
Loans (and REO Properties) pursuant to Section 9.01(a) after the Remittance
Date, the Optional Termination Agreement shall require the Majority Class X
Certificateholder to remit the applicable Termination Price in immediately
available funds to GreenPoint or any such other Eligible Party one Business Day
after such Notice of Final Determination is given and shall require GreenPoint
or any such other Eligible Party to remit such funds to the Trustee at least two
Business Days prior to the applicable Distribution Date. GreenPoint or any such
other Eligible Party shall be entitled to reasonably rely on a representation
from the Majority Class X Certificateholder that it is the Majority Class X
Certificateholder and is entitled under this Agreement to direct GreenPoint or
any such other Eligible Party to terminate the Trust Fund. The Majority Class X
Certificateholder shall reimburse GreenPoint or any such other Eligible Party
for its reasonable out of pocket expenses incurred in connection with its
termination of the Trust Fund at the direction of the Majority Class X
Certificateholder and shall indemnify and hold harmless GreenPoint or any such
other Eligible Party for any losses, liabilities or expenses resulting from any
claims directly resulting from or relating to the termination of the Trust Fund
at the direction of the Majority Class X Certificateholder, except to the extent
such losses, liabilities or expenses arise out of or result from GreenPoint's or
any such other Eligible Party's negligence, bad faith or willful misconduct.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release to
the Majority Class X Certificateholder as GreenPoint's or any such other
Eligible Party's designee (as shall be provided in the Optional Termination
Agreement) the Custodial Files for the Mortgage Loans. GreenPoint or any such
other Eligible Party is an intended third party beneficiary with respect to its
rights to reimbursement and indemnification under this Section 9.02.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due the Depositor and the Trustee hereunder), in
each case on the final Distribution Date and in the order set forth in Section
4.01, in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificate), the
Certificate Balance thereof plus for each such Class and the Class X Certificate
accrued interest thereon in the case of an interest-bearing Certificate and all
other amounts to which such Classes are entitled pursuant to Section 4.01, (ii)
as to the Residual Certificates, the amount, if any, which remains on deposit in
the Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event the
Majority Class X Certificateholder directs GreenPoint or any other Eligible
Party to purchase the Mortgage Loans as provided in Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trustee has been supplied with an Opinion of Counsel, at the expense
of the Majority Class X Certificateholder, to the effect that the failure to
comply with the requirements of this Section 9.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on either Trust REMIC as
defined in Section 860F of the Code, or (ii) cause either Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the Majority Class X Certificateholder, as GreenPoint or any such other Eligible
Party designee (as shall be provided in the Optional Termination Agreement),
and, by the next Distribution Date after such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each of
the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation period for
each such REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Majority Class X Certificateholder at the direction of GreenPoint or
any such other Eligible Party.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor and the Trustee (and the Trustee may request an amendment
or consent to any amendment of a Servicing Agreement as directed by the
Depositor) without the consent of any of the Certificateholders (i) to cure any
ambiguity or mistake, (ii) to correct any defective provision herein or in the
applicable Servicing Agreement, or to supplement any provision in this Agreement
which may be inconsistent with any other provision herein, (iii) to add to the
duties of the Depositor or the Trustee (or with respect to the applicable
Servicing Agreement, of the applicable Servicer), (iv) to add any other
provisions with respect to matters or questions arising hereunder or under the
applicable Servicing Agreement, or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement or in the
applicable Servicing Agreement; provided that any action pursuant to clause (iv)
or (v) above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the requesting party, but in any case shall not
be an expense of the Trustee or the Trust Fund), adversely affect in any
material respect the interests of any Certificateholder; provided, further, that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee and the Depositor also may at any time
and from time to time amend this Agreement (and the Trustee shall request the
Servicers amend the applicable Servicing Agreement), without the consent of the
Certificateholders, to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk of
the imposition of any tax on either Trust REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code; provided, that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor and the Trustee (and the Trustee shall consent to any amendment to the
applicable Servicing Agreement as directed by the Depositor) with the consent of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 662/3% of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or the applicable Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 662/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement or any Servicing
Agreement unless (i) it shall have first received an Opinion of Counsel, which
opinion shall not be an expense of the Trustee or the Trust Fund, to the effect
that such amendment will not cause the imposition of any tax on either Trust
REMIC or the Certificateholders or cause either the Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding and (ii)
the party seeking such amendment shall have provided written notice to the
Rating Agencies (with a copy of such notice to the Trustee) of such amendment,
stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or a Servicer under the applicable Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Responsible Party or any of its Affiliates shall be deemed not to be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
any Servicing Agreement requiring the consent of Certificateholders, the Trustee
shall furnish written notification of the substance or a copy of such amendment
to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement or the
applicable Servicing Agreement and that all requirements for amending this
Agreement or such Servicing Agreement have been complied with; and (ii) either
(A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Notwithstanding the Trustee's consent to, or request for, any
amendment of any Servicing Agreement pursuant to the terms of this Section
10.01, such Servicing Agreement cannot be amended without the consent of the
applicable Servicer. The Trustee shall not be responsible for any failure by
such Servicer to consent to any amendment to the applicable Servicing Agreement.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation shall be
effected by the Trustee at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Trustee.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in either of such assets, then (i) this
Agreement shall be deemed to be a security agreement within the meaning of the
Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of a Servicer or the Trustee
and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement any Assignment Agreement or the Sale Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
(i) Each report to Certificateholders described in Section 4.02;
(ii) The Servicer's annual statement of compliance and the
accountant's report described in the Servicing Agreements; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and any Sale Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor or GS Mortgage Securities Corp. or Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx
X. Xxxxxxx and Asset Management Group/Senior Asset Manager, or such other
address as may be hereafter furnished to the Trustee by the Depositor in
writing; (b) in the case of the Trustee to the Corporate Trust Office, Deutsche
Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attention: Trust Administration GS0504, or such other address as the
Trustee may hereinafter furnish to the Depositor, the Responsible Party and the
Services, (c) in the case of IndyMac, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 Attention: Secondary Marketing, or such other address as may be
hereafter furnished to the Depositor and the Trustee by IndyMac in writing; (d)
in the case of Countrywide or Countrywide Servicing, to Countrywide Home Loans
Servicing LP, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Investor Accounting, or such other address as may be hereafter furnished to the
Depositor and the Trustee by Countrywide in writing; (e) in the case of
GreenPoint, GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx, or such other address as may be
hereafter furnished to the Depositor and the Trustee by GreenPoint in writing;
and (e) in the case of each of the Rating Agencies, the address specified
therefor in the definition corresponding to the name of such Rating Agency.
Notices to Certificateholders shall be deemed given when mailed, first class
postage prepaid, to their respective addresses appearing in the Certificate
Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE 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 AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Associate
By: /s/ Hang Xxx
-------------------------------------
Name: Hang Xxx
Title: Authorized Signer
SCHEDULE I
Mortgage Loan Schedule
(Delivered to the Trustee on Closing Date)
EXHIBIT A
FORM OF CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5, CLASS A-6
CLASS M-1, CLASS M-2, CLASS B-1, CLASS B-2, CLASS B-3 AND B-4 CERTIFICATES
[To be added to the Class B-4 Certificates while they remain Private
Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR LETTER")
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT I
TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.]
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
[To be added to the Class B-4 Certificates while such Certificates remain
Private Certificates: NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR
A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE
IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE
COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE OR THE DEPOSITOR OR
ANY SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE
TRUST AGREEMENT OR TO ANY LIABILITY. ANY TRANSFEREE (INCLUDING ANY TRANSFEREE
THAT ACQUIRES AN INTEREST IN A BOOK-ENTRY CERTIFICATE) THAT DOES NOT PROVIDE THE
REPRESENTATION LETTER OR OPINION OF COUNSEL DESCRIBED IN THE PRECEDING SENTENCE
WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AS PROVIDED IN THE
REPRESENTATION LETTER. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR
IN THE TRUST AGREEMENT, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW IN VIOLATION OF
THESE REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all
Certificates of this Class : Class Principal Amount
Class A-1 $185,000,000
Class A-2 $56,332,000
Class A-3 $59,769,000
Class A-4 $6,640,000
Class A-5 $214,912,000
Class A-6 $23,879,000
Class M-1 $16,958,000
Class M-2 $11,306,000
Class B-1 $6,248,000
Class B-2 $2,975,000
Class B-3 $2,975,000
Class B-4 $2,975,000
CUSIP : Class CUSIP No.
Class A-1 36242D ZJ 5
Class A-2 36242D ZK 2
Class A-3 36242D ZL 0
Class A-4 36242D ZM 8
Class X-0 00000X XX 6
Class A-6 36242D ZP 1
Class M-1 36242D ZQ 9
Class M-2 36242D ZR 7
Class B-1 36242D ZS 5
Class B-2 36242D ZT 3
Class B-3 36242D ZU 0
Class B-4 36242D ZV 8
ISIN : Class
Class A-1 US36242DZJ52
Class A-2 US36242DZK26
Class A-3 US36242DZL09
Class A-4 US36242DZM81
Class A-5 US36242DZN64
Class A-6 US36242DZP13
Class M-1 US36242DZQ95
Class M-2 US36242DZR78
Class B-1 US36242DZS51
Class B-2 US36242DZT35
Class B-3 US36242DZU08
Class B-4 US36242DZV80
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates, Series 2005-4
[Class A-1][Class A-2][Class A-3][Class A-4] [Class A-5] [Class A-6]
[Class M-1][Class M-2][Class B-1][Class B-2] [Class B-3] [Class B-4]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") between GS Mortgage Securities Corp., as
depositor (the "Depositor") and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:
-------------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-4 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Percentage Interest of
this Certificate
("Denomination") : [__]
CUSIP : 36242D ZX 4
ISIN : US36242DZX47
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates, Series 2005-4
Class P
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") between GS Mortgage
Securities Corp., as depositor (the "Depositor") and Deutsche Bank National
Trust Company, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Trust Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in the form
attached to the Agreement, or (ii) a written Opinion of Counsel to the Trustee
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:
------------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-4 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor or the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS R-1 AND CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [R-1][R-2]
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balance
of all Certificates of this
Class: : $100
CUSIP : [36242D ZY 2] [36242D ZZ 9]
ISIN : [US36242DZY20] [US36242DZZ94]
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates, Series 2005-4
Class [R-1] [R-2]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class [R-1] [R-2] Certificate has is not
entitled to distributions in respect of interest. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_____________________] is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class [R-1] [R-2] Certificates pursuant to a Trust Agreement dated as of the
Cut-Off Date specified above (the "Agreement") between GS Mortgage Securities
Corp., as depositor (the "Depositor") and Deutsche Bank National Trust Company,
as trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class [R-1]
[R-2] Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class [R-1] [R-2] Certificate shall be made unless
the Trustee shall have received a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee or the Trust Fund. In the event that such representation
is violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class [R-1] [R-2] Certificate shall be deemed by
the acceptance or acquisition an Ownership Interest in this Class [R-1] [R-2]
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class [R-1] [R-2]
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring any Ownership Interest in this Class [R-1] [R-2]
Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee, (ii) no Ownership Interest in this Class [R-1] [R-2] Certificate may
be registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Trustee under Section 5.02(b) of
the Agreement, the Trustee shall have been furnished with a Transfer Affidavit
of the initial owner or the proposed transferee in the form attached as Exhibit
G to the Agreement, (iii) each Person holding or acquiring any Ownership
Interest in this Class [R-1] [R-2] Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest this Class [R-1] [R-2] Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class [R-1]
[R-2] Certificate, (C) not to cause income with respect to the Class [R-1] [R-2]
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class [R-1] [R-2] Certificate or to cause the Transfer of the Ownership Interest
in this Class [R-1] [R-2] Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee and (iv) any attempted
or purported Transfer of the Ownership Interest in this Class [R-1] [R-2]
Certificate in violation of the provisions herein shall be absolutely null and
void and shall vest no rights in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:
------------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-4 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the monthly immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor or the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND
WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR OR ANY SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Percentage Interest of this
Certificate ("Denomination") : [__]%
CUSIP : 36242D ZW 6
ISIN : US36242DZW63
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates, Series 2005-4
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") between GS Mortgage
Securities Corp., as depositor (the "Depositor") and Deutsche Bank National
Trust Company, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purposes.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Trust Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in the form
attached to the Agreement, or (ii) a written Opinion of Counsel to the Trustee
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:
------------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-4
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-4 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor or the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Trust Agreement, dated as of March 1, 2005, between
GS Mortgage Securities Corp. and Deutsche Bank National Trust
Company
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Trustee, for each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
listed in the attached schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse";
and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Trustee has made no determination and makes no representations as
to whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:
------------------------------------
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Trust Agreement, dated as of March 1, 2005, between
GS Mortgage Securities Corp. and Deutsche Bank National Trust
Company
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Trustee, hereby certifies
that as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full or listed on the attached Document Exception
Report) it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(c) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if any);
(d) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording (in the case of GreenPoint Mortgage Loans and the
IndyMac Mortgage Loans, the standard Xxxxxx Xxx/FHLMC condominium rider or
PUD rider must be attached to the Mortgage if the Mortgaged Property is a
condominium or is located in PUD);
(e) originals of any intervening Mortgage assignment or certified
copies in either case evidencing recording; provided that the assignment
may be in the form of a blanket assignment or assignments, a copy of which
with evidence of recording shall be acceptable;
(f) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(g) except with respect to the Countrywide Mortgage Loans, an
original or copy of a title insurance policy or evidence of title;
(h) to the extent applicable, an original power of attorney;
(i) for each GreenPoint Mortgage Loan and IndyMac Mortgage Loan with
respect to which the Mortgagor's name as it appears on the note does not
match the borrower's name on the mortgage loan schedule, one of the
following: the original of the assumption agreement, or a certified copy
thereof, in either case with evidence of recording thereon if required to
maintain the lien of the mortgage or if otherwise required, or, if
recordation is not so required, an original or copy of such assumption
agreement; and
(j) except with respect to Countrywide Mortgage Loans and IndyMac
Mortgage Loans, a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 7, 12 and 30 of the
Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Trustee has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:
------------------------------------
Name:
Title:
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2005-4,
Asset-Backed Certificates, Series 2005-4
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class [R-1][R-2] Certificate
(the "Certificate") issued pursuant to the Trust Agreement (the "Agreement"),
between GS Mortgage Securities Corp. (the "Depositor") and Deutsche Bank
National Trust Company (the "Trustee"). Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
[ ] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S.
Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith.
[ ] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors,
by its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of __________________, 20__.
-
-----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
------------------------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________ , 20__.
- -
---------------------------------------
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee,
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAA Home Equity Trust 2005-4, Asset-Backed Certificates
Series 2005-4, Class [__]__
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
----------------------------------------
Print Name of Transferor
By:
-------------------------------------
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee,
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAA Home Equity Trust 2005-4, Asset-Backed Certificates,
Series 2005-4, Class _[__]__
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class A-1 Certificate,
Class A-2 Certificate, Class A-3 Certificate, Class A-4 Certificate, Class A-5
Certificate, Class A-6 Certificate, Class M-1 Certificate, Class M-2
Certificate, Class B-1 Certificate, Class B-2 Certificate, or a Class B-3
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such acquisition or, with
respect to a Class B-4 or Class X Certificate, the purchaser is an insurance
company that is purchasing this certificate with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $____________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
-----------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State, territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
----------------------------------------
Print Name of Transferee
By:
-------------------------------------
Name:
Title:
Date:
----------------------------------
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies that owned in the
aggregate $________ in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
----------------------------------------
Print Name of Transferee
By:
-------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
-----------------------------------
EXHIBIT J
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
GSAA Home Equity Trust 2005-4 (the "Trust")
Asset-Backed Certificates
Series 2005-4
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual Report"), and
all reports on Form 8-K containing distribution date reports (collectively
with this Annual Report, the "Reports") filed in respect of periods
included in the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the applicable
Servicing Agreement for inclusion in the Reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Trustee in
accordance with the terms of the applicable Servicing Agreement, and
except as disclosed in the Reports, the Servicer has fulfilled its
obligations under the applicable Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the applicable
Servicing Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Trustee
and the Servicer.
Date:
-------------------------
-------------------------------
[Signature] [Title]
EXHIBIT K
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAA Home Equity Trust 2005-4 (the "Trust") Asset-Backed
Certificates Series 2005-4, issued pursuant to the Trust Agreement,
dated as of March 1, 2005 (the "Trust Agreement"), between GS
Mortgage Securities Corp., as depositor (the "Depositor") and
Deutsche Bank National Trust Company, as trustee (the "Trustee")
-------------------------------------------------------------------
I, [identify the certifying individual], a [title] of Deutsche Bank
National Trust Company, certify to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10 K (the "Annual
Report") for the fiscal year [___], and all reports on Form 8
K containing distribution reports filed in respect of periods
included in the year covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports, taken
as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last
day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing
information required to be provided to the Trustee by
GreenPoint Mortgage Funding, Inc., IndyMac Bank, F.S.B.,
Countrywide Home Loans Servicing LP., as servicers for
inclusion in the Reports is included in the Reports.
Date:
By:
------------------------------------
[Signature]
[Title]
EXHIBIT L
MASTER MORTGAGE LOAN PURCHASE AGREEMENT, DATED
AS OF APRIL 1, 2004, AS AMENDED BY AMENDMENT NO. 1,
DATED AS OF JULY 1, 2004, AND AS FURTHER AMENDED BY
AMENDMENT NO. 2, DATED AS OF JANUARY 1, 2005, BETWEEN
GREENPOINT MORTGAGE FUNDING, INC. AND XXXXXXX XXXXX
MORTGAGE COMPANY
GREENPOINT MORTGAGE FUNDING, INC.
as Seller
and
XXXXXXX SACHS MORTGAGE COMPANY,
as Purchaser
------------------------------------------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of April 1, 2004
------------------------------------------------
Fixed and Adjustable Rate Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I
DEFINITIONS
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans...............
Section 2.02 Due Diligence by the Purchaser...............................
Section 2.03 Identification of Mortgage Loan Package......................
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence...................................................
Section 2.05 Delivery of Collateral Files.................................
Section 2.06 Purchase Confirmation........................................
Section 2.07 Closing......................................................
Section 2.08 Payment of the Purchase Proceeds.............................
Section 2.09 Entitlement to Payments on the Mortgage Loans................
Section 2.10 Payment of Costs and Expenses................................
Section 2.11 MERS Mortgage Loans and the MERS System......................
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Greenpoint.........
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans..............................................
Section 3.03 Remedies for Breach of Representations and Warranties........
Section 3.04 Accrual of Cause of Action...................................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Greenpoint to Act as Servicer................................
ARTICLE V
COVENANTS BY GREENPOINT
Section 5.01 Indemnification by Greenpoint................................
Section 5.02 [RESERVED]...................................................
Section 5.03 Merger or Consolidation of Greenpoint........................
Section 5.04 Limitation on Liability of Greenpoint and Others.............
Section 5.05 No Transfer of Servicing.....................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices......................................................
Section 6.02 Sale Treatment...............................................
Section 6.03 Exhibits.....................................................
Section 6.04 General Interpretive Principles..............................
Section 6.05 Reproduction of Documents....................................
Section 6.06 Further Agreements...........................................
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers......................................
Section 6.08 Conflicts between Transaction Documents......................
Section 6.09 Governing Law................................................
Section 6.10 Severability Clause..........................................
Section 6.11 Successors and Assigns.......................................
Section 6.12 Relationship of Parties......................................
Section 6.13 Solicitation of Mortgagor....................................
Section 6.14 Confidentiality..............................................
Section 6.15 Entire Agreement.............................................
EXHIBITS
--------
Exhibit A Schedule of Collateral Documents.............................
Exhibit B Form of Purchase Confirmation................................
Exhibit C [RESERVED]...................................................
Exhibit D Form of Trade Confirmation...................................
Exhibit E Mortgage File................................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of April 1, 2004 (the "Agreement"), between Greenpoint Mortgage Funding,
Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Greenpoint"), and
Xxxxxxx Xxxxx Mortgage Company, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Purchaser").
R E C I T A L S
- - - - - - - -
The Purchaser has agreed to purchase from Greenpoint and Greenpoint
has agreed to sell from time to time to the Purchaser all of Greenpoint's right,
title and interest, excluding servicing rights, in and to those certain mortgage
loans identified in a Purchase Confirmation (as defined below) executed by
Greenpoint and the Purchaser. This Agreement is intended to set forth the terms
and conditions by which Greenpoint shall transfer and the Purchaser shall
acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Greenpoint and the Purchaser agree
as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Mae or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
ALTA: The American Land Title Association or any successor thereto.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less;
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.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of New York are authorized or obligated by law or
executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares
and a Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: The file retained by Greenpoint that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Greenpoint on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 4.4 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The letter agreement that governs the temporary
retention of the Collateral Files by the Custodian with respect to a Closing
Date.
Custodian: Deutsche Bank National Trust Company, its successor in
interest or assign, or such other custodian that may be designated by the
Purchaser from time to time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
federal or state chartered depository institution the short term debt
obligations of which are rated by a nationally recognized statistical rating
agency in its highest rating categories at the time of any deposit therein and
(ii) the deposits of which are insured up to the maximum permitted by the FDIC.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1 of the Servicing Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide, and all amendments or additions thereto.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended and in effect from time to time.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
Greenpoint: Greenpoint Mortgage Funding, Inc., or any successor or
assign to Greenpoint under this Agreement as provided herein.
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 Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Greenpoint in connection with
the liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Greenpoint to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Greenpoint is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Cooperative
Loan, the mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien , upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security 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 Cooperative Loan
and the related Cooperative Lease.
Mortgage File: With respect to any Mortgage Loan, the items listed
in Exhibit E hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Other Insurance Proceeds, REO Disposition proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Seller's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Cooperative Loan, of the related Cooperative Unit); (3) a code indicating
whether the Mortgagor is self-employed; (4) a code indicating whether the
Mortgaged Property is owner-occupied, investment property or a second home; (5)
a code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence,
condominium, manufactured housing, mixed-use property, raw land and other
non-residential properties, planned unit development or cooperative stock in a
cooperative housing corporation; (6) the purpose of the Mortgage Loan; (7) the
type of Mortgage Loan (i.e., Fixed Rate or Adjustable Rate Mortgage Loan); (8)
the Mortgage Interest Rate at origination; (9) the current Mortgage Interest
Rate; (10) whether the Mortgage Loan has Monthly Payments that are interest only
for a period of time; (11) the Servicing Fee Rate; (12) the current Monthly
Payment; (13) the original term to maturity; (14) the remaining term to
maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (16) the LTV at origination and if the Mortgage Loan
has a second lien, combined LTV at origination; (17) the actual principal
balance of the Mortgage Loan as of the Cut-off Date; (18) social security number
of the Mortgagor; (19) a code indicating whether the Mortgage Loan has negative
amortization and the maximum amount of such negative amortization; (20) a code
indicating whether the Mortgage Loan had a second lien at origination; (21) if
the Mortgage Loan has a second lien, combined loan balance as of the Cut-off
Date; (22) a code indicating whether the Mortgaged Property is a leasehold
estate; (23) the due date of the Mortgage Loan; (24) whether the Mortgage Loan
is insured by a PMI Policy and the name of the insurer; (25) the certificate
number of the PMI Policy; (26) the amount of coverage of the PMI Policy; (27)
the type of appraisal; (28) a code indicating whether the Mortgage Loan is a
MERS Mortgage Loan; (29) a code indicating whether the Mortgage Loan is subject
to a prepay penalty and the terms of such prepayment penalty; (30) documentation
type (including asset and income type); (31) first payment date; (32) the
schedule of the payment delinquencies in the prior 12 months; (33) FICO score;
(34) the Mortgagor's name; (35) the stated maturity date; and (36) the original
principal amount of the Mortgage. With respect to any Adjustable Rate Mortgage:
(a) the Gross Margin; (b) the Periodic Rate Cap; (c) the Lifetime Rate Cap; (d)
the first Interest Adjustment Date cap and the Interest Adjustment Date
frequency; (e) the minimum Mortgage Interest Rate; (f) the first Interest
Adjustment Date immediately following the Cut-off Date; and (g) the Index,
including the methodology for rounding (e.g. rounded upward, if necessary, to
the next nearest ten thousandth (.0001)) and the applicable time frame for
determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative 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 and their successors in
title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Greenpoint would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
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 Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02, are intended to be sold under this
Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
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.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), 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.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Greenpoint and the Purchaser in connection with
the purchase and sale of each Mortgage Loan Package, which sets forth the terms
relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Greenpoint in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 6.07.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Credit File or the Mortgage File, (b) the absence of a
document in the Credit File or Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made by
Greenpoint, but, in each case, only if the affected Mortgage Loan would cease to
qualify as a "qualified mortgage" for purposes of the REMIC provisions.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Greenpoint in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., an Adjustable Rate
Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 6.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate in writing.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Greenpoint of any REO Property or
the transfer of the management of such REO Property to the Purchaser as set
forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Greenpoint on behalf
of the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan as of the date of
repurchase plus (ii) interest on such Stated Principal Balance at the Mortgage
Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect to
any Mortgage Loan included in a Pass-Through Transfer, damages incurred by the
Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law provided, however, that if at the time of repurchase the Servicer is
not the Seller or an affiliate of the Seller, the amount described in clause
(ii) shall be computed at the sum of (a) the Mortgage Loan Remittance Rate and
(b) the Servicing Fee Rate.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicing Agreement: The agreement dated as of April 1, 2004 and
signed by the Purchaser and Greenpoint with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Greenpoint, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion of such
Monthly Payment collected by Greenpoint, or as otherwise provided herein.
Subject to the foregoing, and with respect to each Mortgage Loan, Greenpoint
shall be entitled to receive its Servicing Fee through the disposition of any
related REO Property and the Servicing Fee payable with respect to any REO
Property shall be based on the Stated Principal Balance of the related Mortgage
Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the 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.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Greenpoint and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, the Custodial
Agreement, the Servicing Agreement and this Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer.
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser, all
rights arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans on account of interest and
principal due after the Cut-off Date, shall be held by Greenpoint in trust for
the benefit of the Purchaser as owner of the Mortgage Loans, and Greenpoint
shall retain record title to the related Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The sale of each Mortgage Loan shall be reflected on Greenpoint's
balance sheet and other financial statements as a sale of assets by Greenpoint.
Greenpoint shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
Greenpoint shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of FNMA or FHLMC, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by FNMA or FHLMC, and periodic
inspection reports as required by Section 3.15 of the Servicing Agreement. To
the extent that original documents are not required for purposes of realization
of Liquidation Proceeds or Insurance Proceeds, documents maintained by
Greenpoint may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including but not limited to, optical
imagery techniques so long as Greenpoint complies with the requirements of the
FNMA or FHLMC Selling and Servicing Guide, as amended from time to time.
Greenpoint shall indemnify the Purchaser and hold it harmless against any
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from the
unenforceability (as determined by a court of competent jurisdiction) of any
Mortgage Loan document recreated in the manner described in the foregoing
sentence against the applicable Mortgagor as a result of such recreation or the
absence of such original Mortgage Loan document.
Section 2.02Due Diligence by the Purchaser.
Review of Credit File and Mortgage File. At least 15 days prior to
the Closing Date, Greenpoint shall make available to the Purchaser the Credit
File and the Mortgage File for each Preliminary Mortgage Loan in the related
Preliminary Mortgage Loan Package and shall accommodate reasonable requests by
the Purchaser to provide personnel and documents as necessary to facilitate the
review. Greenpoint shall deliver to the Purchase a diskette or a compact disc
that contains the Credit File and the Mortgage File for each such Preliminary
Mortgage Loan and the Purchaser shall have the right to review the Credit File
and the Mortgage File for each such Preliminary Mortgage Loan for the purpose of
determining whether each Preliminary Mortgage Loan conforms in all material
respects to the applicable terms contained in the Transaction Documents, which
determination shall be made in the Purchaser's sole discretion; provided,
further, that the Purchaser, in its sole discretion, has the right to reject any
Preliminary Mortgage Loan if the original Mortgage Note for such Preliminary
Mortgage Loan is lost. In the event that the Purchaser rejects any Preliminary
Mortgage Loan based on such review, Greenpoint shall have the opportunity, at
the discretion of the Purchaser, to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Credit Files and
the Mortgage Files shall not affect the Purchaser's or any of its successors'
rights to demand repurchase or other relief or remedy provided for in this
Agreement.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File or
the Mortgage File is missing material documentation (as used therein, the
"Missing Credit Documents"), Greenpoint agrees to use its best efforts to
procure each such Missing Credit Document within sixty (60) days following the
related Closing Date. In the event of a default by a Mortgagor or any material
impairment of the Mortgaged Property, in either case directly arising from a
breach of Greenpoint's obligation to deliver the Missing Credit Document within
the time specified above, Greenpoint shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Greenpoint shall, no later than five (5)
Business Days prior to the related Closing Date deliver and release to the
Custodian the Collateral File for each Mortgage Loan in the Mortgage Loan
Package. The Custodian will certify its receipt of all such Collateral Documents
required to be delivered pursuant to this Agreement. Greenpoint will be
responsible for the fees and expenses with respect to the delivery and will be
responsible for the fees and expenses related to the recording of the initial
Assignments of Mortgage (including any fees and expenses related to any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to Greenpoint or to any prior owners of or mortgagees with
respect to the Mortgage Loans) or Form UCC-3's for Cooperative Loans. The
Purchaser will be responsible for the Custodian's fees and expenses as set forth
in the Custodial Agreement.
Greenpoint shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 3.1(c) or 5.1 of the
Servicing Agreement within two weeks of their execution, provided, however, that
Greenpoint shall provide the Custodian with a certified true copy of any such
document submitted for recordation within ten (10) days of its execution, and
shall provide the original of any document submitted for recordation or a copy
of such document certified by the appropriate public recording office to be a
true and complete copy of the original within 120 days of its submission for
recordation. However, if Greenpoint is unable to deliver such certified copies
due to delay caused by the recording office in the applicable jurisdiction,
Greenpoint shall deliver instead an Officer's Certificate from Greenpoint
confirming that such document is a true and complete copy of the original and
that such original has been accepted for recording.
In the event the public recording office is delayed in returning any
original document, Greenpoint shall deliver to the Custodian within 240 days of
its submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. Greenpoint will be required to
deliver the document to the Custodian by the date specified in (iv) above.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.05 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
Greenpoint in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Greenpoint cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Greenpoint shall deliver instead a
recording receipt of such recording office or, if such recording receipt is not
available, an Officer's Certificate from Greenpoint confirming that such
documents have been accepted for recording. Any such document shall be delivered
to the Purchaser or its designee promptly upon receipt thereof from the related
recording office.
If Greenpoint, the Purchaser or the Custodian finds any document or
documents constituting a part of a Credit File or Mortgage File pertaining to a
Mortgage Loan to be defective (or missing) in any material respect, and such
defect or missing document materially and adversely affects the value of the
related Mortgage Loan or the interests of the Purchaser therein, the party
discovering such defect shall promptly so notify Greenpoint. Greenpoint shall
have a period of 90 days after receipt of such written notice within which to
correct or cure any such defect. Greenpoint hereby covenants and agrees that, if
any material defect cannot be corrected or cured, Greenpoint will, upon the
expiration of the applicable cure period described above, repurchase the related
Mortgage Loan in the manner set forth in Section 3.03; provided, however, that
with respect to any Mortgage Loan, if such defect constitutes a Qualification
Defect, any such repurchase must take place within 60 days of the date such
defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, Greenpoint delivers an Officer's Certificate
to the Purchaser certifying that Greenpoint is using good faith efforts to
correct or cure such defect and identifying progress made, then the Purchaser
shall grant Greenpoint an extension to correct or cure such defect. The
extension shall not extend beyond (1) if the defect is a Qualification Defect,
the date that is 60 days after the date the defect is discovered, or, (2) if the
defect is not a Qualification Defect (as evidenced by an Opinion of Counsel),
the date that is 30 days beyond the original 90-day cure period. If the defect
is not a Qualification Defect, additional 30-day extensions may be obtained
pursuant to the same procedure, as long as Greenpoint demonstrates continued
progress toward a correction or cure; provided that no extension shall be
granted beyond 180 days from the date on which the Greenpoint received the
original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify Greenpoint of any defective or missing
document in a Credit File or Mortgage File within such 90-day period, or the
failure of the Purchaser to require Greenpoint to cure or repurchase the related
Mortgage Loan upon expiration of such 90-day period, shall not constitute a
waiver of its rights hereunder, including the rights with respect to a Mortgage
Loan, to require Greenpoint to repurchase the affected Mortgage Loan and the
right to indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Greenpoint shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Greenpoint.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Greenpoint under
this Agreement shall be true and correct as of the Closing Date and no
event shall have occurred that, with notice or the passage of time, would
constitute a default under this Agreement;
(b) Both parties shall have executed and delivered the related
Purchase Confirmation, Trade Confirmation and Servicing Agreement;
(c) Greenpoint shall have delivered and released to the Custodian
all documents required pursuant to this Agreement; and
(d) All other terms and conditions of this Agreement have been
complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Greenpoint on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Greenpoint on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Greenpoint shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. Without limiting the generality
of the foregoing, any costs and expenses incurred in connection with recording
the Assignment of Mortgage or any subsequent assignment thereof shall be paid
for by the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Greenpoint pursuant to this Agreement, Greenpoint shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Greenpoint shall be in lieu of Greenpoint delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Greenpoint shall, in accordance with Section 2.05, provide the Purchaser with
the original Mortgage with evidence of registration with MERS and, as
applicable, the originals of all intervening assignments of the Mortgage with
evidence of recording thereon prior to the registration of the Mortgage Loan
with the MERS System.
(b) In connection with the MERS System, Greenpoint is hereby
authorized and empowered, in its own name, to register, or change the
registration of any MERS Mortgage Loan to effectuate such registration. Further,
Greenpoint is authorized to cause the removal of any MERS Mortgage Loan from
such registration, and to execute and deliver on behalf of itself and the
Purchaser, any and all instruments of assignment and comparable instruments with
respect to any registration and/or removal of such MERS Mortgage Loan on or from
the MERS System.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Greenpoint.
Greenpoint represents, warrants and covenants to the Purchaser that,
as of each Closing Date:
(a) Organization and Standing. Greenpoint is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and is qualified and licensed to transact business in and is in good
standing under the laws of each state where each Mortgaged Property is located
to the extent necessary to ensure the enforceability of each Mortgage Loan and
the servicing of the Mortgage Loan in accordance with the terms of this
Agreement. The execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
Greenpoint and the consummation of the transactions contemplated hereby have
been duly and validly authorized. This Agreement evidences the valid, binding
and enforceable obligation of Greenpoint; and all requisite corporate action has
been taken by Greenpoint to make this Agreement valid and binding upon
Greenpoint in accordance with its terms;
(b) Due Authority. Greenpoint has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Greenpoint, which is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Greenpoint pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of the
Mortgage Loans by Greenpoint, 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
Greenpoint's certificate of incorporation or by-laws or result in a material
breach of any legal restriction or any material agreement or instrument to which
Greenpoint is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Greenpoint or its property is subject;
(e) Approved Seller. Greenpoint is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of
HUD. No event has occurred, including a change in insurance coverage, which
would make Greenpoint unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD
eligibility requirements. Furthermore, if at any time prior to the termination
of this Agreement, Greenpoint is unable to comply with any of the Xxxxxx Mae,
Xxxxxxx Mac or HUD eligibility requirements, it shall immediately notify the
Purchaser that it is no longer an approved seller/servicer as defined in the
first sentence above;
(f) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Greenpoint's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Greenpoint would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Greenpoint to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Greenpoint's ability to
perform its obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Greenpoint, of or compliance by Greenpoint with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Greenpoint acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Greenpoint, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Greenpoint 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. Greenpoint is solvent and the sale of the
Mortgage Loans will not cause Greenpoint to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of Greenpoint's
creditors;
(j) No Untrue Information. Neither this Agreement nor any statement,
report or other document prepared and furnished, or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby, by
Greenpoint contains any untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading;
(k) Sale Treatment. Greenpoint has determined that the disposition
of the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) Fair Credit Report Act. Greenpoint, in its capacity as servicer
for each Mortgage Loan, has fully furnished (or caused to be 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) or their successors and assigns, on a
monthly basis;
(m) No Brokers' Fees. Greenpoint has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans;
(n) Fair Consideration. The consideration received by Greenpoint
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans; and
(o) USA Patriot Act of 2001. Greenpoint 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"); Greenpoint 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.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Greenpoint represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
and credited prior to the related Cut-off Date for such Mortgage Loan under the
terms of the Mortgage Note have been made; Greenpoint has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no delinquency of more than thirty (30) days in any payment by
the Mortgagor thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. There
are no defaults by Greenpoint or any prior originator in complying with the
terms of the Mortgage and there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The substance
of any such waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Collateral File and the terms of
which are reflected in the Mortgage Loan Schedule if executed prior to the
Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings and other customarily
insured improvements upon the Mortgaged Property are insured in an amount which
is not less than the lesser of (i) the maximum insurable value of the Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan, and (b) an amount that would prevent the Mortgagor from becoming
a co-insurer, by an insurer acceptable to an Agency against loss by fire,
hazards of extended coverage and such other hazards as are customary in the area
where the Mortgaged Property is located, and such insurer is licensed to do
business in the state where the Mortgaged Property is located. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy. All such insurance policies contain a standard mortgagee clause
naming Greenpoint, its successors and assigns as mortgagee, and all premiums
thereon have been paid. If, upon the origination of the Mortgage Loan, the
Mortgaged Property was, or was subsequently deemed to be, 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), a
flood insurance policy that meets the requirements of the current guidelines of
the Federal Insurance Administration (or any successor thereto) and conforms to
the requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. All applicable local, state and
federal laws including without limitation usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing, predatory and abusive lending and disclosure laws applicable to
the origination and servicing of the Mortgage Loan have been complied with, and
Greenpoint 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 Release 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. Greenpoint has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has
Greenpoint waived any default;
(i) Enforceability of Mortgage Documents. The Mortgage Note, the
Mortgage and any related modifications, assignments and assumptions are genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or similar laws;
(j) Valid First Lien on Mortgage Loans that are not Cooperative
Loans. Each related Mortgage is a valid, perfected, existing and enforceable
first lien or a first priority ownership interest in an estate in fee simple in
the Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related Mortgage
Note, except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgage may secure and create a first lien upon a
leasehold estate of the Mortgagor. 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 public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that 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 and enforceable first lien and first priority
security interest on the property described therein and Greenpoint has full
right to sell and assign the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to each
Cooperative Loan, the related Mortgage is a valid, enforceable and subsisting
first security interest on the related cooperative shares securing the related
cooperative note and lease, subject only to (a) liens of the cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
cooperative'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 intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Greenpoint's security interest in such
cooperative shares;
(l) With respect to each Cooperative Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to Xxxxxx Xxx and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Cooperative Loan;
(m) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the Code,
and is in material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect on the
Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to which a
Mortgaged Property may be subject: (i) the Mortgagor is the owner of a valid and
subsisting leasehold interest under such ground lease: (ii) such ground lease is
in full force and effect unmodified and not supplemented by any writing or
otherwise; (iii) all rent, additional rent and other charges reserved therein
have been fully paid to the extent payable as of the Closing Date; (iv) the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any of the
terms of such ground lease, and there are no circumstances which, with the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not in
default under any of the terms or provisions of such ground lease on the part of
the lessor to be observed or performed; (vii) the lessor under such ground lease
has satisfied any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; (viii) the execution, delivery and
performance of the Mortgage do not require the consent (other than those
consents which have been obtained and are in full force and effect) under, and
will not contravene any provision of or cause a default under, such ground lease
and (ix) the term of such lease does not terminate earlier than 10 years
following the maturity date of the Mortgage Note;
(p) Disbursements of Proceeds. 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 recording 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;
(q) Sole Owner. Greenpoint is the sole owner and holder of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note. The Mortgage
Loan is not assigned or pledged, and Greenpoint has good 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, lien, pledge, participation
interests, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule 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 the terms of this Agreement. Following the
sale of the Mortgage Loan, the Purchaser will own the Mortgage Loan free and
clear of any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest. Greenpoint intends to relinquish all rights to
monitor, possess and control the Mortgage Loan except in connection with the
servicing of the Mortgage Loan as set forth in the Servicing Agreement. After
the Closing Date, Greenpoint will not have any right to modify or alter the
terms of the sale of the Mortgage Loan, nor will Greenpoint have any obligation
or right to repurchase the Mortgage Loan, except as provided in this Agreement
or as otherwise agreed to by Greenpoint and the Purchaser;
(r) Title Insurance. Each Mortgage Loan is covered by an ALTA
lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Greenpoint, its successors and assigns as to
the first priority lien of the Mortgage. 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.
Greenpoint is the sole insured of such lender's title insurance policy, and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, including Greenpoint, has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
(s) No Default. There is no default, breach, violation or event of
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 of
acceleration, and Greenpoint has not waived any default, breach, violation or
event of acceleration;
(t) 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 lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(u) Origination and Collection Practices. The origination and
collection practices used by Greenpoint with respect to each Mortgage Loan and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
Escrow Payments, if any, all such payments are in the possession of, or under
the control of, Greenpoint and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Greenpoint have been capitalized under any Mortgage or the related Mortgage
Note. All payments have been collected in compliance with local, state and
federal law and the terms of the related Mortgage Note. With respect to
Adjustable Rate Mortgage Loans, all Mortgage Interest Rate adjustments have been
made in strict compliance with local, state and federal law and the terms of the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(v) No Condemnation or Damage. There is no proceeding pending or, to
Greenpoint's knowledge, threatened for the total or partial condemnation of the
Mortgaged Property and such property is in good repair and 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 Property as
security for the Mortgage Loan or the use for which the premises were intended;
(w) Customary and Enforceable 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 (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. 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;
(x) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (j) above;
(y) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by an appraiser who meets the minimum requisite qualifications of an
Agency for appraisers, duly appointed by the originator, that had no interest,
direct or indirect in the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the appraisal is
in a form acceptable to an Agency, with such riders as are acceptable to such
Agency, and such appraisal complies with the requirements of FIRREA;
furthermore, the appraisal type for each Mortgage Loan is accurately reflected
on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage constitutes
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in 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;
(aa) Private Mortgage Insurance. Each Mortgage Loan, with an LTV at
origination in excess of eighty percent (80%) is and will be subject to a PMI
Policy issued by an insurer acceptable to FNMA or FHLMC, in at least such
amounts as required by FHMA or FHLMC. 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. Any Mortgage subject to any such PMI
Policy obligates the Mortgagor thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith or, in the case of a lender
paid mortgage insurance policy, the premiums and charges are included in the
Mortgage Interest Rate for the Mortgage Loan;
(bb) Lawfully Occupied. 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 certificates of
occupancy, have been made or obtained from the appropriate authorities. No
improvements violate local zoning laws or regulations;
(cc) Assignment of Mortgage. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to each Agency;
(ee) Section 32 Loans. No Mortgage Loan is classified as a
"covered," "high cost," "high cost home loan," "threshold," "predatory loan,"
(excluding New Jersey "Covered Home Loans" as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security Act of
2002), or any other designation that indicates that such Mortgage Loan has terms
that result in costs to the Mortgagor in excess of a specified limit under the
Home Ownership and Equity Protection Act of 1994, as amended, or any similar
federal, state or local statutes or regulations related to "high cost" mortgage
loans or "predatory lending" (as such terms are defined in the applicable
statute or regulation);
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to each Agency. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan;
(gg) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the Mortgage Loan Schedule and consists of
a single parcel (or more than one contiguous parcels) of real property with a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project, or an
individual unit in a planned unit development or a townhouse; provided, however,
that any condominium project or planned unit development generally conforms with
the Underwriting Guidelines regarding such dwellings, and no residence or
dwelling that is secured by a leasehold estate, is a mobile home, manufactured
dwelling or cooperative, provided further that as of the respective appraisal
date, no portion of the Mortgaged Property was being used for commercial
purposes;
(hh) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above;
(ii) Servicemembers Civil Relief Act. The Mortgagor has not notified
Greenpoint, and Greenpoint has no knowledge of any relief requested or allowed
to the Mortgagor under the Servicemembers Civil Relief Act or any similar state
law;
(jj) Payment Terms. The Mortgage Note is payable on the first day of
each month in equal monthly installments of principal and interest (or interest,
in the case of any Mortgage Loan for which monthly payments consist of only
interest for a period of time specified on the Mortgage Loan Schedule),
(provided that, the installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date
with respect to an Adjustable Rate Mortgage, and interest is calculated and
payable in arrears) providing for full amortization by maturity over a scheduled
term of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of the related Mortgage Note, from having interest accrue on the principal
amount thereof based on an adjustable rate to having interest accrue based on a
fixed rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination. At the time the Mortgage Loan was originated, the
originator was a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or a
savings and loan association, a saving bank, a commercial bank or similar
banking institution which is supervised by a Federal or State authority;
(ll) Loan-to-Value Ratio; No Foreclosures. The Loan-to-Value Ratio
of each Mortgage Loan was no greater than 100% at the time of its origination or
refinancing, as applicable. No Mortgage Loan is subject to a written foreclosure
agreement or pending foreclosure proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was underwritten in
accordance with Greenpoint's underwriting guidelines (the "Underwriting
Guidelines") in effect at the time origination;
(nn) Adverse Selection. Greenpoint used no adverse selection
procedures in selecting the Mortgage Loan from among the outstanding first-lien
residential mortgage loans owned by it which were available for inclusion in the
Mortgage Loan Package;
(oo) Environmental Matters. To the best knowledge of Greenpoint, the
Mortgaged Property is free from any and all toxic or hazardous standards and
there exists no violation of any local, state or federal environmental law, rule
or regulation. There is no pending action or proceeding directly involving any
Mortgaged Property of which Greenpoint is aware in which compliance with any
environmental law, rule or regulation is an issue. To the best of Greenpoint's
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation consisting a prerequisite to
use and enjoyment of said property;
(pp) No Bankruptcy; Acceptable Investment. The Mortgagor is not in
bankruptcy and is not insolvent;
(qq) No Additional Payments. There is no obligation on the part of
Greenpoint or any other party to make payments in addition to those made by the
Mortgagor;
(rr) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and before March 7, 2003, which is
secured by owner-occupied property located in the State of Georgia;
(ss) No Credit Insurance Policies. No proceeds from any Mortgage
Loan were used to purchase single-premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan;
(tt) Prepayment Penalty Term. 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;
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code;
(vv) Credit Reporting. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by Greenpoint to the Purchaser, Greenpoint 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;
(ww) Doing Business. Greenpoint and all other 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) in compliance with any and all applicable "doing business" and
licensing requirements of the laws of the state wherein the Mortgaged Property
is located;
(xx) No Buydown Provisions; No Graduated Payments or Contingent
Interests. 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, nor does it contain any "buydown" provision which is currently in
effect;
(yy) Due-On-Sale. 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;
(zz) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of mortgage
loans of the same type as the Mortgage Loan and rescission materials required by
applicable law if the Mortgage Loan is a Refinanced Mortgage Loan and has
acknowledged receipt of such materials to the extent required by applicable law
and such documents will remain in the Mortgage File;
(aaa) No Advancements. Greenpoint or any prior originator or
servicer has not advanced funds, or induced, solicited or knowingly received any
advance from any party other than the Mortgagor, directly or indirectly, for the
payment of any amount due under the Mortgage Loan;
(bbb) Delivery of Mortgage Documents. With respect to each Mortgage
Loan, Greenpoint is in possession of a complete Collateral File except for the
documents which have been delivered to the Purchaser or which have been
submitted for recording and not yet returned;
(ccc) Lost Note. With respect to each Mortgage where a lost note
affidavit has been delivered in place of the related Mortgage Note, the related
Mortgage Note is no longer in existence;
(ddd) Validity of Mortgage Documents. All the documents executed in
connection with the Mortgage Loan including, but not limited to, the Mortgage
Note and the Mortgage are free of fraud and any misrepresentation, are signed by
the persons they purport to be signed by, and witnessed or, as appropriate,
notarized by the persons whose signatures appear as witnesses or notaries, and
each such document constitutes the valid and binding legal obligation of the
signatories and is enforceable in accordance with its terms;
(eee) Construction or Rehabilitation of Mortgaged Property. (i) No
Mortgage Loan was made in connection with facilitating the trade-in or exchange
of a Mortgaged Property and (ii) a Mortgage Loan has a certificate of completion
if such Mortgage Loan was made in connection with the construction or
rehabilitation of the related Mortgaged Property;
(fff) Other Insurance Policies; No Defense to Coverage. No action,
inaction, or event has occurred and no state of affairs exists or has existed
that has resulted or will result in the exclusion from, denial of, or defense to
coverage under any applicable special hazard insurance policy, PMI Policy or
bankruptcy bond, irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by Greenpoint or any of its
designee or any corporation in which Greenpoint or any officer, director, or
employee of Greenpoint had a financial interest at the time of placement of such
insurance;
(ggg) Conversion to Fixed Interest Rate. No Mortgage Loan is a
Convertible Mortgage Loan;
(hhh) No Arbitration. No 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;
(iii) 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;
(jjj) [RESERVED];
(kkk) Xxxxxx Xxx Guides Anti-Predatory Lending Eligibility. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility for
purchase requirements of Xxxxxx Mae Guides;
(lll) Mortgagor Selection. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy mortgagors, unless
at the time of the Mortgage Loan's origination, such Mortgagor did not qualify
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan's originator or any affiliate
of the Mortgage Loan's originator. If, at the time of loan application, the
Mortgagor may have qualified for a for a lower-cost credit product then offered
by any mortgage lending affiliate of the Mortgage Loan's originator, the
Mortgage Loan's originator referred the related Mortgagor's application to such
affiliate for underwriting consideration;
(mmm) [RESERVED]
(nnn) Mortgage Loans with Prepayment Premiums. With respect to any
Mortgage Loan that contains a provision permitting imposition of a premium upon
a prepayment prior to maturity: (i) a mortgage loan without such a premium was
available to the Mortgagor at an interest rate and/or fee structure higher than
that of the Mortgage Loan, (ii) prior to the Mortgage Loan's funding, the
related Mortgagor had the option of obtaining the Mortgage Loan without a
requirement for payment of such a premium, and (iii) the prepayment premium is
disclosed to the related Mortgagor in the Mortgage Loan documents pursuant to
applicable state and federal law;
(ooo) Purchase of Insurance. No Mortgagor was required to purchase
any credit life, disability, accident or health insurance product as a condition
of obtaining the extension of credit. No Mortgagor obtained a prepaid
single-premium credit life, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan;
(ppp) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation. Except in the case of a Mortgage Loan in
an original principal amount of less than $60,000 which would have resulted in
an unprofitable origination, no Mortgagor was charged "points and fees" (whether
or not financed) in an amount greater than 5% of the principal amount of such
Mortgage Loan, such 5% limitation is calculated in accordance with Xxxxxx Mae's
anti-predatory lending requirements as set forth in the Xxxxxx Mae Guides; and
(qqq) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 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 failure to examine any Collateral Documents or
Credit File. Upon discovery by either Greenpoint or the Purchaser of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the value of one or more of the related Mortgage Loans, the
party discovering such breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Greenpoint of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, Greenpoint shall use its best efforts to cure such breach in
all material respects, and, if such breach cannot be cured, Greenpoint shall, at
the Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price.
Notwithstanding anything to the contrary herein, a breach of any one of the
representations and warranties set forth in clauses (ee), (rr), (ss), (uu),
(vv), (hhh), (kkk), (lll), (nnn), (ooo), (ppp) and (qqq) in Subsection 3.02
shall be deemed to materially and adversely affect the value of the related
Mortgage Loans and not be curable and, within sixty (60) days of the earlier of
either discovery by or notice to Greenpoint, as the case may be, of such breach,
Greenpoint shall repurchase such Mortgage Loan at the Repurchase Price. In the
event that a breach shall involve any representation or warranty set forth in
Section 3.01 and such breach cannot be cured within sixty (60) days of the
earlier of either discovery by or notice to Greenpoint of such breach,
Greenpoint shall repurchase such of the Mortgage Loans as shall be necessary to
cure such breach at the Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve a
representation or warranty set forth in Section 3.02, other than a breach of any
one of the representations and warranties set forth in clauses (ee), (rr), (ss),
(uu), (vv), (hhh), (kkk), (lll), (nnn), (ooo), (ppp) and (qqq), Greenpoint may
at the discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans. If Greenpoint elects not to
substitute a Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
provisions of this Section 3.03 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution. At the time of repurchase
or substitution, the Purchaser and Greenpoint shall arrange for the reassignment
of such Mortgage Loan and release of the related Collateral File to Greenpoint
and the delivery to Greenpoint of any documents held by the Purchaser or its
designee relating to such Mortgage Loan. In the event Greenpoint is authorized
to substitute a Qualified Substitute Mortgage Loan for a repurchased Mortgage
Loan, Greenpoint shall, simultaneously with such reassignment, give written
notice to the Purchaser that substitution has taken place and identify the
Qualified Substitute Mortgage Loan(s). In connection with any such substitution,
Greenpoint shall be deemed to have made as to such Qualified Substitute Mortgage
Loan(s) the representations and warranties except that all such representations
and warranties set forth in this Agreement shall be deemed made as of the date
of such substitution. Greenpoint shall effect such substitution by delivering to
the Purchaser the Collateral Documents for such Qualified Substitute Mortgage
Loan(s). Greenpoint shall deposit in the Custodial Account the Monthly Payment
less the Servicing Fee due on such Qualified Substitute Mortgage Loan(s) in the
month following the date of such substitution. Monthly Payments due with respect
to Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by Greenpoint. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on any substituted Mortgage Loan
in the month of substitution, and Greenpoint shall thereafter be entitled to
retain all amounts subsequently received by Greenpoint in respect of such
substituted Mortgage Loan.
For any month in which Greenpoint substitutes a Qualified Substitute
Mortgage Loan for a repurchased Mortgage Loan, Greenpoint shall determine the
amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all substituted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Greenpoint in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, Greenpoint shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall. Notwithstanding the
above, in no event shall Greenpoint substitute a loan that has been placed in a
trust with respect to a securitization.
In addition to such cure and repurchase obligations, Greenpoint
shall indemnify the Purchaser, its affiliates, and their respective directors,
officers and employees, as applicable, and hold the Purchaser, its affiliates
and each such person harmless against any damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion by any third party that is based on or grounded upon, or resulting
from, a breach of Greenpoint's representations and warranties contained in this
Agreements.
Section 3.04 Accrual of Cause of Action. Any cause of action against
Greenpoint relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 shall accrue as to any Mortgage Loan
upon (i) discovery of such breach by the Purchaser or notice thereof by
Greenpoint to the Purchaser, (ii) failure by Greenpoint to cure such breach or
substitute or repurchase such Mortgage Loan as specified above, or (iii) demand
upon Greenpoint by the Purchaser for compliance with the relevant provisions of
this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Greenpoint to Act as Servicer.
Greenpoint shall service and administer Mortgage Loans sold pursuant
to this Agreement in accordance with the terms of the Servicing Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things, in connection with such servicing and administration, that
Greenpoint may deem necessary or desirable and consistent with the terms of the
Servicing Agreement.
ARTICLE V
COVENANTS BY GREENPOINT
Section 5.01 Indemnification by Greenpoint.
Greenpoint shall indemnify the Purchaser, its affiliates, and their
respective directors, officers and employees, as applicable, and hold the
Purchaser, its affiliates and each such person harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain in any way related to the failure of
Greenpoint to perform its obligations hereunder, including its obligations to
service and administer the Mortgage Loans in compliance with the terms of the
Servicing Agreement.
Section 5.02 [RESERVED]
Section 5.03 Merger or Consolidation of Greenpoint
Greenpoint shall keep in full effect its existence, rights and
franchises and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, or any of the Mortgage Loans, and
to perform its duties under this Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Greenpoint may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Greenpoint shall
be a party, or any Person succeeding to the business of Greenpoint, shall be the
successor of Greenpoint hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto; 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, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Greenpoint and Others.
Neither Greenpoint nor any of the officers, employees or agents of
Greenpoint shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Greenpoint or any such person against any breach of warranties
or representations made herein, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement
and, provided further, that this provision shall not protect Greenpoint or any
such person 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.
Greenpoint and any officer, employee or agent of Greenpoint may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. Notwithstanding anything to
the contrary contained in this Agreement, unless one or more Event of Default by
Greenpoint shall occur and shall not have been remedied within the time limits
set forth in Section 7.1 of the Servicing Agreement, the Purchaser shall not
record or cause to be recorded an Assignment of Mortgage with the recording
office. To the extent the Purchaser records with the recording office as
permitted herein an Assignment of Mortgage which designates the Purchaser as the
holder of record of the Mortgage, the Purchaser agrees that it shall (i) provide
Greenpoint with immediate notice of any action with respect to the Mortgage or
the related Mortgaged Property and ensure that the proper department or person
at Greenpoint receives such notice; and (ii) immediately complete, sign and
return to Greenpoint any document reasonably requested by Greenpoint to comply
with its servicing obligations, including without limitation, any instrument
required to release the Mortgage upon payment in full of the obligation or take
any other action reasonably required by Greenpoint. The Purchaser further agrees
that Greenpoint shall have no liability for the Purchaser's failure to comply
with the subsections (i) or (ii) in the foregoing sentence. Greenpoint shall
have no liability to the Purchaser and shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement and which
in its opinion may involve it in any expenses or liability; provided, however,
that Greenpoint may, with the consent of the Purchaser, undertake any such
action which it may deem necessary or desirable to protect the Purchaser's
interests in the Mortgage Loans. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities for which the Purchaser will be liable, and Greenpoint shall be
entitled to be reimbursed therefor from the Purchaser upon written demand except
when such expenses, costs and liabilities are subject to Greenpoint's
indemnification under Sections 3.03 and 5.01.
Section 5.05 No Transfer of Servicing.
Greenpoint acknowledges that the Purchaser acts in reliance upon
Greenpoint's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Greenpoint shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Greenpoint:
Greenpoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: _____________
(ii) the Purchaser:
To the address and contact set forth in the related
Purchase Confirmation
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 6.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Greenpoint and not a pledge of the Mortgage Loans by Greenpoint to the
Purchaser to secure a debt or other obligation of Greenpoint. Consequently, the
sale of each Mortgage Loan shall be reflected as a sale on Greenpoint's business
records, tax returns and financial statements. Accordingly, Greenpoint and the
Purchaser shall each treat the transaction for federal income tax purposes as a
sale by Greenpoint, and a purchase by the Purchaser, of the Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Greenpoint and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 6.04 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;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including (a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Greenpoint shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Greenpoint such reasonable
and appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Greenpoint.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than five (5) "Purchasers" outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall constitute
a single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Greenpoint agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 6.07(a) hereof, may effect Pass-Through
Transfers and Whole Loan Transfer, retaining Greenpoint as the servicer thereof
or subservicer if a master servicer is employed, or as applicable the
"seller/servicer." On the related Reconstitution Date, the Mortgage Loans
transferred shall cease to be covered by this Agreement; provided, however,
that, in the event that any Mortgage Loan transferred pursuant to this Section
6.07 is rejected by the related transferee, Greenpoint shall continue to service
such rejected Mortgage Loan on behalf of the Purchaser in accordance with the
terms and provisions of this Agreement. Greenpoint shall cooperate with the
Purchaser in connection with each Pass-Through Transfer and Whole Loan Transfer
in accordance with this Section 6.07. In connection therewith Greenpoint shall:
(i) negotiate in good faith and execute any seller/servicer
agreement reasonably required to effectuate the Pass-Through Transfer and
Whole Loan Transfer, provided such agreement creates no greater obligation
or cost on the part of Greenpoint than otherwise set forth in this
Agreement, and provided further that Greenpoint shall be entitled to a
servicing fee under that agreement at a rate per annum no less than the
Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Greenpoint of the type and scope
customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Greenpoint as are
reasonably believed necessary by the trustee, any rating agency or
the Purchaser, as the case may be, in connection with such
Pass-Through Transfer and Whole Loan Transfer. The Purchaser shall
pay all reasonable third party costs associated with the preparation
of the information described in clause (ii)(A) above and the
delivery of any opinions, letters or certificates described in this
clause (ii)(B). Greenpoint shall not be required to execute any
seller/servicer agreement unless a draft of the agreement is
provided to Greenpoint at least 10 days before the Reconstitution
Date.
(c) In connection with any (a) Pass-Through Transfer and (b) Whole
Loan Transfer, Greenpoint shall restate to the Purchaser and, with respect to
(a) above, to the applicable depositor (the "Depositor"), trustee (the
"Trustee") and the master servicer (the "Master Servicer"), all representations
and warranties contained in this Agreement, with respect to the Mortgage Loans
as of the Closing Date and with respect to Greenpoint itself as of the closing
date of each Whole Loan Transfer or Pass-Through Transfer.
(d) In connection with any Pass-Through Transfer and Whole Loan
Transfer, Greenpoint shall indemnify, defend and hold harmless the Purchaser,
the Depositor, the Trustee, the Master Servicer, their respective affiliates,
and their respective directors, officers and employees from and against any and
all losses, claims, expenses, damages, liabilities, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs to which any
such party may be subject to as a result of any untrue statement of any material
fact contained in any information (such information, the "Greenpoint
Information") prepared and furnished to the Purchaser, the Depositor, the
Trustee and the Master Servicer by Greenpoint for inclusion in any related
offering document or prospectus (collectively, "Offering Materials"), or arise
out of, or are based upon, any omission in the Greenpoint Information necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and will reimburse to all such parties, as
applicable, for damages or expenses reasonably incurred by it; provided,
however, that Greenpoint shall be liable only insofar as such untrue statement
or omission relates solely to the Greenpoint Information in the Offering
Materials furnished to any such party by Greenpoint specifically for inclusion
in the Offering Materials; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers or Whole Loan Transfer 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 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Servicing Agreement, and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements entered into and
wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Greenpoint and the Purchaser and the respective permitted
successors and assigns of Greenpoint and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
Greenpoint shall be rendered as an independent contractor and not as agent for
the Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Greenpoint hereby 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 or independent mortgage
brokerage companies on its behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided, that Greenpoint may solicit any mortgagor from whom it
or its servicing affiliate has received a request for verification of mortgage,
a request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Greenpoint or any of its affiliates which
(i) concern optional insurance products or other additional products or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Greenpoint
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Greenpoint or any affiliate of
Greenpoint, shall not be prohibited: (i) solicitations that are directed to the
general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Greenpoint.
Section 6.14 Confidentiality.
Greenpoint, the Purchaser and their agents shall keep confidential
and shall not divulge to any person, other than affiliates, without the written
consent of the other party, the terms of this agreement, except (i) to the
extent required by law or judicial order or to enforce its rights or remedies
under this agreement, the Servicing Agreement, or any applicable agreements,
(ii) to the extent such information enters into the public domain other than
through the wrongful act of Greenpoint or the Purchaser, as the case may be,
(iii) as is necessary in working with legal counsel, auditors, rating agencies,
agents, taxing authorities or other governmental agencies, or (iv) in order to
disclose to any and all persons, without limitation of any kind, the structure
and tax aspects of this sale or any transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986.
Moreover, Greenpoint understands and agrees that this Agreement, the
Servicing Agreement, any other agreements executed in connection with the sale
and servicing contemplated hereunder, any agreements executed in connection with
a securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and Greenpoint agrees to hold
such documents confidential and not to divulge such documents to anyone except
(a) to the extent required by law or judicial order or to enforce its rights or
remedies under this letter agreement or the Agreements, (b) to the extent such
information enters into the public domain other than through the wrongful act of
Greenpoint (c) as is necessary in working with legal counsel, auditors, agents,
taxing authorities or other governmental agencies, or (d) in order to disclose
to any and all persons, without limitation of any kind, the structure and tax
aspects of this sale or such securitization and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, securitization and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986. The rights
and obligations set forth in this paragraph shall survive the Closing Date and
shall not merge into the closing documents but shall be independently
enforceable by the parties hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to each Mortgage Loan Package and supersede all prior or contemporaneous
oral or written communications regarding same. Greenpoint and the Purchaser
understand and agree that no employee, agent or other representative of
Greenpoint or the Purchaser has any authority to bind such party with regard to
any statement, representation, warranty or other expression unless said
statement, representation, warranty or other expression is specifically included
within the express terms of this Agreement or the related Trade Confirmation or
Purchase Confirmation. Neither this Agreement nor the related Trade Confirmation
or Purchase Confirmation shall be modified, amended or in any way altered except
by an instrument in writing signed by both parties.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Greenpoint and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
GREENPOINT MORTGAGE FUNDING, INC.
the Seller
By:
--------------------------------------
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
the Purchaser
By: Xxxxxxx Sachs Real Estate
Funding Corp.,
General Partner
By:
--------------------------------------
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original executed Mortgage Note endorsed, "Pay to the
order of ______________, without recourse", or as otherwise directed by
the Purchaser, and signed in the name of the Seller by an officer of the
Seller, or a lost note affidavit with a copy of the original mortgage note
attached; the Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator to the
Seller;
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage Loan,
the original Assignment of Mortgage in blank.
3. Guarantee: Personal endorsement and/or guaranty agreements for all non
individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc.).
4. Mortgage: The original executed Mortgage, or a certified copy thereof, in
either case with evidence of recording noted thereon; the standard Xxxxxx
Xxx/FHLMC Condominium Rider or PUD Rider must be attached to the mortgage
if the mortgaged property is a condominium or is located in a PUD.
5. Modifications: Originals of all modification agreements, or certified
copies thereof, in either case with evidence of recording noted thereon if
recordation is required to maintain the lien of the Mortgage or is
otherwise required, or, if recordation is not so required, an original or
copy of any such modification agreement.
6. Intervening Assignments: Originals of any intervening assignments of the
mortgage necessary to show a complete chain of title from the original
mortgagee to the Seller, or certified copies thereof, in either case with
evidence of recording noted thereon; provided, that such intervening
assignments may be in the form of blanket assignments, a copy of which,
with evidence of recording noted thereon, shall be acceptable.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an original
copy of the Cooperative Lease naming the Mortgagor, as tenant, or an
original copy of the assignment of the Cooperative Lease to Mortgagor
together with the original copy of all intervening assignments showing a
complete and unbroken chain of title from the original tenant to Mortgagor
and an original undated assignment, in blank, of the Cooperative Lease
executed by Mortgagor; (ii) the original stock certificate in the name of
the Mortgagor together with an undated original stock power relating to
such stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same form as
a standard "AZTECH" form and the original assignment thereof from
Greenpoint to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of title
from the originator of the Mortgage Loan to the Purchaser; (iv) copies of
the UCC-1 financing statement naming the originator of the Cooperative
Loan, as secured party, with evidence of recording thereon and, if
applicable, the executed UCC-3 financing statements (Assignment) or other
appropriate UCC financing statements required by applicable state law
evidencing a complete and unbroken chain of title from the originator of
the Cooperative Loan to Greenpoint, with evidence of recording thereon,
(v) an executed UCC-3 financing statement (Assignment), or other
appropriate UCC financing statement required by applicable state law,
evidencing the assignment by Greenpoint to the Purchaser of its interest
in the Cooperative Loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor's acquisition of the coop apartment.
8. Power of Attorney: To the extent applicable, (x) an original power of
attorney, or a certified copy thereof, in either case with evidence of
recordation thereon if necessary to maintain the lien on the Mortgage or
if the document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (y) an original or copy of any surety
agreement or guaranty agreement.
9. Security Agreement: Security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage, if any;
10. Title Insurance: The original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title (accompanied by an
abstract of title), as the case may be, with respect to each Mortgage
Loan.
11. Assumptions: for each Mortgage Loan with respect to which the borrower's
name as it appears on the note does not match the borrower's name on the
Mortgage Loan Schedule, one of the following: (i) the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement; or (ii) a copy of a
marriage certificate, court order, decree or other document evidencing
that the two different names refer to the same person.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[GREENPOINT LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between Greenpoint
Mortgage Funding, Inc.,
("Greenpoint") and Xxxxxxx Sachs Mortgage Company ("Purchaser") sets
forth our agreement pursuant to which Purchaser is purchasing, and Greenpoint is
selling, on a servicing-retained basis, those certain mortgage loans identified
in Exhibit A hereto and more particularly described herein (the "Mortgage
Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of April 1, 2004, between Greenpoint and Purchaser
(as amended herein and otherwise, the "Agreement"). By executing this Purchase
Confirmation, each of Greenpoint and Purchaser again makes, with respect to
itself and each Mortgage Loan, as applicable, all of the covenants,
representations and warranties made by each such party in the Agreement, except
as the same may be amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the
Agreement, Greenpoint shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Agreement, all of the right, title and interest of Greenpoint in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Greenpoint pursuant to the terms of the Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
d. [Index: On each Interest Adjustment Date, the applicable
index rate shall be a rate per annum equal to [the weekly average
yield on U.S. Treasury securities adjusted to a constant maturity of
one year, as published by the Board of Governors of the Federal
Reserve System in Statistical Release No. H.15] [the average of
interbank offered rates for six-month U.S. dollar denominated
deposits in the London market (LIBOR), as published [in the Wall
Street Journal] [by Xxxxxx Xxx] [the 11th District Cost of Funds as
made available by the Federal Home Loan Bank] [the weekly average
yield on certificates of deposit adjusted to a constant maturity of
six months as published by the Board of Governors of the Federal
Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Greenpoint's obligation to repurchase from the Purchaser the Mortgage
Loan related to a Missing Credit Document shall occur only in the event of a
default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Greenpoint's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Agreement.
f. Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans]
[each Mortgage Loan], and as set forth in Exhibit [A] and Exhibit
[B] hereto, the sum of (a) the product of (i) the Cut-off Date
Balance of [such Mortgage Loan] [such Mortgage Loans], and (ii) the
purchase price percentage set forth in Exhibit [A] hereto for such
[Mortgage Loan] [Mortgage Loans], and (b) accrued interest from the
Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the
period prior to the initial Interest Adjustment Date, [0.25]% and,
thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
first lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Greenpoint's credit underwriting
guidelines in effect at the time such Mortgage Loan was originated]
[conforms to the Xxxxxx Xxx or Xxxxxxx Mac mortgage eligibility
criteria (as such criteria applies to Greenpoint) and is eligible
for sale to, and securitization by, Xxxxxx Mae or Xxxxxxx Mac] [at
the time of origination was underwritten to guidelines which are
consistent with an institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
GREENPOINT MORTGAGE FUNDING, INC., XXXXXXX SACHS MORTGAGE COMPANY
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(Available upon request to the Trustee)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRADE CONFIRMATION
[GREENPOINT LETTERHEAD]
[DATE]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx Xxxxx Mortgage
Company (Deal No. yrmm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Xxxxxxx Sachs
Mortgage Company ("Purchaser") and Greenpoint Mortgage Funding, Inc.
("Greenpoint") pursuant to which Purchaser has agreed to purchase, and
Greenpoint has agreed to sell, those certain mortgage loans [identified]
[summarized] in Exhibit A hereto (the "Mortgage Loans"), subject to the terms
set forth herein.
Closing Date: _________ __, [year] [, provided, however, that
the parties shall use their best efforts to
consummate the transaction prior to [DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in
Exhibit A. [Loan-level pricing as set forth in
Exhibit A.]
Product: [Jumbo] ["A"] ["A-"] ["Alt A"] [Sub-prime]
[Conforming] [fixed] [(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not
be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Greenpoint and serviced on a
[scheduled/scheduled] [actual/actual]
[scheduled][actual] basis for the servicing fee
rate [equal to FEE% per annum][set forth in
Exhibit A [for each Mortgage Loan]]. [ With
respect to the period prior to the initial
Interest Adjustment Date, 0.25% and, thereafter,
0.375%].
Prepayment Penalties: [Greenpoint] [Purchaser] shall be entitled to any
penalties resulting from the prepayment of any
Mortgage Loans by the related mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation.
Greenpoint may, at its option, elect to substitute
comparable mortgage loans for any Mortgage Loans
rejected by Purchaser pursuant to the preceding
sentence.]
[Greenpoint's sale of the Mortgage Loans is
expressly subject to (a) the review of the Mortgage
Loans by Purchaser to confirm conformance with the
Trade Confirmation, and (b) purchase of the
Mortgage Loans by Greenpoint on or before the
Closing Date from the current owner of the Mortgage
Loans (the "Current Owner"). If either of the
foregoing conditions are not satisfied, Greenpoint
shall have no liability to Purchaser.]
Non-Circumvent: Greenpoint and Purchaser understand and agree that
Greenpoint may introduce the owner of the Mortgage
Loans to Purchaser, that the Current Owner is a
customer of Greenpoint and that such relationship
of Greenpoint is confidential. Purchaser agrees,
with respect to the Current Owner, Purchaser will
not, for the purpose of purchasing other mortgage
loans [for a period of one year from the Closing
Date], communicate with or purchase such other
mortgage loans from the Current Owner unless the
Current Owner has had previous business dealings
(other than any transactions involving Greenpoint)
with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
GREENPOINT MORTGAGE FUNDING, INC. XXXXXXX XXXXX MORTGAGE COMPANY
By: ________________________________
Name:
Title:
By: _______________________________
Name: [_______]
Title: [Executive Vice President]
EXHIBIT A
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(Available upon request to the Trustee)
EXHIBIT B
UNDERWRITING GUIDELINES
(Available upon request to the Trustee)
EXHIBIT E
CONTENTS OF EACH MORTGAGE FILE
(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 Mae or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property.
(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) The PMI Policy or certificate of insurance or electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
(o) Evidence of electronic notation of the hazard insurance policy,
and, if required by law, evidence of the flood insurance policy.
(p) Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical computerized data files, and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
(q) Amortization schedule, if available.
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of July 1, 2004 ("Amendment"), to the
Master Mortgage Loan Purchase Agreement, dated as of April 1, 2004, and as
further amended, modified and supplemented from time to time (the "Purchase
Agreement"), between XXXXXXX SACHS MORTGAGE COMPANY (the "Purchaser") and
GREENPOINT MORTGAGE FUNDING, INC. (the "Seller").
RECITALS
WHEREAS, the parties hereto have entered into the Purchase
Agreement;
WHEREAS, the parties hereto desire to modify the Purchase Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Purchase Agreement are used herein as therein defined.
2. Amendments.
(a) Section 1 of the Purchase Agreement is hereby amended by
inserting the following defined terms in alphabetical order therein:
"Covered Loan: A Mortgage Loan categorized as Covered pursuant
to Appendix E of Standard & Poor's Glossary."
"High Cost Loan: A Mortgage Loan covered by the Home Ownership and
Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term was defined in clause (1) of the definition of that
term in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 6, 2004), "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 Home Loan pursuant to
Appendix E of Standard & Poor's Glossary."
"Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time."
(b) The definition of "Mortgage Loan Schedule" set forth in Section
1 of the Purchase Agreement is hereby amended by deleting the word "and" before
item (36) in the first sentence of such definition and adding the following to
the end of that sentence:
"and (37) a field indicating whether such Mortgage Loan is a
Home Loan."
(c) Subsection 3.02(g) of the Purchase Agreement is hereby amended
by deleting the first sentence in its entirety and replacing it with the
following sentence:
"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, equal credit opportunity and disclosure laws applicable
to the Mortgage Loan, including, without limitation, any provisions
relating to Prepayment Penalties, have been complied with, the
consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations, and
Greenpoint 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;"
(d) Subsection 3.02(ee) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"Predatory Lending Regulations. No Mortgage Loan is a High Cost Loan
or Covered Loan, as applicable, and no Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act."
(e) Subsection 3.02(rr) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"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.
(f) Subsection 3.02(ddd) of the Purchase Agreement is hereby amended
by deleting the first sentence in its entirety and replacing it with the
following sentence:
"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 (including, without limitation, any
provisions therein relating to Prepayment Penalties)."
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Purchase Agreement is in all respects
ratified and confirmed, and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SELLER:
GREENPOINT MORTGAGE FUNDING, INC.
By:____________________________________
Name:
Title:
PURCHASER:
XXXXXXX XXXXX MORTGAGE COMPANY
By:____________________________________
Name:
Title:
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of January 1, 2005 ("Amendment"), to the
Master Mortgage Loan Purchase Agreement, dated as of April 1, 2004, as amended
by Amendment No. 1, dated as of July 1, 2004, and as further amended, modified
and supplemented from time to time (the "Purchase Agreement"), between XXXXXXX
SACHS MORTGAGE COMPANY (the "Purchaser") and GREENPOINT MORTGAGE FUNDING, INC.
(the "Seller").
RECITALS
WHEREAS, the parties hereto have entered into the Purchase
Agreement;
WHEREAS, the parties hereto desire to modify the Purchase Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Purchase Agreement are used herein as therein defined.
2. Amendments.
(a) Subsection 3.02(ee) of the Purchase Agreement is hereby amended
by adding the following as the last sentence:
"Each Mortgage Loan is in compliance with the anti-predatory lending
eligibility for purchase requirements of Xxxxxx Mae's Selling
Guide."
(b) Subsection 3.02(tt) of the Purchase Agreement is hereby amended
by adding the following as the last sentence:
"Notwithstanding any state or federal law to the contrary,
Greenpoint shall not impose such Prepayment Penalty in any instance
when the mortgage debt is accelerated as the result of the
Mortgagor's default in making the loan payments."
(c) Subsection 3.02(jjj) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"Balloon Mortgage Loans. No Mortgage Loan is a balloon mortgage loan
that has an original stated maturity of less than seven (7) years;"
(d) Subsection 3.02(mmm) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following
"Methodology. The methodology used in underwriting the extension of
credit for each Mortgage Loan employs objective mathematical
principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the Mortgagor's equity in
the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at
the time of origination (application/approval) the Mortgagor had a
reasonable ability to make timely payments on the Mortgage Loan;"
(e) Subsection 3.02(ooo) of the Purchase Agreement is hereby amended
by deleting the last sentence in its entirety and substituting it with the
following sentence:
"No Mortgagor obtained a prepaid single-premium credit life, credit
disability, accident, health, credit unemployment or credit property
insurance policy in connection with the origination of the Mortgage
Loan."
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Purchase Agreement is in all respects
ratified and confirmed, and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SELLER:
GREENPOINT MORTGAGE FUNDING, INC.
By:____________________________________
Name:
Title:
PURCHASER:
XXXXXXX XXXXX MORTGAGE COMPANY
By:____________________________________
Name:
Title:
EXHIBIT M
SERVICING AGREEMENT, DATED AS OF APRIL 1, 2004,
AS AMENDED BY AMENDMENT NO. 1, DATED AS
OF JULY 1, 2004, AND AS FURTHER AMENDED BY
AMENDMENT NO. 2, DATED AS OF JANUARY 1, 2005,
BETWEEN GREENPOINT MORTGAGE FUNDING, INC.
AND XXXXXXX SACHS MORTGAGE COMPANY
==============================================================================
SERVICING AGREEMENT
between
GREENPOINT MORTGAGE FUNDING, INC.
(Servicer)
and
XXXXXXX XXXXX MORTGAGE COMPANY
(Owner)
Dated as of April 1, 2004
Fixed & Adjustable-Rate First Lien Residential Mortgage Loans
==============================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer................
Section 2.2 Remedies for Breaches of Representations or Warranties........
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as
Servicer.....................................................
Section 3.2 Liquidation of Mortgage Loans.................................
Section 3.3 Collection of Mortgage Loan Payments..........................
Section 3.4 Establishment of Custodial Account; Deposits in Custodial
Account......................................................
Section 3.5 Permitted Withdrawals from the Custodial Account..............
Section 3.6 Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis.....................................
Section 3.7 Permitted Withdrawals from the Escrow Account.................
Section 3.8 Payment of Taxes, Insurance and Other Charges.................
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts............
Section 3.10 Maintenance of Hazard Insurance...............................
Section 3.11 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder.......................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.................
Section 3.13 Title, Management and Disposition of Real Estate Owned........
Section 3.14 Application of Proceeds of Insurance to Repair or
Restoration..................................................
Section 3.15 Inspections...................................................
Section 3.16 Fair Credit Reporting Act.....................................
Section 3.17 Compliance with the Privacy Laws..............................
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions.................................................
Section 4.2 Reports.......................................................
Section 4.3 Monthly Advances by Servicer..................................
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements.........................................
Section 5.2 Satisfaction of Mortgages and Release of Collateral Files.....
Section 5.3 Servicing Compensation........................................
Section 5.4 Annual Statements as to Compliance............................
Section 5.5 Annual Independent Public Accountants' Servicing Report.......
Section 5.6 Owner's Right to Examine Servicer Records, etc................
Section 5.7 Consents and Approvals........................................
Section 5.8 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Whole Loan Transfer or a Pass-Through
Transfer on One or More Reconstitution Dates.................
Section 5.9 Compliance With REMIC Provisions..............................
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims...........................
Section 6.2 Servicer Covenants; Merger or Consolidation of the
Servicer.....................................................
Section 6.3 Limitation on Liability of the Servicer and Others............
Section 6.4 Servicer Not to Resign........................................
Section 6.5 No Transfer of Servicing......................................
ARTICLE VII
DEFAULT
Section 7.1 Events of Default.............................................
Section 7.2 Waiver of Defaults............................................
Section 7.3 Survival of Certain Obligations and Liabilities of the
Defaulted Servicer...........................................
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement......................................
Section 8.2 Termination of the Servicer due to an Event of Default........
Section 8.3 Termination Without Cause.....................................
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer.....................................
Section 9.2 Amendment.....................................................
Section 9.3 Duration of Agreement.........................................
Section 9.4 Governing Law.................................................
Section 9.5 General Interpretive Principles...............................
Section 9.6 Reproduction of Documents.....................................
Section 9.7 Notices.......................................................
Section 9.8 Severability of Provisions....................................
Section 9.9 Disclosure of Relationship....................................
Section 9.10 Exhibits and Schedules........................................
Section 9.11 Counterparts; Successors and Assigns..........................
Section 9.12 Effect of Headings............................................
Section 9.13 Other Agreements Superseded...................................
Section 9.14 Confidentiality...............................................
DESCRIPTION OF ATTACHMENTS
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of April 1,
2004, is by and between GREENPOINT MORTGAGE FUNDING, INC., in its capacity as
servicer (the "Servicer"), and XXXXXXX XXXXX MORTGAGE COMPANY, and its
successors and assigns, as owner (the "Owner").
PRELIMINARY STATEMENT
WHEREAS, the Owner and Greenpoint Mortgage Funding, Inc.,
("Greenpoint") have entered into that certain Master Mortgage Loan Purchase
Agreement dated as of April 1, 2004 between the Owner, as purchaser and
Greenpoint, as seller, pursuant to which the Owner will purchase and Greenpoint
will sell from time to time, certain fixed and adjustable-rate first lien
residential mortgage loans (the "Master Mortgage Loan Purchase Agreement");
WHEREAS, the Servicer is in the business of providing primary
servicing of mortgage loans and owns the right to service the Mortgage Loans (as
hereinafter defined) listed on the Mortgage Loan Schedule (as hereinafter
defined);
WHEREAS, the Owner has requested the Servicer to service the
Mortgage Loans and Servicer has agreed to service, as an independent contractor,
such mortgage loans for the Owner on the terms and conditions set forth herein;
and
WHEREAS, the Servicer and the Owner desire to prescribe the terms
and conditions regarding the management, servicing, and control of such mortgage
loans.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Servicer and the
Owner agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including prudent
collection and loan administration procedures, and standard of care employed by
prudent mortgage servicers. Such standard of care (i) shall not be lower than
that the Servicer customarily employs and exercises in servicing and
administering similar mortgage loans for its own account, (ii) shall be in
accordance with the requirements of the Servicer's policies and procedures,
(iii) shall be, at a minimum, at least as prudent as the requirements of Xxxxxx
Mae as set forth from time to time in the Xxxxxx Xxx Selling and Servicing
Guide, as amended from time to time and (iv) shall be in full compliance with
all federal, state and local laws, ordinances, rules and regulations.
Advance: A Monthly Advance or Servicing Advance.
Agreement: This Servicing Agreement, including all exhibits and
schedules hereto, and all amendments hereof and supplements hereto.
Ancillary Income: All income if any, derived from any Mortgage Loan,
including but not limited to late charges, fees received with respect to checks
or bank drafts returned by the related bank for non-sufficient funds, assumption
fees, speed pay fees, Prepayment Charges, reconveyance and demand statement
fees, loan modification fees and reamortization fees.
Applicable Requirements: The (i) terms of the Mortgage and Mortgage
Note related to each Mortgage Loan, (ii) the federal, state, local and foreign
laws, statutes, rules, regulations, ordinances, standards, requirements,
administrative rulings, orders and processes pertaining to Mortgage Loans,
including but not limited to those pertaining to the processing, origination and
servicing of the Mortgage Loans and the servicer's policies and procedures,
(iii) the requirements of a Primary Mortgage Insurer (if any) with respect to
the processing, origination, insuring, servicing or filing of claims in
connection with the Mortgage Loans, (iv) the requirements of the Owner as set
forth in this Agreement, and (v) the reasonable and customary mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note
provides that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of
transfer, or equivalent instrument, in recordable form, sufficient under and
complying with the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage Loan to the
assignee named therein.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings and loan institutions in the States of New York
or California are authorized or obligated by law or executive order to be
closed.
Closing Date: The date on which the sale and purchase of a Mortgage
Loan Package is consummated between the Owner and Greenpoint pursuant to the
terms of the Master Mortgage Loan Purchase Agreement.
Code: The Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the
mortgage loan documents pertaining to such Mortgage Loan which are specified in
Exhibit B hereto and any additional mortgage documents pertaining to such
Mortgage Loan required to be added to the related Collateral File pursuant to
the terms of this Agreement.
Collateral File: With respect to any Mortgage Loan, the file
pertaining to such Mortgage Loan that contains each of the related Collateral
Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of all or part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Consents: shall mean the unconditional written consent or approval,
as necessary, of an Investor and any applicable Insurer to the Servicer's
servicing of the Mortgage Loans hereunder.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: With respect to any Mortgage Loan, a file pertaining to
such Mortgage Loan and containing copies of the mortgage loan documents
described on Exhibit C attached hereto, the credit documentation relating to the
origination of such Mortgage Loan and copies of the Collateral Documents. Each
Credit File shall be maintained by the Servicer (either on paper or on microfilm
or any other comparable medium).
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.4 of this Agreement which account(s) shall be an Eligible
Account.
Custodial Agreement: Any agreement with respect to the Mortgage
Loans governing the retention of the originals of each Mortgage Note, Mortgage,
Assignment of Mortgage and other mortgage loan documents, entered into between
the Owner and Deutsche Bank National Trust Company.
Custodian: Deutsche Bank National Trust Company, its successor in
interest or assign, or such other custodian that may be designated by the Owner
from time to time.
Cut-off Date: With respect to a Mortgage Loan Package, the first day
of the month in which the related Cut-off Date occurs or such other date as may
be mutually agreed to by the parties.
Default: Any condition or circumstance that is, or with notice or
the lapse of time or both, would become, an Event of Default.
Depositor: As defined in Section 5.4(a).
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: With respect to any Mortgage Loan, the first day of the
month on which Monthly Payments on such Mortgage Loan are due, exclusive of any
days of grace.
Due Period: With respect to each Remittance Date, the period
beginning on the second day of the month immediately preceding the month of such
Remittance Date and ending on the first day of the month of such Remittance
Date.
Eligible Account: An account or accounts maintained with a Qualified
Depository.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.6.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, if any, fire and hazard
insurance premiums, and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
Xxxxxx Xxx: Xxxxxx Xxx, formerly known as 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.
Fidelity Bond: A fidelity bond to be obtained by the Servicer
pursuant to Section 3.12.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: Xxxxxxx Mac, formerly known as the Federal Home Loan
Mortgage Corporation or any successor thereto.
Greenpoint: Greenpoint Mortgage Funding, Inc., and its successors in
interest.
Greenpoint Information: As defined in Section 5.8(d).
Gross Margin: With respect to each ARM Loan, the fixed percentage
amount set forth in the related Mortgage Note as shown in the Mortgage Loan
Schedule, 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.
Index: With respect to any ARM Loan, the index set forth in the
applicable Mortgage Note which is added to the Gross Margin to determine the
Mortgage Interest Rate on each Interest Rate Adjustment Date. In the event the
Index becomes unavailable for any reason, the Servicer shall select an
alternative index, in accordance with the terms of the Mortgage Note, and such
alternative index shall thereafter be the Index for such Mortgage Loan.
Initial Rate Cap: As to each ARM Loan, the maximum increase or
decrease in the Mortgage Interest Rate on the first Interest Rate Adjustment
Date as provided in the related Mortgage Note.
Insurance Proceeds: Proceeds of any Primary Mortgage Insurance
Policy, any title policy, any hazard insurance policy or any other insurance
policy covering a Mortgage Loan or the related Mortgaged Property, including any
amounts required to be deposited in the Custodial Account pursuant to Section
3.10, to the extent such proceeds are not to be applied to the restoration of
the related Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures and Section 3.14.
Interest Rate Adjustment Date: As to any ARM Loan, the date
specified in a Mortgage Note on which the Mortgage Interest Rate for the related
Mortgage Loan is subject to adjustment.
Investor: With respect to any Mortgage Loan, a Person who has a
beneficial interest in, or is a record owner of, such Mortgage Loan or any
trustee acting on behalf of any such Person.
Late Collections: With respect to any Mortgage Loan, all amounts
(other than Monthly Advances) received during any Due Period, whether as late
payments of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds,
Condemnation Proceeds or otherwise, which represent late payments or collections
of Monthly Payments due but delinquent for a previous Due Period and not
previously recovered.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of the Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or in
connection with the sale of the Mortgaged Property if the Mortgaged Property is
a REO Property.
LPMI Fee: The portion of the Mortgage Interest Rate relating to a
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by the Servicer to pay the premium due on a Primary Mortgage Insurance
Policy with respect to a LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the Servicer is
responsible for paying the premium due on the related Primary Mortgage Insurance
Policy with the proceeds generated by the LPMI Fee relating to such Mortgage
Loan, as set forth on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
Losses: Any claims, penalties, fines, forfeitures, damages,
liabilities, losses and expenses, including reasonable attorneys' fees.
Master Servicer: As defined in Section 5.4(a).
Maturity Date: With respect to any Mortgage Loan, the maturity date
of the related Mortgage Note and Mortgage as specified therein.
MERS: Mortgage Electronic Registration, Inc. a corporation organized
and existing under the laws of the State of Delaware, or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: Commencing with each Monthly Payment due on or
after the related Cut-off Date, the portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to Section
4.3 on the Business Day immediately preceding the Remittance Date of the related
month.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor from time to time
under the related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust or other
instrument creating a first lien on or first priority ownership interest on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor, as the case may be, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgage Interest Rate: As to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan and, with respect to an ARM Loan,
as adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes, without limitation, the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds (if applicable) and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: Pools of Mortgage Loans sold to the Owner
pursuant the Master Mortgage Loan Purchase Agreement.
Mortgage Loan Remittance Rate: with respect to each Mortgage Loan,
the interest rate payable to the Owner on each Remittance Date which shall equal
the Mortgage Interest Rate less the Servicing Fee and any LPMI Fees, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Greenpoint's Mortgage Loan number; (2) the
address, city, state and zip code of the Mortgaged Property (or, in the case of
each Cooperative Loan, of the related Cooperative Unit); (3) a code indicating
whether the Mortgagor is self-employed; (4) a code indicating whether the
Mortgaged Property is owner-occupied, investment property or a second home; (5)
a code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence,
condominium, manufactured housing, mixed-use property, raw land and other
non-residential properties, planned unit development or cooperative stock in a
cooperative housing corporation; (6) the purpose of the Mortgage Loan; (7) the
type of Mortgage Loan (i.e., Fixed Rate or ARM Loan); (8) the Mortgage Interest
Rate at origination; (9) the current Mortgage Interest Rate; (10) whether the
Mortgage Loan has Monthly Payments that are interest only for a period of time;
(11) the Servicing Fee Rate; (12) the current Monthly Payment; (13) the original
term to maturity; (14) the remaining term to maturity; (15) the principal
balance of the Mortgage Loan as of the Cut-off Date after deduction of payments
of principal due on or before the Cut-off Date whether or not collected; (16)
the LTV at origination and if the Mortgage Loan has a second lien, combined LTV
at origination; (17) the actual principal balance of the Mortgage Loan as of the
Cut-off Date; (18) social security number of the Mortgagor; (19) a code
indicating whether the Mortgage Loan has negative amortization and the maximum
amount of such negative amortization; (20) a code indicating whether the
Mortgage Loan had a second lien at origination; (21) if the Mortgage Loan has a
second lien, combined loan balance as of the Cut-off Date; (22) a code
indicating whether the Mortgaged Property is a leasehold estate; (23) the due
date of the Mortgage Loan; (24) whether the Mortgage Loan is insured by a
Primary Mortgage Insurance Policy and the name of the insurer; (25) the
certificate number of the Primary Mortgage Insurance Policy; (26) the amount of
coverage of the Primary Mortgage Insurance Policy; (27) the type of appraisal;
(28) a code indicating whether the Mortgage Loan is a MERS Mortgage Loan; (29) a
code indicating whether the Mortgage Loan is subject to a prepay penalty and the
terms of such prepayment penalty; (30) documentation type (including asset and
income type); (31) first payment date; (32) the schedule of the payment
delinquencies in the prior 12 months, (33) FICO score (34) the Mortgagor's name;
(35) the stated maturity date; and (36) the original principal amount of the
Mortgage. With respect to any ARM Loan: (a) the Gross Margin; (b) the Periodic
Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Rate Adjustment Date
cap and the Interest Rate Adjustment Date frequency; (e) the minimum Mortgage
Interest Rate; (f) the first Interest Rate Adjustment Date immediately following
the Cut-off Date; and (g) the Index, including the methodology for rounding
(e.g. rounded upward, if necessary, to the next nearest ten thousandth (.0001))
and the applicable time frame for determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagor: The obligor on a Mortgage Note and his/her successors in
title to the Mortgage Property.
Nonrecoverable Advance: Any portion of any of a Monthly Advance or
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer hereunder which, in the good faith judgment of the
Servicer, will not be ultimately recoverable from Late Collections.
Offering Materials: As defined in Section 5.8(d).
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President of the
Servicer, and delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer or an affiliate thereof, reasonably acceptable to the
Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company and its successors and
assigns.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans to a REMIC or other trust to be formed as part of a publicly or
privately traded pass-through transaction retaining the Servicer as "servicer"
thereunder.
Periodic Rate Cap: With respect to each ARM 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,
equal to the rate set forth on the Mortgage Loan Schedule per adjustment.
Permitted Instruments: Any one or more of the following obligations
or securities:
(i) direct obligations of, or obligations fully guaranteed as
to principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the
full faith and credit of the United States;
(ii) repurchase obligations with respect to any security
described in clause (i) above, provided that the unsecured long-term
obligations of the party agreeing to repurchase such obligations are
at the time rated by Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. ("S&P") in one of its three
highest rating categories;
(iii) federal funds, certificates of deposit, time deposits,
and bankers' acceptances of any bank or trust company incorporated
under the laws of the United States or any state, provided that the
long-term debt obligations of such bank or trust company (or, in the
case of the principal bank in a bank holding company system, the
long-term debt obligations of the bank holding company) at the date
of acquisition thereof have been rated by the S&P in one of its
three highest rating categories;
(iv) commercial paper of any corporation incorporated under
the laws of the United States or any state thereof which on the date
of acquisition has been rated by the S&P in its highest short-term
rating category; and
(v) any other obligation or security acceptable to Standard &
Poor's Corporation in respect of mortgage pass-through certificates
rated in one of its three highest rating categories, as evidenced by
a letter from the S&P to such effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Charge: With respect to any Mortgage Loan, the prepayment
premium or charge, if any, required under the terms of the related Mortgage Note
to be paid in connection with a Principal Prepayment, to the extent permitted by
applicable law.
Prepayment Period: With respect to a Remittance Date, the prior
calendar month.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment in full or in
part during the related Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Primary Mortgage Insurance Policy: With respect to any Mortgage
Loan, the policy of primary mortgage guaranty insurance (including all
endorsements thereto), if any, issued by a Qualified Insurer with respect to
such Mortgage Loan, or any replacement policy.
Primary Mortgage Insurer: The named insurer under any Primary
Mortgage Insurance Policy.
Prime: As of any date of determination, the annual interest rate,
adjusted daily, published from time to time in The Wall Street Journal (Western
Edition) as the "PRIME RATE" in the "MONEY RATES" section.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Condemnation Proceeds, Insurance Proceeds, and
Liquidation Proceeds) which is received in advance of its scheduled Due Date
(not including any Prepayment Charge) and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Qualified Depository: (i) A depository, the long-term unsecured debt
obligations of which are rated by a nationally recognized statistical rating
agency in one of its two highest rating categories at the time of any deposit
therein, or (ii) a depository, the deposits of which are fully insured to the
maximum extent permitted by the FDIC or (iii) the corporate trust department of
a national bank; provided that in case of (ii) and (iii) above, they maintain a
rating by a nationally recognized statistical rating agency in the highest
rating categories for short term debt obligations.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Rating Agency: Any of Fitch, Xxxxx'x or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution Agreements: The agreement or agreements entered into
by the Servicer and the Owner and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or a Pass-Through Transfer.
Such agreement or agreements shall prescribe the rights and obligations of the
Servicer in servicing the related Mortgage Loans.
Reconstitution Date: The date or dates on which any or all of the
Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Whole Loan Transfer or Pass-Through
Transfer pursuant to Section 5.9 hereof. On such date, the Mortgage Loans
transferred shall cease to be covered by this Agreement and the Servicer shall
cease to service those Mortgage Loans under this Agreement in accordance with
the termination provisions set forth in Section 5.9 hereof.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Advice Date: The 5th day of each month or, if such 5th
day is not a Business Day, the first Business Day immediately following such
day.
Remittance Date: With respect to each Mortgage Loan: the eighteenth
(18th) day of any month, beginning with the eighteenth (18th) day of the month
next following the month in which the related Cut-off Date occurs, or if such
eighteenth (18th) day is not a Business Day, the first Business Day immediately
following such day.
REO Property: A Mortgaged Property acquired in foreclosure or by
deed in lieu of foreclosure, as described in Section 3.13.
Sarbanes Certifying Party: A Person who provides certification
required under the Xxxxxxxx-Xxxxx Act of 2002 in connection with a
Securitization or other securitization transaction.
Securitization: The transfer of the Mortgage Loans to a trust formed
as part of a publicly issued and/or privately placed, rated securitization,
including the issuance of the related Securities.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicer: Greenpoint or any successor to the Servicer as permitted
under this Agreement.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) that are incurred by the Servicer in the performance of its
servicing obligations hereunder, including, but not limited to, the cost of (i)
the preservation, restoration, and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) compliance with the
obligations of this Agreement, including without limitation under Sections 3.8
and 3.10.
Servicing Fee: With respect to each Mortgage Loan being serviced and
administered pursuant to this Agreement, the amount of the annual fee payable to
the Servicer as compensation for servicing and administering such Mortgage Loan
and for managing and disposing of REO Property in accordance with the terms of
this Agreement. For each Mortgage Loan, such fee shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate,
multiplied by (ii) the outstanding Unpaid Principal Balance of such Mortgage
Loan as of the first day of such month, and shall be payable in accordance with
Section 5.3. With respect to any REO Property that is being managed by the
Servicer in accordance with Section 3.13 of this Agreement, such fee shall be
payable through and until the disposition of such REO Property or the transfer
of the REO Property to the Owner for management by the Owner, and the amount of
such fee shall be based upon the Unpaid Principal Balance of the related
Mortgage Loan at the time of the related foreclosure.
Servicing Fee Rate: As set forth on the Mortgage Loan Schedule.
Servicing File: As to each Mortgage Loan, the copies of the
Collateral Documents, as well as the credit and closing packages, disclosures,
copies of the all other files, books, records and documents necessary to (a)
establish the eligibility of the Mortgage Loan for insurance by a Qualified
Insurer, if any; and/or (b) service the Mortgage Loan in accordance with
Acceptable Servicing Procedures, including the documents listed on Exhibit B
hereto, some of which maybe held by the Custodian.
Underwriting Guidelines: The underwriting guidelines of Greenpoint.
Unpaid Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the 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 Owner with respect to the related Mortgage Loan representing
payments or recoveries of principal or advances in lieu thereof.
Whole Loan Transfer: The sale or transfer by the Owner of some or
all of the Mortgage Loans in a whole loan or participation certificate format
pursuant to a Reconstitution Agreement retaining the Servicer as "servicer"
thereunder.
3/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 36 months.
5/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 60 months.
7/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 84 months.
10/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 120 months.
Any capitalized term used herein and not otherwise defined, shall
have the meaning assigned to such term in the Master Mortgage Loan Purchase
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer
With respect to a Mortgage Loan Package, the Servicer represents,
warrants and covenants to the Owner that, as of the related Closing Date:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and is
qualified and licensed to transact business in and is in good standing under the
laws of each state where each Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and the servicing
of the Mortgage Loan in accordance with the terms of this Agreement. The
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized. This Agreement evidences the valid, binding and enforceable
obligation of the Servicer; and all requisite action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its term;
(b) The Servicer has the full power and authority to (i) perform and
enter into and consummate all transactions contemplated by this Agreement and
(ii) to service each Mortgage Loan;
(c) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer, which is in
the business of servicing loans;
(d) Neither 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 Servicer's charter or result in a material
breach of any legal restriction or any material agreement or instrument to which
the Servicer is now a party or by which it is bound, or constitute a material
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 Servicer or its property is subject;
(e) The Servicer is an approved servicer for Xxxxxx Xxx and Xxxxxxx
Mac in good standing. No event has occurred, including a change in insurance
coverage, which would make the Servicer unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements;
(f) There is no action, suit, proceeding, investigation or
litigation pending or, to the Servicer's knowledge, threatened, which either in
any one instance or in the aggregate, if determined adversely to the Servicer
would materially and adversely affect the Servicer's ability to service the
Mortgage Loans hereunder in accordance with the terms hereof, or the Servicer's
ability to perform its obligations under this Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, of or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) The Servicer 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 Servicer, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(i) The Servicer 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;
(j) The Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans registered with MERS;
(k) The Servicer has serviced, and shall at all times service, the
Mortgage Loans in accordance with the Acceptable Servicing Procedures, the
Mortgage Note and applicable federal, state and local laws and regulations,
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws, and the Servicer shall maintain in its possession, available for the
Owner's inspection and shall deliver to the Owner upon demand, evidence of
compliance with all such requirements. 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;
(l) The Servicer has fully furnished (or caused to be 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, or any their successors and assigns (three of the credit repositories),
on a monthly basis; and
(m) No statement, report or other document prepared and furnished by
the Servicer or to be prepared and furnished by the Servicer pursuant to this
Agreement in connection with the transactions contemplated hereby contain or
will contain any untrue statement of fact or omit to state a fact necessary to
make the statements contained therein not misleading.
Section 2.2 Remedies for Breaches of Representations or Warranties.
The Servicer shall indemnify the Owner, its affiliates and their
respective directors, officers and employees and hold such Persons harmless
against any Losses and related costs, judgments, and other costs and expenses
resulting from a breach of the Servicer's representations and warranties
contained in Section 2.1 that materially and adversely affects the interests of
the Owner in or the value of one or more of the Mortgage Loans. The obligations
of the Servicer set forth in this Section 2.2 to indemnify the Owner as provided
in this Section 2.2 constitute the sole remedies of the Owner with respect to a
breach of the foregoing representations and warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as
Servicer
(a) The Servicer, as independent contractor, shall commence
servicing and administering each Mortgage Loan on behalf of the Owner from and
after the Cut-off Date in accordance with the terms and conditions of this
Agreement and Acceptable Servicing Procedures and the terms of the Mortgage
Notes and the Mortgages. Except as otherwise expressly provided in this
Agreement, the Servicer shall have full power and authority, acting alone, to do
any and all things reasonably consistent with the terms of this Agreement,
including but not limited to the following: (i) to execute and deliver, on
behalf of the Owner, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and other
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan; provided
that the Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Owner under this Agreement. The Servicer further
is authorized and empowered by the Owner, in its own name when the Servicer,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Owner, any
and all instruments of assignment and other comparable instruments with respect
to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. The Servicer shall at
all times act in the best interests of the Owner in performing its obligations
under this Agreement.
(b) The documents comprising the Collateral File relating to each
Mortgage Loan serviced hereunder and that are retained by the Servicer pursuant
to the terms hereof, together with all other documents with respect to each such
Mortgage Loan which are prepared by or which come into the possession of the
Servicer, shall immediately vest in the Owner and shall be held and maintained
in trust by the Servicer at the will of the Owner and in a custodial capacity
only. The documents comprising each Collateral File and all related documents
which come into the possession of the Servicer and are so held by the Servicer
shall be segregated from the other books and records of the Servicer and shall
be appropriately marked to clearly reflect the ownership interest of the Owner
in such Collateral File and related documents. The Servicer shall release its
custody of any such documents only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with applicable law. The Servicer shall keep at its
servicing office books and records in which, subject to such reasonable
regulations as it may prescribe, the Servicer shall note transfers of Mortgage
Loans. No transfer of a Mortgage Loan may be made unless such transfer is in
compliance with the terms hereof. For the purposes of this Agreement, the
Servicer shall be under no obligation to deal with any person with respect to
this Agreement or the Mortgage Loans unless the books and records show such
person as the owner of the Mortgage Loan. The Owner may, subject to the terms of
this Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that in no event shall there be more than four Persons at any given
time having the status of "Owner" hereunder. The Owner also shall advise the
Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. If the
Servicer receives written notification of a transfer less than five (5) Business
Days before the monthly Determination Date, the Servicer's duties to remit and
report to the new purchaser(s) as required by Section 5.9 hereof shall begin
with the first Determination Date after the Reconstitution Date.
(c) Consistent with the terms of this Agreement and subject to the
REMIC Provisions if the Mortgage Loans have been transferred to a REMIC, 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 if, in the Servicer's reasonable and prudent
determination, such waiver, modification, variation, postponement or indulgence
is in the best interests of and is not materially adverse to the Owner and will
not result in the impairment of coverage under any Primary Mortgage Insurance
Policy; provided, however, that the Servicer may not, without the prior written
consent of the Owner, (i) waive any Prepayment Charge in full or in part, (ii)
permit any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate (other than by adjustments required by the terms of the
related Mortgage Note), the Lifetime Rate Cap (if applicable), the Initial Rate
Cap (if applicable), the Periodic Rate Cap (if applicable) or the Gross Margin
(if applicable), (iii) defer or forgive the payment of any principal or
interest, (iv) reduce the outstanding principal amount (except to reflect actual
payments of principal), (v) except other than pursuant to the terms of the
Mortgage Loan, make any advances of additional principal or (vi) extend the
final maturity date on such Mortgage Loan. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Servicer shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 4.3, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the Unpaid
Principal Balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered to execute and deliver on behalf of itself and
the Owner in connection with any Mortgage Loan all instruments of satisfaction,
cancellation or full release upon receipt by the Servicer of payment in full of
the Unpaid Principal Balance or, with the prior written consent of the Owner,
partial release or discharge, and all other comparable instruments with respect
to the Mortgage Loans and the Mortgaged Properties. The Servicer shall prepare
and deliver to the Owner such documents requiring execution and delivery as are
necessary or appropriate to enable the Servicer to service and administer the
Mortgage Loans to the extent that the Servicer is not permitted to execute and
deliver such documents pursuant to the preceding sentence. Upon receipt of such
documents, the Owner shall execute such documents and deliver them to the
Servicer. If reasonably required by the Servicer, the Owner shall furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, in strict
compliance with (i) the terms of the Mortgage and Mortgage Note, (ii) all
applicable law, and (iii) Acceptable Servicing Procedures.
Section 3.2 Liquidation of Mortgage Loans
In the event that any payment due under any Mortgage Loan is not
paid when the same becomes due and payable, or in the event the Mortgagor fails
to perform or observe any other covenant or obligation under the Mortgage Loan
and such failure continues beyond any applicable grace period, the Servicer will
proceed diligently to collect all payments due and shall take such action as it
shall reasonably deem to be in the best interest of the Owner. In the event that
any payment due under any Mortgage Loan remains delinquent for a period of
ninety (90) days or more, the Servicer shall commence foreclosure proceedings in
accordance with Acceptable Servicing Procedures and the guidelines set forth by
Xxxxxx Xxx or Xxxxxxx Mac. In such connection, the Servicer shall from its own
funds make all necessary and proper Servicing Advances.
Section 3.3 Collection of Mortgage Loan Payments
Until the principal and interest on all Mortgage Loans being
serviced hereunder are paid in full or this Agreement is otherwise terminated,
the Servicer will proceed diligently to collect all payments due under each of
such Mortgage Loans when the same shall become due and payable. With respect to
those Mortgage Loans, if any, as to which the Servicer collects Escrow Payments,
the Servicer will ascertain or estimate, as the case may be, annual ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums and all other charges that, as provided in any
Mortgage, will become due and payable so that the Escrow Payments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable. The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note, Primary Mortgage Insurance Policy or otherwise or against any
public or governmental authority with respect to a taking or condemnation) if in
its reasonable judgment it believes that it will be unable to enforce the
provision of the Mortgage or other instrument pursuant to which payment is
required.
Section 3.4 Establishment of Custodial Account; Deposits in
Custodial Account
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts (collectively, with respect to the accounts maintained by any one
Servicer, its "Custodial Account"), in the form of time deposit or demand
accounts, which may be interest bearing, titled, with respect to the Servicer,
"Greenpoint Mortgage Funding, Inc., in trust for Xxxxxxx Sachs Mortgage Company
as Owner, and any successor Owner." Such Custodial Account shall be an Eligible
Account.
(b) With respect to each Mortgage Loan, the Servicer shall not later
than the end of the second Business Day following receipt thereof, deposit in
the Custodial Account and retain therein the following payments and collections
received by the Servicer subsequent to the Cut-off Date:
(i) all payments on account of principal, including Principal
Prepayments, actually collected by the Servicer on the Mortgage Loans;
(ii) all payments on account of interest actually collected by the
Servicer on the Mortgage Loans less the Servicing Fee;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds, other than Insurance Proceeds to be
held in the Escrow Account and applied to the restoration and repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures;
(v) all Condemnation Proceeds which are not released to the
Mortgagor in accordance with the Owner's written consent and Acceptable
Servicing Procedures and Section 3.14;
(vi) any amounts with respect to Monthly Advances required to be
deposited in the Custodial Account pursuant to Sections 4.3 and 5.3 ;
(vii) any amount required to be deposited in the Custodial Account
pursuant to Sections 3.1(c), 3.4(c), 3.10, 3.11(c), 3.13(d), (e) and (g),
and 4.1(b) of this Agreement; and
(viii) an amount to be deposited from the Servicer's own funds,
without reimbursement therefor, equal to the lesser of the Prepayment
Interest Shortfall Amount, if any, for the month preceding the month in
which the applicable Remittance Date occurs and one half of the Servicing
Fee for such Remittance Date.
(c) The Servicer may cause the funds on deposit from time to time in
the Custodial Account to be invested in Permitted Instruments, which investments
shall mature not later than the Business Day immediately preceding the
applicable Remittance Date next following the date of such investment. All such
investments shall be made in the name of the Servicer or its nominee. All income
and gain realized from any such investment shall be for the benefit of the
Servicer and shall be subject to its withdrawal or order from time to time. The
Servicer shall indemnify the Owner for any and all Losses incurred in respect of
any such investment by the Servicer, and the amount of any Losses incurred in
respect of any such investment shall be deposited in the Custodial Account by
the Servicer out if its own funds immediately, without reimbursement therefor.
(d) It is understood and agreed that payments in the nature of
Ancillary Income need not be deposited by the Servicer in the Custodial Account.
Section 3.5 Permitted Withdrawals from the Custodial Account
(a) The Servicer may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments and distributions to the Owner in the amounts
and in the manner provided for in Section 4.1;
(ii) to reimburse itself for Monthly Advances made by the Servicer
from its own funds pursuant to Section 4.3, the Servicer's right to
reimburse itself pursuant to this subclause (ii) being limited to amounts
received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such Monthly Advance was
made and such other amounts as are collected by the Servicer from the
related Mortgagor or otherwise relating to the Mortgage Loan (or to
amounts received on the Mortgage Loans as a whole in the event that such
Monthly Advance is made to pay a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Servicemembers Civil Relief Act).
Notwithstanding the foregoing, the Servicer may reimburse itself for
Monthly Advances from any funds in the Custodial Account if it has
determined that such funds are Nonrecoverable Advances (as certified by
the Servicer to the Owner in an Officer's Certificate) (or if all funds,
with respect to the related Mortgage Loan, have previously been remitted
to the Owner). Notwithstanding anything to the contrary contained herein,
if the Servicer is Greenpoint and the Mortgage Loan for which such
Advances were made was required to be repurchased by Greenpoint pursuant
to the Master Mortgage Loan Purchase Agreement, the Servicer shall not be
entitled to reimburse itself for such Advances;
(iii) to reimburse itself for unreimbursed Servicing Advances and
any unpaid Servicing Fees, Servicer's right to reimburse itself pursuant
to this subclause (iii) with respect to any Mortgage Loan being limited to
related proceeds from Liquidation Proceeds, Condemnation Proceeds, Primary
Mortgage Insurance Proceeds and Other Insurance Proceeds; provided that
the Servicer may reimburse itself from any funds in the Custodial Account
for (a) Servicing Advances and Servicing Fees if all funds with respect to
the related Mortgage Loan have previously been remitted to Owner and (b)
Servicing Advances which it has determined are Nonrecoverable Advances (as
certified by the Servicer to the Owner in an Officer's Certificate).
Notwithstanding anything to the contrary contained herein, if the Servicer
is Greenpoint and the Mortgage Loan for which such Advances were made was
required to be repurchased by Greenpoint pursuant to the Master Mortgage
Loan Purchase Agreement, the Servicer shall not be entitled to reimburse
itself for such Advances;
(iv) to reimburse any Master Servicer for Securitization for any
unreimbursed Monthly Advances or Servicing Advances made by such Master
Servicer, as applicable, the right to reimbursement pursuant to this
subclause (iv) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance 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 such reimbursement, such trustee's right thereto shall be prior to
the rights of the Servicer to reimbursement under (ii) and (iii), and
prior to the rights of the Owner under (i);
(v) to pay itself any Servicing Fee and other servicing compensation
not paid to the Servicer pursuant to Section 5.3;
(vi) to pay to itself any interest earned on funds deposited in the
Custodial Account;
(vii) if there shall be amounts deposited in the Custodial Account
in error, including the Servicing Fee and other servicing compensation not
required to be deposited therein, to withdraw such amounts; and
(viii) to clear and terminate the Custodial Account upon the
termination of this Agreement in accordance with Article 8.
Section 3.6 Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, with respect
to the accounts maintained by any one Servicer, its "Escrow Account"), in the
form of time deposit or demand accounts, which may be interest bearing, titled,
with respect to the Servicer, "Greenpoint Mortgage Funding, Inc., in trust for
Xxxxxxx Xxxxx Mortgage Company, as Owner, and any successor Owner, and certain
Mortgagors." The Escrow Account shall be an Eligible Account.
(b) The Servicer shall not later than the end of the second Business
Day following receipt thereof (or sooner if required by applicable law) deposit
in the Escrow Account maintained by the Servicer and retain therein: (i) all
Escrow Payments collected on account of the Mortgage Loans for the purpose of
effecting timely payment of any such items as required under the terms of this
Agreement, and (ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any Mortgaged
Property. The Servicer shall make withdrawals from the Escrow Account maintained
by the Servicer only in accordance with Section 3.7. The Servicer shall be
entitled to retain any interest earned on funds deposited in the Escrow Account
maintained by the Servicer other than interest on escrowed funds required by law
to be paid to the Mortgagor and, to the extent required by law, the Servicer
shall pay interest on escrowed funds to the Mortgagor notwithstanding that the
Escrow Account maintained by the Servicer may not bear interest or that the
interest earned on such escrowed funds is insufficient for such purpose.
Section 3.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the Servicer may
be made by the Servicer only (a) to effect timely payments of taxes,
assessments, water rates, insurance premiums, fire and hazard insurance premiums
or other items constituting Escrow Payments for the related Mortgage; (b) to
reimburse the Servicer for any Servicing Advance made by the Servicer pursuant
to Sections 3.8, 3.10 and 3.11 with respect to a related Mortgage Loan, the
Servicer's right to reimburse itself pursuant to this clause (b) being limited
to the amounts as may be collected by the Servicer from the related Mortgagor or
from the related insurer; (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 in accordance with the terms of this
Agreement; (e) for application to restoration or repair of the related Mortgaged
Property in accordance with the provisions of Section 3.14, (f) to pay to a
Mortgagor, to the extent required by Applicable Requirements, interest 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
related Mortgagor), (h) to remove funds inadvertently placed in the Escrow
Account by the Servicer; or (i) to clear and terminate the Escrow Account upon
the termination of this Agreement, in accordance with Article 8.
Section 3.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of property taxes, assessments and other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums, if any, and fire and
hazard insurance coverage and flood insurance, all as required hereunder. If a
Mortgage Loan requires Escrow Payments, the Servicer shall obtain, from time to
time, all bills for the payment of such charges (including renewal premiums) and
shall effect payment thereof prior to the applicable penalty or termination date
in a manner consistent with Acceptable Servicing Procedures, employing for such
purpose Mortgagor deposits in the Escrow Account. The Servicer shall, with
respect to each Mortgage Loan for which Escrow Payments are maintained, conduct
an escrow analysis in accordance with industry standard procedures. If a
Mortgage Loan does not require Escrow Payments, or if there are insufficient
funds in the related Escrow Account, the Servicer shall cause all such bills to
be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to make timely payment of all such bills. The Servicer shall
monitor the payment status of such charges (including renewal premiums) by the
related Mortgagor, and shall effect payment thereof in a manner consistent with
Acceptable Servicing Procedures, and in all events prior to the foreclosure of
any lien against the Mortgaged Property resulting from non-payment of such
property taxes, assessments and other charges and prior to the termination of
any such insurance coverage. No costs incurred by the Servicer in effecting the
payment of taxes and assessments on the Mortgaged Properties shall, for the
purpose of calculating remittances to the Owner, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts
The Servicer may from time to time transfer the Custodial Account or
the Escrow Account maintained by it to a different depository institution,
provided that each such account shall be and remain an Eligible Account.
Section 3.10 Maintenance of Hazard Insurance
(a) The Servicer shall cause to be maintained, with a Qualified
Insurer for each Mortgage Loan serviced by it, fire and hazard insurance with
extended coverage customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Xxxxxx Mae and
Xxxxxxx Mac, in an amount which is at least equal to the lesser of (a) the full
insurable value of the Mortgaged Property or (b) the greater of (i) the
outstanding principal balance owing on the Mortgage Loan and (ii) an amount such
that the proceeds of such insurance shall be sufficient to avoid the application
to the Mortgagor or loss payee of any coinsurance clause under the policy. If
the Mortgaged Property is in an area then identified on a flood hazard boundary
map or flood insurance rate map issued by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance is available),
the Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier acceptable to Xxxxxx Mae or
Xxxxxxx Mac. Such flood insurance shall be in an amount representing coverage
not less than the least of (i) the outstanding principal balance of the Mortgage
Loan, (ii) the full insurable value of the improvements securing such Mortgage
Loan or (iii) the maximum amount of insurance available under the National Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, each as
amended. The Servicer shall also maintain on each REO Property with an insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac (x) fire and hazard insurance with
extended coverage in an amount that is at least equal to the maximum insurable
value of the improvements securing the Mortgage Loan that are a part of such
property, (y) liability insurance and (z) to the extent required and available
under the National Flood Insurance Act of 1968, the Flood Disaster Protection
Act of 1973, each as amended, or other applicable federal law, flood insurance
in an amount as provided above. Any costs incurred by the Servicer maintaining
insurance under this Section 3.10 shall be recoverable as Servicing Advances.
Any amounts collected by the Servicer under any such policies shall be paid over
or applied by the Servicer in accordance with Acceptable Servicing Procedures
for the restoration or repair of the Mortgaged Property subject to the related
Mortgage, for release to the Mortgagor in accordance with Acceptable Servicing
Procedures, or for application in reduction of the Mortgage Loan. Any such
amounts shall be deposited in the Custodial Account and subject to withdrawal
pursuant to Section 3.5. It is understood and agreed that no earthquake or other
additional insurance is required to be maintained by the Servicer hereunder in
connection with any Mortgage Loan or Mortgaged Property, other than pursuant to
applicable laws and regulations that are at any time in force and require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to the Servicer, and shall provide
for at least 30 days prior written notice to the Servicer of any cancellation,
reduction in amount, or material change in coverage. The Servicer shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent upon any policy renewal; provided, however, upon any
such policy renewal, the Servicer shall not accept any such insurance policies,
unless the insurers are acceptable to Xxxxxx Mae or Xxxxxxx Mac and are licensed
to do business in the jurisdiction in which the Mortgaged Property is located.
In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable to Xxxxxx
Mae and Xxxxxxx Mac, the Servicer shall notify the Owner and the related
Mortgagor, and shall use its best efforts, as permitted by applicable law, to
obtain from another Qualified Insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time.
If a Mortgage is secured by a unit in a condominium project, the
Servicer shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current requirements of Xxxxxx Mae, Xxxxxxx Mac, and
secure from the owner's association its agreement to notify the Servicer
promptly of any change in the insurance coverage or of any condemnation or
casualty loss that may have a material effect on the value of the Mortgaged
Property as security.
Notwithstanding anything set forth in the preceding paragraphs, the
Servicer agrees to indemnify the Owner for any Losses and related costs,
judgments, and any other costs, fees and expenses that the Owner may sustain in
any way related to the failure of the Mortgagor (or the Servicer) to maintain
hazard insurance or flood insurance with respect to the related Mortgaged
Property which complies with the requirements of this section.
Section 3.11 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder
(a) The parties acknowledge that not all Mortgage Loans will be
covered by Primary Mortgage Insurance. In the event that any Mortgage Loans are
or become covered by Primary Mortgage Insurance, the provisions set forth below
shall apply.
(b) If a Mortgage Loan is covered by a Primary Mortgage Insurance
Policy as of the Cut-off Date, or if a Mortgage Loan becomes covered by a
Primary Mortgage Insurance Policy pursuant to subsection 3.11(c) below, the
Servicer shall, without any cost to the Owner, cause the premium for each such
Primary Mortgage Insurance Policy, beginning with the premium due after the
Cut-off Date in the case of any Mortgage Loan covered by a Primary Insurance
Policy prior to the Cut-off Date, to be paid on a timely basis and shall from
its own funds, if necessary, make a Servicing Advance to pay the premium on a
timely basis. The Servicer will not cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is required to be kept in force under any
Mortgage and pursuant to this subsection, or pursuant to subsection 3.11(c)
below, unless a replacement Primary Mortgage Insurance Policy for such canceled
or non renewed policy is obtained from and maintained with an insurer that
satisfies the standards set forth in this subsection. If the insurer shall cease
to be a Qualified Insurer, the Servicer shall obtain from another qualified
insurer a replacement Primary Mortgage Insurance Policy. The Servicer shall not
take any action or fail to take any action that would result in non-coverage
under any applicable Primary Mortgage Insurance Policy of any loss which, but
for the actions of the Servicer, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 4.1, the Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under such Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
(c) As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Owner,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section 3.4,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.5, and remitted to the Owner on the appropriate Remittance
Date.
Section 3.12 Fidelity Bond; Errors and Omissions Insurance
The Servicer shall maintain, at its own expense, with responsible
companies that meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
on all officers, employees, agents and other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans (collectively, the "Servicer Employees"). Any such fidelity
bond and errors and omissions insurance shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses
from forgery, theft, embezzlement, fraud, errors, omissions, failure to maintain
any insurance policies required pursuant to this Agreement, and dishonest or
negligent acts of such Servicer Employees, any employees of outside firms that
provide data processing services for the Servicer, and temporary contract
employees or student interns. Such 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 Section 3.12 requiring such fidelity bond
and errors and omissions insurance shall diminish or relieve the Servicer from
its duties and obligations as set forth in this Agreement. The terms of any such
fidelity bond and errors and omissions insurance policy shall be at least equal
to the corresponding amounts required by Xxxxxx Mae in the Xxxxxx Xxx Selling
and Servicing Guide, or by Xxxxxxx Mac in the Xxxxxxx Mac Seller's and
Servicer's Guide, as amended or restated from time to time. Upon the request of
the Owner, the Servicer shall cause to be delivered to the Owner a certified
true copy of such fidelity bond and errors and omissions insurance policy and a
statement from the surety and the insurer that such fidelity bond and errors and
omission insurance policy shall in no event be terminated or materially modified
without 30 days prior written notice to the Owner.
Section 3.13 Title, Management and Disposition of Real Estate Owned
(a) The Servicer shall notify the Owner of its intention to
institute any foreclosure proceeding no fewer than ten (10) days prior to
initiating such proceeding. The Servicer shall notify the Owner of its intention
to accept a deed-in-lieu of foreclosure or a partial release of any of the
Mortgaged Property subject to the lien of the Mortgage no fewer than ten (10)
days prior to accepting such deed-in-lieu or partial release and shall only
accept such deed-in-lieu or grant such partial release if the Owner has not
objected before the end of the tenth day after delivery of such notice. In
connection with any foreclosure sale, the Servicer shall consult with the Owner
with regard to a bid price for the related Mortgaged Property and shall set such
bid price in accordance with the Owner's instructions. The Servicer shall make
all required Servicing Advances and shall service and administer the Mortgage
Loans in accordance with all applicable laws, rules and regulations and shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Owner 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.
(b) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure ("REO Property"), the deed or
certificate of sale shall be taken in the name of the Servicer for the benefit
of the Owner or, in the event the Owner 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 from any 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.
(c) The Servicer shall manage, conserve, protect, and operate each
REO Property solely for the purpose of its prompt disposition and sale. The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect, and operate the REO Property in accordance with
Acceptable Servicing Procedures. The Servicer shall attempt to sell the same
(and may temporarily rent the same for a period not greater than one year) on
such terms and conditions as the Servicer deems to be in the best interest of
the Owner.
The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition unless
(i) (A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the Servicer
determines, and gives an appropriate notice to the Owner to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Servicer shall report monthly to
the Owner as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
Notwithstanding anything to the contrary contained in this Section
3.13, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Owner otherwise requests, an environmental inspection or review of
such Mortgaged Property to be conducted by a qualified inspector shall be
arranged by the Servicer. Upon completion of the inspection, the Servicer shall
provide the Owner with a written report of such environmental inspection. In the
event that the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In the event that the environmental inspection report is
inconclusive as to the whether or not the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not, without the
prior approval of the Owner, proceed with foreclosure or acceptance of a deed in
lieu of foreclosure. In the event the Owner or its designee directs the Servicer
not to proceed with foreclosure or acceptance of a deed in lieu of foreclosure,
the Servicer shall be reimbursed for all customary, reasonable, and necessary
"out of pocket" costs and expenses that are incurred by the Servicer with
respect to the related Mortgaged Property from the Custodial Account, as though
such costs were Servicing Advances, pursuant to Section 3.4 hereof.
(d) The Servicer shall hold all funds collected and received in
connection with the operation of REO Property separate and apart from its own
funds or general assets, in the Custodial Account.
(e) The Servicer shall deposit, or cause to be deposited not later
than the end of the second Business Day following receipt thereof in the
Custodial Account maintained by it all revenues received with respect to the
conservation and disposition of any REO Property for distribution to the Owner
pursuant to the provisions of Section 4.1.
(f) [RESERVED]
(g) [RESERVED]
(h) The Servicer shall withdraw the Custodial Account funds
necessary for the proper operation, management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 3.10 and the fees of any managing agent of the Servicer, or the Servicer
itself. The Servicer shall make monthly distributions on each Remittance Date to
the Owner 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).
Section 3.14 Application of Proceeds of Insurance to Repair or
Restoration
The Servicer shall collect the proceeds from all policies of
insurance required to be maintained pursuant to Section 3.10 with respect to all
losses that may occur. The Servicer may remit such proceeds to the Mortgagor
toward the restoration or repair of the related property in a manner, and shall
otherwise take such actions in connection with such restoration and repair, as
shall be consistent with Acceptable Servicing Procedures.
The Servicer need not obtain the approval of the Owner prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Acceptable Servicing Practices. At a minimum the Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
The Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
(1) the Servicer shall take all steps necessary to
preserve the priority of the lien of the Mortgage, including,
but not limited to requiring waivers with respect to
mechanics' and materialmen's liens;
(2) the Servicer shall verify that the Mortgage Loan is
not in default; and
(3) pending repairs or restoration, the Servicer shall
place the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Owner.
Section 3.15 Inspections
The Servicer or its authorized representative shall conduct
inspections of Mortgaged Properties at such times and in a manner consistent
with Acceptable Servicing Procedures. For any Mortgage Loan that is not insured
by a Primary Mortgage Insurance Policy, in the event such Mortgage Loan becomes
45 days delinquent, (a) the Servicer shall inspect the related Mortgage Property
as promptly as practicable after the 45th day of delinquency, (b) the Servicer
may perform an inspection at such other times and at such intervals as the
Servicer deems appropriate and (c) the Servicer shall immediately perform an
inspection upon any abandonment of the related Mortgaged Property. For any
Mortgage Loan that is insured by a Primary Mortgage Insurance Policy, the
Servicer shall inspect the related Mortgaged Property as directed by the related
Primary Insurer; provided, however, that, at a minimum, in the event the
Mortgage Loan becomes 60 days delinquent, the Servicer shall inspect the related
Mortgaged Property prior to the 90th day of delinquency. The Servicer shall keep
a written report of each such inspection and shall provide a copy of such report
to the Owner upon the request of the Owner.
Section 3.16 Fair Credit Reporting Act.
The Servicer, in its capacity as servicer for each Mortgage Loan,
agrees to fully furnish, 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.
Section 3.17 Compliance with the Privacy Laws
The Servicer shall comply with all provisions of the Privacy Laws
relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions
(a) On each Remittance Date the Servicer shall remit to the Owner
(a) all amounts credited to the Custodial Account as of the close of business on
the preceding Determination Date, net of charges or withdrawals from the
Custodial Account pursuant to Section 3.5, plus (b) all Monthly Advances, if
any, that the Servicer is obligated to distribute pursuant to Section 4.3; minus
(c) any amounts attributable to Principal Prepayments received after the related
Prepayment Period; minus (d) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that by operation of Section 3.4, the
remittance on the first Remittance Date with respect to a Mortgage Loan Package
is to include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance Rate,
collected through such Determination Date exclusive of any portion thereof
allocable to the period of time prior to the Cut-off Date, with the adjustments
specified in (b), (c) and (d) above. Each such remittance shall be made by wire
or other electronic funds transfer of immediately available funds to the account
of the Owner according to the written wire instructions provided by the Owner to
the Servicer from time to time.
(b) With respect to any remittance to the Owner made by the Servicer
after the second Business Day following the Business Day on which such
remittance was due, the Servicer shall pay to the Owner interest on such late
remittance at an annual rate equal to Prime plus two percent (2.0%), but in no
event greater than the maximum amount permitted by applicable law. Such interest
shall be deposited in the Custodial Account by the Servicer on the date such
late remittance is made and shall cover the period commencing with the date on
which such remittance was due and ending with the Business Day on which such
late remittance is made, both inclusive. Such interest shall be remitted along
with such late remittance. 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.
Section 4.2 Reports
(a) Not later than each Remittance Advice Date, the Servicer shall
furnish to the Owner via any electronic medium a monthly report in a form
reasonable acceptable to institutional buyers of mortgage loans, which report
shall include, without limitation, with respect to each Mortgage Loan the
following loan-level information: (i) the balance due as of the last day of the
related Due Period, (ii) all Principal Prepayments applied to the Mortgagor's
account during the related Prepayment Period, (iii) the amount of the remittance
made on such Remittance Date which is allocable to principal and allocable to
interest; (iv) the amount of servicing compensation received by the Servicer
during the prior calendar month and (v) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) With respect to any REO Property, and upon the request of the
Owner, the Servicer shall furnish to the Owner a statement describing the
Servicer's efforts during the previous month in connection with the sale of such
REO Property, including any rental of such REO Property incidental to the sale
thereof and an operating statement. The Servicer shall also provide the Owner
with such information concerning the Mortgage Loans as is necessary for Owner to
prepare its federal income tax return and as the Owner may reasonably request
from time to time. The Owner agrees to pay for all reasonable out-of-pocket
expenses incurred by the Servicer in connection with complying with any request
made by the Owner hereunder if such information is not customarily provided by
the Servicer in the ordinary course of servicing mortgage loans similar to the
Mortgage Loans.
Section 4.3 Monthly Advances by Servicer
On the Determination Date, the Servicer shall deposit in the
Custodial Account from its own funds or from amounts held for future
distribution an amount equal to all Monthly Payments to the extent not allocable
to the period prior to the Cut-off Date (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 as of the close of business on the Business
Day prior to the related Determination Date or which were deferred pursuant to
Section 3.1(c). 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 Owner required to be made on such Remittance
Date. Notwithstanding the foregoing, the Servicer shall not be permitted to make
any advances from amounts held for future distribution, and instead shall be
required to make all advances from its own funds, unless the Servicer, its
parent, or their respective successors hereunder shall have a long term credit
rating of at least "A" by Fitch, Inc., or the equivalent rating of another
Rating Agency. The Servicer's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or of the last Remittance Date prior to
the Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the Mortgage Loan; provided, however, that such obligation shall
cease if the Servicer determines, in its sole reasonable opinion, that advances
with respect to such Mortgage Loan are non-recoverable by the Servicer from
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise
with respect to a particular Mortgage Loan. In the event that the Servicer
determines that any such advances are non-recoverable, the Servicer shall
provide the Owner with a certificate signed by two officers of the Servicer
evidencing such determination.
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements
(a) The Servicer will use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold, whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note, provided
that in accordance with the terms of the Mortgage Note, the Servicer may permit
an assumption if but only if the Servicer approves the creditworthiness of the
assuming party in accordance with the Underwriting Guidelines. 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 Applicable Requirements from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Mortgage Insurance Policy, if any. If the Servicer reasonably believes it is
unable under Applicable Requirements to enforce such "due-on-sale" clause, the
Servicer (unless otherwise required by law and in any event will notify the
Owner of such requirement) will request the written permission of the Primary
Mortgage Insurer, if required to cause the coverage under the Primary Mortgage
Insurance Policy to remain in full force and effect, and the Owner prior to
entering into an assumption and modification agreement with the person to whom
such property has been conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, to the extent permitted by Applicable Requirements,
the Mortgagor remains liable thereon. In connection with any such assumption,
the related Mortgage Interest Rate, the Unpaid Principal Balance, the Lifetime
Rate Cap (if applicable), the Gross Margin (if applicable), the Initial Rate Cap
(if applicable) or the Periodic Rate Cap (if applicable) of the related Mortgage
Note and the term of the Mortgage Loan may not be changed. If an assumption is
allowed pursuant to this Section 5.1(a), the Servicer, with the prior consent of
the Primary Mortgage Insurer, if any, is authorized to enter into a substitution
of liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Any such substitution of liability agreement shall be in lieu of
an assumption agreement.
(b) The Servicer shall follow Acceptable Servicing Procedures
(including underwriting standards) with respect to any such assumption or
substitution of liability. The Servicer shall notify the Owner that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Owner or its designee the original of any such substitution of
liability or assumption agreement, which document shall be added to the related
Collateral File and shall, for all purposes, be considered a part of such
Collateral File to the same extent as all other documents and instruments
constituting a part thereof.
(c) For purposes of this Section 5.1, the term "assumption" is
deemed to also include a sale of the Mortgaged Property subject to the Mortgage
that is not accompanied by an assumption or substitution of liability agreement.
Section 5.2 Satisfaction of Mortgages and Release of Collateral
Files
(a) 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 (i) shall prepare the appropriate
documents and instruments required to satisfy or release the lien of the
Mortgage in accordance with applicable state law requirements, (ii) shall
promptly and within the time periods appropriate to process the satisfaction or
release within the applicable legal deadlines notify the Owner of such event and
(iii) shall request that the Owner deliver the required portion of the
Collateral File to the Servicer. The Owner shall, within five (5) Business Days
following its receipt of any such certification and request, send to the
Servicer the requested portion of the Collateral File. Upon receipt of such
package, the Servicer shall prepare and execute the documents and instruments
necessary to satisfy or release the lien of the Mortgage and shall process such
satisfaction or release in accordance with applicable state law requirements. In
addition, if, with respect to any Mortgage Loan that has been paid in full, the
Owner has recorded or caused to be recorded in the appropriate public recording
office of the jurisdiction in which the related Mortgaged Property is located
the related Assignment of Mortgage which designates the Owner as the holder of
record of the Mortgage, the Servicer shall prepare and deliver to the Owner,
together with a request for execution, the documents and instruments necessary
to satisfy or release the lien of the Mortgage. The Owner shall, within five (5)
Business Days following its receipt of any such request, send to the Servicer
the fully-executed documents that were prepared and requested by the Servicer.
Upon receipt of such package, the Servicer shall process such satisfaction or
release in accordance with applicable state law requirements. In the event that
applicable state law requires that a satisfaction or release be recorded within
a shorter time period than the processes set forth above permits, the Servicer
shall advise the Owner accordingly and shall use reasonable efforts to ensure
that the lien of the Mortgage is released or satisfied in accordance with
applicable state law requirements. The Owner shall assist therewith by returning
to the Servicer the required portion of the Collateral File (and, if applicable,
the executed satisfaction and release documents and instruments) within the time
periods specified by the Servicer. The Servicer shall not be liable for and the
Owner shall indemnify the Servicer against any third party liability for failure
to release the lien of a Mortgage as required under applicable law to the extent
that such failure was caused by the Owner's breach of its obligations under this
Section 5.2.
(b) If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage or
should the Servicer otherwise prejudice any rights the Owner may have under the
mortgage instruments, upon written demand of the Owner, the Servicer shall remit
to the Owner the then unpaid principal balance of the related Mortgage Loan. The
Servicer shall maintain the fidelity bond and errors and omissions insurance
policy as provided for in Section 3.12 insuring the Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 5.3 Servicing Compensation
As compensation for its services hereunder, the Servicer shall be
entitled to pay itself the Servicing Fee with respect to each Mortgage Loan from
the gross amount of interest payments on such Mortgage Loan which are actually
received by the Servicer with respect thereto. Additional servicing compensation
in the form of all Ancillary Income which are actually received by the Servicer
may be retained by the Servicer to the extent not required to be deposited into
the Custodial Account pursuant to the terms of this Agreement. 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 in this Agreement.
Section 5.4 Annual Statements as to Compliance
(a) The Servicer shall deliver to the Owner, to any master servicer
and/or trustee which is master servicing or acting as trustee with respect to
any of the Mortgage Loans pursuant to a Securitization (each, a "Master
Servicer") and to the Sarbanes Certifying Party not later than the earlier of
(a) March 15 of each calendar year (other than the calendar year during which
the related Closing Date occurs) or (b) with respect to any calendar year during
which the annual report of the entity which is the depositor (or other party
responsible for filing Form 10-K with the Commission (as defined below)) of the
Mortgage Loans pursuant to a Securitization or other securitization transaction
(the "Depositor") on Form 10-K is required to be filed in accordance with the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Securities Exchange Commission (the "Commission"), 15
calendar days before the date on which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission (or, in each case, if such day is not a
Business Day, the immediately preceding Business Day), an Officer's Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
the Servicer during the preceding fiscal year and of performance under this
Agreement has been made under such officer's supervision (ii) based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to such officer and
the nature and status thereof and the actions being taken by the Servicer to
cure such default, and (iii) all reports and information provided to the Owner
by the Servicer, pursuant to the Servicer's reporting requirements under the
Agreement, to the extent used or included in any reports filed under the
Exchange Act by the Depositor are accurate and complete in all material
respects. Copies of such statement may be provided by the Owner to any Person
identified as a prospective purchaser of the Mortgage Loans.
(b) With respect to any Mortgage Loans that are subject to a
Securitization, not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or (b) with
respect to any calendar year during which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, in
each case, if such day is not a Business Day, the immediately preceding Business
Day), an officer of the Servicer shall execute and deliver an Officer's
Certificate in the form attached hereto as Exhibit D to the Sarbanes Certifying
Party for the benefit of the Master Servicer, the Sarbanes Certifying Party and
their respective officers, directors and affiliates.
(c) The Servicer shall indemnify and hold harmless the Master
Servicer and the Sarbanes Certifying Party (any such person, an "Indemnified
Party") from and against any Losses and related costs, judgments and other costs
and expenses arising out of or based upon a breach by the Servicer of its
obligations under this Section 5.4 or Section 5.5, or any material misstatement
or omission, negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any Indemnified Party, then the Servicer agrees
that it shall contribute to the amount paid or payable by the Indemnified Party
as a result of the Losses of the Indemnified Party in such proportion as is
appropriate to reflect the relative fault of the Indemnified Party on the one
hand and the Servicer on the other in connection with a breach of the Servicer's
obligations under this Section 5.4 or Section 5.5, or the Servicer's material
misstatement or omission, negligence, bad faith or willful misconduct in
connection therewith.
(d) It is acknowledged and agreed that each Master Servicer and the
Sarbanes Certifying Party shall be an express third party beneficiary of the
provisions of this Section 5.4 and shall be entitled independently to enforce
the provisions of this Section 5.4 with respect to any obligations owed to such
entity as if it were a direct party to this Agreement.
Section 5.5 Annual Independent Public Accountants' Servicing Report
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the related Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual report
on Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, 15 calendar days before the date on
which the Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the Commission
(or, in each case, if such day is not a Business Day, the immediately preceding
Business Day), 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 prepare a statement to the effect that such firm has
examined certain documents and records and performed certain other procedures
relating to the servicing of the Mortgage Loans during the immediately preceding
calendar year of the Servicer and that such firm is of the opinion that, on the
basis of such examination conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers, such servicing has been
conducted in compliance therewith, except for such exceptions as shall be set
forth in such statement. The Servicer shall furnish such statement to the Owner,
any Master Servicer and the Sarbanes Certifying Party within the above time
requirement.
Section 5.6 Owner's Right to Examine Servicer Records, etc.
The Owner shall have the right, at the Owner's expense, except for
immaterial items in the ordinary course of business, to examine and audit the
Servicer's books of account, records, reports, and other papers relating to (i)
the performance by the Servicer of its obligations and duties under this
Agreement, or (ii) the Mortgage Loans, to make copies and extracts therefrom,
and to discuss the affairs, finances, and accounts of such Servicer relating to
such performance with its officers and employees, all at such reasonable times
and places and as often as may be reasonably requested.
Section 5.7 Consents and Approvals
The Owner shall timely obtain, at its sole cost and expense, the
consents and approvals required by law or pursuant to contract to consummate the
transactions contemplated hereby. All such consents will be obtained without any
cost or expense to the Servicer and will be obtained without any adverse
modification in the terms of any of the agreements relating to the Mortgage
Loans or the imposition of any burdensome provisions or conditions on the
Servicer.
Furthermore, the Servicer shall provide to the Owner, and for any
Owner 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 Owner,
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 Owner may
require and, to the extent the Servicer is required to incur out-of-pocket
expenses, at the expense of the Owner. The Servicer agrees to execute and
deliver all such instruments and take all such action as the Owner, from time to
time, may reasonably request in order to effectuate the purposes and to carry
out the terms of this Agreement.
Section 5.8 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Whole Loan Transfer or a Pass-Through Transfer on One or More
Reconstitution Dates
(a) The Servicer and the Owner agree that with respect to some or
all of the Mortgage Loans, the Owner may effect one or more Whole Loan Transfers
and/or one or more Pass-Through Transfers. In connection with a Whole Loan
Transfer, the related Reconstitution Agreement shall provide that no more than
four (4) Persons shall have the status of "Owner" thereunder.
(b) With respect to each Whole Loan Transfer or Pass-Through
Transfer, as the case may be, entered into by Owner, Servicer agrees:
(i) To negotiate in good faith and execute a servicer agreement
reasonably required to effectuate the Whole Loan Transfer or the
Pass-Through Transfer, as the case may be, provided such agreement creates
no greater obligation or cost on the part of the Servicer than otherwise
set forth in this Agreement, and provided further that the Servicer shall
be entitled to a servicing fee under that agreement at a rate per annum no
less than the Servicing Fee Rate;
(ii) to cooperate fully with the Owner and any prospective the Owner
with respect to all reasonable requests that are necessary to effect a
Pass-Through Transfer or Whole Loan Transfer;
(iii) provide as applicable:
(A) information pertaining to the Servicer of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer as are
reasonably believed necessary by the trustee, any rating agency or
the Owner, as the case may be, in connection with such Pass-Through
Transfer. The Owner shall pay all third party costs associated with
the preparation of the information described in clause (ii)(A) above
and the delivery of any opinions, letters or certificates described
in this clause (ii)(B). The Servicer shall not be required to
execute any servicer agreement unless a draft of the agreement is
provided to the Servicer at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for the
Servicer and its counsel to review and comment on the agreement;
(c) In connection with any Pass-Through Transfer, the Servicer, upon
request, will bring down the representations and warranties made in Section 2.1
in to a date no later than the related Reconstitution Date;
(d) In connection with any Pass-Through Transfer, the Servicer shall
indemnify, defend and hold harmless the Owner, the Depositor, and their
respective affiliates, directors, officers and employees from and against any
and all Losses to which any such Person may be subject to as a result of any
untrue statement of any material fact contained in any information (such
information, the "Greenpoint Information") prepared and furnished to the Owner
or the Depositor, by the Servicer for inclusion in any related offering document
or prospectus (collectively, "Offering Materials"), or arise out of, or are
based upon, any omission in the Greenpoint Information necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and will reimburse to all such parties, as applicable, for
damages or expenses reasonably incurred by it, as they are incurred; provided,
however, that the Servicer shall be liable only insofar as such untrue statement
or omission relates solely to the Greenpoint Information in the Offering
Materials furnished to any such party by the Servicer specifically for inclusion
in the Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers 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 5.9 Compliance With REMIC Provisions
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held or transferred, the
Servicer shall not take any action, cause the REMIC to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on "prohibited transactions" as
defined in Section 860(a)(2) of the Code and the tax on "contributions" to a
REMIC set forth in Section 860(d) of the Code) unless the Servicer has received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such REMIC status
or result in the imposition of any such tax.
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims
Subject to Section 6.3, the Servicer agrees to indemnify and hold
harmless the Owner against any and all Losses that the Owner may sustain in any
way related to the failure of such Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, however, the Servicer
shall not be liable hereunder (a) to the extent such Losses directly result from
the Custodian's negligent action, negligent failure to act, bad faith, willful
misconduct or breach under the Custodial Agreement, dated as of April 1, 2004,
among the Owner and the Custodian, (b) with respect to any action or inaction in
accordance with the direction or consent of the Owner or (c) resulting from the
Owner's failure to respond to a request by the Servicer for direction or consent
in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify
the Owner if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans. The Servicer shall assume (with the written notification to
the Owner) the defense of any such claim and pay all reasonable expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against the Servicer or the
Owner, subject to limitation pursuant to this Section 6.1, in respect of such
claim. The Servicer shall follow any written instructions received from the
Owner in connection with any such claim and the Owner shall promptly reimburse
the Servicer for all amounts reasonably advanced by it pursuant to the preceding
sentence, except when the claim (a) is related to the Servicer's obligations to
indemnify the Owner pursuant hereto, (b) results from the failure of the
Servicer to service the Mortgage Loans in compliance with the terms of this
Agreement or (c) results from the Servicer's willful misconduct, bad faith or
negligence in performing its duties under this Agreement.
With respect to any Mortgage Loan, in the event that the Owner
records or causes to be recorded in the appropriate public recording office of
the jurisdiction in which the related Mortgaged Property is located the related
Assignment of Mortgage which designates the Owner as the holder of record of the
Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding
the execution and delivery of release and reconveyance documents, and shall
immediately complete, sign and return to the Servicer any additional documents
that may be required of the holder of record of the Mortgage and may be
reasonably requested by the Servicer in order to permit the Servicer to comply
with the Servicer's servicing obligations, and, in its capacity as the holder of
record, shall take such other action as may be reasonably requested by the
Servicer. In addition, if, as a result of the recording of the related
Assignment of Mortgage, the Owner, in its capacity as the holder of record,
receives written notice of any action with respect to the related Mortgage or
the related Mortgaged Property, the Owner shall send a copy of such notice to
the Servicer immediately in accordance with the provisions of Section 9.8 of
this Agreement. The Owner agrees that the Servicer shall have no liability to
the Owner for the Owner's failure to comply with the provisions set forth in
this paragraph.
Section 6.2 Servicer Covenants; Merger or Consolidation of the
Servicer
(a) The Servicer covenants that it will keep in full force and
effect its existence, rights and franchises, and its status as a Xxxxxx Xxx or
Xxxxxxx Mac approved servicer in good standing and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
(b) Any Person into which the Servicer may be merged or
consolidated, or any business organization resulting from any merger, conversion
or consolidation to which the Servicer shall be a party, or any Person
succeeding to all or substantially all of the business or assets of the Servicer
(whether or not related to loan servicing), shall be the successor of the
Servicer 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 Servicer shall not, without the
prior written approval of the Owner, be a party to any such merger,
consolidation or conversion, or sell or otherwise dispose of all or
substantially all of its business or assets unless the successor or surviving
person shall be an institution that is a Xxxxxx Mae or Xxxxxxx Mac approved
servicer in good standing.
Section 6.3 Limitation on Liability of the Servicer and Others
The Servicer and the directors, officers, employees or agents of the
Servicer shall not be under any liability to the Owner for (a) any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, (b) errors in judgment, or (c) any action or inaction in accordance
with the direction or consent of the Owner; provided, however, this provision
shall not protect the Servicer against any breach of warranties or
representations made herein, any failure to perform its obligations in
accordance with any standard of care set forth in this Agreement (unless in
accordance with the direction or consent of the Owner), or any liability which
would otherwise be imposed by reason of willful misconduct, bad faith or
negligence in the performance of its duties or by reason of any breach of the
terms and conditions of the Agreement. The Servicer and any officer, employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Subject to Section 6.1, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties under this Agreement and which may involve it in any
expense or liability; provided, however, that the Servicer may, with the consent
of the Owner, undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights, duties and the interests of the
parties hereto. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be reimbursed to the Servicer in
accordance with Section 6.1.
Section 6.4 Servicer Not to Resign
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that the Servicer's duties hereunder are no longer permissible
under Applicable Requirements and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner. No such resignation shall become effective until a successor which
satisfies the requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
Without in any way limiting the generality of this Section 6.4, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its 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 consent of the Owner, then the Owner shall
have the right to terminate this Agreement upon notice given as set forth in
Section 8.2, without any payment of any penalty or damages and without any
liability whatsoever to the Servicer or any third party.
Section 6.5 No Transfer of Servicing
The Servicer acknowledges that the Owner has entered into this
Agreement with the Servicer in reliance upon the adequacy of the Servicer's
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, the Servicer shall not either
assign this Agreement or the servicing hereunder without the prior written
approval of the Owner in its sole discretion.
ARTICLE VII
DEFAULT
Section 7.1 Events of Default
In case one or more of the following Events of Default by the
Servicer shall occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when due any
payment required to be made under the terms of this Agreement, which
failure continues unremedied for a period of two (2) days 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 Owner; the Owner
shall use reasonable efforts to notify the Servicer that it has not
received the payment due, but the Owner's notice shall not be a condition
of the Event of Default; or
(ii) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the
Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, including
bankruptcy, marshaling 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 thirty (30) days; or
(iv) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or relating to all or substantially all of the Servicer's
property; or
(v) 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
obligation or ceases its normal business operations for three (3) Business
Days; or
(vi) failure by the Servicer to maintain its license to do business
in any jurisdiction where a Mortgaged Property is located if such license
is required and such failure continues unremedied for a period of thirty
(30) days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of this Agreement, including Section 6.5; or
(viii) the Servicer shall cease to be an approved servicer for
Xxxxxx Xxx or Xxxxxxx Mac.
(ix) the Servicer shall cease to have a minimum net worth of
$25,000,000 as determined in accordance with the Financial Accounting
Standards Board's generally accepted accounting principles;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Owner, by notice in writing to the Servicer (in each
such instance, the "Defaulted Servicer"), may, in addition to whatever rights
the Owner may have at law or equity to damages, including injunctive relief and
specific performance, commence termination of all of the rights and obligations
of the Defaulted Servicer under this Agreement and may exercise any and all
other remedies available at law or at equity. Upon receipt by the Defaulted
Servicer of such written notice from the Owner stating the intent to terminate
the Defaulted Servicer as servicer under this Agreement as a result of such
Event of Default, all authority and power of the Defaulted 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 Section 9.1. Upon
written request from the Owner, the Defaulted Servicer shall, at its sole
expense, prepare, execute, and deliver to a successor any and all documents and
other instruments, place in such successor's possession all Collateral Files and
Servicing 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, all of
which shall be undertaken immediately and shall be completed as soon as possible
and in all events by not later than thirty (30) Business Days following the
Owner's request therefor. The Defaulted Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Defaulted
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Defaulted Servicer to the Custodial
Account, the Escrow Account or the REO Account and all other amounts which may
thereafter be received with respect to the Mortgage Loans and to which the
Defaulted Servicer is not entitled pursuant to the terms of this Agreement.
Section 7.2 Waiver of Defaults
The Owner may waive any default by the Defaulted 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 7.3 Survival of Certain Obligations and Liabilities of the
Defaulted Servicer
The representations, warranties, covenants, indemnities and
agreements of the parties provided in this Agreement and the parties'
obligations hereunder shall survive the execution and delivery and the
termination or expiration of this Agreement. Notwithstanding any termination of
the rights and obligations of the Defaulted Servicer pursuant to this Section 7,
the Defaulted Servicer shall remain liable for any actions of the Defaulted
Servicer prior to the effective time of such termination.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement
This Agreement shall terminate upon any of: (i) the later of the
distribution to the Owner of final payment or liquidation with respect to the
last Mortgage Loan and each REO Property, or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder, (ii) the
mutual consent of the parties in writing, or (iii) the termination of the
Servicer pursuant to Section 8.2.
Section 8.2 Termination of the Servicer due to an Event of Default
(a) Upon 30 days' written notice, the Owner may, at its sole option,
upon the occurrence of an Event of Default and in accordance with Section 7.1,
terminate any rights the Servicer may have hereunder. Any such notice of
termination shall be in writing and delivered to the terminated Servicer (in
such instance, the "Terminated Servicer") by registered mail as provided in
Section 9.8 of this Agreement. If the Owner so terminates the rights of a
Terminated Servicer, the Owner with full cooperation of the Terminated Servicer
shall arrange for the transfer of servicing to, at the Owner's option, the Owner
or a third party, and the Terminated Servicer shall continue servicing, for the
Servicing Fee provided herein, the Mortgage Loans under this Agreement until the
Owner gives the Terminated Servicer notice of the transfer and such transfer has
been completed.
(b) The Terminated Servicer agrees to cooperate with the Owner and
such successor in effecting the termination of the Terminated Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Terminated Servicer to the Custodial
Account, the Escrow Account or the REO Account, or thereafter be received with
respect to the Mortgage Loans and to which the Terminated Servicer is not
entitled pursuant to the terms of this Agreement.
Section 8.3 Termination Without Cause
Upon at least 30 days prior notice, the Owner may terminate, at its
sole option, the Servicer without cause. Any such notice of termination shall be
in writing and delivered to the Servicer and any Rating Agency by registered
mail as provided in Section 9.7. In the event the Owner so chooses to terminate
the Servicer, the Servicer shall be entitled to receive, as liquidated damages,
upon its termination as Servicer hereunder without cause pursuant to this
Section 8.3, an amount equal to one and a half percent (1.5%) of the aggregate
outstanding principal amount of each Mortgage Loan as of the termination date
paid by the Owner to the Servicer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer
(a) Prior to termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 6.4, 7.1, 8.1 or 8.2, the Owner
shall either (i) succeed to and assume all of the Servicer's responsibilities,
rights, duties, and obligations under this Agreement from and after the date of
such succession or (ii) appoint a successor to the Servicer that shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement pursuant to
Section 8.2 above. In the event that the Servicer's duties, responsibilities,
and liabilities under this Agreement shall be terminated pursuant to the
foregoing Sections, the Servicer shall discharge such duties and
responsibilities, and be compensated therefor as provided in this Agreement,
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
foregoing Sections shall not become effective until a successor shall have been
appointed pursuant to this Section and shall in no event relieve the Servicer of
its non-servicing duties, obligations, covenants, representations and
warranties, it being understood and agreed that the provisions of Sections 5.10,
6.1, Article 7 and Article 8 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer or the termination of this
Agreement.
(b) The Servicer shall promptly deliver to the successor (i) the
funds in the Custodial Account and the Escrow Account to which the Owner is
entitled pursuant to the terms of this Agreement, (ii) all other funds to which
the Owner is entitled pursuant to the terms of this Agreement net of any
unreimbursed Advances, (iii) all other amounts which may thereafter be received
with respect to the Mortgage Loans and to which the Servicer is not entitled
pursuant to the terms of this Agreement and (iv) all Collateral Files and
Servicing Files and related documents and statements held by it hereunder. The
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such, the Owner
shall notify the Servicer of such appointment.
Section 9.2 Amendment
This Agreement may be amended from time to time by the parties by
written agreement signed by both of the parties.
Section 9.3 Duration of Agreement
This Agreement shall continue in existence and effect until
terminated as herein provided.
Section 9.4 Governing Law
THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS OF NEW
YORK OR ANY OTHER JURISDICTION.
Section 9.5 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs, and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 9.6 Reproduction of Documents
This Agreement and all documents relating hereto, including without
limitation (i) consents, waivers, and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 9.7 Notices
All demands, notices, consents, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or delivered by facsimile, overnight courier, or registered
mail, postage prepaid, or delivered by telefacsimile, to:
(i) in the case of the Servicer, at the address set forth below or
such other address as may hereafter be furnished to the Owner in writing
by the Servicer:
Greenpoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: _______________
(ii) in the case of the Owner, at the address set forth below, or
such other address as may hereafter be furnished to the Servicer by the
Owner:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx Farkovits
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Mortgage Company
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and in the case of any subsequent Owner, as set forth in written notice supplied
to the Servicer by such subsequent Owner. All reports that are due to the Owner
from the Servicer pursuant to Section 4.2 shall be deemed to have been duly
given if delivered to the Internet address from time to time provided by the
Owner to the Servicer.
Section 9.8 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or the rights of the Owner
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 9.9 Disclosure of Relationship
Each party (including the respective affiliates) shall have the
right upon obtaining prior written consent from the other party, from time to
time, to publish, distribute, advertise or otherwise disclose the relationship
and the general services created and performed under this Agreement; provided,
however, such disclosure shall not identify the amount or nature of fees earned
or to be paid hereunder. No disclosure permitted by this Section 9.10 shall
include any Mortgagor information.
Section 9.10 Exhibits and Schedules
The following exhibits and schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement:
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
Section 9.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 6.4, 6.5, 7.1 and
8.1, this Agreement shall inure to the benefit of and be binding upon the
Servicer, the Owner and their respective successors and assigns.
Section 9.12 Effect of Headings
The headings in this Agreement are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
Section 9.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof.
Section 9.14 Confidentiality
Each of the Owner 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 such terms is reasonably
believed by such party to be required in connection with regulatory requirements
or other legal requirements relating to its affairs; (b) such terms are
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) such
terms are disclosed in a prospectus, prospectus supplement or private placement
memorandum relating to a Securitization of the Mortgage Loans by the Owner (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.
[signatures start on next page]
IN WITNESS WHEREOF, the Servicer and the Owner have caused their
names to be signed to this Servicing Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
SERVICER:
GREENPOINT MORTGAGE FUNDING, INC.
By:
--------------------------------------
Name:
Title:
OWNER:
XXXXXXX SACHS MORTGAGE COMPANY
By:
--------------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
LIST OF CREDIT DOCUMENTS
Copy of Note
Copy of Mortgage or Deed of Trust, including all riders
Copy of all riders to Note and Mortgage or Deed of Trust
Settlement statement (HUD 1)
Copy of PMI Certificate (if applicable)
Appraisal
Flood determination certificate
Hazard Insurance declaration page
Loan application
EXHIBIT C
LIST OF DOCUMENTS IN COLLATERAL FILE
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank and signed in the name of the Seller by an officer
thereof;
(b) the original Assignment of Mortgage with assignee's name left blank;
(c) the original of any guarantee executed in connection with the Mortgage
Note;
(d) the original Mortgage with evidence of recording thereon, or if any
such mortgage has not been returned from the applicable recording office
or has been lost, or if such public recording office retains the original
recorded mortgage, a photocopy of such mortgage certified by the Seller to
be a true and complete copy of the original recorded mortgage;
(e) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(f) the originals of all intervening assignments of mortgage with evidence
of recording thereon, or if any such intervening assignment of mortgage
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, a photocopy of such intervening assignment of
mortgage, certified by the Seller to be a true and complete copy of the
original recorded intervening assignment of mortgage;
(g) the original mortgagee title insurance policy including an
Environmental Protection Agency Endorsement and, with respect to any
Adjustable Rate Mortgage Loan, an adjustable-rate endorsement;
(h) the original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage;
(i) a copy of any applicable power of attorney; and
(j) with respect to any Cooperative Loan, the applicable Cooperative Loan
Documents.
EXHIBIT D
FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of
Greenpoint Mortgage Funding, Inc., (the "Servicer"), hereby certify, pursuant to
Section 5.4 of that certain Servicing Agreement (the "Agreement"), dated as of
[DATE] between the Servicer and Xxxxxxx Sachs Mortgage Company (the "Owner"), to
[ENTITY NAME] (the "Beneficiary") with respect to the calendar year immediately
preceding the date of this Certificate, as follows:
1. I have reviewed the annual statement of compliance ("Annual Statement of
Compliance") prepared by Servicer, and the annual independent public
accountant's servicing report made in accordance with the Uniform Single
Attestation Program for Mortgage Bankers ("Annual Independent Public
Accountant's Servicing Report"), which have been furnished to the
Beneficiary pursuant to the Agreement and any subsequent servicing
agreement related thereto or to the Mortgage Loans (collectively, the
"Servicing Agreement");
2. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report
and all final servicing reports prepared by Servicer and delivered to the
Beneficiary pursuant to the Servicing Agreement relating to the servicing
of the Mortgage Loans, taken as a whole, does not contain any untrue
statement of material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period
covered by such statements or reports;
3. Based on my knowledge, the servicing information required to be provided
to the Beneficiary by the Servicer under the Servicing Agreement has been
provided to the Beneficiary;
4. I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required by the
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance and the Annual Independent Public Accountant's Servicing Report
submitted to the Beneficiary, the Servicer has, as of the last day of the
period covered by the Annual Statement of Compliance, fulfilled its
obligations under the Servicing Agreement; and
5. I have disclosed to the Beneficiary's certified public accountants all
significant deficiencies relating to the Servicer's compliance with the
minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Servicing Agreement.
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of July 1, 2004 ("Amendment"), to the
Servicing Agreement, dated as of April 1, 2004, and as further amended, modified
and supplemented from time to time (the "Servicing Agreement"), between XXXXXXX
XXXXX MORTGAGE COMPANY, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Owner"), and GREENPOINT MORTGAGE FUNDING, INC., having an address at 000
Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Servicer").
RECITALS
WHEREAS, the parties hereto have entered into the Servicing
Agreement;
WHEREAS, the parties hereto desire to modify the Servicing Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Servicing Agreement are used herein as therein defined.
2. Amendments.
(a) The defined term "Ancillary Income" of the Servicing Agreement
is hereby amended by deleting such tem in its entirety and replacing it with the
following:
"Ancillary Income: All income if any, derived from any Mortgage
Loan, including but not limited to late charges, fees received with
respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, speed pay fees, reconveyance
and demand statement fees, loan modification fees and reamortization
fees."
(b) Section 3.4 of the Servicing Agreement is hereby amended by
deleting clause (b)(i) in its entirety and replacing it with the following
clause:
"all payments on account of principal, including Principal
Prepayments and, except as otherwise expressly provided in the
related Purchase Price and Terms Letter, the Prepayment Charges,
actually collected by the Servicer on the Mortgage Loans;"
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Servicing Agreement is in all
respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SERVICER:
GREENPOINT MORTGAGE FUNDING, INC.
By:
--------------------------------------
Name:
Title:
OWNER:
XXXXXXX XXXXX MORTGAGE COMPANY
By:
--------------------------------------
Name:
Title:
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of January 1, 2005 ("Amendment"), to the
Servicing Agreement, dated as of April 1, 2004, as amended by Amendment No. 1,
dated as of July 1, 2004, and as further amended, modified and supplemented from
time to time (the "Servicing Agreement"), between XXXXXXX SACHS MORTGAGE
COMPANY, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Owner"), and GREENPOINT MORTGAGE FUNDING, INC., having an address at 000 Xxxx
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Servicer").
RECITALS
WHEREAS, the parties hereto have entered into the Servicing
Agreement;
WHEREAS, the parties hereto desire to modify the Servicing Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Servicing Agreement are used herein as therein defined.
2. Amendment.
Section 3.16 of the Servicing Agreement is hereby amended by adding
the following as the last sentence:
"The Servicer will transmit full-file credit reporting data for each
Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each
Mortgage Loan, Servicer agrees it shall report one of the following statuses
each month as follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.), foreclosed, or charged-off."
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Servicing Agreement is in all
respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SERVICER:
GREENPOINT MORTGAGE FUNDING,
INC.
By:
--------------------------------------
Name:
Title:
OWNER:
XXXXXXX SACHS MORTGAGE
COMPANY
By:
--------------------------------------
Name:
Title:
EXHIBIT N
MASTER MORTGAGE LOAN PURCHASE AGREEMENT,
DATED AS OF FEBRUARY 1, 2004, AS AMENDED BY
AMENDMENT NO. 1, DATED AS OF DECEMBER 1, 2004,
BETWEEN INDYMAC BANK, F.S.B, AND XXXXXXX
SACHS MORTGAGE COMPANY
INDYMAC BANK, F.S.B.,
as Seller
and
XXXXXXX XXXXX MORTGAGE COMPANY,
as Purchaser
-----------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of February 1, 2004
-----------------
Fixed and Adjustable Rate Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I
DEFINITIONS
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans................
Section 2.02 Due Diligence by the Purchaser................................
Section 2.03 Identification of Mortgage Loan Package.......................
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence....................................................
Section 2.05 Delivery of Collateral Files..................................
Section 2.06 Purchase Confirmation.........................................
Section 2.07 Closing.......................................................
Section 2.08 Payment of the Purchase Proceeds..............................
Section 2.09 Entitlement to Payments on the Mortgage Loans.................
Section 2.10 Payment of Costs and Expenses.................................
Section 2.11 MERS Mortgage Loans and the MERS System.......................
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Indymac.............
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans...............................................
Section 3.03 Remedies for Breach of Representations and Warranties.........
Section 3.04 Accrual of Cause of Action....................................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Indymac to Act as Servicer....................................
ARTICLE V
COVENANTS BY INDYMAC
Section 5.01 Indemnification by Indymac....................................
Section 5.02 [RESERVED]....................................................
Section 5.03 Merger or Consolidation of Indymac............................
Section 5.04 Limitation on Liability of Indymac and Others.................
Section 5.05 No Transfer of Servicing......................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices.......................................................
Section 6.02 Sale Treatment................................................
Section 6.03 Exhibits......................................................
Section 6.04 General Interpretive Principles...............................
Section 6.05 Reproduction of Documents.....................................
Section 6.06 Further Agreements............................................
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.......................................
Section 6.08 Conflicts between Transaction Documents.......................
Section 6.09 Governing Law.................................................
Section 6.10 Severability Clause...........................................
Section 6.11 Successors and Assigns........................................
Section 6.12 Relationship of Parties.......................................
Section 6.13 Solicitation of Mortgagor.....................................
Section 6.14 Confidentiality...............................................
Section 6.15 Entire Agreement..............................................
EXHIBITS
--------
Exhibit A Schedule of Collateral Documents..............................
Exhibit B Form of Purchase Confirmation.................................
Exhibit C Form of Custodial Agreement...................................
Exhibit D Form of Trade Confirmation....................................
Exhibit E Mortgage File.................................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of February 1, 2004 (the "Agreement"), between IndyMac Bank, F.S.B.
having an address at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000
("Indymac"), and Xxxxxxx Sachs Mortgage Company, having an address At 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser").
R E C I T A L S
The Purchaser has agreed to purchase from Indymac and Indymac has
agreed to sell from time to time to the Purchaser all of Indymac's right, title
and interest, excluding servicing rights, in and to those certain mortgage loans
identified in a Purchase Confirmation (as defined below) executed by Indymac and
the Purchaser. This Agreement is intended to set forth the terms and conditions
by which Indymac shall transfer and the Purchaser shall acquire such mortgage
loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Indymac and the Purchaser agree as
follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which
the related Mortgage Note contains a provision whereby the Mortgage Interest
Rate is adjusted from time to time in accordance with the terms of such Mortgage
Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less;
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.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of New York are authorized or obligated by law or
executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: The file retained by Indymac that includes the mortgage
loan documents pertaining to a Mortgage Loan including copies of the Collateral
Documents together with the credit documentation relating to the origination of
such Mortgage Loan, which Credit File may be maintained by Indymac on microfilm
or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 4.4 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The letter agreement, substantially in the form
of Exhibit C, that governs the temporary retention of the Collateral Files by
the Custodian with respect to a Closing Date.
Custodian: JPMorgan Chase Bank, its successor in interest or assign,
or such other custodian that may be designated by the Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
federal or state chartered depository institution the short term debt
obligations of which are rated by a nationally recognized statistical rating
agency in its highest rating categories at the time of any deposit therein and
(ii) the deposits of which are insured up to the maximum permitted by the FDIC.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1 of the Servicing Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended and in effect from time to time.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
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 Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Indymac: IndyMac Bank, F.S.B., or any successor or assign to Indymac
under this Agreement as provided herein.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Indymac in connection with
the liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Indymac to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Indymac is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Cooperative
Loan, the mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien , upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security 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 Cooperative Loan
and the related Cooperative Lease.
Mortgage File: With respect to any Mortgage Loan, the items listed
in Exhibit E hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Other Insurance Proceeds, REO Disposition proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Seller's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Co-op Loan, of the related Cooperative Unit); (3) a code indicating whether the
Mortgagor is self-employed; (4) a code indicating whether the Mortgaged Property
is owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two-family
residence, three-family residence, four family residence, condominium,
manufactured housing, mixed-use property, raw land and other non-residential
properties, planned unit development or cooperative stock in a cooperative
housing corporation; (6) the purpose of the Mortgage Loan; (7) the type of
Mortgage Loan (i.e., Fixed Rate or Adjustable Rate Mortgage Loan); (8) the
Mortgage Interest Rate at origination; (9) the current Mortgage Interest Rate;
(10) whether the Mortgage Loan has Monthly Payments that are interest only for a
period of time; (11) the Servicing Fee Rate; (12) the current Monthly Payment;
(13) the original term to maturity; (14) the remaining term to maturity; (15)
the principal balance of the Mortgage Loan as of the Cut-off Date after
deduction of payments of principal due on or before the Cut-off Date whether or
not collected; (16) the LTV at origination and if the Mortgage Loan has a second
lien, combined LTV at origination; (17) the actual principal balance of the
Mortgage Loan as of the Cut-off Date; (18) social security number of the
Mortgagor; (19) a code indicating whether the Mortgage Loan has negative
amortization and the maximum amount of such negative amortization; (20) a code
indicating whether the Mortgage Loan had a second lien at origination; (21) if
the Mortgage Loan has a second lien, combined loan balance as of the Cut-off
Date; (22) a code indicating whether the Mortgaged Property is a leasehold
estate; (23) the due date of the Mortgage Loan; (24) whether the Mortgage Loan
is insured by a Primary Mortgage Insurance Policy and the name of the insurer;
(25) the certificate number of the Primary Mortgage Insurance Policy; (26) the
amount of coverage of the Primary Mortgage Insurance Policy; (27) the type of
appraisal; (28) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan; (29) a code indicating whether the Mortgage Loan is subject to a prepay
penalty and the terms of such prepayment penalty; (30) documentation type
(including asset and income type); (31) first payment date; (32) the schedule of
the payment delinquencies in the prior 12 months and (33) FICO score. With
respect to any Adjustable Rate Mortgage: (a) the Gross Margin; (b) the Periodic
Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Adjustment Date cap
and the Interest Adjustment Date frequency; (e) the minimum Mortgage Interest
Rate; (f) the first Interest Adjustment Date immediately following the Cut-off
Date; and (g) the Index, including the methodology for rounding (e.g. rounded
upward, if necessary, to the next nearest ten thousandth (.0001)) and the
applicable time frame for determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative 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 and their successors in
title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Indymac would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
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 Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02, are intended to be sold under this
Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), 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.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Indymac and the Purchaser in connection with
the purchase and sale of each Mortgage Loan Package, which sets forth the terms
relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Indymac in exchange for the Mortgage Loan Package purchased on
such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 6.07.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Credit File or the Mortgage File, (b) the absence of a
document in the Credit File or Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made by
Indymac, but, in each case, only if the affected Mortgage Loan would cease to
qualify as a "qualified mortgage" for purposes of the REMIC provisions.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Indymac in the month of substitution); (ii) have a Mortgage Interest
Rate not less than, and not more than 1% greater than, the Mortgage Interest
Rate of the repurchased Mortgage Loan; (iii) have a remaining term to maturity
not greater than, and not more than one year less than, the maturity date of the
repurchased Mortgage Loan; (iv) comply with each representation and warranty
(respecting individual Mortgage Loans) set forth in Section 3.02 hereof; (v)
shall be the same type of Mortgage Loan (i.e., an Adjustable Rate Mortgage Loan
or a Fixed Rate Mortgage Loan).
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 6.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate in writing.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Indymac of any REO Property or
the transfer of the management of such REO Property to the Purchaser as set
forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Indymac on behalf of
the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan as of the date of
repurchase plus (ii) interest on such Stated Principal Balance at the Mortgage
Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect to
any Mortgage Loan included in a Pass-Through Transfer, damages incurred by the
Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law provided, however, that if at the time of repurchase the Servicer is
not the Seller or an affiliate of the Seller, the amount described in clause
(ii) shall be computed at the sum of (a) the Mortgage Loan Remittance Rate and
(b) the Servicing Fee Rate.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicing Agreement: The agreement dated as of February 1, 2004 and
signed by the Purchaser and Indymac with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Indymac, which shall, for a period of one
full month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate
and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion of such Monthly
Payment collected by Indymac, or as otherwise provided herein. Subject to the
foregoing, and with respect to each Mortgage Loan, Indymac shall be entitled to
receive its Servicing Fee through the disposition of any related REO Property
and the Servicing Fee payable with respect to any REO Property shall be based on
the Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the 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.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Indymac and the Purchaser prior to the applicable
Closing Date confirming the terms of a prospective purchase and sale of a
Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, the Custodial
Agreement, the Servicing Agreement and this Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer.
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser, all
rights arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans on account of interest and
principal due after the Cut-off Date, shall be held by Indymac in trust for the
benefit of the Purchaser as owner of the Mortgage Loans, and Indymac shall
retain record title to the related Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The sale of each Mortgage Loan shall be reflected on Indymac's
balance sheet and other financial statements as a sale of assets by Indymac.
Indymac shall be responsible for maintaining, and shall maintain, a complete set
of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
Indymac shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of FNMA or FHLMC, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project under the Underwriting Guidelines, and periodic
inspection reports as required by Section 3.15 of the Servicing Agreement. To
the extent that original documents are not required for purposes of realization
of Liquidation Proceeds or Insurance Proceeds, documents maintained by Indymac
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as Indymac complies with the requirements of the FNMA or
FHLMC Selling and Servicing Guide, as amended from time to time. Indymac shall
indemnify the Purchaser and hold it harmless against any damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from the unenforceability (as
determined by a court of competent jurisdiction) of any Mortgage Loan document
recreated in the manner described in the foregoing sentence against the
applicable Mortgagor as a result of such recreation or the absence of such
original Mortgage Loan document.
Section 2.02 Due Diligence by the Purchaser.
Review of Credit File and Mortgage File. At least 15 days prior to
the Closing Date, Indymac shall make available to the Purchaser the Credit File
and the Mortgage File for each Preliminary Mortgage Loan in the related
Preliminary Mortgage Loan Package and shall accommodate reasonable requests by
the Purchaser to provide personnel and documents as necessary to facilitate the
review. The Purchaser shall have the right to review the Credit File and the
Mortgage File for each such Preliminary Mortgage Loan, at Indymac's offices or
such other location agreed upon by the Purchaser and Indymac, for the purpose of
determining whether each Preliminary Mortgage Loan conforms in all material
respects to the applicable terms contained in the Transaction Documents, which
determination shall be made in the Purchaser's sole discretion; provided,
further, that the Purchaser, in its sole discretion, has the right to reject any
Preliminary Mortgage Loan if the original Mortgage Note for such Preliminary
Mortgage Loan is lost. In the event that the Purchaser rejects any Preliminary
Mortgage Loan based on such review, Indymac shall have the opportunity, at the
discretion of the Purchaser, to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement, provided that the Purchaser and Indymac shall notify the other upon
discovery of any breach of the representations and warranties contained in this
Agreement. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Credit Files and
the Mortgage Files shall not affect the Purchaser's or any of its successors'
rights to demand repurchase or other relief or remedy provided for in this
Agreement, subject to the notification requirement of Section 3.03.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File or
the Mortgage File is missing material documentation (as used therein, the
"Missing Credit Documents"), Indymac agrees to use its best efforts to procure
each such Missing Credit Document within sixty (60) days following the related
Closing Date. In the event of a default by a Mortgagor or any material
impairment of the Mortgaged Property, in either case directly arising from a
breach of Indymac's obligation to deliver the Missing Credit Document within the
time specified above, Indymac shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Indymac shall, no later than five (5) Business
Days prior to the related Closing Date, pursuant to the Custodial Agreement
deliver and release to the Custodian the Collateral File for each Mortgage Loan
in the Mortgage Loan Package and shall execute, and cause the Custodian to
execute, the Custodial Agreement. The Custodian has certified its receipt of all
such Collateral Documents required to be delivered pursuant to the Custodial
Agreement. Indymac will be responsible for the fees and expenses with respect to
the delivery and will be responsible for the fees and expenses related to the
recording of the initial Assignments of Mortgage (including any fees and
expenses related to any preparation and recording of any intervening or prior
assignments of the Mortgage Loans to Indymac or to any prior owners of or
mortgagees with respect to the Mortgage Loans) or Form UCC-3's for Cooperative
Loans. The Purchaser will be responsible for the Custodian's fees and expenses
as set forth in the Custodial Agreement.
Indymac shall forward to the Custodian original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 3.1(c) or 5.1 of the Servicing Agreement
within two weeks of their execution, provided, however, that Indymac shall
provide the Custodian with a certified true copy of any such document submitted
for recordation within ten (10) days of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within 120 days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, Indymac shall deliver to the Custodian within 240 days of its
submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.05 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
Indymac in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Indymac cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Indymac shall deliver instead a recording
receipt of such recording office or, if such recording receipt is not available,
an Officer's Certificate from Indymac confirming that such documents have been
accepted for recording. Any such document shall be delivered to the Purchaser or
its designee promptly upon receipt thereof from the related recording office.
If Indymac, the Purchaser or the Custodian finds any document or
documents constituting a part of a Credit File or Mortgage File pertaining to a
Mortgage Loan to be defective (or missing) in any material respect, and such
defect or missing document materially and adversely affects the value of the
related Mortgage Loan or the interests of the Purchaser therein, the party
discovering such defect shall promptly so notify Indymac. Indymac shall have a
period of 90 days after receipt of such written notice within which to correct
or cure any such defect. Indymac hereby covenants and agrees that, if any
material defect cannot be corrected or cured, Indymac will, upon the expiration
of the applicable cure period described above, repurchase the related Mortgage
Loan in the manner set forth in Section 3.03; provided, however, that with
respect to any Mortgage Loan, if such defect constitutes a Qualification Defect,
any such repurchase must take place within 60 days of the date such defect is
discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, Indymac delivers an Officer's Certificate to
the Purchaser certifying that Indymac is using good faith efforts to correct or
cure such defect and identifying progress made, then the Purchaser shall grant
Indymac an extension to correct or cure such defect. The extension shall not
extend beyond (1) if the defect is a Qualification Defect, the date that is 60
days after the date the defect is discovered, or, (2) if the defect is not a
Qualification Defect (as evidenced by an Opinion of Counsel), the date that is
30 days beyond the original 90-day cure period. If the defect is not a
Qualification Defect, additional 30-day extensions may be obtained pursuant to
the same procedure, as long as Indymac demonstrates continued progress toward a
correction or cure; provided that no extension shall be granted beyond 180 days
from the date on which the Company received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify Indymac of any defective or missing document
in a Credit File or Mortgage File within such 90-day period, or the failure of
the Purchaser to require Indymac to cure or repurchase the related Mortgage Loan
upon expiration of such 90-day period, shall not constitute a waiver of its
rights hereunder, including the rights with respect to a Mortgage Loan, to
require Indymac to repurchase the affected Mortgage Loan and the right to
indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Indymac shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Indymac.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Indymac under this Agreement
shall be true and correct as of the Closing Date and no event shall have
occurred that, with notice or the passage of time, would constitute a default
under this Agreement;
(b) Both parties shall have executed and delivered the related
Purchase Confirmation, Trade Confirmation, Servicing Agreement and Custodial
Agreement;
(c) Indymac shall have delivered and released to the Custodian all
documents required pursuant to this Agreement and the Custodial Agreement; and
(d) All other terms and conditions of this Agreement have been
complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Indymac on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Indymac on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Indymac shall each bear its own costs and expenses
in connection with the purchase and sale of the Mortgage Loans including any
commissions due its sales personnel, the legal fees and expenses of its
attorneys and any due diligence expenses. Without limiting the generality of the
foregoing, any costs and expenses incurred in connection with recording the
Assignment of Mortgage or any subsequent assignment thereof shall be paid for by
the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Indymac pursuant to this Agreement, Indymac shall cause the registration of such
MERS Mortgage Loan to be changed on the MERS System to reflect the Purchaser as
the beneficial owner of such MERS Mortgage Loan. The foregoing obligation of
Indymac shall be in lieu of Indymac delivering to the Purchaser an Assignment of
Mortgage for such MERS Mortgage Loan. With respect to the Mortgage and
intervening assignments related to any MERS Mortgage Loan, Indymac shall, in
accordance with Section 2.05, provide the Purchaser with the original Mortgage
with evidence of registration with MERS and, as applicable, the originals of all
intervening assignments of the Mortgage with evidence of recording thereon prior
to the registration of the Mortgage Loan with the MERS System.
(b) In connection with the MERS System, Indymac is hereby authorized
and empowered, in its own name, to register, or change the registration of any
MERS Mortgage Loan to effectuate such registration. Further, Indymac is
authorized to cause the removal of any MERS Mortgage Loan from such
registration, and to execute and deliver on behalf of itself and the Purchaser,
any and all instruments of assignment and comparable instruments with respect to
any registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Indymac.
Indymac represents, warrants and covenants to the Purchaser that, as
of each Closing Date:
(a) Organization and Standing. Indymac is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and is qualified and licensed to transact business in and is in good
standing under the laws of each state where each Mortgaged Property is located
to the extent necessary to ensure the enforceability of each Mortgage Loan and
the servicing of the Mortgage Loan in accordance with the terms of this
Agreement. The execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
Indymac and the consummation of the transactions contemplated hereby have been
duly and validly authorized. This Agreement evidences the valid, binding and
enforceable obligation of Indymac; and all requisite corporate action has been
taken by Indymac to make this Agreement valid and binding upon Indymac in
accordance with its terms;
(b) Due Authority. Indymac has the full power and authority to (i)
perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Indymac, which is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Indymac pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of the
Mortgage Loans by Indymac, 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 Indymac's
certificate of incorporation or by-laws or result in a material breach of any
legal restriction or any material agreement or instrument to which Indymac is
now a party or by which it is bound, or constitute a material default or result
in an acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Indymac or
its property is subject;
(e) Approved Seller. Indymac is an approved seller/servicer for each
Agency in good standing and is a mortgagee approved by the Secretary of HUD. No
event has occurred, including a change in insurance coverage, which would make
Indymac unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD eligibility
requirements. Furthermore, if at any time prior to the termination of this
Agreement, Indymac is unable to comply with any of the Xxxxxx Mae, Xxxxxxx Mac
or HUD eligibility requirements, it shall immediately notify the Purchaser that
it is no longer an approved seller/servicer as defined in the first sentence
above;
(f) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Indymac's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Indymac would materially and adversely affect the sale of the Mortgage Loans to
the Purchaser, the ability of Indymac to service the Mortgage Loans hereunder in
accordance with the terms hereof, or Indymac's ability to perform its
obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Indymac, of or compliance by Indymac with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Indymac acknowledges and agrees that
the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Indymac, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Indymac 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. Indymac is solvent and the sale of the Mortgage
Loans will not cause Indymac to become insolvent. The sale of the Mortgage Loans
is not undertaken to hinder, delay or defraud any of Indymac's creditors;
(j) No Untrue Information. Neither this Agreement nor any statement,
report or other document prepared and furnished, or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby, by
Indymac contains any untrue statement of fact or omits to state a fact necessary
to make the statements contained therein not misleading;
(k) Sale Treatment. Indymac has determined that the disposition of
the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) Fair Credit Report Act. Indymac, in its capacity as servicer for
each Mortgage Loan, has fully furnished (or caused to be 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) or their successors and assigns, on a
monthly basis;
(m) No Brokers' Fees. Indymac has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans;
(n) Fair Consideration. The consideration received by Indymac upon
the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans; and
(o) USA Patriot Act of 2001. Indymac 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"); Indymac 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.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Indymac represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
and credited prior to the related Cut-off Date for such Mortgage Loan under the
terms of the Mortgage Note have been made; Indymac has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no delinquency of more than thirty (30) days in any payment by
the Mortgagor thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. There
are no defaults by Indymac or any prior originator in complying with the terms
of the Mortgage and there are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The substance
of any such waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Collateral File and the terms of
which are reflected in the Mortgage Loan Schedule if executed prior to the
Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings and other customarily
insured improvements upon the Mortgaged Property are insured in an amount which
is not less than the lesser of (i) the maximum insurable value of the Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan, and (b) an amount that would prevent the Mortgagor from becoming
a co-insurer, by an insurer acceptable to an Agency against loss by fire,
hazards of extended coverage and such other hazards as are customary in the area
where the Mortgaged Property is located, and such insurer is licensed to do
business in the state where the Mortgaged Property is located. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy. All such insurance policies contain a standard mortgagee clause
naming Indymac, its successors and assigns as mortgagee, and all premiums
thereon have been paid. If, upon the origination of the Mortgage Loan, the
Mortgaged Property was, or was subsequently deemed to be, 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), a
flood insurance policy that meets the requirements of the current guidelines of
the Federal Insurance Administration (or any successor thereto) and conforms to
the requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. All applicable local, state and
federal laws including without limitation usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing, predatory and abusive lending and disclosure laws applicable to
the origination and servicing of the Mortgage Loan have been complied with, and
Indymac 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 Release 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. Indymac has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has
Indymac waived any default.
(i) Enforceability of Mortgage Documents. The Mortgage Note, the
Mortgage and any related modifications, assignments and assumptions are genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or similar laws;
(j) Valid First Lien on Mortgage Loans that are not Cooperative
Loans. Each related Mortgage is a valid, perfected, existing and enforceable
first lien or a first priority ownership interest in an estate in fee simple in
the Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related Mortgage
Note, except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgage may secure and create a first lien upon a
leasehold estate of the Mortgagor. 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 public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that 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 and enforceable first lien and first priority
security interest on the property described therein and the Company has full
right to sell and assign the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to each
Cooperative Loan, the related Mortgage is a valid, enforceable and subsisting
first security interest on the related cooperative shares securing the related
cooperative note and lease, subject only to (a) liens of the cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
cooperative'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 intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Indymac's security interest in such
cooperative shares;
(l) [RESERVED];
(m) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the Code,
and is in material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect on the
Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to which a
Mortgaged Property may be subject: (i) the Mortgagor is the owner of a valid and
subsisting leasehold interest under such ground lease: (ii) such ground lease is
in full force and effect; (iii) all rent, additional rent and other charges
reserved therein have been fully paid to the extent payable as of the Closing
Date; (iv) the Mortgagor enjoys the quiet and peaceful possession of the
leasehold estate, subject to any sublease; (v) the Mortgagor is not in default
under any of the terms of such ground lease, and there are no circumstances
which, with the passage of time or the giving of notice, or both, would result
in a default under such ground lease; (vi) the lessor under such ground lease is
not in default under any of the terms or provisions of such ground lease on the
part of the lessor to be observed or performed and (vii) the term of such lease
does not terminate earlier than 5 years following the maturity date of the
Mortgage Note.
(p) Disbursements of Proceeds. 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 recording 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;
(q) Sole Owner. Indymac is the sole owner and holder of the Mortgage
Loan and the indebtedness evidenced by the Mortgage Note. The Mortgage Loan is
not assigned or pledged, and Indymac has good 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, lien, pledge, participation interests, charge,
claim or security interest not specifically set forth in the related Mortgage
Loan Schedule 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 the terms of this Agreement. Indymac intends to
relinquish all rights to monitor, possess and control the Mortgage Loan except
in connection with the servicing of the Mortgage Loan as set forth in the
Servicing Agreement. After the Closing Date, Indymac will not have any right to
modify or alter the terms of the sale of the Mortgage Loan, nor will Indymac
have any obligation or right to repurchase the Mortgage Loan, except as provided
in this Agreement or as otherwise agreed to by Indymac and the Purchaser.
(r) Title Insurance. Each Mortgage Loan is covered by an ALTA
lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Indymac, its successors and assigns as to the
first priority lien of the Mortgage. 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. Indymac is the sole insured
of such lender's title insurance policy, and such lender's title insurance
policy is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. No claims have
been made under such lender's title insurance policy, and no prior holder of the
related Mortgage, including Indymac, has done, by act or omission, anything
which would impair the coverage of such lender's title insurance policy;
(s) No Default. There is no default, breach, violation or event of
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 of
acceleration, and Indymac has not waived any default, breach, violation or event
of acceleration;
(t) 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 lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(u) Origination and Collection Practices. The origination and
collection practices used by Indymac with respect to each Mortgage Loan and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
Escrow Payments, if any, all such payments are in the possession of, or under
the control of, Indymac and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. No
escrow deposits or Escrow Payments or other charges or payments due Indymac have
been capitalized under any Mortgage or the related Mortgage Note. All payments
have been collected in compliance with local, state and federal law and the
terms of the related Mortgage Note. With respect to Adjustable Rate Mortgage
Loans, all Mortgage Interest Rate adjustments have been made in strict
compliance with local, state and federal law and the terms of the related
Mortgage Note. Any interest required to be paid pursuant to state and local law
has been properly paid and credited;
(v) No Condemnation or Damage. There is no proceeding pending or, to
Indymac's knowledge, threatened for the total or partial condemnation of the
Mortgaged Property and such property is in good repair and 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 Property as
security for the Mortgage Loan or the use for which the premises were intended;
(w) Customary and Enforceable 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 (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. 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;
(x) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (j) above;
(y) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by an appraiser who meets the minimum requisite qualifications of an
Agency for appraisers, duly appointed by the originator, that had no interest,
direct or indirect in the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the appraisal is
in a form acceptable to an Agency, with such riders as are acceptable to such
Agency, and such appraisal complies with the requirements of FIRREA;
furthermore, the appraisal type for each Mortgage Loan is accurately reflected
on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage constitutes
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in 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;
(aa) Private Mortgage Insurance. Each PMI Policy has been issued by
an insurer acceptable to FNMA or FHLMC, in at least such amounts as required by
FHMA or FHLMC. 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. Any Mortgage subject to any such PMI Policy obligates
the Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith or, in the case of a lender paid mortgage
insurance policy, the premiums and charges are included in the Mortgage Interest
Rate for the Mortgage Loan;
(bb) Lawfully Occupied. 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 certificates of
occupancy, have been made or obtained from the appropriate authorities. No
improvements violate local zoning laws;
(cc) Assignment of Mortgage. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms that are customary in the mortgage origination and
servicing business;
(ee) Section 32 Loans. No Mortgage Loan is classified as a
"covered," "high cost," "high cost home loan," "threshold," "predatory loan,"
(excluding New Jersey "Covered Home Loans" as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security Act of
2002), or any other designation that indicates that such Mortgage Loan has terms
that result in costs to the Mortgagor in excess of a specified limit under the
Home Ownership and Equity Protection Act of 1994, as amended, or any similar
federal, state or local statutes or regulations related to "high cost" mortgage
loans or "predatory lending" (as such terms are defined in the applicable
statute or regulation);
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to each Agency. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan
(gg) Type of Mortgaged Property. If a portion of the Mortgaged
Property was being used for commercial purposes then (i) the mixed use of the
property represents a legal, permissible use of the property under the local
zoning requirements, (ii) the Mortgagor is the owner and the operator of the
business, (iii) the Mortgaged Property is primarily residential in nature and
(iv) the market value of the property is primarily a function of its residential
characteristics.
(hh) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above
(ii) Servicemembers Civil Relief Act. The Mortgagor has not notified
Indymac, and Indymac has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act or any similar state law;
(jj) Payment Terms. The Mortgage Note is payable on the first day of
each month in equal monthly installments of principal and interest (or interest,
in the case of any Mortgage Loan for which monthly payments consist of only
interest for a period of time specified on the Mortgage Loan Schedule),
(provided that, the installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date
with respect to an Adjustable Rate Mortgage, and interest is calculated and
payable in arrears) providing for full amortization by maturity over a scheduled
term of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of the related Mortgage Note, from having interest accrue on the principal
amount thereof based on an adjustable rate to having interest accrue based on a
fixed rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination. At the time the Mortgage Loan was originated, the
originator was a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or a
savings and loan association, a saving bank, a commercial bank or similar
banking institution which is supervised by a Federal or State authority.
(ll) Loan-to-Value Ratio; No Foreclosures. The Loan-to-Value Ratio
of each Mortgage Loan was no greater than 100% at the time of its origination or
refinancing, as applicable. No Mortgage Loan is subject to a written foreclosure
agreement or pending foreclosure proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was underwritten
substantially in accordance with Indymac's underwriting guidelines at the time
of origination, subject to such reasonable variances as Indymac approved. (the
"Underwriting Guidelines");
(nn) Adverse Selection. Indymac used no adverse selection procedures
in selecting the Mortgage Loan from among the outstanding first-lien residential
mortgage loans owned by it which were available for inclusion in the Mortgage
Loan Package;
(oo) Environmental Matters. There is no pending action or proceeding
directly involving any Mortgaged Property of which Indymac is aware in which
compliance with any environmental law, rule or regulation is an issue. To the
best of Indymac's knowledge, nothing further remains to be done to satisfy in
full all requirements of each such law, rule or regulation consisting a
prerequisite to use and enjoyment of said property;
(pp) No Bankruptcy; Acceptable Investment. The Mortgagor is not in
bankruptcy and is not insolvent;
(qq) No Additional Payments. There is no obligation on the part of
Indymac or any other party to make payments in addition to those made by the
Mortgagor;
(rr) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and before March 7, 2003, which is
secured by owner-occupied property located in the State of Georgia.
(ss) No Credit Insurance Policies. No proceeds from any Mortgage
Loan were used to purchase single-premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan;
(tt) Prepayment Penalty Term. The prepayment penalty terms of the
Mortgage Loan is in full compliance with all federal, state and local law, rules
and regulations;
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code;
(vv) Credit Reporting. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by Indymac to the Purchaser, Indymac 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;
(ww) Doing Business. Indymac and all other 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) in compliance with any and all applicable "doing business" and
licensing requirements of the laws of the state wherein the Mortgaged Property
is located;
(xx) No Buydown Provisions; No Graduated Payments or Contingent
Interests. 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, nor does it contain any "buydown" provision which is currently in
effect;
(yy) Due-On-Sale. 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;
(zz) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of mortgage
loans of the same type as the Mortgage Loan and rescission materials required by
applicable law if the Mortgage Loan is a Refinanced Mortgage Loan and has
acknowledged receipt of such materials to the extent required by applicable law
and such documents will remain in the Mortgage File;
(aaa) No Advancements. Indymac or any prior originator or servicer
has not advanced funds, or induced, solicited or knowingly received any advance
from any party other than the Mortgagor, directly or indirectly, for the payment
of any amount due under the Mortgage Loan;
(bbb) Delivery of Mortgage Documents. With respect to each Mortgage
Loan, Indymac is in possession of a complete Collateral File except for the
documents which have been delivered to the Purchaser or which have been
submitted for recording and not yet returned;
(ccc) Lost Note. With respect to each Mortgage where a lost note
affidavit has been delivered in place of the related Mortgage Note, the related
Mortgage Note is no longer in existence;
(ddd) Validity of Mortgage Documents. All the documents executed in
connection with the Mortgage Loan including, but not limited to, the Mortgage
Note and the Mortgage are free of fraud and any misrepresentation, are signed by
the persons they purport to be signed by, and witnessed or, as appropriate,
notarized by the persons whose signatures appear as witnesses or notaries, and
each such document constitutes the valid and binding legal obligation of the
signatories and is enforceable in accordance with its terms;
(eee) Construction or Rehabilitation of Mortgaged Property. (i) No
Mortgage Loan was made in connection with facilitating the trade-in or exchange
of a Mortgaged Property and (ii) a Mortgage Loan has a certificate of completion
if such Mortgage Loan was made in connection with the construction or
rehabilitation of the related Mortgaged Property;
(fff) [RESERVED];
(ggg) Conversion to Fixed Interest Rate. No Mortgage Loan is a
Convertible Mortgage Loan
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 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 failure to examine any Collateral Documents or
Credit File. Upon discovery by either Indymac or the Purchaser of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the value of one or more of the related Mortgage Loans, the
party discovering such breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Indymac of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, Indymac shall use its best efforts to cure such breach in
all material respects, and, if such breach cannot be cured, Indymac shall, at
the Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price.
Notwithstanding anything to the contrary herein, a breach of any one of the
representations and warranties set forth in clauses (ee), (rr), (ss) and (uu) in
Subsection 3.02 shall be deemed to materially and adversely affect the value of
the related Mortgage Loans and, within sixty (60) days of the earlier of either
discovery by or notice to Indymac, as the case may be, of such breach, Indymac
shall repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.01
and such breach cannot be cured within sixty (60) days of the earlier of either
discovery by or notice to Indymac of such breach, Indymac shall repurchase such
of the Mortgage Loans as shall be necessary to cure such breach at the
Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve a
representation or warranty set forth in Section 3.02, Indymac may at the
discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans, provided, however that with respect
to a breach of any one of the representations and warranties set forth in
clauses (ee), (rr), (ss) and (uu), Indymac shall indemnify the Purchaser, its
affiliates, and their respective directors, officers and employees, as
applicable, and hold the Purchaser, its affiliates and each such person harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way related
to Indymac's breach of such representations and warranties. If Indymac elects
not to substitute a Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
provisions of this Section 3.03 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution. At the time of repurchase
or substitution, the Purchaser and Indymac shall arrange for the reassignment of
such Mortgage Loan and release of the related Collateral File to Indymac and the
delivery to Indymac of any documents held by the Purchaser or its designee
relating to such Mortgage Loan. In the event Indymac is authorized to substitute
a Qualified Substitute Mortgage Loan for a repurchased Mortgage Loan, Indymac
shall, simultaneously with such reassignment, give written notice to the
Purchaser that substitution has taken place and identify the Qualified
Substitute Mortgage Loan(s). In connection with any such substitution, Indymac
shall be deemed to have made as to such Qualified Substitute Mortgage Loan(s)
the representations and warranties except that all such representations and
warranties set forth in this Agreement shall be deemed made as of the date of
such substitution. Indymac shall effect such substitution by delivering to the
Purchaser the Collateral Documents for such Qualified Substitute Mortgage
Loan(s). Indymac shall deposit in the Custodial Account the Monthly Payment less
the Servicing Fee due on such Qualified Substitute Mortgage Loan(s) in the month
following the date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by Indymac. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on any substituted Mortgage Loan
in the month of substitution, and Indymac shall thereafter be entitled to retain
all amounts subsequently received by Indymac in respect of such substituted
Mortgage Loan.
For any month in which Indymac substitutes a Qualified Substitute
Mortgage Loan for a repurchased Mortgage Loan, Indymac shall determine the
amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all substituted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Indymac in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, Indymac shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall. Notwithstanding the
above, in no event shall Indymac substitute a loan that has been placed in a
trust with respect to a securitization.
In addition to such cure and repurchase obligations, Indymac shall
indemnify the Purchaser, its affiliates, and their respective directors,
officers and employees, as applicable, and hold the Purchaser, its affiliates
and each such person harmless against any damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion by any third party that is based on or grounded upon, or resulting
from, a breach of Indymac's representations and warranties contained in this
Agreements.
Section 3.04 Accrual of Cause of Action. Any cause of action against
Indymac relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 shall accrue as to any Mortgage Loan
upon (i) discovery of such breach by the Purchaser or notice thereof by Indymac
to the Purchaser, (ii) failure by Indymac to cure such breach or substitute or
repurchase such Mortgage Loan as specified above, or (iii) demand upon Indymac
by the Purchaser for compliance with the relevant provisions of this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Indymac to Act as Servicer.
Indymac shall service and administer Mortgage Loans sold pursuant to
this Agreement in accordance with the terms of the Servicing Agreement and shall
have full power and authority, acting alone, to do or cause to be done any and
all things, in connection with such servicing and administration, that Indymac
may deem necessary or desirable and consistent with the terms of the Servicing
Agreement.
ARTICLE V
COVENANTS BY INDYMAC
Section 5.01 Indemnification by Indymac.
Indymac shall indemnify the Purchaser, its affiliates, and their
respective directors, officers and employees, as applicable, and hold the
Purchaser, its affiliates and each such person harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain in any way related to the failure of
Indymac to perform its obligations hereunder, including its obligations to
service and administer the Mortgage Loans in compliance with the terms of this
Agreement.
Section 5.02 [RESERVED]
Section 5.03 Merger or Consolidation of Indymac.
Indymac shall keep in full effect its existence, rights and
franchises as a federal savings bank under the laws of the United States or
under the laws of one of the states thereof, and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, or any of the Mortgage Loans, and to perform its duties under this
Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Indymac may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Indymac shall be
a party, or any Person succeeding to the business of Indymac, shall be the
successor of Indymac hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto; 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, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Indymac and Others.
Neither Indymac nor any of the officers, employees or agents of
Indymac shall be under any liability to the Purchaser for any action taken, or
for refraining from taking any action, in good faith pursuant to this Agreement,
or for errors in judgment; provided, however, that this provision shall not
protect Indymac or any such person against any breach of warranties or
representations made herein, or any liability which would otherwise be imposed
by reason of any breach of the terms and conditions of this Agreement and,
provided further, that this provision shall not protect Indymac or any such
person 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. Indymac and
any officer, employee or agent of Indymac may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. Notwithstanding anything to the contrary
contained in this Agreement, unless one or more Event of Default by Indymac
shall occur and shall not have been remedied within the time limits set forth in
Section 7.1 of the Servicing Agreement, the Purchaser shall not record or cause
to be recorded an Assignment of Mortgage with the recording office. To the
extent the Purchaser records with the recording office as permitted herein an
Assignment of Mortgage which designates the Purchaser as the holder of record of
the Mortgage, the Purchaser agrees that it shall (i) provide Indymac with
immediate notice of any action with respect to the Mortgage or the related
Mortgaged Property and ensure that the proper department or person at Indymac
receives such notice; and (ii) immediately complete, sign and return to Indymac
any document reasonably requested by Indymac to comply with its servicing
obligations, including without limitation, any instrument required to release
the Mortgage upon payment in full of the obligation or take any other action
reasonably required by Indymac. The Purchaser further agrees that Indymac shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Indymac shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Indymac may,
with the consent of the Purchaser, undertake any such action which it may deem
necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Indymac shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Indymac's indemnification under Sections 3.03 and
5.01.
Section 5.05 No Transfer of Servicing.
Indymac acknowledges that the Purchaser acts in reliance upon
Indymac's independent status, the adequacy of its servicing facilities, plant,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section, Indymac shall not assign this Agreement or the servicing rights
hereunder, without the prior written approval of the Purchaser, which consent
may not be unreasonably withheld.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Indymac:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
(ii) the Purchaser:
To the address and contact set forth in the related
Purchase Confirmation
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 6.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Indymac and not a pledge of the Mortgage Loans by Indymac to the
Purchaser to secure a debt or other obligation of Indymac. Consequently, the
sale of each Mortgage Loan shall be reflected as a sale on Indymac's business
records, tax returns and financial statements. Accordingly, Indymac and the
Purchaser shall each treat the transaction for federal income tax purposes as a
sale by Indymac, and a purchase by the Purchaser, of the Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Indymac and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 6.04 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;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including (a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Indymac shall execute and deliver to the Purchaser and the Purchaser
shall be required to execute and deliver to Indymac such reasonable and
appropriate additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Indymac.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than five (5) "Purchasers" outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall constitute
a single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Indymac agree that with respect to some or all
of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 6.07(a) hereof, may effect Pass-Through
Transfers and Whole Loan Transfer, retaining Indymac as the servicer thereof or
subservicer if a master servicer is employed, or as applicable the
"seller/servicer." On the related Reconstitution Date, the Mortgage Loans
transferred shall cease to be covered by this Agreement; provided, however,
that, in the event that any Mortgage Loan transferred pursuant to this Section
6.07 is rejected by the related transferee, Indymac shall continue to service
such rejected Mortgage Loan on behalf of the Purchaser in accordance with the
terms and provisions of this Agreement. Indymac shall cooperate with the
Purchaser in connection with each Pass-Through Transfer and Whole Loan Transfer
in accordance with this Section 6.07. In connection therewith Indymac shall:
(i) negotiate in good faith and execute any seller/servicer
agreement reasonably required to effectuate the Pass-Through
Transfer and Whole Loan Transfer, provided such agreement creates no
greater obligation or cost on the part of Indymac than otherwise set
forth in this Agreement, and provided further that Indymac shall be
entitled to a servicing fee under that agreement at a rate per annum
no less than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Indymac of the type and
scope customarily included in offering documents for
residential mortgage-backed securities transactions involving
multiple loan originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Indymac as are
reasonably believed necessary by the trustee, any rating
agency or the Purchaser, as the case may be, in connection
with such Pass-Through Transfer and Whole Loan Transfer. The
Purchaser shall pay all reasonable third party costs
associated with the preparation of the information described
in clause (ii)(A) above and the delivery of any opinions,
letters or certificates described in this clause (ii)(B).
Indymac shall not be required to execute any seller/servicer
agreement unless a draft of the agreement is provided to
Indymac at least 10 days before the Reconstitution Date.
(c) In connection with any (a) Pass-Through Transfer and (b) Whole
Loan Transfer, Indymac shall restate to the Purchaser and, with respect to (a)
above, to the applicable depositor (the "Depositor"), trustee (the "Trustee")
and the master servicer (the "Master Servicer"), all representations and
warranties contained in this Agreement, with respect to the Mortgage Loans as of
the Closing Date and with respect to Indymac itself as of the closing date of
each Whole Loan Transfer or Pass-Through Transfer.
(d) In connection with any Pass-Through Transfer and Whole Loan
Transfer, Indymac shall indemnify, defend and hold harmless the Purchaser, the
Depositor, the Trustee, the Master Servicer, their respective affiliates, and
their respective directors, officers and employees from and against any and all
losses, claims, expenses, damages, liabilities, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs to which any
such party may be subject to as a result of any untrue statement of any material
fact contained in any information (such information, the "Indymac Information")
prepared and furnished to the Purchaser, the Depositor, the Trustee and the
Master Servicer by Indymac for inclusion in any related offering document or
prospectus (collectively, "Offering Materials"), or arise out of, or are based
upon, any omission in the Indymac Information necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse to all such parties, as applicable, for damages
or expenses reasonably incurred by it; provided, however, that Indymac shall be
liable only insofar as such untrue statement or omission relates solely to the
Indymac Information in the Offering Materials furnished to any such party by
Indymac specifically for inclusion in the Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers or Whole Loan Transfer 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 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Servicing Agreement, and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements entered into and
wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Indymac and the Purchaser and the respective permitted successors
and assigns of Indymac and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
Indymac shall be rendered as an independent contractor and not as agent for the
Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Indymac hereby 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 or independent mortgage
brokerage companies on its behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided, that Indymac may solicit any mortgagor from whom it or
its servicing affiliate has received a request for verification of mortgage, a
request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Indymac or any of its affiliates which (i)
concern optional insurance products or other additional projects or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Indymac
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Indymac or any affiliate of Indymac,
shall not be prohibited: (i) solicitations that are directed to the general
public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Indymac.
Section 6.14 Confidentiality.
Indymac, the Purchaser and their agents shall keep confidential and
shall not divulge to any person, other than affiliates, without the written
consent of the other party, the terms of this agreement, except (i) to the
extent required by law or judicial order or to enforce its rights or remedies
under this agreement, the Servicing Agreement, or any applicable agreements,
(ii) to the extent such information enters into the public domain other than
through the wrongful act of Indymac or the Purchaser, as the case may be, (iii)
as is necessary in working with legal counsel, auditors, rating agencies,
agents, taxing authorities or other governmental agencies, or (iv) in order to
disclose to any and all persons, without limitation of any kind, the structure
and tax aspects of this sale or any transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986.
Moreover, Indymac understands and agrees that this Agreement, the Servicing
Agreement, any other agreements executed in connection with the sale and
servicing contemplated hereunder, any agreements executed in connection with a
securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and Indymac agrees to hold such
documents confidential and not to divulge such documents to anyone except (a) to
the extent required by law or judicial order or to enforce its rights or
remedies under this letter agreement or the Agreements, (b) to the extent such
information enters into the public domain other than through the wrongful act of
Indymac (c) as is necessary in working with legal counsel, auditors, agents,
taxing authorities or other governmental agencies, or (d) in order to disclose
to any and all persons, without limitation of any kind, the structure and tax
aspects of this sale or such securitization and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, securitization and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986. The rights
and obligations set forth in this paragraph shall survive the Closing Date and
shall not merge into the closing documents but shall be independently
enforceable by the parties hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to each Mortgage Loan Package and supersede all prior or contemporaneous
oral or written communications regarding same. Indymac and the Purchaser
understand and agree that no employee, agent or other representative of Indymac
or the Purchaser has any authority to bind such party with regard to any
statement, representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within the
express terms of this Agreement or the related Trade Confirmation or Purchase
Confirmation. Neither this Agreement nor the related Trade Confirmation or
Purchase Confirmation shall be modified, amended or in any way altered except by
an instrument in writing signed by both parties.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Indymac and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
INDYMAC BANK, F.S.B.,
the Seller
By:
------------------------------------
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
the Purchaser
By: Xxxxxxx Sachs Real Estate
Funding Corp.,
General Partner
By:
-----------------------------------
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original executed Mortgage Note endorsed, "Pay to the
order of ______________, without recourse", or as otherwise directed by
the Purchaser, and signed in the name of the Seller by an officer of the
Seller, or a lost note affidavit with a copy of the original mortgage note
attached; the Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator to the
Seller;
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage Loan,
the original Assignment of Mortgage in blank.
3. Guarantee: Personal endorsement and/or guaranty agreements for all non
individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc.).
4. Mortgage: The original executed Mortgage, or a certified copy thereof, in
either case with evidence of recording noted thereon; the standard Xxxxxx
Xxx/FHLMC Condominium Rider or PUD Rider must be attached to the mortgage
if the mortgaged property is a condominium or is located in a PUD.
5. Modifications: Originals of all modification agreements, or certified
copies thereof, in either case with evidence of recording noted thereon if
recordation is required to maintain the lien of the Mortgage or is
otherwise required, or, if recordation is not so required, an original or
copy of any such modification agreement.
6. Intervening Assignments: Originals of any intervening assignments of the
mortgage necessary to show a complete chain of title from the original
mortgagee to the Seller, or certified copies thereof, in either case with
evidence of recording noted thereon; provided, that such intervening
assignments may be in the form of blanket assignments, a copy of which,
with evidence of recording noted thereon, shall be acceptable.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an original
copy of the Cooperative Lease naming the Mortgagor, as tenant, or an
original copy of the assignment of the Cooperative Lease to Mortgagor
together with the original copy of all intervening assignments showing a
complete and unbroken chain of title from the original tenant to Mortgagor
and an original undated assignment, in blank, of the Cooperative Lease
executed by Mortgagor; (ii) the original stock certificate in the name of
the Mortgagor together with an undated original stock power relating to
such stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same form as
a standard "AZTECH" form and the original assignment thereof from Indymac
to the Purchaser together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
originator of the Mortgage Loan to the Purchaser; (iv) copies of the UCC-1
financing statement naming the originator of the Cooperative Loan, as
secured party, with evidence of recording thereon and, if applicable, the
executed UCC-3 financing statements (Assignment) or other appropriate UCC
financing statements required by applicable state law evidencing a
complete and unbroken chain of title from the originator of the
Cooperative Loan to Indymac, with evidence of recording thereon, (v) an
executed UCC-3 financing statement (Assignment), or other appropriate UCC
financing statement required by applicable state law, evidencing the
assignment by Indymac to the Purchaser of its interest in the Cooperative
Loan, with evidence of recording thereon and (vi) a consent from the
cooperative corporation in connection with the Mortgagor's acquisition of
the coop apartment.
8. Power of Attorney: To the extent applicable, (x) an original power of
attorney, or a certified copy thereof, in either case with evidence of
recordation thereon if necessary to maintain the lien on the Mortgage or
if the document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (y) an original or copy of any surety
agreement or guaranty agreement.
9. Title Insurance: The original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title (accompanied by an
abstract of title), as the case may be, with respect to each Mortgage
Loan.
10. Assumptions: for each Mortgage Loan with respect to which the borrower's
name as it appears on the note does not match the borrower's name on the
Mortgage Loan Schedule, one of the following: (i) the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement; or (ii) a copy of a
marriage certificate, court order, decree or other document evidencing
that the two different names refer to the same person.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[INDYMAC LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between IndyMac Bank,
F.S.B.,
("Indymac") and Xxxxxxx Sachs Mortgage Company ("Purchaser") sets
forth our agreement pursuant to which Purchaser is purchasing, and Indymac is
selling, on a servicing-retained basis, those certain mortgage loans identified
in Exhibit A hereto and more particularly described herein (the "Mortgage
Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of February 1, 2004, between Indymac and Purchaser
(as amended herein and otherwise, the "Agreement"). By executing this Purchase
Confirmation, each of Indymac and Purchaser again makes, with respect to itself
and each Mortgage Loan, as applicable, all of the covenants, representations and
warranties made by each such party in the Agreement, except as the same may be
amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the
Agreement, Indymac shall sell, transfer, assign and convey to Purchaser, without
recourse, but subject to the terms of the Purchase Confirmation and the
Agreement, all of the right, title and interest of Indymac in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Indymac pursuant to the terms of the Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
d. [Index: On each Interest Adjustment Date, the applicable
index rate shall be a rate per annum equal to [the weekly average yield on
U.S. Treasury securities adjusted to a constant maturity of one year, as
published by the Board of Governors of the Federal Reserve System in
Statistical Release No. H.15] [the average of interbank offered rates for
six-month U.S. dollar denominated deposits in the London market (LIBOR),
as published [in the Wall Street Journal] [by Xxxxxx Xxx] [the 11th
District Cost of Funds as made available by the Federal Home Loan Bank]
[the weekly average yield on certificates of deposit adjusted to a
constant maturity of six months as published by the Board of Governors of
the Federal Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Indymac's obligation to repurchase from the Purchaser the Mortgage
Loan related to a Missing Credit Document shall occur only in the event of a
default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Indymac's obligation to deliver the Missing Credit
Document within the time specified in Section 2.04 of the Agreement.
f. Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans]
[each Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B]
hereto, the sum of (a) the product of (i) the Cut-off Date Balance of
[such Mortgage Loan] [such Mortgage Loans], and (ii) the purchase price
percentage set forth in Exhibit [A] hereto for such [Mortgage Loan]
[Mortgage Loans], and (b) accrued interest from the Cut-off Date through
the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the
period prior to the initial Interest Adjustment Date, [0.25]% and,
thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Indymac's credit underwriting guidelines in
effect at the time such Mortgage Loan was originated] [conforms to the
Xxxxxx Xxx or Xxxxxxx Mac mortgage eligibility criteria (as such criteria
applies to Indymac) and is eligible for sale to, and securitization by,
Xxxxxx Mae or Xxxxxxx Mac] [at the time of origination was underwritten to
guidelines which are consistent with an institutional investor-quality
mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
INDYMAC BANK, F.S.B., XXXXXXX SACHS MORTGAGE COMPANY
By: By:
----------------------------- -------------------------------
Name: Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(Available upon request to the Trustee)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT, dated as of February 1, 2004 (the "Agreement"),
among Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), having an address of 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, IndyMac Bank, F.S.B., having an address
at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the "Seller"), and
JPMorgan Chase Bank having an address at 0000 Xxxxxx Xxxxxx, 00xx xxxxx,
Xxxxxxx, Xxxxx 00000 (the "Custodian").
WITNESSETH:
WHEREAS, the Purchaser and the Seller have entered into that certain
Master Mortgage Loan Purchase Agreement dated as of February 1, 2004, pursuant
to which the Purchaser will purchase and the Seller will sell from time to time,
certain fixed and adjustable-rate first lien residential mortgage loans (the
"Master Mortgage Loan Purchase Agreement");
WHEREAS, the Mortgage Loans purchased pursuant to the Master
Mortgage Loan Purchase Agreement will be serviced by the Seller (in such
capacity, the "Servicer") pursuant to the Servicing Agreement dated as of
February 1, 2004 (the "Servicing Agreement"); and
WHEREAS, the Purchaser desires to have the Custodian take possession
of the mortgage notes for the Mortgage Loans, along with certain other documents
specified herein, as the Custodian of the Purchaser or subsequent purchasers of
the Mortgage Loans, in accordance with the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual undertaking herein
expressed, the parties hereto hereby agree as follows:
1 On or prior to the Closing Date (as defined in the Master Mortgage
Loan Purchase Agreement), the Seller shall deliver and release to the Custodian,
subject to and in accordance with the relevant section of the Master Mortgage
Loan Purchase Agreement and the Servicing Agreement, the following documents,
pertaining to each of the Mortgage Loans identified in the Mortgage Loan
Schedule (the "Mortgage Loan Schedule") a copy of which Mortgage Loan Schedule
is annexed as Exhibit 1 hereto.
(a) the original executed mortgage note endorsed, "Pay to the
order of ______________, without recourse", or as otherwise directed
by the Purchaser, and signed in the name of the Seller by an officer
of the Seller, or a lost note affidavit with a copy of the original
mortgage note attached; the mortgage note shall include all
intervening original endorsements showing a complete chain of title
from the originator to the Seller;
(b) the original executed mortgage, or a certified copy
thereof, in either case with evidence of recording noted thereon;
the standard Xxxxxx Mae/FHLMC Condominium Rider or PUD Rider must be
attached to the mortgage if the mortgaged property is a condominium
or is located in a PUD;
(c) the original assignment of each mortgage from the Seller
to "[in blank]" or as otherwise directed by the Purchaser;
(d) the original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title (accompanied by
an abstract of title), as the case may be, with respect to each
Mortgage Loan;
(e) originals of any intervening assignments of the mortgage
necessary to show a complete chain of title from the original
mortgagee to the Seller, or certified copies thereof, in either case
with evidence of recording noted thereon; provided, that such
intervening assignments may be in the form of blanket assignments, a
copy of which, with evidence of recording noted thereon, shall be
acceptable;
(f) with respect to each cooperative loan: (i) an original
copy of the cooperative lease naming the borrower, as tenant, or an
original copy of the assignment of the cooperative lease to the
borrower together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
original tenant to the borrower and an original undated assignment,
in blank, of the cooperative lease executed by the borrower; (ii)
the original stock certificate in the name of the borrower together
with an undated original stock power relating to such stock
certificate executed in blank by the borrower; (iii) a fully
executed original recognition agreement in substantially the same
form as a standard "AZTECH" form and the original assignment thereof
from Indymac to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of
title from the originator of the mortgage loan to the Purchaser;
(iv) copies of the UCC-1 financing statement naming the originator
of the cooperative loan, as secured party, with evidence of
recording thereon and, if applicable, the executed UCC-3 financing
statements (Assignment) or other appropriate UCC financing
statements required by applicable state law evidencing a complete
and unbroken chain of title from the originator of the cooperative
loan to Indymac, with evidence of recording thereon, (v) an executed
UCC-3 financing statement (Assignment), or other appropriate UCC
financing statement required by applicable state law, evidencing the
assignment by Indymac to the Purchaser of its interest in the
cooperative loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor's acquisition of the coop apartment.
(g) originals of all modification agreements, or certified
copies thereof, in either case with evidence of recording noted
thereon if recordation is required to maintain the lien of the
mortgage or is otherwise required, or, if recordation is not so
required, an original or copy of any such modification agreement;
(h) for each Mortgage Loan with respect to which the
borrower's name as it appears on the note does not match the
borrower's name on the Mortgage Loan Schedule, one of the following:
(i) the original of the assumption agreement, or a certified copy
thereof, in either case with evidence of recording thereon if
required to maintain the lien of the mortgage or if otherwise
required, or, if recordation is not so required, an original or copy
of such assumption agreement; or (ii) a copy of a marriage
certificate, court order, decree or other document evidencing that
the two different names refer to the same person;
(i) to the extent applicable, (x) an original power of
attorney, or a certified copy thereof, in either case with evidence
of recordation thereon if necessary to maintain the lien on the
Mortgage or if the document to which such power of attorney relates
is required to be recorded, or, if recordation is not so required,
an original or copy of such power of attorney, and (y) an original
or copy of any surety agreement or guaranty agreement; and
(j) personal endorsement and/or guaranty agreements for all
non-individual loans (corporations, partnerships, trusts, estates,
etc.).
Notwithstanding the foregoing, with respect to any power of
attorney, mortgage, assignment, intervening assignment, assumption agreement,
modification agreement or deed of sale for which a certified copy is delivered
in accordance with the foregoing, the copy must be certified as true and
complete by the appropriate public recording office, or, if the original has
been submitted for recording but has not yet been returned from the applicable
recording office, an officer of the Seller must certify the copy as a true copy
of the original submitted for recordation. Copies of blanket intervening
assignments, however, need not be certified.
2 From time to time, the Servicer shall forward to the Custodian
additional documents evidencing an assumption or modification of a Mortgage Loan
approved by the Purchaser and the Servicer. All Mortgage Loan documents held by
the Custodian as to each Mortgage Loan are referred herein as the "Custodian's
Mortgage File." The Custodian, in its independent capacity, agrees to act as
custodian for the Purchaser and any successor to the Purchaser in accordance
with the terms and conditions of this Agreement, including upon any
securitization of the Mortgage Loans, as custodian for the trustee (the
"Trustee") under the securitization trust agreement.
3 With respect to each Custodian's Mortgage File delivered to the
Custodian, prior to the Closing Date the Custodian is exclusively the Custodian
for the Seller (or if the Mortgage Loans have been delivered to the Custodian
pursuant to a bailee letter from Seller's custodian, then for Seller's
custodian); on the Closing Date, when so notified by Seller (or by Seller's
custodian), the Custodian is exclusively the Custodian for the Purchaser, and
the Purchaser's successor or assigns. The Custodian shall hold all Custodian's
Mortgage Files for the exclusive use and benefit of the Purchaser and, except as
otherwise provided herein, shall make disposition thereof only in accordance
with the terms of this Agreement and the written instructions of the Purchaser.
The Custodian shall segregate by group (as directed by the Purchaser) and
maintain continuous custody of all Custodian's Mortgage Files received by it in
secure and fire resistant facilities in accordance with customary standards for
such custody.
4 Upon the initial sale of the Mortgage Loans, the Custodian shall
deliver to the Purchaser a Custody Receipt in the form annexed hereto as Exhibit
3 (the "Custody Receipt") which includes verification that, except as shown on
an exceptions list attached thereto:
(a) all documents required to be delivered to it pursuant to
Sections 1(a) through (d) and (f) of this Agreement are in the
Custodian's possession; provided, that, the Custodian shall
separately note on the Data Collection Schedule (as defined below)
any Mortgage Loans with respect to which the original note is
missing and a lost note affidavit and a copy of such note is
delivered;
(b) all documents required to be delivered to it pursuant to
Section 1(g), (e) and 1(h) of this Agreement are in the Custodian's
possession; provided, that:
(i) the Custodian shall have no obligation to verify
the receipt of any such documents the existence of
which was not made known to the Custodian by the
Custodian's Mortgage File, and
(ii) the Custodian shall have no obligation to
determine whether recordation of any such document
is necessary;
(c) all documents required to be delivered to it pursuant to
Section 1(i) and 1(j) of this Agreement are in the Custodian's
possession; provided, that, the Custodian shall have no obligation
to verify the receipt of any such documents the existence of which
was not made known to the Custodian by the Custodian's Mortgage
File;
(d) all powers of attorney and other documents required to be
delivered to it pursuant to Section 1(h) of this Agreement are in
the Custodian's possession; provided, that:
(i) the Custodian shall have no obligation to verify
the receipt of any such documents the existence of
which was not made known to the Custodian by the
Custodian's Mortgage File, and
(ii) the Custodian shall have no obligation to
determine whether recordation of any such power of
attorney is necessary (except that the Custodian
shall conclude that if the document to which such
power of attorney relates is a mortgage, interim
assignment, assignment or a document that was
recorded, then the Custodian shall conclude that
such power of attorney should have been recorded);
(e) all documents have been examined by the Custodian and
appear regular on their face and relate to the Mortgage Loans;
(f) based only on the Custodian's examination of the foregoing
documents, the information set forth on the Mortgage Loan Schedule
representing each Mortgage Loan accurately reflects the following:
(i) Mortgage Loan number,
(ii) Mortgage Loan type (collect if not ARM),
(iii) the first payment date,
(iv) the maturity date,
(v) the original loan amount,
(vi) the original interest rate,
(vii) with respect to each Mortgage Loan that accrues
interest at an adjustable rate pursuant to the
related mortgage note (each, an "Adjustable Rate
Mortgage Loan"), the number of days prior to the
adjustment date as of which the index is determined,
(viii) with respect to each Adjustable Rate Mortgage Loan,
the frequency of change in interest rate,
(ix) with respect to each Adjustable Rate Mortgage Loan,
the date of the first interest rate change,
(x) with respect to each Adjustable Rate Mortgage Loan,
the date of the first payment amount change,
(xi) with respect to each Adjustable Rate Mortgage Loan,
the frequency of subsequent payment amount changes,
(xii) with respect to each Adjustable Rate Mortgage Loan,
the payment cap (collect only if explicitly stated
on mortgage note),
(xiii) with respect to each Adjustable Rate Mortgage Loan,
the ARM index,
(xiv) with respect to each Adjustable Rate Mortgage Loan,
the spread over the index,
(xv) with respect to each Adjustable Rate Mortgage Loan,
the interest rate rounding method,
(xvi) with respect to each Adjustable Rate Mortgage Loan,
the interest rate rounding percent (data is
expressed in basis points),
(xvii) with respect to each Adjustable Rate Mortgage Loan,
the maximum interest rate, if available,
(xviii) with respect to each Adjustable Rate Mortgage Loan,
the conversion expiration date and other relevant
conversion terms, if available,
(xix) with respect to each Adjustable Rate Mortgage Loan,
the cap of the interest rate (initial and periodic),
(xx) with respect to each Adjustable Rate Mortgage Loan,
the floor of the interest rate (initial and
periodic),
(xxi) the full name of the borrower(s) (acceptable if
first and/or middle names are missing or initialized
(e.g., X.X. Xxxxx would match Xxxxxxx Xxxxx Xxxxx),
acceptable if first names are shortened or
lengthened or nicknames substituted therefor (e.g.,
Xxx for Xxxxxx or Xxxx for Xxxxxxx), acceptable if
middle or maiden names are omitted, acceptable if
"Jr.", "Sr.", "II" and similar designations are
omitted, acceptable if discrepancy is a
typographical error),
(xxii) the property address, including zip code,
(xxiii) the original principal and interest payment,
(xxiv) the identity of each Adjustable Rate Mortgage Loan
which is convertible and the date of such
conversion,
(xxv) the identity of each Mortgage Loan which has been
modified and a description of each modification, and
(xxvi) prepayment penalty information and amortization term
(for Balloon Loans) (collectively, the "Verified
Information"); and
(g) each mortgage note has been endorsed and each assignment
of mortgage has been assigned as described in Section 1 hereof;
provided, that, the Custodian shall have no obligation to confirm
that the assignments are in recordable form.
In making the verification required by this Section 4, the Custodian
may rely conclusively on the Mortgage Loan Schedule attached hereto, and the
Custodian shall have no obligation to independently verify the correctness of
such Mortgage Loan Schedule. If any discrepancy exists between the Verified
Information and the Mortgage Loan Schedule, the Custodian shall notify the
Purchaser and the Servicer by attaching a list of such discrepancies to the
Final Certification.
It is understood that before delivering the Custody Receipt, the
Custodian shall examine the Mortgage Loan Documents to confirm the following
(and shall report any exceptions to these confirmations in the exceptions report
attached to the Custody Receipt):
(1) each mortgage note, mortgage, assumption, modification,
guaranty, power of attorney and deed of sale bears a signature
or signatures that appear to be original and that purport to
be that of the Person or Persons named as the maker and
mortgagor/trustor or, if photocopies are permitted by this
Agreement, that such copies bear a reproduction of such
signature or signatures;
(2) the principal amount of the indebtedness secured by the
mortgage is identical to the original principal amount of the
note;
(3) the interest rate shown on the note is identical to the
interest rate shown on the Mortgage Loan Schedule;
(4) the assignment of the mortgage from the Seller is in the form
required pursuant to Section l(c) hereof, and bears the
signature of the Seller, that appears to be an original and
any other necessary party or, if photocopies are permitted by
this Agreement, such copies bear a reproduction of such
signature or signatures;
(5) if intervening assignments are included in the Custodian's
Mortgage File, each such intervening assignment bears the
signature of the mortgagee and/or the assignor (and any other
necessary party) that appears to be an original or, if
photocopies are permitted by this Agreement, that such copies
bear a reproduction of such signature or signatures; and
(6) the title insurance policy or certificate of title is for an
amount not less than the original principal amount of the
related note.
5 Prior to June 1, 2004, the Custodian shall deliver to the
Purchaser a Final Certification in the form of Exhibit 4 evidencing the
completeness of the Custodian's Mortgage File for each Mortgage Loan, with any
applicable exceptions noted on such Certification.
6 No later than the fifth Business Day of each month, commencing in
March 2004, the Custodian shall deliver to the Servicer, GS Mortgage Securities
Corp., as depositor and the Trustee in electronic or hard copy format, as
requested by the Purchaser, the exceptions list required by Section 4 hereof,
updated to remove exceptions cured since the date on which the Custody Receipt
was issued pursuant to Section 4 hereof. In the event the Mortgage Loans are
securitized, the Custodian will only be required to deliver the exceptions list
upon request. In addition, such monthly reports shall list any document with
respect to which the Seller delivered a copy certifying that the original had
been sent for recording, until such time as the Seller delivers to the Custodian
the original of such document or a copy thereof certified by the appropriate
public recording office. The Data Collection Schedule shall not be included
unless specifically requested in advance. Except as specifically provided above,
the Custodian shall be under no duty to review, inspect or examine such
documents to determine that any of them are enforceable or appropriate for their
prescribed purpose. During the life of the Mortgage Loans, in the event the
Custodian discovers any defect with respect to the Custodian's Mortgage Files,
the Custodian shall give written notice of such defect to the Purchaser.
7 The Custodian shall hold in its possession and custody at JPMorgan
Chase Bank, 0000 Xxxxxx Xxxxxx, 00xx xxxxx, Xxxxxxx, XX 00000, for the Purchaser
or any assignee of the Purchaser, all of the Custodian's Mortgage Files
delivered from time to time by the Servicer to the Custodian.
8 From time to time and as appropriate for the foreclosure or
servicing of the Mortgage Loans, the Purchaser hereby authorizes the Custodian
to release to the Servicer (or, after securitization of the Mortgage Loans, if
so designated by the Servicer, to the Trustee), within three (3) business days
of receipt of either (i) a written request and receipt of the Servicer in the
form attached hereto as Exhibit 5(a) executed by one of the authorized
signatories set forth on Exhibit 6, as such exhibit may be updated from time to
time by the Servicer or (ii) an electronic request through the use of an
electronic file request system mutually acceptable to the Custodian and the
Servicer, a Custodian's Mortgage File to the place indicated in any such written
request from the Servicer. A list of authorized signatures for such written
requests has been furnished to the Custodian by the Servicer. All Custodian's
Mortgage Files so released to the Servicer shall be held by it in trust for the
benefit of the Purchaser. The Servicer shall return to the Custodian the
Custodian's Mortgage File when the Servicer's need therefor in connection with
such foreclosure or servicing no longer exist, unless the Mortgage Loan shall be
liquidated or paid in full.
The Servicer may provide an electronic transmission for release of
documents in a form agreed to in advance of initial transmission by both the
Servicer and the Custodian containing information readable without intervention
by Custodian data processing operations computer hardware and software staff,
and arranged in a record layout to be specified by Custodian (a "Paperless
Release Request"). The Servicer agrees to maintain and control access to
electronic signature information and assumes liability for any unauthorized use
thereof. The Servicer also agrees to maintain accurate records of electronic
transactions related to the Custodial Files. The Servicer hereby authorizes the
Custodian to automatically append the electronic signature of an Authorized
Representative to the applicable request for release of documents and agrees and
acknowledges that by appending such Authorized Representatives electronic
signature, the Custodian shall be entitled to rely thereon. For purposes of this
Agreement, the term "electronic signature" is defined as an "electronic
identifier intended by the person using it to have the same force and effect as
the use of a manual signature."
The Servicer agrees in advance to comply with all Custodian data
encryption, security and record layout standards in connection with any
Paperless Release Request as may be amended from time to time upon notice from
the Custodian to the Servicer. The Custodian reserves the right to restrict or
suspend the Servicer's access to the Custodian's computer systems for
maintenance or repairs or for any other reason in the Custodian's sole
discretion, provided however that the Custodian shall promptly provide the
Servicer notice of such restriction or suspension.
Notwithstanding the foregoing, the Servicer is authorized to
transmit and the Custodian is authorized to accept signed facsimile copies of
Requests for Release.
The Purchaser shall use its best efforts to cause the Servicer to
utilize the paperless release template; provided that the failure of the
Servicer to use the paperless release template shall not constitute a breach by
the Purchaser of its obligations hereunder.
9 Upon the repurchase of any Mortgage Loan or the payment or
liquidation in full of the Mortgage Loan, and within three Business Days of
receipt by the Custodian of the Servicer's request for release, receipt and
certification either (i) in the form attached hereto as Exhibit 5(b), executed
by one of the authorized signatories set forth on Exhibit 6 as such exhibit may
be updated from time to time by the Servicer or (ii) through the use of an
electronic request system mutually acceptable to the Custodian and the Servicer
(which certification shall include a statement to the effect that all amounts
received in connection with such repurchase or payment in full or liquidation
have been credited to the Collection Account as provided in the Servicing
Agreement), the Custodian shall release the related Custodian's Mortgage File to
the Servicer.
10 Upon reasonable prior written notice, the Custodian shall permit
the Purchaser and its agents, and servicing officers of the Servicer reasonable
access to its premises during the Custodian's normal business hours to inspect
the Custodian's Mortgage Files and all other documents, records and other papers
in possession or under the control of the Custodian relating to the Mortgage
Loans serviced by the Servicer. Each such person shall comply with the
Custodian's reasonable standards and procedures for physical security and
personal conduct while on the Custodian's premises. Any person failing, in the
Custodian's sole but reasonable business judgment, to meet such standards may be
removed or denied access to the premises. The Purchaser shall be responsible for
any reasonable expense in connection with such examination.
11 The Purchaser, with or without cause, or upon failure by the
Custodian to perform or observe any term of this Agreement, may remove and
discharge the Custodian or any successor Custodian thereafter appointed from the
performance of its duties under this Agreement upon written notice from the
Purchaser to the Custodian or the successor Custodian; provided that at least
sixty (60) days prior written notice shall be given with respect to a removal or
discharge without cause. Having given notice of such removal, the Purchaser
shall promptly appoint a successor Custodian to act on its behalf by written
instrument, an original counterpart of which instrument shall be delivered to
the Seller and one copy to the successor Custodian. In the event of any such
removal, the Custodian shall promptly transfer, to the successor Custodian as
directed, all Custodian's Mortgage Files being administered under this
Agreement. Such transfer shall be at the Custodian's expense only if the
Custodian is discharged and removed upon a failure by the Custodian to perform
or observe any material terms of this Agreement; otherwise such transfer shall
occur at the expense of the Purchaser. In any event, the Custodian shall be
entitled to the payment of all outstanding fees and expenses of the Custodian
due the Custodian at the time of such removal by the Purchaser. In the event
that the Purchaser removes the Custodian without cause, any transfer or set-up
fees payable to the successor Custodian will be payable by the Purchaser. In any
event, the reasonable ongoing fees of any successor Custodian shall be paid by
the Purchaser.
12 It is understood that the Custodian will charge for its services
under this agreement as set forth in a separate agreement between the Custodian
and the Purchaser, the payment of which shall be the sole obligation of the
Purchaser.
13 The Custodian shall, at its own expense, maintain at all times
during the existence of this Agreement and keep in full force and effect, (a)
fidelity insurance, (b) errors and omissions insurance, and (c) all risk
property insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, all as is customary for insurance typically
maintained by banks which act as custodian and in an amount and with coverages
not less than that required by the Federal National Mortgage Association. Upon
request, the Purchaser will be provided with certificates of insurance, as
specified in this paragraph 13.
14 The Custodian may resign as the Custodian hereunder upon at least
sixty (60) days prior written notice to the Purchaser whereupon the Custodian
shall deliver the Custodian's Mortgage Files to Purchaser, or a designee of the
Purchaser, in accordance with directions from the Purchaser. In the event of
such resignation, or termination, the Purchaser shall pay all outstanding fees
and expenses of the Custodian and shall appoint a successor Custodian.
15 For the purpose of facilitating the execution of this Custodial
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
16 Upon the request of the Purchaser, at any time, the Custodian
shall provide to the Purchaser a list of all of the Mortgage Loans owned by the
Purchaser for which the Custodian holds a Custodian's Mortgage File pursuant to
this Agreement. Such list may be in the form of a copy of the Mortgage Loan
Schedule with manual deletions to specifically denote any Mortgage Loans paid
off, repurchased or liquidated since the date of this Agreement.
17 The duties and obligations of the Custodian shall only be such as
are expressly set forth in this Agreement or as set forth in a written amendment
to this Agreement executed by the parties hereto or their successors and
assigns. In no event shall the Custodian be liable for special, indirect or
consequential damages, even if advised of this possibility of the same.
18 All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered,
delivered by facsimile or mailed by first class mail or overnight express mail,
postage prepaid, to the parties to this agreement at the address listed on
Exhibit 2 or such other address as may hereafter be furnished in writing to each
of the parties to this Agreement. Any such demand, notice or communication
hereunder shall be deemed to have been received on the date received, if
received prior to 4 p.m. eastern time, delivered to or received at the premises
of the addressee or received at the facsimile number of the address, or, if
received after 4 p.m. eastern time, then on the next business day.
19 This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to its conflict of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
20 The Custodian shall have no duties or obligation except those
expressly stated in this Agreement, and such duties or obligations shall be
determined solely by the express provisions of the Agreement. The Custodian, its
officers, directors, employees, agents or other representatives shall not be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or powers
conferred upon the Custodian by this Agreement or in reliance upon any written
notice, request, consent, certificate, order, affidavit, letter, telegram or
other document reasonably believed by it to be genuine and to have been signed
or sent by the proper party or parties; provided, however, that the provisions
of this paragraph shall not be construed to relieve the Custodian from liability
from its own negligent action, its own negligent failure to act, or its own bad
faith or willful misconduct or any breach by the Custodian of any of its
obligations hereunder, which breach was due to negligence on the part of the
Custodian. The Custodian will be regarded as making no representations and
having no responsibilities (except as expressly set forth herein) as to the
validity, sufficiency, value, genuineness, ownership or transferability of any
Mortgage Loan, and will not be required to and will not make any representations
as to the validity, value or genuineness of any Mortgage Loan. The Custodian
shall not be obligated to take any legal action hereunder that might in its
judgment involve any expense or liability unless it has been furnished with
reasonable indemnity. The Custodian may rely on and shall be protected in acting
in good faith upon the written instructions of the Purchaser, the Servicer and
the Trustee (if any) and such employees and representatives of the Purchaser,
the Servicer and the Trustee (if any) as each such party may hereinafter
designate in writing. The Custodian may execute any of the powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided, however, that the execution of such powers by any such agents or
attorneys shall not diminish or relieve the Custodian for responsibility
therefor to the same degree as if the Custodian itself had executed such powers.
21 The Custodian shall be entitled to obtain the advice or opinion
of counsel (which shall be either in house counsel or a nationally recognized
outside counsel) with respect to a matter of law for which the Custodian has a
reasonable question as to the rights and duties relating to the Custodian
hereunder and the Custodian shall have no liability for any action taken or
omitted in conformity with its good faith reliance on such advice or opinion;
provided, however, that the provisions of this paragraph shall not relieve the
Custodian from liability from its own negligent selection of counsel.
22 This Agreement (together with the separate fee agreement between
the Purchaser and the Custodian) contains the entire agreement between the
parties relating to the subject matter hereof and may be amended only by written
agreement signed by the Purchaser and the Custodian.
23 The Purchaser shall have the right, without consent of the
Custodian, to assign its interest under this Agreement with respect to some or
all of the Mortgage Loans, and designate any person to exercise any rights of
the Purchaser hereunder, and the assignee or designee shall accede to the rights
and obligations hereunder of the Purchaser with respect to such Mortgage Loans;
provided, however, that the Purchaser may not assign its interest to more than
five (5) persons without the consent of the Custodian, such consent not to be
unreasonably withheld. All references to the Purchaser in this Agreement shall
be deemed to include its assignee or designee. Upon the Custodian's receipt of
the written notification, which shall state the name and address of the
transferee and the date of sale and shall be accompanied by the original Custody
Receipt presently outstanding delivered to the Purchaser, the Custodian shall
change its records to reflect that such transferee is the owner of such Mortgage
Loan and shall immediately issue (i) a new Custody Receipt with respect to a
portion of or all of the Mortgage Loans, as the case may be, in the name of such
transferee and (ii) a new Custody Receipt with respect to any Mortgage Loans
retained by the Purchaser; provided, that, any Custody Receipt issued after the
date of the initial sale of the Mortgage Loans shall not (1) confirm the
accuracy of the Mortgage Loan Schedule with respect to Verified Information nor
(2) include the Data Collection Schedule. The Purchaser and the Custodian agree
herein that any and all such transferees of a Mortgage Loan shall succeed to all
the rights and obligations of the Purchaser and shall be considered a Purchaser
under this Agreement.
24 The Purchaser agrees to indemnify and hold the Custodian, its
directors, officers, agents, employees, and other representatives harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against it or
them in any way arising out of this Agreement as a result of any action or
failure to act, so long as such action or failure to act by it or them hereunder
does not constitute bad faith, negligence or willful misconduct of the Custodian
or any of its agents, officers, directors or employees or breach by the
Custodian of its obligations hereunder. The foregoing indemnity shall survive
the termination of this Agreement.
25 This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto.
26 Each party agrees to keep confidential the existence of this
Agreement, the identity of the parties hereto, and any other term or condition
of this Agreement and the transactions contemplated hereby, and to use such
information solely in order to effectuate the purpose of the Agreement;
provided, that, each party may provide confidential information to its
employees, agents and affiliates who have a need to know such information in
order to effectuate the transaction, and provided, further that such information
is identified as confidential non-public information. In the event that either
party or any of its employees, agents or affiliates are requested pursuant to,
or required by, applicable law, regulation or legal process to disclose any
non-public information, such party will notify the other promptly prior to any
such disclosure so that such party may seek a protective order or other
appropriate remedy or, in such party's sole discretion, waive compliance with
the terms of this Section 26. In the event that no such protective order or
other remedy is timely obtained, or that such party waives compliance with the
terms of this Section 26, the party required to disclose such non-public
information or its employees, agents or affiliates will furnish only that
portion of the non-public information that it is advised by counsel is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the non-public information.
27 The Custodian (or any successor thereto) shall at all times (a)
be a depository institution or trust company subject to supervision by federal
or state authority, (b) have a combined capital and surplus of at least
$10,000,000, (c) be qualified to do business in any jurisdiction in which it
holds a Custodian's Mortgage File, (d) be qualified to act as a custodian for
Xxxxxx Xxx, the Federal Home Loan Mortgage Corporation and the Government
National Mortgage Association, and (e) not be an affiliate of the Purchaser or
the Seller, except insofar as the Purchaser or its assignee gives its prior
written consent.
28 Upon the initial sale of the Mortgage Loans, the Custodian shall
deliver to the Purchaser (a) an opinion of counsel and (b) an officer's
certificate, each in form and substance reasonably satisfactory to the
Purchaser.
29 The Custodian represents, warrants and covenants that:
(a) The Custodian is (i) a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and (ii) duly qualified and in good standing and in
possession of all requisite authority, power, licenses, permits and
franchises in order to execute, deliver and comply with its
obligations under the terms of this Agreement;
(b) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action and the
execution and delivery of this Agreement by the Custodian in the
manner contemplated herein and the performance of and compliance
with the terms hereof by it will not (i) violate, contravene, or
create a default under any applicable laws, licenses, or permits to
the best of its knowledge, or (ii) violate, contravene or create a
default under any charter document or bylaw of the Custodian or to
the best of the Custodian's knowledge any contract, agreement or
instrument to which the Custodian or by which any of its property
may be bound and will not result in the creation of any lien,
security interest or other charge or encumbrance upon or with
respect to any of its property;
(c) The execution and delivery of this Agreement by the
Custodian and the performance of and compliance with its obligations
and covenants hereunder do not require the consent or approval of
any governmental authority or, if such consent or approval is
required, it has been obtained;
(d) The Custodian has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution
and delivery by the Purchaser and Seller, constitutes a legal, valid
and binding obligation of the Custodian, enforceable against it in
accordance with its terms, except as the enforcement thereof may be
limited by applicable debtor relief laws and that certain equitable
remedies may not be available regardless of whether enforcement is
sought in equity or law; and
(e) There is no action, suit, proceeding or investigation
pending or, to the Custodian's knowledge, threatened, against the
Custodian, which seeks to prevent the consummation of the
transaction contemplated hereby or which, either in any one instance
or in the aggregate, if determined adversely to the Custodian would
adversely affect the execution, delivery or enforceability of this
Agreement, the ability of the Custodian to perform its obligations
hereunder, or have a material adverse effect on the financial
condition of the Custodian.
30 The Custodian is not responsible for preparing or filing any
reports or returns relating to federal, state or local income taxes with respect
to this Agreement, other than for the Custodian's compensation or for
reimbursement of expenses. The Custodian will be responsible for the
transmission of mortgage files and loan documents, with insurance thereon as
provided in the normal course by the nationally recognized overnight courier
service utilized by the Custodian for such transmission. At the request of the
Purchaser, the Custodian will obtain and maintain additional insurance with an
insurance provider specified by the Purchaser against loss or damage to such
Mortgage Files and loan documents in connection with such transmission in an
amount specified by the Purchaser. The costs and expenses incurred in connection
with obtaining and maintaining such insurance shall be the sole responsibility
of the Purchaser. It is expressly agreed that in no event shall the Custodian
have any liability for any losses or damages to any person, including, without
limitation, the Purchaser or Servicer, arising out of actions of the Custodian
consistent with this Agreement. In the absence of any written instructions from
the Purchaser with respect to the transmission of the Custodian's Mortgage
Files, the parties hereby agree that the Custodian may utilize any nationally
recognized overnight courier service and shall be entitled to reimbursement from
the Purchaser.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
by their duly authorized officers as of the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY,
as Purchaser
By: Xxxxxxx Sachs Real Estate Funding
Corp., General Partner
By:
--------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Custodian
By:
--------------------------------------
Name:
Title:
INDYMAC BANK F.S.B., as
Seller/Servicer
By:
--------------------------------------
Name:
Title:
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT 2
(1) If to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Main Street Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn.: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(2) If to the Custodian:
JPMorgan Chase Bank
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Custody Division Manager Phone:
000-000-0000 Fax: 000-000-0000
With a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Mentor
Phone: (000) 000-0000
Fax: (000) 000-0000
(3) If to the Depositor:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(4) If to the Servicer:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
EXHIBIT 3
FORM OF CUSTODY RECEIPT
_____ __, 2004
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Re: The Custodial Agreement, dated as of January 1, 2004, between
Xxxxxxx Sachs Mortgage Company, as Purchaser, Indymac Bank F.S.B.,
as Seller and JPMorgan Chase Bank, as Custodian
Ladies and Gentlemen:
In accordance with the provision of Section 4 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian, hereby
certifies that as to each Mortgage Loan listed on the attached Mortgage Loan
Schedule, it has reviewed the Custodian's Mortgage File and has determined that
(a) (i) all documents required to be delivered to it pursuant to Section 1(a)
through (d) and (f) of the Custodial Agreement are in its possession; (ii) all
documents required to be delivered to it pursuant to Section 1(g), (e) and (h)
of the Custodial Agreement are in its possession, provided that the Custodian
has no obligation to verify the receipt of any such documents if the existence
of which was not made known to the Custodian by the Custodian's Mortgage File,
and provided, further, that the Custodian has no obligation to determine whether
recordation of any such modification is necessary; (iii) all documents required
to be delivered to it pursuant to Section 1(i) and 1(j) of the Custodial
Agreement are in its possession; provided, that, the Custodian shall have no
obligation to verify the receipt of any such documents the existence of which
was not made known to the Custodian by the Custodian's Mortgage File; (iv) all
powers of attorney and other documents required to be delivered to it pursuant
to Section l(h) of the Custodial Agreement are in its possession, provided that
the Custodian has no obligation to verify the receipt of any such documents the
existence of which was not made known to the Custodian by the Custodian's
Mortgage File, and provided, further, that the Custodian has no obligation to
determine whether recordation of any such power of attorney is necessary (except
as set forth in Section 4 of the Custodial Agreement); (b) such documents have
been reviewed by it and appear regular on their face and to relate to such
Mortgage Loans, except as set forth in the attached exception report; provided,
however, that the Custodian makes no representation and has no responsibilities
as to the authenticity of such documents, their compliance with applicable law,
or the collectability of any of the Mortgage Loans relating thereto; (c) based
upon its examination, and only as to the foregoing documents, the information
set forth on the Mortgage Loan Schedule accurately reflects, within permitted
tolerances, the Verified Information with respect to each Mortgage Loan; and (d)
each Mortgage Note has been endorsed and each assignment has been assigned as
required under Section 1 of the Custodial Agreement.
Moreover, the attached Data Collection Schedule accurately and
completely sets forth the information required to be set forth therein pursuant
to Section 4 of the Custodial Agreement.
JPMORGAN CHASE BANK,
as Custodian
By:
--------------------------------------
Name:
Title:
EXHIBIT 4
FORM OF FINAL CERTIFICATION
[____ __], 2004
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Re: The Custodial Agreement, dated as of January 1, 2004, between
Xxxxxxx Xxxxx Mortgage Company, as Purchaser, Indymac Bank F.S.B.,,
as Seller and JPMorgan Chase Bank, as Custodian
Ladies and Gentlemen:
In accordance with the provision of Section 5 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian, hereby
certifies that as to each Mortgage Loan listed on the attached Mortgage Loan
Schedule, it has reviewed the Custodian's Mortgage File and has determined that
(a) (i) all documents required to be delivered to it pursuant to Section 1(a)
through (d) and (f) of the Custodial Agreement are in its possession; (ii) all
documents required to be delivered to it pursuant to Section 1(g), (e) and (h)
of the Custodial Agreement are in its possession, provided that the Custodian
has no obligation to verify the receipt of any such documents if the existence
of which was not made known to the Custodian by the Custodian's Mortgage File,
and provided, further, that the Custodian has no obligation to determine whether
recordation of any such modification is necessary; (iii) all documents required
to be delivered to it pursuant to Section 1(i) and 1(j) of the Custodial
Agreement are in its possession; provided, that the Custodian shall have no
obligation to verify the receipt of any such documents the existence of which
was not made known to the Custodian by the Custodian's Mortgage File; (iv) all
powers of attorney and other documents required to be delivered to it pursuant
to Section 1(h) of the Custodial Agreement are in its possession, provided that
the Custodian has no obligation to verify the receipt of any such documents the
existence of which was not made known to the Custodian by the Custodian's
Mortgage File, and provided, further, that the Custodian has no obligation to
determine whether recordation of any such power of attorney is necessary (except
as noted in Section 4 of the Custodial Agreement); (b) such documents have been
reviewed by it and appear regular on their face and to relate to such Mortgage
Loans, except as set forth in the attached exception report; provided, however,
that the Custodian makes no representation and has no responsibilities as to the
authenticity of such documents, their compliance with applicable law, or the
collectability of any of the Mortgage Loans relating thereto; and (c) each
Mortgage
Note has been endorsed and each assignment has been assigned as
required under Section 1 of the Custodial Agreement.
JPMORGAN CHASE BANK,
as Custodian
By:
--------------------------------------
Name:
Title:
EXHIBIT 5(a)
JPMorgan Chase Bank,
0000 Xxxxxx Xxxxxx,
00xx xxxxx,
Xxxxxxx, Xxxxx 00000
Attn: Inventory Control
Re: Mortgagor:
Pool No.:
Alternative Loan No.:
Inv. Loan No.:
Inv. Code No.:
Property:
Dear _____________:
Please be advised that the subject loan is presently delinquent and
[Name of individual Servicer] is attempting to collect the arrearage or
alternately will commence foreclosure proceedings. Therefore, would you please
release to us the Custodian's Mortgage File (as such term is defined in the
Custodial Agreement, dated as of January 1, 2004 among Xxxxxxx Sachs Mortgage
Company, Indymac Bank F.S.B. and JPMorgan Chase Bank). Should this loan
re-instate, all documents will be returned to you as custodian. Please forward
all of the documents to my attention.
Very truly yours,
Document Control
Authorized Signature
EXHIBIT 5(b)
JPMorgan Chase Bank,
0000 Xxxxxx Xxxxxx,
00xx xxxxx,
Xxxxxxx, Xxxxx 00000
Attn: Inventory Control
Re: [Servicer] Loan Number:
ALT Loan Number:
Pool:
Series:
Customer Name:
Please return to the Servicer the Custodian's Mortgage File (as such
term is defined in the Custodial Agreement, dated as of January 1, 2004, among
Xxxxxxx Sachs Mortgage Company, Indymac Bank F.S.B., and JPMorgan Chase Bank) on
the above referenced loan, as the loan has been [paid in full] [repurchased]
[liquidated].
These documents should be returned to:
[Name and Address of individual Servicer]
If you have any questions concerning this matter, please feel
free to contact me directly at _________.
Sincerely,
Reconveyance Department
Name:
I hereby certify that all amounts received in connection with the
repurchase, liquidation, or payment in full of this loan, as applicable, have
been credited to the Collection Account as provided in the relevant Agreement
for the above-referenced issue.
Settlement Date:
Name:
Title:
EXHIBIT 6
List of Authorized Signatories for The Servicer
Name Title
---- -----
-------------------- --------------------
-------------------- --------------------
EXHIBIT D
FORM OF TRADE CONFIRMATION
[INDYMAC LETTERHEAD]
[DATE]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx Xxxxx Mortgage
Company (Deal No. yrmm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Xxxxxxx Sachs
Mortgage Company ("Purchaser") and IndyMac Bank, F.S.B. ("Indymac") pursuant to
which Purchaser has agreed to purchase, and Indymac has agreed to sell, those
certain mortgage loans [identified] [summarized] in Exhibit A hereto (the
"Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year] [, provided, however, that
the parties shall use their best efforts to
consummate the transaction prior to [DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in
Exhibit A. [Loan-level pricing as set forth in
Exhibit A.]
Product: [Jumbo] ["A"] ["A-"] ["Alt A"] [Sub-prime]
[Conforming] [fixed] [(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not
be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Indymac and serviced on a
[scheduled/scheduled] [actual/actual]
[scheduled][actual] basis for the servicing fee
rate [equal to FEE% per annum][set forth in
Exhibit A [for each Mortgage Loan]]. [ With
respect to the period prior to the initial
Interest Adjustment Date, 0.25% and, thereafter,
0.375%].
Prepayment Penalties: [Indymac] [Purchaser] shall be entitled to any
penalties resulting from the prepayment of any
Mortgage Loans by the related mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Indymac
may, at its option, elect to substitute comparable
mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Indymac's sale of the Mortgage Loans is expressly
subject to (a) the review of the Mortgage Loans by
Purchaser to confirm conformance with the Trade
Confirmation, and (b) purchase of the Mortgage
Loans by Indymac on or before the Closing Date from
the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing
conditions are not satisfied, Indymac shall have no
liability to Purchaser.]
Non-Circumvent: Indymac and Purchaser understand and agree that
Indymac may introduce the owner of the Mortgage
Loans to Purchaser, that the Current Owner is a
customer of Indymac and that such relationship of
Indymac is confidential. Purchaser agrees, with
respect to the Current Owner, Purchaser will not,
for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date],
communicate with or purchase such other mortgage
loans from the Current Owner unless the Current
Owner has had previous business dealings (other
than any transactions involving Indymac) with the
Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
INDYMAC BANK, F.S.B., XXXXXXX XXXXX MORTGAGE
COMPANY
By:
--------------------------------------
Name:
Title:
By:
----------------------------------
Name: [_______]
Title: [Executive Vice President]
EXHIBIT A
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(Available upon request to the Trustee)
EXHIBIT B
UNDERWRITING GUIDELINES
(Available upon request to the Trustee)
EXHIBIT E
CONTENTS OF EACH MORTGAGE FILE
(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 Mae or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property.
(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) The Primary Mortgage Insurance Policy or certificate of
insurance or electronic notation of the existence of such policy, where required
pursuant to the Agreement.
(o) Evidence of electronic notation of the hazard insurance policy,
and, if required by law, evidence of the flood insurance policy.
(p) Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical computerized data files, and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
(q) Amortization schedule, if available.
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of December 1, 2004 ("Amendment"), to the
Master Mortgage Loan Purchase Agreement, dated as of February 1, 2004, and as
further amended, modified and supplemented from time to time (the "Purchase
Agreement"), between XXXXXXX SACHS MORTGAGE COMPANY (the "Purchaser") and
INDYMAC BANK, F.S.B. (the "Seller").
RECITALS
WHEREAS, the parties hereto have entered into the Purchase
Agreement;
WHEREAS, the parties hereto desire to modify the Purchase Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Purchase Agreement are used herein as therein defined.
2. Amendments.
(a) Section 1 of the Purchase Agreement is hereby amended by
inserting the following defined terms in alphabetical order therein:
"Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary."
"High Cost Loan: A Mortgage Loan covered by the Home Ownership and
Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term was defined in clause (1) of the definition of that
term in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 6, 2004), "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 Home Loan pursuant to
Appendix E of Standard & Poor's Glossary."
"Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time."
(b) Subsection 3.02(g) of the Purchase Agreement is hereby amended
by deleting the first sentence in its entirety and replacing it with the
following sentence:
"Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury
(including the Illinois Interest Act), truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure laws applicable to the Mortgage Loan,
including, without limitation, any provisions relating to prepayment
penalties, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of
any such laws or regulations, and Indymac 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;"
(c) Subsection 3.02(ee) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan, Home Loan or Covered Loan, as applicable, and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is
governed by the Georgia Fair Lending Act."
(d) Subsection 3.02(rr) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"No Arbitration. With respect to any Mortgage Loan originated on or
after August 1, 2004 and underlying the security, neither the
related mortgage nor the related mortgage note requires the
Mortgagor to submit to arbitration to resolve any dispute arising
out of or relating in any way to the Mortgage Loan transaction;"
(e) Subsection 3.02(ss) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
No Credit Insurance Policies. No Mortgagor was required to purchase
any single premium credit insurance policy (e.g., life, mortgage,
disability, accident, unemployment, or health insurance product) or
debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single premium
credit insurance policy (e.g., life, mortgage, disability, accident,
unemployement, or health insurance product) in connection with the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan
were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a
condition to closing, such Mortgage Loan;
(f) Subsection 3.02(tt) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"Mortgage Loans with Prepayment Premiums. With respect to any
Mortgage Loan that contains a provision permitting imposition of a
premium upon a prepayment prior to maturity: (i) prior to the loan's
origination, the Mortgagor agreed to such premium in exchange for a
monetary benefit, including but not limited to a rate or fee
reduction, (ii) prior to the loan's origination, the Mortgagor was
offered the option of obtaining a mortgage loan that did not require
payment of such a premium, (iii) the prepayment premium is disclosed
to the Mortgagor in the loan documents pursuant to applicable state
and federal law, (iv) for loans originated on or after September 1,
2004, the duration of the prepayment period shall not exceed three
(3) years from the date of the note, unless the loan was modified to
reduce the prepayment period to no more than three years from the
date of the note and the Mortgagor was notified in writing of such
reduction in prepayment period, and (v) notwithstanding any state or
federal law to the contrary, Indymac shall not impose such
prepayment premium in any instance when the mortgage debt is
accelerated as the result of the Mortgagor's default in making the
loan payments;"
(g) Subsection 3.02(ddd) of the Purchase Agreement is hereby amended
by deleting the first sentence in its entirety and replacing it with the
following sentence:
"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 (including, without limitation, any
provisions therein relating to prepayment penalties)."
(h) Subsection 3.02 of the Purchase Agreement is hereby amended by
adding representations that read as follows:
"(hhh) Compliance. Each Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase requirements of
Xxxxxx Mae's Selling Guide;
(iii) Balloon Mortgage Loans. No Mortgage Loan is a balloon mortgage
loan that has an original stated maturity of less than seven (7)
years;
(jjj) Mortgagor Selection. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less
creditworthy mortgagors, unless at the time of the Mortgage Loan's
origination, such Mortgagor did not qualify taking into account
credit history and debt-to-income ratios for a lower-cost credit
product then offered by the Mortgage Loan's originator or any
affiliate of the Mortgage Loan's originator. If, at the time of loan
application, the Mortgagor may have qualified for a for a lower-cost
credit product then offered by any mortgage lending affiliate of the
Mortgage Loan's originator, the Mortgage Loan's originator referred
the related Mortgagor's application to such affiliate for
underwriting consideration;
(kkk) Methodology. The methodology used in underwriting the
extension of credit for each Mortgage Loan employs objective
mathematical principles which relate the Mortgagor's income, assets
and liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the Mortgagor's equity in
the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at
the time of origination (application/approval) the Mortgagor had a
reasonable ability to make timely payments on the Mortgage Loan;
(lll) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. Except in the case
of a Mortgage Loan in an original principal amount of less than
$60,000 which would have resulted in an unprofitable origination, no
Mortgagor was charged "points and fees" (whether or not financed) in
an amount greater than 5% of the principal amount of such Mortgage
Loan, such 5% limitation is calculated in accordance with Xxxxxx
Mae's anti-predatory lending requirements as set forth in the Xxxxxx
Mae Guides; and
(qqq) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed,
collected or to be collected in connection with the origination and
servicing of each Mortgage Loan, have been disclosed in writing to
the Mortgagor in accordance with applicable state and federal law
and regulation."
3. Ratification of Agreement. Except as modified and expressly amended
by this Amendment, the Purchase Agreement is in all respects
ratified and confirmed, and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SELLER:
INDYMAC BANK, F.S.B.
By:
--------------------------------------
Name:
Title:
PURCHASER:
XXXXXXX XXXXX MORTGAGE COMPANY
By:
--------------------------------------
Name:
Title:
EXHIBIT O
SERVICING AGREEMENT, DATED AS OF FEBRUARY 1, 2004,
AS AMENDED BY AMENDMENT NO. 1, DATED AS OF
JUNE 1, 2004, BETWEEN INDYMAC BANK, F.S.B,
AND XXXXXXX SACHS MORTGAGE COMPANY
================================================================================
SERVICING AGREEMENT
between
INDYMAC BANK, F.S.B.
(Servicer)
and
XXXXXXX XXXXX MORTGAGE COMPANY
(Owner)
Dated as of February 1, 2004
Fixed & Adjustable-Rate First Lien Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer................
Section 2.2 Remedies for Breaches of Representations or Warranties........
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as
Servicer.....................................................
Section 3.2 Liquidation of Mortgage Loans.................................
Section 3.3 Collection of Mortgage Loan Payments..........................
Section 3.4 Establishment of Custodial Account; Deposits in Custodial
Account......................................................
Section 3.5 Permitted Withdrawals from the Custodial Account..............
Section 3.6 Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis.....................................
Section 3.7 Permitted Withdrawals from the Escrow Account.................
Section 3.8 Payment of Taxes, Insurance and Other Charges.................
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts............
Section 3.10 Maintenance of Hazard Insurance...............................
Section 3.11 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder.......................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.................
Section 3.13 Title, Management and Disposition of Real Estate Owned........
Section 3.14 Application of Proceeds of Insurance to Repair or
Restoration..................................................
Section 3.15 Inspections...................................................
Section 3.16 Fair Credit Reporting Act.....................................
Section 3.17 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999................
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions.................................................
Section 4.2 Reports.......................................................
Section 4.3 Monthly Advances by Servicer..................................
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements.........................................
Section 5.2 Satisfaction of Mortgages and Release of Collateral Files.....
Section 5.3 Servicing Compensation........................................
Section 5.4 Annual Statements as to Compliance............................
Section 5.5 Annual Independent Public Accountants' Servicing Report.......
Section 5.6 Owner's Right to Examine Servicer Records, etc................
Section 5.7 Consents and Approvals........................................
Section 5.8 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Whole Loan Transfer or a Pass-Through
Transfer on One or More Reconstitution Dates.................
Section 5.9 Compliance With REMIC Provisions..............................
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims...........................
Section 6.2 Servicer Covenants; Merger or Consolidation of the
Servicer.....................................................
Section 6.3 Limitation on Liability of the Servicer and Others............
Section 6.4 Servicer Not to Resign........................................
Section 6.5 No Transfer of Servicing......................................
ARTICLE VII
DEFAULT
Section 7.1 Events of Default.............................................
Section 7.2 Waiver of Defaults............................................
Section 7.3 Survival of Certain Obligations and Liabilities of the
Defaulted Servicer...........................................
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement......................................
Section 8.2 Termination of the Servicer due to an Event of Default........
Section 8.3 Termination Without Cause.....................................
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer.....................................
Section 9.2 Amendment.....................................................
Section 9.3 Duration of Agreement.........................................
Section 9.4 Governing Law.................................................
Section 9.5 General Interpretive Principles...............................
Section 9.6 Reproduction of Documents.....................................
Section 9.7 Notices.......................................................
Section 9.8 Severability of Provisions....................................
Section 9.9 Disclosure of Relationship....................................
Section 9.10 Exhibits and Schedules........................................
Section 9.11 Counterparts; Successors and Assigns..........................
Section 9.12 Effect of Headings............................................
Section 9.13 Other Agreements Superseded...................................
Section 9.14 Confidentiality...............................................
DESCRIPTION OF ATTACHMENTS
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
SERVICING AGREEMENT
-------------------
THIS SERVICING AGREEMENT (this "Agreement") dated as of February 1,
2004, is by and between INDYMAC BANK, F.S.B., in its capacity as servicer (the
"Servicer"), and XXXXXXX SACHS MORTGAGE COMPANY, and its successors and assigns,
as owner (the "Owner").
PRELIMINARY STATEMENT
---------------------
WHEREAS, the Owner and IndyMac Bank, F.S.B., ("Indymac") have
entered into that certain Master Mortgage Loan Purchase Agreement dated as of
February 1, 2004 between the Owner, as purchaser and Indymac, as seller,
pursuant to which the Owner will purchase and Indymac will sell from time to
time, certain fixed and adjustable-rate first lien residential mortgage loans
(the "Master Mortgage Loan Purchase Agreement");
WHEREAS, the Servicer is in the business of providing primary
servicing of mortgage loans and owns the right to service the Mortgage Loans (as
hereinafter defined) listed on the Mortgage Loan Schedule (as hereinafter
defined);
WHEREAS, the Owner has requested the Servicer to service the
Mortgage Loans and Servicer has agreed to service, as an independent contractor,
such mortgage loans for the Owner on the terms and conditions set forth herein;
and
WHEREAS, the Servicer and the Owner desire to prescribe the terms
and conditions regarding the management, servicing, and control of such mortgage
loans.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Servicer and the
Owner agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including prudent
collection and loan administration procedures, and standard of care employed by
prudent mortgage servicers. Such standard of care (i) shall not be lower than
that the Servicer customarily employs and exercises in servicing and
administering similar mortgage loans for its own account, (ii) shall be in
accordance with the requirements of the Servicer's policies and procedures,
(iii) shall be, at a minimum, at least as prudent and customary in the mortgage
origination and servicing business and (iv) shall be in full compliance with all
federal, state and local laws, ordinances, rules and regulations.
Advance: A Monthly Advance or Servicing Advance.
Agreement: This Servicing Agreement, including all exhibits and
schedules hereto, and all amendments hereof and supplements hereto.
Ancillary Income: All income if any, derived from any Mortgage Loan,
including but not limited to late charges, fees received with respect to checks
or bank drafts returned by the related bank for non-sufficient funds, assumption
fees, speed pay fees, Prepayment Charges, reconveyance and demand statement
fees, loan modification fees and reamortization fees.
Applicable Requirements: The (i) terms of the Mortgage and Mortgage
Note related to each Mortgage Loan, (ii) the federal, state, local and foreign
laws, statutes, rules, regulations, ordinances, standards, requirements,
administrative rulings, orders and processes pertaining to Mortgage Loans,
including but not limited to those pertaining to the processing, origination and
servicing of the Mortgage Loans and the servicer's policies and procedures,
(iii) the requirements of a Primary Mortgage Insurer (if any) with respect to
the processing, origination, insuring, servicing or filing of claims in
connection with the Mortgage Loans, (iv) the requirements of the Owner as set
forth in this Agreement, and (v) the reasonable and customary mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note
provides that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of
transfer, or equivalent instrument, in recordable form, sufficient under and
complying with the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage Loan to the
assignee named therein.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings and loan institutions in the States of New York
or California are authorized or obligated by law or executive order to be
closed.
Closing Date: The date on which the sale and purchase of a Mortgage
Loan Package is consummated between the Owner and Indymac pursuant to the terms
of the Master Mortgage Loan Purchase Agreement.
Code: The Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the
mortgage loan documents pertaining to such Mortgage Loan which are specified in
Exhibit B hereto and any additional mortgage documents pertaining to such
Mortgage Loan required to be added to the related Collateral File pursuant to
the terms of this Agreement.
Collateral File: With respect to any Mortgage Loan, the file
pertaining to such Mortgage Loan that contains each of the related Collateral
Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of all or part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Consents: shall mean the unconditional written consent or approval,
as necessary, of an Investor and any applicable Insurer to the Servicer's
servicing of the Mortgage Loans hereunder.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: With respect to any Mortgage Loan, a file pertaining to
such Mortgage Loan and containing copies of the mortgage loan documents
described on Exhibit C attached hereto, the credit documentation relating to the
origination of such Mortgage Loan and copies of the Collateral Documents. Each
Credit File shall be maintained by the Servicer (either on paper or on microfilm
or any other comparable medium).
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.4 of this Agreement which account(s) shall be an Eligible
Account.
Custodial Agreement: Any agreement with respect to the Mortgage
Loans governing the retention of the originals of each Mortgage Note, Mortgage,
Assignment of Mortgage and other Mortgage Loan Documents, entered into among
Indymac, the Servicer and JPMorgan Chase Bank.
Custodian: With respect to any Mortgage Loan and the related
Collateral File, JPMorgan Chase Bank and any successor custodian under any
custodial agreement which may be entered into between the Servicer, the Owner or
any subsequent Owner and the custodian named therein regarding the warehousing
and safekeeping of such Collateral File.
Cut-off Date: With respect to a Mortgage Loan Package, the first day
of the month in which the related Cut-off Date occurs or such other date as may
be mutually agreed to by the parties.
Default: Any condition or circumstance that is, or with notice or
the lapse of time or both, would become, an Event of Default.
Depositor: As defined in Section 5.4(a).
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: With respect to any Mortgage Loan, the first day of the
month on which Monthly Payments on such Mortgage Loan are due, exclusive of any
days of grace.
Due Period: With respect to each Remittance Date, the period
beginning on the second day of the month immediately preceding the month of such
Remittance Date and ending on the first day of the month of such Remittance
Date.
Eligible Account: An account or accounts maintained with a Qualified
Depository.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.6.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, if any, fire and hazard
insurance premiums, and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
Xxxxxx Xxx: Xxxxxx Xxx, formerly known as the Federal National
Mortgage Association, or any successor thereto.
Fidelity Bond: A fidelity bond to be obtained by the Servicer
pursuant to Section 3.12.
Xxxxxxx Mac: Xxxxxxx Mac, formerly known as the Federal Home Loan
Mortgage Corporation or any successor thereto.
Gross Margin: With respect to each ARM Loan, the fixed percentage
amount set forth in the related Mortgage Note as shown in the Mortgage Loan
Schedule, 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.
Index: With respect to any ARM Loan, the index set forth in the
applicable Mortgage Note which is added to the Gross Margin to determine the
Mortgage Interest Rate on each Interest Rate Adjustment Date. In the event the
Index becomes unavailable for any reason, the Servicer shall select an
alternative index, in accordance with the terms of the Mortgage Note, and such
alternative index shall thereafter be the Index for such Mortgage Loan.
Indymac: IndyMac Bank, F.S.B., a federal savings bank and its
successors in interest.
Indymac Information: As defined in Section 5.8(d).
Initial Rate Cap: As to each ARM Loan, the maximum increase or
decrease in the Mortgage Interest Rate on the first Interest Rate Adjustment
Date as provided in the related Mortgage Note.
Insurance Proceeds: Proceeds of any Primary Mortgage Insurance
Policy, any title policy, any hazard insurance policy or any other insurance
policy covering a Mortgage Loan or the related Mortgaged Property, including any
amounts required to be deposited in the Custodial Account pursuant to Section
3.10, to the extent such proceeds are not to be applied to the restoration of
the related Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures and Section 3.14.
Interest Rate Adjustment Date: As to any ARM Loan, the date
specified in a Mortgage Note on which the Mortgage Interest Rate for the related
Mortgage Loan is subject to adjustment.
Investor: With respect to any Mortgage Loan, a Person who has a
beneficial interest in, or is a record owner of, such Mortgage Loan or any
trustee acting on behalf of any such Person.
Late Collections: With respect to any Mortgage Loan, all amounts
(other than Monthly Advances) received during any Due Period, whether as late
payments of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds,
Condemnation Proceeds or otherwise, which represent late payments or collections
of Monthly Payments due but delinquent for a previous Due Period and not
previously recovered.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of the Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or in
connection with the sale of the Mortgaged Property if the Mortgaged Property is
a REO Property.
LPMI Fee: The portion of the Mortgage Interest Rate relating to a
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by the Servicer to pay the premium due on a Primary Mortgage Insurance
Policy with respect to a LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the Servicer is
responsible for paying the premium due on the related Primary Mortgage Insurance
Policy with the proceeds generated by the LPMI Fee relating to such Mortgage
Loan, as set forth on the related Mortgage Loan Schedule.
Losses: Any claims, penalties, fines, forfeitures, damages,
liabilities, losses and expenses, including reasonable attorneys' fees.
Master Servicer: As defined in Section 5.4(a).
Maturity Date: With respect to any Mortgage Loan, the maturity date
of the related Mortgage Note and Mortgage as specified therein.
MERS: Mortgage Electronic Registration, Inc. a corporation organized
and existing under the laws of the State of Delaware, or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: Commencing with each Monthly Payment due on or
after the related Cut-off Date, the portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to Section
4.3 on the Business Day immediately preceding the Remittance Date of the related
month.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor from time to time
under the related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust or other
instrument creating a first lien on or first priority ownership interest on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor, as the case may be, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgage Interest Rate: As to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan and, with respect to an ARM Loan,
as adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes, without limitation, the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds (if applicable) and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: Pools of Mortgage Loans sold to the Owner
pursuant the Master Mortgage Loan Purchase Agreement.
Mortgage Loan Remittance Rate: with respect to each Mortgage Loan,
the interest rate payable to the Owner on each Remittance Date which shall equal
the Mortgage Interest Rate less the Servicing Fee and any LPMI Fees, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Indymac's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Cooperative Loan, of the related Cooperative Unit); (3) a code indicating
whether the Mortgagor is self-employed; (4) a code indicating whether the
Mortgaged Property is owner-occupied, investment property or a second home; (5)
a code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence,
condominium, manufactured housing, mixed-use property, raw land and other
non-residential properties, planned unit development or cooperative stock in a
cooperative housing corporation; (6) the purpose of the Mortgage Loan; (7) the
type of Mortgage Loan (i.e., Fixed Rate or Adjustable Rate Mortgage Loan); (8)
the Mortgage Interest Rate at origination; (9) the current Mortgage Interest
Rate; (10) whether the Mortgage Loan has Monthly Payments that are interest only
for a period of time; (11) the Servicing Fee Rate; (12) the current Monthly
Payment; (13) the original term to maturity; (14) the remaining term to
maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (16) the LTV at origination and if the Mortgage Loan
has a second lien, combined LTV at origination; (17) the actual principal
balance of the Mortgage Loan as of the Cut-off Date; (18) social security number
of the Mortgagor; (19) a code indicating whether the Mortgage Loan has negative
amortization and the maximum amount of such negative amortization; (20) a code
indicating whether the Mortgage Loan had a second lien at origination; (21) if
the Mortgage Loan has a second lien, combined loan balance as of the Cut-off
Date; (22) a code indicating whether the Mortgaged Property is a leasehold
estate; (23) the due date of the Mortgage Loan; (24) whether the Mortgage Loan
is insured by a Primary Mortgage Insurance Policy and the name of the insurer;
(25) the certificate number of the Primary Mortgage Insurance Policy; (26) the
amount of coverage of the Primary Mortgage Insurance Policy; (27) the type of
appraisal; (28) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan; (29) a code indicating whether the Mortgage Loan is subject to a prepay
penalty and the terms of such prepayment penalty; (30) documentation type
(including asset and income type); (31) first payment date; (32) the schedule of
the payment delinquencies in the prior 12 months and (33) FICO score. With
respect to any Adjustable Rate Mortgage Loan: (a) the Gross Margin; (b) the
Periodic Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Rate
Adjustment Date cap and the Interest Rate Adjustment Date frequency; (e) the
minimum Mortgage Interest Rate; (f) the first Interest Rate Adjustment Date
immediately following the Cut-off Date; and (g) the Index, including the
methodology for rounding (e.g. rounded upward, if necessary, to the next nearest
ten thousandth (.0001)) and the applicable time frame for determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagor: The obligor on a Mortgage Note and his/her successors in
title to the Mortgage Property.
Nonrecoverable Advance: Any portion of any of a Monthly Advance or
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer hereunder which, in the good faith judgment of the
Servicer, will not be ultimately recoverable from Late Collections.
Offering Materials: As defined in Section 5.8(d).
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President of the
Servicer, and delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer or an affiliate thereof, reasonably acceptable to the
Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company and its successors and
assigns.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans to a REMIC or other trust to be formed as part of a publicly or
privately traded pass-through transaction retaining the Servicer as "servicer"
thereunder.
Periodic Rate Cap: With respect to each ARM 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,
equal to the rate set forth on the Mortgage Loan Schedule per adjustment.
Permitted Instruments: Any one or more of the following obligations
or securities:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security described
in clause (i) above, provided that the unsecured long-term obligations of
the party agreeing to repurchase such obligations are at the time rated by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P") in one of its three highest rating categories;
(iii) federal funds, certificates of deposit, time deposits, and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state, provided that the long-term debt
obligations of such bank or trust company (or, in the case of the
principal bank in a bank holding company system, the long-term debt
obligations of the bank holding company) at the date of acquisition
thereof have been rated by the S&P in one of its three highest rating
categories;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has been rated by the S&P in its highest short-term rating category; and
(v) any other obligation or security acceptable to Standard & Poor's
Corporation in respect of mortgage pass-through certificates rated in one
of its three highest rating categories, as evidenced by a letter from the
S&P to such effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Charge: With respect to any Mortgage Loan, the prepayment
premium or charge, if any, required under the terms of the related Mortgage Note
to be paid in connection with a Principal Prepayment, to the extent permitted by
applicable law.
Prepayment Period: With respect to a Remittance Date, the prior
calendar month.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment in full or in
part during the related Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Primary Mortgage Insurance Policy: With respect to any Mortgage
Loan, the policy of primary mortgage guaranty insurance (including all
endorsements thereto), if any, issued by a Qualified Insurer with respect to
such Mortgage Loan, or any replacement policy.
Primary Mortgage Insurer: The named insurer under any Primary
Mortgage Insurance Policy.
Prime: As of any date of determination, the annual interest rate,
adjusted daily, published from time to time in The Wall Street Journal (Western
Edition) as the "PRIME RATE" in the "MONEY RATES" section.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Condemnation Proceeds, Insurance Proceeds, and
Liquidation Proceeds) which is received in advance of its scheduled Due Date
(not including any Prepayment Charge) and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Qualified Depository: (i) A depository, the long-term unsecured debt
obligations of which are rated by a nationally recognized statistical rating
agency in one of its two highest rating categories at the time of any deposit
therein, or (ii) a depository, the deposits of which are fully insured to the
maximum extent permitted by the FDIC or (iii) the corporate trust department of
a national bank; provided that in case of (ii) and (iii) above, they maintain a
rating by a nationally recognized statistical rating agency in the highest
rating categories for short term debt obligations.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Reconstitution Agreements: The agreement or agreements entered into
by the Servicer and the Owner and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or a Pass-Through Transfer.
Such agreement or agreements shall prescribe the rights and obligations of the
Servicer in servicing the related Mortgage Loans.
Reconstitution Date: The date or dates on which any or all of the
Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Whole Loan Transfer or Pass-Through
Transfer pursuant to Section 5.9 hereof. On such date, the Mortgage Loans
transferred shall cease to be covered by this Agreement and the Servicer shall
cease to service those Mortgage Loans under this Agreement in accordance with
the termination provisions set forth in Section 5.9 hereof.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Advice Date: The 10th day of each month or, if such 10th
day is not a Business Day, the first Business Day immediately following such
day.
Remittance Date: With respect to each Mortgage Loan: the eighteenth
(18th) day of any month, beginning with the eighteenth (18th) day of the month
next following the month in which the related Cut-off Date occurs, or if such
eighteenth (18th) day is not a Business Day, the first Business Day immediately
following such day.
REO Property: A Mortgaged Property acquired in foreclosure or by
deed in lieu of foreclosure, as described in Section 3.13.
Sarbanes Certifying Party: A Person who provides certification
required under the Xxxxxxxx-Xxxxx Act of 2002 in connection with a
Securitization or other securitization transaction.
Securitization: The transfer of the Mortgage Loans to a trust formed
as part of a publicly issued and/or privately placed, rated securitization,
including the issuance of the related Securities.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicer: IndyMac or any successor to the Servicer as permitted
under this Agreement.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) that are incurred by the Servicer in the performance of its
servicing obligations hereunder, including, but not limited to, the cost of (i)
the preservation, restoration, and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) compliance with the
obligations of this Agreement, including without limitation under Sections 3.8
and 3.10.
Servicing Fee: With respect to each Mortgage Loan being serviced and
administered pursuant to this Agreement, the amount of the annual fee payable to
the Servicer as compensation for servicing and administering such Mortgage Loan
and for managing and disposing of REO Property in accordance with the terms of
this Agreement. For each Mortgage Loan, such fee shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate,
multiplied by (ii) the outstanding Unpaid Principal Balance of such Mortgage
Loan as of the first day of such month, and shall be payable in accordance with
Section 5.3. With respect to any REO Property that is being managed by the
Servicer in accordance with Section 3.13 of this Agreement, such fee shall be
payable through and until the disposition of such REO Property or the transfer
of the REO Property to the Owner for management by the Owner, and the amount of
such fee shall be based upon the Unpaid Principal Balance of the related
Mortgage Loan at the time of the related foreclosure.
Servicing Fee Rate: As set forth on the Mortgage Loan Schedule.
Servicing File: As to each Mortgage Loan, the copies of the
Collateral Documents, as well as the credit and closing packages, disclosures,
copies of the all other files, books, records and documents necessary to (a)
establish the eligibility of the Mortgage Loan for insurance by a Qualified
Insurer, if any; and/or (b) service the Mortgage Loan in accordance with
Acceptable Servicing Procedures, including the documents listed on Exhibit B
hereto, some of which maybe held by the Custodian.
Unpaid Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the 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 Owner with respect to the related Mortgage Loan representing
payments or recoveries of principal or advances in lieu thereof.
Whole Loan Transfer: The sale or transfer by the Owner of some or
all of the Mortgage Loans in a whole loan or participation certificate format
pursuant to a Reconstitution Agreement retaining the Servicer as "servicer"
thereunder.
3/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 36 months.
5/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 60 months.
7/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 84 months.
10/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 120 months.
Any capitalized term used herein and not otherwise defined, shall
have the meaning assigned to such term in the Master Mortgage Loan Purchase
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer
With respect to a Mortgage Loan Package, the Servicer represents,
warrants and covenants to the Owner that, as of the related Closing Date:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and is
qualified and licensed to transact business in and is in good standing under the
laws of each state where each Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and the servicing
of the Mortgage Loan in accordance with the terms of this Agreement. The
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized. This Agreement evidences the valid, binding and enforceable
obligation of the Servicer; and all requisite action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its term;
(b) The Servicer has the full power and authority to (i) perform and
enter into and consummate all transactions contemplated by this Agreement and
(ii) to service each Mortgage Loan;
(c) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer, which is in
the business of servicing loans;
(d) Neither 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 Servicer's [charter] or result in a material
breach of any legal restriction or any material agreement or instrument to which
the Servicer is now a party or by which it is bound, or constitute a material
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 Servicer or its property is subject;
(e) The Servicer is an approved servicer for Xxxxxx Mae and Xxxxxxx
Mac in good standing. No event has occurred, including a change in insurance
coverage, which would make the Servicer unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements;
(f) There is no action, suit, proceeding, investigation or
litigation pending or, to the Servicer's knowledge, threatened, which either in
any one instance or in the aggregate, if determined adversely to the Servicer
would materially and adversely affect the Servicer's ability to service the
Mortgage Loans hereunder in accordance with the terms hereof, or the Servicer's
ability to perform its obligations under this Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, of or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) The Servicer 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 Servicer, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(i) The Servicer 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;
(j) The Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans registered with MERS;
(k) The Servicer has serviced, and shall at all times service, the
Mortgage Loans in accordance with the Acceptable Servicing Procedures, the
Mortgage Note and applicable federal, state and local laws and regulations,
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws, and the Servicer shall maintain in its possession, available for the
Owner's inspection and shall deliver to the Owner upon demand, evidence of
compliance with all such requirements. 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;
(l) The Servicer has fully furnished (or caused to be 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, or any their successors and assigns (three of the credit repositories),
on a monthly basis; and
(m) No statement, report or other document prepared and furnished by
the Servicer or to be prepared and furnished by the Servicer pursuant to this
Agreement in connection with the transactions contemplated hereby contain or
will contain any untrue statement of fact or omit to state a fact necessary to
make the statements contained therein not misleading.
Section 2.2 Remedies for Breaches of Representations or Warranties.
The Servicer shall indemnify the Owner, its affiliates and their
respective directors, officers and employees and hold such Persons harmless
against any Losses and related costs, judgments, and other costs and expenses
resulting from a breach of the Servicer's representations and warranties
contained in Section 2.1 that materially and adversely affects the interests of
the Owner in or the value of one or more of the Mortgage Loans. The obligations
of the Servicer set forth in this Section 2.2 to indemnify the Owner as provided
in this Section 2.2 constitute the sole remedies of the Owner with respect to a
breach of the foregoing representations and warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as
Servicer
(a) The Servicer, as independent contractor, shall commence
servicing and administering each Mortgage Loan on behalf of the Owner from and
after the Cut-off Date in accordance with the terms and conditions of this
Agreement and Acceptable Servicing Procedures and the terms of the Mortgage
Notes and the Mortgages. Except as otherwise expressly provided in this
Agreement, the Servicer shall have full power and authority, acting alone, to do
any and all things reasonably consistent with the terms of this Agreement,
including but not limited to the following: (i) to execute and deliver, on
behalf of the Owner, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and other
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan; provided
that the Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Owner under this Agreement. The Servicer further
is authorized and empowered by the Owner, in its own name when the Servicer,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Owner, any
and all instruments of assignment and other comparable instruments with respect
to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. The Servicer shall at
all times act in the best interests of the Owner in performing its obligations
under this Agreement.
(b) The documents comprising the Collateral File relating to each
Mortgage Loan serviced hereunder and that are retained by the Servicer pursuant
to the terms hereof, together with all other documents with respect to each such
Mortgage Loan which are prepared by or which come into the possession of the
Servicer, shall immediately vest in the Owner and shall be held and maintained
in trust by the Servicer at the will of the Owner and in a custodial capacity
only. The documents comprising each Collateral File and all related documents
which come into the possession of the Servicer and are so held by the Servicer
shall be segregated from the other books and records of the Servicer and shall
be appropriately marked to clearly reflect the ownership interest of the Owner
in such Collateral File and related documents. The Servicer shall release its
custody of any such documents only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with Applicable Law. The Servicer shall keep at its
servicing office books and records in which, subject to such reasonable
regulations as it may prescribe, the Servicer shall note transfers of Mortgage
Loans. No transfer of a Mortgage Loan may be made unless such transfer is in
compliance with the terms hereof. For the purposes of this Agreement, the
Servicer shall be under no obligation to deal with any person with respect to
this Agreement or the Mortgage Loans unless the books and records show such
person as the owner of the Mortgage Loan. The Owner may, subject to the terms of
this Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that in no event shall there be more than four Persons at any given
time having the status of "Owner" hereunder. The Owner also shall advise the
Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. If the
Servicer receives written notification of a transfer less than five (5) Business
Days before the monthly Determination Date, the Servicer's duties to remit and
report to the new purchaser(s) as required by Section 5.9 hereof shall begin
with the first Determination Date after the Reconstitution Date.
(c) Consistent with the terms of this Agreement and subject to the
REMIC Provisions if the Mortgage Loans have been transferred to a REMIC, 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 if, in the Servicer's reasonable and prudent
determination, such waiver, modification, variation, postponement or indulgence
is in the best interests of and is not materially adverse to the Owner and will
not result in the impairment of coverage under any Primary Mortgage Insurance
Policy; provided, however, that the Servicer may not, without the prior written
consent of the Owner, (i) permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate (other than by adjustments
required by the terms of the related Mortgage Note), the Lifetime Rate Cap (if
applicable), the Initial Rate Cap (if applicable), the Periodic Rate Cap (if
applicable) or the Gross Margin (if applicable), (ii) defer or forgive the
payment of any principal or interest, (iii) reduce the outstanding principal
amount (except to reflect actual payments of principal), (iv) except other than
pursuant to the terms of the Mortgage Loan, make any advances of additional
principal or (v) extend the final maturity date on such Mortgage Loan. In the
event of any such modification which permits the deferral of interest or
principal payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 4.3, the difference
between (a) such month's principal and one month's interest at the Mortgage Loan
Remittance Rate on the Unpaid Principal Balance of such Mortgage Loan and (b)
the amount paid by the Mortgagor. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered to execute and
deliver on behalf of itself and the Owner in connection with any Mortgage Loan
all instruments of satisfaction, cancellation or full release upon receipt by
the Servicer of payment in full of the Unpaid Principal Balance or, with the
prior written consent of the Owner, partial release or discharge, and all other
comparable instruments with respect to the Mortgage Loans and the Mortgaged
Properties. The Servicer shall prepare and deliver to the Owner such documents
requiring execution and delivery as are necessary or appropriate to enable the
Servicer to service and administer the Mortgage Loans to the extent that the
Servicer is not permitted to execute and deliver such documents pursuant to the
preceding sentence. Upon receipt of such documents, the Owner shall execute such
documents and deliver them to the Servicer. If reasonably required by the
Servicer, the Owner shall furnish the Servicer with any powers of attorney and
other documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, in strict
compliance with (i) the terms of the Mortgage and Mortgage Note, (ii) all
applicable law, and (iii) Acceptable Servicing Procedures.
Section 3.2 Liquidation of Mortgage Loans
In the event that any payment due under any Mortgage Loan is not
paid when the same becomes due and payable, or in the event the Mortgagor fails
to perform or observe any other covenant or obligation under the Mortgage Loan
and such failure continues beyond any applicable grace period, the Servicer will
proceed diligently to collect all payments due and shall take such action as it
shall reasonably deem to be in the best interest of the Owner. In the event that
any payment due under any Mortgage Loan remains delinquent for a period of
ninety (90) days or more, the Servicer shall commence foreclosure proceedings in
accordance with Acceptable Servicing Procedures and the guidelines with respect
to the timelines, fees and costs set forth by Xxxxxx Xxx or Xxxxxxx Mac. In such
connection, the Servicer shall from its own funds make all necessary and proper
Servicing Advances.
Section 3.3 Collection of Mortgage Loan Payments
Continuously from the date hereof until the principal and interest
on all Mortgage Loans being serviced hereunder are paid in full or this
Agreement is otherwise terminated, the Servicer will proceed diligently to
collect all payments due under each of such Mortgage Loans when the same shall
become due and payable. With respect to those Mortgage Loans, if any, as to
which the Servicer collects Escrow Payments, the Servicer will ascertain or
estimate, as the case may be, annual ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums, mortgage insurance premiums and all
other charges that, as provided in any Mortgage, will become due and payable so
that the Escrow Payments payable by the Mortgagors will be sufficient to pay
such charges as and when they become due and payable. The Servicer shall not be
required to institute or join in litigation with respect to collection of any
payment (whether under a Mortgage, Mortgage Note, Primary Mortgage Insurance
Policy or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if in its reasonable judgment it believes that it
will be unable to enforce the provision of the Mortgage or other instrument
pursuant to which payment is required.
Section 3.4 Establishment of Custodial Account; Deposits in
Custodial Account
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts (collectively, "Custodial Account"), which may be interest bearing,
titled," IndyMac Bank, F.S.B., in trust for Xxxxxxx Sachs Mortgage Company as
Owner, and any successor Owner." Such Custodial Account shall be an Eligible
Account.
(b) With respect to each Mortgage Loan, the Servicer shall not later
than the end of the second Business Day following receipt thereof, deposit in
the Custodial Account and retain therein the following payments and collections
received by the Servicer subsequent to the Cut-off Date:
(i) all payments on account of principal, including Principal
Prepayments, actually collected by the Servicer on the Mortgage Loans;
(ii) all payments on account of interest actually collected by the
Servicer on the Mortgage Loans less the Servicing Fee;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds, other than Insurance Proceeds to be
held in the Escrow Account and applied to the restoration and repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures;
(v) all Condemnation Proceeds which are not released to the
Mortgagor in accordance with the Owner's written consent and Acceptable
Servicing Procedures and Section 3.14;
(vi) any amounts with respect to Monthly Advances required to be
deposited in the Custodial Account pursuant to Sections 4.3 and 5.3 ;
(vii) any amount required to be deposited in the Custodial Account
pursuant to Sections 3.1(c), 3.4(c), 3.10, 3.11(c), 3.13(d), (e) and (g),
and 4.1(b) of this Agreement; and
(viii) an amount to be deposited from the Servicer's own funds,
without reimbursement therefor, equal to the lesser of the Prepayment
Interest Shortfall Amount, if any, for the month preceding the month in
which the applicable Remittance Date occurs and one half of the Servicing
Fee for such Remittance Date.
(c) The Servicer may cause the funds on deposit from time to time in
the Custodial Account to be invested in Permitted Instruments, which investments
shall mature not later than the Business Day immediately preceding the
applicable Remittance Date next following the date of such investment. All such
investments shall be made in the name of the Servicer or its nominee. All income
and gain realized from any such investment shall be for the benefit of the
Servicer and shall be subject to its withdrawal or order from time to time. The
Servicer shall indemnify the Owner for any and all Losses incurred in respect of
any such investment by the Servicer, and the amount of any Losses incurred in
respect of any such investment shall be deposited in the Custodial Account by
the Servicer out if its own funds immediately, without reimbursement therefor.
(d) It is understood and agreed that payments in the nature of
Ancillary Income need not be deposited by the Servicer in the Custodial Account.
Section 3.5 Permitted Withdrawals from the Custodial Account
(a) The Servicer may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments and distributions to the Owner in the amounts
and in the manner provided for in Section 4.1;
(ii) to reimburse itself for Monthly Advances made by the Servicer
from its own funds pursuant to Section 4.3, the Servicer's right to
reimburse itself pursuant to this subclause (ii) being limited to amounts
received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such Monthly Advance was
made and such other amounts as are collected by the Servicer from the
related Mortgagor or otherwise relating to the Mortgage Loan (or to
amounts received on the Mortgage Loans as a whole in the event that such
Monthly Advance is made to pay a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Servicemembers Civil Relief Act).
Notwithstanding the foregoing, the Servicer may reimburse itself for
Monthly Advances from any funds in the Custodial Account if it has
determined that such funds are Nonrecoverable Advances (as certified by
the Servicer to the Owner in an Officer's Certificate) (or if all funds,
with respect to the related Mortgage Loan, have previously been remitted
to the Owner). Notwithstanding anything to the contrary contained herein,
if the Servicer is Indymac and the Mortgage Loan for which such Advances
were made was required to be repurchased by Indymac pursuant to the Master
Mortgage Loan Purchase Agreement, the Servicer shall not be entitled to
reimburse itself for such Advances;
(iii) to reimburse itself for unreimbursed Servicing Advances and
any unpaid Servicing Fees, Servicer's right to reimburse itself pursuant
to this subclause (iii) with respect to any Mortgage Loan being limited to
related proceeds from Liquidation Proceeds, Condemnation Proceeds, Primary
Mortgage Insurance Proceeds and Other Insurance Proceeds; provided that
the Servicer may reimburse itself from any funds in the Custodial Account
for (a) Servicing Advances and Servicing Fees if all funds with respect to
the related Mortgage Loan have previously been remitted to Owner and (b)
Servicing Advances which it has determined are Nonrecoverable Advances (as
certified by the Servicer to the Owner in an Officer's Certificate).
Notwithstanding anything to the contrary contained herein, if the Servicer
is Indymac and the Mortgage Loan for which such Advances were made was
required to be repurchased by Indymac pursuant to the Master Mortgage Loan
Purchase Agreement, the Servicer shall not be entitled to reimburse itself
for such Advances;
(iv) to reimburse any Master Servicer for Securitization for any
unreimbursed Monthly Advances or Servicing Advances made by such Master
Servicer, as applicable, the right to reimbursement pursuant to this
subclause (iv) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance 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 such reimbursement, such trustee's right thereto shall be prior to
the rights of the Servicer to reimbursement under (ii) and (iii), and
prior to the rights of the Owner under (i);
(v) to pay itself any Servicing Fee and other servicing compensation
not paid to the Servicer pursuant to Section 5.3;
(vi) to pay to itself any interest earned on funds deposited in the
Custodial Account;
(vii) if there shall be amounts deposited in the Custodial Account
in error, including the Servicing Fee and other servicing compensation not
required to be deposited therein, to withdraw such amounts; and
(viii) to clear and terminate the Custodial Account upon the
termination of this Agreement in accordance with Article 8.
Section 3.6 Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, "Escrow
Account"), which may be interest bearing, titled, with respect to the Servicer,
" IndyMac Bank, F.S.B., in trust for Xxxxxxx Xxxxx Mortgage Company, as Owner,
and any successor Owner, and certain Mortgagors." The Escrow Account shall be an
Eligible Account.
(b) The Servicer shall not later than the end of the second Business
Day following receipt thereof (or sooner if required by applicable law) deposit
in the Escrow Account maintained by the Servicer and retain therein: (i) all
Escrow Payments collected on account of the Mortgage Loans for the purpose of
effecting timely payment of any such items as required under the terms of this
Agreement, and (ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any Mortgaged
Property. The Servicer shall make withdrawals from the Escrow Account maintained
by the Servicer only in accordance with Section 3.7. The Servicer shall be
entitled to retain any interest earned on funds deposited in the Escrow Account
maintained by the Servicer other than interest on escrowed funds required by law
to be paid to the Mortgagor and, to the extent required by law, the Servicer
shall pay interest on escrowed funds to the Mortgagor notwithstanding that the
Escrow Account maintained by the Servicer may not bear interest or that the
interest earned on such escrowed funds is insufficient for such purpose.
Section 3.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the Servicer may
be made by the Servicer only (a) to effect timely payments of taxes,
assessments, water rates, insurance premiums, fire and hazard insurance premiums
or other items constituting Escrow Payments for the related Mortgage; (b) to
reimburse the Servicer for any Servicing Advance made by the Servicer pursuant
to Sections 3.8, 3.10 and 3.11 with respect to a related Mortgage Loan, the
Servicer's right to reimburse itself pursuant to this clause (b) being limited
to the amounts as may be collected by the Servicer from the related Mortgagor or
from the related insurer; (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 in accordance with the terms of this
Agreement; (e) for application to restoration or repair of the related Mortgaged
Property in accordance with the provisions of Section 3.14, (f) to pay to a
Mortgagor, to the extent required by Applicable Requirements, interest 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
related Mortgagor), (h) to remove funds inadvertently placed in the Escrow
Account by the Servicer; or (i) to clear and terminate the Escrow Account upon
the termination of this Agreement, in accordance with Article 8.
Section 3.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of property taxes, assessments and other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums, if any, and fire and
hazard insurance coverage and flood insurance, all as required hereunder. If a
Mortgage Loan requires Escrow Payments, the Servicer shall obtain, from time to
time, all bills for the payment of such charges (including renewal premiums) and
shall effect payment thereof prior to the applicable penalty or termination date
in a manner consistent with Acceptable Servicing Procedures, employing for such
purpose Mortgagor deposits in the Escrow Account. The Servicer shall, with
respect to each Mortgage Loan for which Escrow Payments are maintained, conduct
an escrow analysis in accordance with industry standard procedures. If a
Mortgage Loan does not require Escrow Payments, or if there are insufficient
funds in the related Escrow Account, the Servicer shall cause all such bills to
be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to make timely payment of all such bills. The Servicer shall
monitor the payment status of such charges (including renewal premiums) by the
related Mortgagor, and shall effect payment thereof in a manner consistent with
Acceptable Servicing Procedures, and in all events prior to the foreclosure of
any lien against the Mortgaged Property resulting from non-payment of such
property taxes, assessments and other charges and prior to the termination of
any such insurance coverage. No costs incurred by the Servicer in effecting the
payment of taxes and assessments on the Mortgaged Properties shall, for the
purpose of calculating remittances to the Owner, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts
The Servicer may from time to time transfer the Custodial Account or
the Escrow Account maintained by it to a different depository institution,
provided that each such account shall be and remain an Eligible Account.
Section 3.10 Maintenance of Hazard Insurance
(a) The Servicer shall cause to be maintained, with a Qualified
Insurer for each Mortgage Loan serviced by it, fire and hazard insurance with
extended coverage customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the Underwriting Guidelines, in an
amount which is at least equal to the lesser of (a) the full insurable value of
the Mortgaged Property or (b) the greater of (i) the outstanding principal
balance owing on the Mortgage Loan and (ii) an amount such that the proceeds of
such insurance shall be sufficient to avoid the application to the Mortgagor or
loss payee of any coinsurance clause under the policy. If the Mortgaged Property
is in an area then identified on a flood hazard boundary map or flood insurance
rate map issued by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance is available), the Servicer will cause
to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx Mac. Such flood
insurance shall be in an amount representing coverage not less than the least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the full
insurable value of the improvements securing such Mortgage Loan or (iii) the
maximum amount of insurance available under the National Flood Insurance Act of
1968 and the Flood Disaster Protection Act of 1973, each as amended. The
Servicer shall also maintain on each REO Property with an insurer acceptable
under the Underwriting Guidelines (x) fire and hazard insurance with extended
coverage in an amount that is at least equal to the maximum insurable value of
the improvements securing the Mortgage Loan that are a part of such property,
(y) liability insurance and (z) to the extent required and available under the
National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973,
each as amended, or other applicable federal law, flood insurance in an amount
as provided above. Any costs incurred by the Servicer maintaining insurance
under this Section 3.10 shall be recoverable as Servicing Advances. Any amounts
collected by the Servicer under any such policies shall be paid over or applied
by the Servicer in accordance with Acceptable Servicing Procedures for the
restoration or repair of the Mortgaged Property subject to the related Mortgage,
for release to the Mortgagor in accordance with Acceptable Servicing Procedures,
or for application in reduction of the Mortgage Loan. Any such amounts shall be
deposited in the Custodial Account and subject to withdrawal pursuant to Section
3.5. It is understood and agreed that no earthquake or other additional
insurance is required to be maintained by the Servicer hereunder in connection
with any Mortgage Loan or Mortgaged Property, other than pursuant to applicable
laws and regulations that are at any time in force and require such additional
insurance. All policies required hereunder shall be endorsed with standard
mortgagee clauses with loss payable to the Servicer, and shall provide for at
least 30 days prior written notice to the Servicer of any cancellation,
reduction in amount, or material change in coverage. The Servicer shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent upon any policy renewal; provided, however, upon any
such policy renewal, the Servicer shall not accept any such insurance policies,
unless the insurers are acceptable under the Underwriting Guidelines and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located.
In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable under the
Underwriting Guidelines, the Servicer shall notify the Owner and the related
Mortgagor, and shall use its best efforts, as permitted by applicable law, to
obtain from another Qualified Insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time.
If a Mortgage is secured by a unit in a condominium project, the
Servicer shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current requirements under the Underwriting Guidelines.
Notwithstanding anything set forth in the preceding paragraphs, the
Servicer agrees to indemnify the Owner for any Losses and related costs,
judgments, and any other costs, fees and expenses that the Owner may sustain in
any way related to the failure of the Mortgagor (or the Servicer) to maintain
hazard insurance or flood insurance with respect to the related Mortgaged
Property which complies with the requirements of this section.
Section 3.11 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder
(a) The parties acknowledge that not all Mortgage Loans will be
covered by Primary Mortgage Insurance. In the event that any Mortgage Loans are
or become covered by Primary Mortgage Insurance, the provisions set forth below
shall apply.
(b) If a Mortgage Loan is covered by a Primary Mortgage Insurance
Policy as of the Cut-off Date, or if a Mortgage Loan becomes covered by a
Primary Mortgage Insurance Policy pursuant to subsection 3.11(c) below, the
Servicer shall, without any cost to the Owner, cause the premium for each such
Primary Mortgage Insurance Policy, beginning with the premium due after the
Cut-off Date in the case of any Mortgage Loan covered by a Primary Insurance
Policy prior to the Cut-off Date, to be paid on a timely basis and shall from
its own funds, if necessary, make a Servicing Advance to pay the premium on a
timely basis. The Servicer will not cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is required to be kept in force under any
Mortgage and pursuant to this subsection, or pursuant to subsection 3.11(c)
below, unless a replacement Primary Mortgage Insurance Policy for such canceled
or non renewed policy is obtained from and maintained with an insurer that
satisfies the standards set forth in this subsection. If the insurer shall cease
to be a Qualified Insurer, the Servicer shall obtain from another qualified
insurer a replacement Primary Mortgage Insurance Policy. The Servicer shall not
take any action or fail to take any action that would result in non-coverage
under any applicable Primary Mortgage Insurance Policy of any loss which, but
for the actions of the Servicer, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 4.1, the Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under such Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
(c) As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Owner,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section 3.4,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.5, and remitted to the Owner on the appropriate Remittance
Date.
Section 3.12 Fidelity Bond; Errors and Omissions Insurance
The Servicer shall maintain, at its own expense, with responsible
companies that meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
on all officers, employees, agents and other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans (collectively, the "Servicer Employees"). Any such fidelity
bond and errors and omissions insurance shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses
from forgery, theft, embezzlement, fraud, errors, omissions, failure to maintain
any insurance policies required pursuant to this Agreement, and dishonest or
negligent acts of such Servicer Employees, any employees of outside firms that
provide data processing services for the Servicer, and temporary contract
employees or student interns. Such 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 and such fidelity bond and errors and omissions insurance policy
shall in no event be terminated or materially modified without 30 days prior
written notice to the Owner. No provision of this Section 3.12 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
terms of any such fidelity bond and errors and omissions insurance policy shall
be at least equal to the corresponding amounts required by Xxxxxx Mae in the
Xxxxxx Xxx Selling and Servicing Guide, or by Xxxxxxx Mac in the Xxxxxxx Mac
Seller's and Servicer's Guide, as amended or restated from time to time. Upon
the request of the Owner, the Servicer shall cause to be delivered to the Owner
a certificate of insurance with respect to such fidelity bond and errors and
omissions insurance policy.
Section 3.13 Title, Management and Disposition of Real Estate Owned
(a) The Servicer shall notify the Owner of its intention to
institute any foreclosure proceeding no fewer than ten (10) days prior to
initiating such proceeding. The Servicer shall notify the Owner of its intention
to accept a deed-in-lieu of foreclosure or a partial release of any of the
Mortgaged Property subject to the lien of the Mortgage no fewer than ten (10)
days prior to accepting such deed-in-lieu or partial release and shall only
accept such deed-in-lieu or grant such partial release if the Owner has not
objected before the end of the tenth day after delivery of such notice. In
connection with any foreclosure sale, the Servicer shall consult with the Owner
with regard to a bid price for the related Mortgaged Property. The Servicer
shall make all required Servicing Advances and shall service and administer the
Mortgage Loans in accordance with all applicable laws, rules and regulations and
shall provide to the Mortgagors any reports required to be provided to them
thereby. The Owner 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.
(b) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure ("REO Property"), the deed or
certificate of sale shall be taken in the name of the Servicer for the benefit
of the Owner or, in the event the Owner 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 from any 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.
(c) The Servicer shall manage, conserve, protect, and operate each
REO Property solely for the purpose of its prompt disposition and sale. The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect, and operate the REO Property in accordance with
Acceptable Servicing Procedures. The Servicer shall attempt to sell the same
(and may temporarily rent the same for a period not greater than one year) on
such terms and conditions as the Servicer deems to be in the best interest of
the Owner.
The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition unless
(i) (A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the Servicer
determines, and gives an appropriate notice to the Owner to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Servicer shall report monthly to
the Owner as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
Notwithstanding anything to the contrary contained in this Section
3.13, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Owner otherwise requests, an environmental inspection or review of
such Mortgaged Property to be conducted by a qualified inspector shall be
arranged by the Servicer. Upon completion of the inspection, the Servicer shall
provide the Owner with a written report of such environmental inspection. In the
event that the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In the event that the environmental inspection report is
inconclusive as to the whether or not the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not, without the
prior approval of the Owner, proceed with foreclosure or acceptance of a deed in
lieu of foreclosure. In the event the Owner or its designee directs the Servicer
not to proceed with foreclosure or acceptance of a deed in lieu of foreclosure,
the Servicer shall be reimbursed for all customary, reasonable, and necessary
"out of pocket" costs and expenses that are incurred by the Servicer with
respect to the related Mortgaged Property from the Custodial Account, as though
such costs were Servicing Advances, pursuant to Section 3.4 hereof.
(d) The Servicer shall hold all funds collected and received in
connection with the operation of REO Property separate and apart from its own
funds or general assets, in the Custodial Account.
(e) The Servicer shall deposit, or cause to be deposited not later
than the end of the second Business Day following receipt thereof in the
Custodial Account maintained by it all revenues received with respect to the
conservation and disposition of any REO Property for distribution to the Owner
pursuant to the provisions of Section 4.1.
(f) [RESERVED]
(g) [RESERVED]
(h) The Servicer shall withdraw the Custodial Account funds
necessary for the proper operation management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 3.10 and the fees of any managing agent of the Servicer, or the Servicer
itself. The Servicer shall make monthly distributions on each Remittance Date to
the Owner 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).
Section 3.14 Application of Proceeds of Insurance to Repair or
Restoration
The Servicer shall collect the proceeds from all policies of
insurance required to be maintained pursuant to Section 3.10 with respect to all
losses that may occur. The Servicer may remit such proceeds to the Mortgagor
toward the restoration or repair of the related property in a manner, and shall
otherwise take such actions in connection with such restoration and repair, as
shall be consistent with Acceptable Servicing Procedures.
The Servicer need not obtain the approval of the Owner prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Acceptable Servicing Practices. At a minimum the Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
The Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
(1) the Servicer shall take all steps necessary to
preserve the priority of the lien of the Mortgage, including,
but not limited to requiring waivers with respect to
mechanics' and materialmen's liens;
(2) the Servicer shall verify that the Mortgage Loan is
not in default; and
(3) pending repairs or restoration, the Servicer shall
place the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Owner.
Section 3.15 Inspections
The Servicer or its authorized representative shall conduct
inspections of Mortgaged Properties at such times and in a manner consistent
with Acceptable Servicing Procedures. For any Mortgage Loan that is not insured
by a Primary Mortgage Insurance Policy, in the event such Mortgage Loan becomes
45 days delinquent, (a) the Servicer shall inspect the related Mortgage Property
as promptly as practicable after the 45th day of delinquency, (b) the Servicer
may perform an inspection at such other times and at such intervals as the
Servicer deems appropriate and (c) the Servicer shall immediately perform an
inspection upon any abandonment of the related Mortgaged Property. For any
Mortgage Loan that is insured by a Primary Mortgage Insurance Policy, the
Servicer shall inspect the related Mortgaged Property as directed by the related
Primary Insurer; provided, however, that, at a minimum, in the event the
Mortgage Loan becomes 60 days delinquent, the Servicer shall inspect the related
Mortgaged Property prior to the 90th day of delinquency. The Servicer shall keep
a written report of each such inspection and shall provide a copy of such report
to the Owner upon the request of the Owner.
Section 3.16 Fair Credit Reporting Act.
The Servicer, in its capacity as servicer for each Mortgage Loan,
agrees to fully furnish, 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.
Section 3.17 Compliance with the Privacy Laws
The Servicer shall comply with all provisions of the Privacy Laws
relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions
(a) On each Remittance Date the Servicer shall remit to the Owner
(a) all amounts credited to the Custodial Account as of the close of business on
the preceding Determination Date, net of charges or withdrawals from the
Custodial Account pursuant to Section 3.5, plus (b) all Monthly Advances, if
any, that the Servicer is obligated to distribute pursuant to Section 4.3; minus
(c) any amounts attributable to Principal Prepayments received after the related
Prepayment Period; minus (d) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that by operation of Section 3.4, the
remittance on the first Remittance Date with respect to a Mortgage Loan Package
is to include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance Rate,
collected through such Determination Date exclusive of any portion thereof
allocable to the period of time prior to the Cut-off Date, with the adjustments
specified in (b), (c) and (d) above. Each such remittance shall be made by wire
or other electronic funds transfer of immediately available funds to the account
of the Owner according to the written wire instructions provided by the Owner to
the Servicer from time to time.
(b) With respect to any remittance to the Owner made by the Servicer
after the second Business Day following the Business Day on which such
remittance was due, the Servicer shall pay to the Owner interest on such late
remittance at an annual rate equal to Prime plus two percent (2.0%), but in no
event greater than the maximum amount permitted by applicable law. Such interest
shall be deposited in the Custodial Account by the Servicer on the date such
late remittance is made and shall cover the period commencing with the date on
which such remittance was due and ending with the Business Day on which such
late remittance is made, both inclusive. Such interest shall be remitted along
with such late remittance. 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.
Section 4.2 Reports
(a) Not later than each Remittance Advice Date, the Servicer shall
furnish to the Owner via any electronic medium a monthly report in a form
reasonable acceptable to institutional buyers of mortgage loans, which report
shall include, without limitation, with respect to each Mortgage Loan the
following loan-level information: (i) the balance due as of the last day of the
related Due Period, (ii) all Principal Prepayments applied to the Mortgagor's
account during the related Prepayment Period, (iii) the amount of the remittance
made on such Remittance Date which is allocable to principal and allocable to
interest; (iv) the amount of servicing compensation received by the Servicer
during the prior calendar month and (v) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) With respect to any REO Property, and upon the request of the
Owner, the Servicer shall furnish to the Owner a statement describing the
Servicer's efforts during the previous month in connection with the sale of such
REO Property, including any rental of such REO Property incidental to the sale
thereof and an operating statement. The Servicer shall also provide the Owner
with such information concerning the Mortgage Loans as is necessary for Owner to
prepare its federal income tax return and as the Owner may reasonably request
from time to time. The Owner agrees to pay for all reasonable out-of-pocket
expenses incurred by the Servicer in connection with complying with any request
made by the Owner hereunder if such information is not customarily provided by
the Servicer in the ordinary course of servicing mortgage loans similar to the
Mortgage Loans.
Section 4.3 Monthly Advances by Servicer
On the Determination Date, the Servicer shall deposit in the
Custodial Account from its own funds or from amounts held for future
distribution an amount equal to all Monthly Payments to the extent not allocable
to the period prior to the Cut-off Date (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 as of the close of business on the Business
Day prior to the related Determination Date or which were deferred pursuant to
Section 3.1(c). 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 Owner required to be made on such Remittance
Date. The Servicer's obligation to make such Monthly Advances as to any Mortgage
Loan will continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or of the last Remittance Date prior to the
Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the Mortgage Loan; provided, however, that such obligation shall
cease if the Servicer determines, in its sole reasonable opinion, that advances
with respect to such Mortgage Loan are non-recoverable by the Servicer from
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise
with respect to a particular Mortgage Loan. In the event that the Servicer
determines that any such advances are non-recoverable, the Servicer shall
provide the Owner with a certificate signed by two officers of the Servicer
evidencing such determination.
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements
(a) The Servicer will use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold, whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note, provided
that in accordance with the terms of the Mortgage Note, the Servicer may permit
an assumption if but only if the Servicer approves the creditworthiness of the
assuming party in accordance with the Underwriting Guidelines. 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 Applicable Requirements from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Mortgage Insurance Policy, if any. If the Servicer reasonably believes it is
unable under Applicable Requirements to enforce such "due-on-sale" clause, the
Servicer (unless otherwise required by law and in any event will notify the
Owner of such requirement) will request the written permission of the Primary
Mortgage Insurer, if required to cause the coverage under the Primary Mortgage
Insurance Policy to remain in full force and effect, and the Owner prior to
entering into an assumption and modification agreement with the person to whom
such property has been conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, to the extent permitted by Applicable Requirements,
the Mortgagor remains liable thereon. In connection with any such assumption,
the related Mortgage Interest Rate, the Unpaid Principal Balance, the Lifetime
Rate Cap (if applicable), the Gross Margin (if applicable), the Initial Rate Cap
(if applicable) or the Periodic Rate Cap (if applicable) of the related Mortgage
Note and the term of the Mortgage Loan may not be changed. If an assumption is
allowed pursuant to this Section 5.1(a), the Servicer, with the prior consent of
the Primary Mortgage Insurer, if any, is authorized to enter into a substitution
of liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Any such substitution of liability agreement shall be in lieu of
an assumption agreement.
(b) The Servicer shall follow Acceptable Servicing Procedures
(including underwriting standards) with respect to any such assumption or
substitution of liability. The Servicer shall notify the Owner that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Owner or its designee the original of any such substitution of
liability or assumption agreement, which document shall be added to the related
Collateral File and shall, for all purposes, be considered a part of such
Collateral File to the same extent as all other documents and instruments
constituting a part thereof.
(c) For purposes of this Section 5.1, the term "assumption" is
deemed to also include a sale of the Mortgaged Property subject to the Mortgage
that is not accompanied by an assumption or substitution of liability agreement.
Section 5.2 Satisfaction of Mortgages and Release of Collateral
Files
(a) 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 (i) shall prepare the appropriate
documents and instruments required to satisfy or release the lien of the
Mortgage in accordance with applicable state law requirements, (ii) shall
promptly and within the time periods appropriate to process the satisfaction or
release within the applicable legal deadlines notify the Owner of such event and
(iii) shall request that the Owner deliver the required portion of the
Collateral File to the Servicer. The Owner shall, within five (5) Business Days
following its receipt of any such certification and request, send to the
Servicer the requested portion of the Collateral File. Upon receipt of such
package, the Servicer shall prepare and execute the documents and instruments
necessary to satisfy or release the lien of the Mortgage and shall process such
satisfaction or release in accordance with applicable state law requirements. In
addition, if, with respect to any Mortgage Loan that has been paid in full, the
Owner has recorded or caused to be recorded in the appropriate public recording
office of the jurisdiction in which the related Mortgaged Property is located
the related Assignment of Mortgage which designates the Owner as the holder of
record of the Mortgage, the Servicer shall prepare and deliver to the Owner,
together with a request for execution, the documents and instruments necessary
to satisfy or release the lien of the Mortgage. The Owner shall, within five (5)
Business Days following its receipt of any such request, send to the Servicer
the fully-executed documents that were prepared and requested by the Servicer.
Upon receipt of such package, the Servicer shall process such satisfaction or
release in accordance with applicable state law requirements. In the event that
applicable state law requires that a satisfaction or release be recorded within
a shorter time period than the processes set forth above permits, the Servicer
shall advise the Owner accordingly and shall use reasonable efforts to ensure
that the lien of the Mortgage is released or satisfied in accordance with
applicable state law requirements. The Owner shall assist therewith by returning
to the Servicer the required portion of the Collateral File (and, if applicable,
the executed satisfaction and release documents and instruments) within the time
periods specified by the Servicer. The Servicer shall not be liable for and the
Owner shall indemnify the Servicer against any third party liability for failure
to release the lien of a Mortgage as required under applicable law to the extent
that such failure was caused by the Owner's breach of its obligations under this
Section 5.2.
(b) If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage or
should the Servicer otherwise prejudice any rights the Owner may have under the
mortgage instruments, upon written demand of the Owner, the Servicer shall remit
to the Owner the then unpaid principal balance of the related Mortgage Loan. The
Servicer shall maintain the fidelity bond and errors and omissions insurance
policy as provided for in Section 3.12 insuring the Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 5.3 Servicing Compensation
As compensation for its services hereunder, the Servicer shall be
entitled to pay itself the Servicing Fee with respect to each Mortgage Loan from
the gross amount of interest payments on such Mortgage Loan which are actually
received by the Servicer with respect thereto. Additional servicing compensation
in the form of all Ancillary Income which are actually received by the Servicer
may be retained by the Servicer to the extent not required to be deposited into
the Custodial Account pursuant to the terms of this Agreement. 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 in this Agreement.
Section 5.4 Annual Statements as to Compliance
(a) The Servicer shall deliver to the Owner, to any master servicer
and/or trustee which is master servicing or acting as trustee with respect to
any of the Mortgage Loans pursuant to a Securitization (each, a "Master
Servicer") and to the Sarbanes Certifying Party not later than the earlier of
(a) March 15 of each calendar year (other than the calendar year during which
the related Closing Date occurs) or (b) with respect to any calendar year during
which the annual report of the entity which is the depositor (or other party
responsible for filing Form 10-K with the Commission (as defined below)) of the
Mortgage Loans pursuant to a Securitization or other securitization transaction
(the "Depositor") on Form 10-K is required to be filed in accordance with the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Securities Exchange Commission (the "Commission"), 15
calendar days before the date on which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission (or, in each case, if such day is not a
Business Day, the immediately preceding Business Day), an Officer's Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
the Servicer during the preceding fiscal year and of performance under this
Agreement has been made under such officer's supervision (ii) based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to such officer and
the nature and status thereof and the actions being taken by the Servicer to
cure such default, and (iii) all reports and information provided to the Owner
by the Servicer, pursuant to the Servicer's reporting requirements under the
Agreement, are accurate and complete in all material respects. Copies of such
statement may be provided by the Owner to any Person identified as a prospective
purchaser of the Mortgage Loans.
(b) With respect to any Mortgage Loans that are subject to a
Securitization, not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or (b) with
respect to any calendar year during which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, in
each case, if such day is not a Business Day, the immediately preceding Business
Day), an officer of the Servicer shall execute and deliver an Officer's
Certificate in the form attached hereto as Exhibit D to the Sarbanes Certifying
Party for the benefit of the Master Servicer, the Sarbanes Certifying Party and
their respective officers, directors and affiliates.
(c) The Servicer shall indemnify and hold harmless the Master
Servicer and the Sarbanes Certifying Party (any such person, an "Indemnified
Party") from and against any Losses and related costs, judgments and other costs
and expenses arising out of or based upon a breach by the Servicer of its
obligations under this Section 5.4 or Section 5.5, or any material misstatement
or omission, negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any Indemnified Party, then the Servicer agrees
that it shall contribute to the amount paid or payable by the Indemnified Party
as a result of the Losses of the Indemnified Party in such proportion as is
appropriate to reflect the relative fault of the Indemnified Party on the one
hand and the Servicer on the other in connection with a breach of the Servicer's
obligations under this Section 5.4 or Section 5.5, or the Servicer's material
misstatement or omission, negligence, bad faith or willful misconduct in
connection therewith.
(d) It is acknowledged and agreed that each Master Servicer and the
Sarbanes Certifying Party shall be an express third party beneficiary of the
provisions of this Section 5.4 and shall be entitled independently to enforce
the provisions of this Section 5.4 with respect to any obligations owed to such
entity as if it were a direct party to this Agreement.
Section 5.5 Annual Independent Public Accountants' Servicing Report
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the related Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual report
on Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, 15 calendar days before the date on
which the Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the Commission
(or, in each case, if such day is not a Business Day, the immediately preceding
Business Day), 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 Owner, any Master Servicer and
the Sarbanes Certifying Party to the effect that such firm has examined certain
documents and records and performed certain other procedures relating to the
servicing of the Mortgage Loans during the immediately preceding calendar year
of the Servicer and that such firm is of the opinion that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such servicing has been conducted in
compliance therewith, except for such exceptions as shall be set forth in such
statement.
Section 5.6 Owner's Right to Examine Servicer Records, etc.
The Owner shall have the right, at the Owner's expense, except for
immaterial items in the ordinary course of business, to examine and audit the
Servicer's books of account, records, reports, and other papers relating to (i)
the performance by the Servicer of its obligations and duties under this
Agreement, or (ii) the Mortgage Loans, to make copies and extracts therefrom,
and to discuss the affairs, finances, and accounts of such Servicer relating to
such performance with its officers and employees, all at such reasonable times
and places and as often as may be reasonably requested.
Section 5.7 Consents and Approvals
The Owner shall timely obtain, at its sole cost and expense, the
consents and approvals required by law or pursuant to contract to consummate the
transactions contemplated hereby. All such consents will be obtained without any
cost or expense to the Servicer and will be obtained without any adverse
modification in the terms of any of the agreements relating to the Mortgage
Loans or the imposition of any burdensome provisions or conditions on the
Servicer.
Furthermore, the Servicer shall provide to the Owner, and for any
Owner 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 Owner,
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 Owner may
require, provided that the Owner shall pay the Servicer's reasonable fees and
expenses in connection with providing such reports or information. The Servicer
agrees to execute and deliver all such instruments and take all such action as
the Owner, from time to time, may reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
Section 5.8 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Whole Loan Transfer or a Pass-Through Transfer on One or More
Reconstitution Dates
(a) The Servicer and the Owner agree that with respect to some or
all of the Mortgage Loans, the Owner may effect one or more Whole Loan Transfers
and/or one or more Pass-Through Transfers. In connection with a Whole Loan
Transfer, the related Reconstitution Agreement shall provide that no more than
four (4) Persons shall have the status of "Owner" thereunder.
(b) With respect to each Whole Loan Transfer or Pass-Through
Transfer, as the case may be, entered into by Owner, Servicer agrees:
(i) negotiate in good faith and execute a servicer agreement
reasonably required to effectuate the Whole Loan Transfer or the
Pass-Through Transfer, as the case may be, provided such agreement creates
no greater obligation or cost on the part of the Servicer than otherwise
set forth in this Agreement, and provided further that the Servicer shall
be entitled to a servicing fee under that agreement at a rate per annum no
less than the Servicing Fee Rate;
(ii) to cooperate fully with the Owner and any prospective the Owner
with respect to all reasonable requests that are necessary to effect a
Pass-Through Transfer or Whole Loan Transfer;
(iii) provide as applicable:
(A) information pertaining to the Servicer of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer as are
reasonably believed necessary by the trustee, any rating agency or
the Owner, as the case may be, in connection with such Pass-Through
Transfer. The Owner shall pay all third party costs associated with
the preparation of the information described in clause (ii)(A) above
and the delivery of any opinions, letters or certificates described
in this clause (ii)(B). The Servicer shall not be required to
execute any servicer agreement unless a draft of the agreement is
provided to the Servicer at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for the
Servicer and its counsel to review and comment on the agreement;
(c) In connection with any Pass-Through Transfer, the Servicer, upon
request, will bring down the representations and warranties made in Section 2.1
in to a date no later than the related Reconstitution Date;
(d) In connection with any Pass-Through Transfer, the Servicer shall
indemnify, defend and hold harmless the Owner, the Depositor, and their
respective affiliates, directors, officers and employees from and against any
and all Losses to which any such Person may be subject to as a result of any
untrue statement of any material fact contained in any information (such
information, the "Indymac Information") prepared and furnished to the Owner or
the Depositor, by the Servicer for inclusion in any related offering document or
prospectus (collectively, "Offering Materials"), or arise out of, or are based
upon, any omission in the Indymac Information necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse to all such parties, as applicable, for damages
or expenses reasonably incurred by it, as they are incurred; provided, however,
that the Servicer shall be liable only insofar as such untrue statement or
omission relates solely to the Indymac Information in the Offering Materials
furnished to any such party by the Servicer specifically for inclusion in the
Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers 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 5.9 Compliance With REMIC Provisions
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held or transferred, the
Servicer shall not take any action, cause the REMIC to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on "prohibited transactions" as
defined in Section 860(a)(2) of the Code and the tax on "contributions" to a
REMIC set forth in Section 860(d) of the Code) unless the Servicer has received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such REMIC status
or result in the imposition of any such tax.
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims
Subject to Section 6.3, the Servicer agrees to indemnify and hold
harmless the Owner against any and all Losses that the Owner may sustain in any
way related to the failure of such Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, however, the Servicer
shall not be liable hereunder (a) to the extent such Losses directly result from
the Custodian's negligent action, negligent failure to act, bad faith, willful
misconduct or breach under the Custodial Agreement, dated as of February 1,
2004, among the Owner, Indymac and the Custodian,(b) with respect to any action
or inaction in accordance with the direction or consent of the Owner or (c)
resulting from the Owner's failure to respond to a request by the Servicer for
direction or consent in accordance with Section 3.1(c) hereof. The Servicer
shall immediately notify the Owner if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans. The Servicer shall assume (with
the written notification to the Owner) the defense of any such claim and pay all
reasonable expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Servicer or the Owner, subject to limitation pursuant to this
Section 6.1, in respect of such claim. The Servicer shall follow any written
instructions received from the Owner in connection with any such claim and the
Owner shall promptly reimburse the Servicer for all amounts reasonably advanced
by it pursuant to the preceding sentence, except when the claim (a) is related
to the Servicer's obligations to indemnify the Owner pursuant hereto, (b)
results from the failure of the Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement or (c) results from the Servicer's
willful misconduct, bad faith or negligence in performing its duties under this
Agreement.
With respect to any Mortgage Loan, in the event that the Owner
records or causes to be recorded in the appropriate public recording office of
the jurisdiction in which the related Mortgaged Property is located the related
Assignment of Mortgage which designates the Owner as the holder of record of the
Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding
the execution and delivery of release and reconveyance documents, and shall
immediately complete, sign and return to the Servicer any additional documents
that may be required of the holder of record of the Mortgage and may be
reasonably requested by the Servicer in order to permit the Servicer to comply
with the Servicer's servicing obligations, and, in its capacity as the holder of
record, shall take such other action as may be reasonably requested by the
Servicer. In addition, if, as a result of the recording of the related
Assignment of Mortgage, the Owner, in its capacity as the holder of record,
receives written notice of any action with respect to the related Mortgage or
the related Mortgaged Property, the Owner shall send a copy of such notice to
the Servicer immediately in accordance with the provisions of Section 9.8 of
this Agreement. The Owner agrees that the Servicer shall have no liability to
the Owner for the Owner's failure to comply with the provisions set forth in
this paragraph.
Section 6.2 Servicer Covenants; Merger or Consolidation of the
Servicer
(a) The Servicer covenants that it will keep in full force and
effect its existence, rights and franchises as a federal savings bank, and its
status as a Xxxxxx Xxx or Xxxxxxx Mac approved servicer in good standing and
will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement or any of
the Mortgage Loans and to perform its duties under this Agreement.
(b) Any Person into which the Servicer may be merged or
consolidated, or any business organization resulting from any merger, conversion
or consolidation to which the Servicer shall be a party, or any Person
succeeding to all or substantially all of the business or assets of the Servicer
(whether or not related to loan servicing), shall be the successor of the
Servicer 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 Servicer shall not, without the
prior written approval of the Owner, be a party to any such merger,
consolidation or conversion, or sell or otherwise dispose of all or
substantially all of its business or assets unless the successor or surviving
person shall be an institution that is a Xxxxxx Mae or Xxxxxxx Mac approved
servicer in good standing.
Section 6.3 Limitation on Liability of the Servicer and Others
The Servicer and the directors, officers, employees or agents of the
Servicer shall not be under any liability to the Owner for (a) any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, (b) errors in judgment, or (c) any action or inaction in accordance
with the direction or consent of the Owner; provided, however, this provision
shall not protect the Servicer against any breach of warranties or
representations made herein, any failure to perform its obligations in
accordance with any standard of care set forth in this Agreement (unless in
accordance with the direction or consent of the Owner), or any liability which
would otherwise be imposed by reason of willful misconduct, bad faith or
negligence in the performance of its duties or by reason of any breach of the
terms and conditions of the Agreement. The Servicer and any officer, employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Subject to Section 6.1, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties under this Agreement and which may involve it in any
expense or liability; provided, however, that the Servicer may, with the consent
of the Owner, undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights, duties and the interests of the
parties hereto. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be reimbursed to the Servicer in
accordance with Section 6.1.
Section 6.4 Servicer Not to Resign
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that the Servicer's duties hereunder are no longer permissible
under Applicable Requirements and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner. No such resignation shall become effective until a successor which
satisfies the requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
Without in any way limiting the generality of this Section 6.4, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its 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 consent of the Owner, then the Owner shall
have the right to terminate this Agreement upon notice given as set forth in
Section 8.2, without any payment of any penalty or damages and without any
liability whatsoever to the Servicer or any third party.
Section 6.5 No Transfer of Servicing
The Servicer acknowledges that the Owner has entered into this
Agreement with the Servicer in reliance upon the adequacy of the Servicer's
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, the Servicer shall not either
assign this Agreement or the servicing hereunder without the prior written
approval of the Owner in its sole discretion.
ARTICLE VII
DEFAULT
Section 7.1 Events of Default
In case one or more of the following Events of Default by the
Servicer shall occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when due any
payment required to be made under the terms of this Agreement, which
failure continues unremedied for a period of two (2) days 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 Owner; the Owner
shall use reasonable efforts to notify the Servicer that it has not
received the payment due, but the Owner's notice shall not be a condition
of the Event of Default; or
(ii) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the
Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, including
bankruptcy, marshaling 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 thirty (30) days; or
(iv) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or relating to all or substantially all of the Servicer's
property; or
(v) 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
obligation or ceases its normal business operations for three (3) Business
Days; or
(vi) failure by the Servicer to maintain its license to do business
in any jurisdiction where a Mortgaged Property is located if such license
is required and such failure continues unremedied for a period of thirty
(30) days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of this Agreement, including Section 6.5; or
(viii) the Servicer shall cease to be an approved servicer for
Xxxxxx Xxx or Xxxxxxx Mac.
(ix) the Servicer shall cease to have a minimum net worth of
$25,000,000 as determined in accordance with the Financial Accounting
Standards Board's generally accepted accounting principles;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Owner, by notice in writing to the Servicer (in each
such instance, the "Defaulted Servicer"), may, in addition to whatever rights
the Owner may have at law or equity to damages, including injunctive relief and
specific performance, commence termination of all of the rights and obligations
of the Defaulted Servicer under this Agreement and may exercise any and all
other remedies available at law or at equity. Upon receipt by the Defaulted
Servicer of such written notice from the Owner stating the intent to terminate
the Defaulted Servicer as servicer under this Agreement as a result of such
Event of Default, all authority and power of the Defaulted 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 Section 9.1. Upon
written request from the Owner, the Defaulted Servicer shall, at its sole
expense, prepare, execute, and deliver to a successor any and all documents and
other instruments, place in such successor's possession all Collateral Files and
Servicing 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, all of
which shall be undertaken immediately and shall be completed as soon as possible
and in all events by not later than thirty (30) Business Days following the
Owner's request therefor. The Defaulted Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Defaulted
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Defaulted Servicer to the Custodial
Account, the Escrow Account or the REO Account and all other amounts which may
thereafter be received with respect to the Mortgage Loans and to which the
Defaulted Servicer is not entitled pursuant to the terms of this Agreement.
Section 7.2 Waiver of Defaults
The Owner may waive any default by the Defaulted 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 7.3 Survival of Certain Obligations and Liabilities of the
Defaulted Servicer
The representations, warranties, covenants, indemnities and
agreements of the parties provided in this Agreement and the parties'
obligations hereunder shall survive the execution and delivery and the
termination or expiration of this Agreement. Notwithstanding any termination of
the rights and obligations of the Defaulted Servicer pursuant to this Section 7,
the Defaulted Servicer shall remain liable for any actions of the Defaulted
Servicer prior to the effective time of such termination.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement
This Agreement shall terminate upon any of: (i) the later of the
distribution to the Owner of final payment or liquidation with respect to the
last Mortgage Loan and each REO Property, or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder, (ii) the
mutual consent of the parties in writing, or (iii) the termination of the
Servicer pursuant to Section 8.2.
Section 8.2 Termination of the Servicer due to an Event of Default
(a) Upon 30 days' written notice, the Owner may, at its sole option,
upon the occurrence of an Event of Default and in accordance with Section 7.1,
terminate any rights the Servicer may have hereunder. Any such notice of
termination shall be in writing and delivered to the terminated Servicer (in
such instance, the "Terminated Servicer") by registered mail as provided in
Section 9.8 of this Agreement. If the Owner so terminates the rights of a
Terminated Servicer, the Owner with full cooperation of the Terminated Servicer
shall arrange for the transfer of servicing to, at the Owner's option, the Owner
or a third party, and the Terminated Servicer shall continue servicing, for the
Servicing Fee provided herein, the Mortgage Loans under this Agreement until the
Owner gives the Terminated Servicer notice of the transfer and such transfer has
been completed.
(b) The Terminated Servicer agrees to cooperate with the Owner and
such successor in effecting the termination of the Terminated Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Terminated Servicer to the Custodial
Account, the Escrow Account or the REO Account, or thereafter be received with
respect to the Mortgage Loans and to which the Terminated Servicer is not
entitled pursuant to the terms of this Agreement.
Section 8.3 Termination Without Cause
Upon at least 30 days prior notice, the Owner may terminate, at its
sole option, the Servicer without cause. Any such notice of termination shall be
in writing and delivered to the Servicer and any Rating Agency by registered
mail as provided in Section 9.7. In the event the Owner so chooses to terminate
the Servicer, the Servicer shall be entitled to receive, as liquidated damages,
upon its termination as Servicer hereunder without cause pursuant to this
Section 8.3, an amount equal to four percent (4%) of the aggregate outstanding
principal amount of each Mortgage Loan as of the termination date paid by the
Owner to the Servicer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer
(a) Prior to termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 6.4, 7.1, 8.1 or 8.2, the Owner
shall either (i) succeed to and assume all of the Servicer's responsibilities,
rights, duties, and obligations under this Agreement from and after the date of
such succession or (ii) appoint a successor to the Servicer that shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement pursuant to
Section 8.2 above. In the event that the Servicer's duties, responsibilities,
and liabilities under this Agreement shall be terminated pursuant to the
foregoing Sections, the Servicer shall discharge such duties and
responsibilities, and be compensated therefor as provided in this Agreement,
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
foregoing Sections shall not become effective until a successor shall have been
appointed pursuant to this Section and shall in no event relieve the Servicer of
its non-servicing duties, obligations, covenants, representations and
warranties, it being understood and agreed that the provisions of Sections 5.10,
6.1, Article 7 and Article 8 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer or the termination of this
Agreement.
(b) The Servicer shall promptly deliver to the successor (i) the
funds in the Custodial Account and the Escrow Account to which the Owner is
entitled pursuant to the terms of this Agreement, (ii) all other funds to which
the Owner is entitled pursuant to the terms of this Agreement net of any
unreimbursed Advances, (iii) all other amounts which may thereafter be received
with respect to the Mortgage Loans and to which the Servicer is not entitled
pursuant to the terms of this Agreement and (iv) all Collateral Files and
Servicing Files and related documents and statements held by it hereunder. The
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such, the Owner
shall notify the Servicer of such appointment.
Section 9.2 Amendment
This Agreement may be amended from time to time by the parties by
written agreement signed by both of the parties.
Section 9.3 Duration of Agreement
This Agreement shall continue in existence and effect until
terminated as herein provided.
Section 9.4 Governing Law
THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS OF NEW
YORK OR ANY OTHER JURISDICTION.
Section 9.5 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs, and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 9.6 Reproduction of Documents
This Agreement and all documents relating hereto, including without
limitation (i) consents, waivers, and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 9.7 Notices
All demands, notices, consents, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or delivered by facsimile, overnight courier, or registered
mail, postage prepaid, or delivered by telefacsimile, to:
(i) in the case of the Servicer, at the address set forth below or
such other address as may hereafter be furnished to the Owner in writing
by the Servicer:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
(ii) in the case of the Owner, at the address set forth below, or
such other address as may hereafter be furnished to the Servicer by the
Owner:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx Farkovits
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Mortgage Company
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and in the case of any subsequent Owner, as set forth in written notice supplied
to the Servicer by such subsequent Owner. All reports that are due to the Owner
from the Servicer pursuant to Section 4.2 shall be deemed to have been duly
given if delivered to the Internet address from time to time provided by the
Owner to the Servicer.
Section 9.8 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or the rights of the Owner
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 9.9 Disclosure of Relationship
Each party (including the respective affiliates) shall have the
right upon obtaining prior written consent from the other party, from time to
time, to publish, distribute, advertise or otherwise disclose the relationship
and the general services created and performed under this Agreement; provided,
however, such disclosure shall not identify the amount or nature of fees earned
or to be paid hereunder. No disclosure permitted by this Section 9.10 shall
include any Mortgagor information.
Section 9.10 Exhibits and Schedules
The following exhibits and schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement:
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
Section 9.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 6.4, 6.5, 7.1 and
8.1, this Agreement shall inure to the benefit of and be binding upon the
Servicer, the Owner and their respective successors and assigns.
Section 9.12 Effect of Headings
The headings in this Agreement are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
Section 9.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof.
Section 9.14 Confidentiality
Each of the Owner 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 such terms is reasonably
believed by such party to be required in connection with regulatory requirements
or other legal requirements relating to its affairs; (b) such terms are
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) such
terms are disclosed in a prospectus, prospectus supplement or private placement
memorandum relating to a Securitization of the Mortgage Loans by the Owner (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.
[signatures start on next page]
IN WITNESS WHEREOF, the Servicer and the Owner have caused their
names to be signed to this Servicing Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
SERVICER:
INDYMAC BANK, F.S.B.
By:____________________________________
Name:
Title:
OWNER:
XXXXXXX SACHS MORTGAGE COMPANY
By:____________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
LIST OF CREDIT DOCUMENTS
Copy of Note
Copy of Mortgage or Deed of Trust, including all riders
Copy of all riders to Note and Mortgage or Deed of Trust
Settlement statement (HUD 1)
Copy of PMI Certificate (if applicable)
Appraisal
Flood determination certificate
Hazard Insurance declaration page
Loan application
EXHIBIT C
LIST OF DOCUMENTS IN COLLATERAL FILE
(a) the original Mortgage Note bearing all intervening endorsements, endorsed in
blank and signed in the name of the Seller by an officer thereof;
(b) the original Assignment of Mortgage with assignee's name left blank;
(c) the original of any guarantee executed in connection with the Mortgage Note;
(d) the original Mortgage with evidence of recording thereon, or if any such
mortgage has not been returned from the applicable recording office or has been
lost, or if such public recording office retains the original recorded mortgage,
a photocopy of such mortgage certified by the Seller to be a true and complete
copy of the original recorded mortgage;
(e) the originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(f) the originals of all intervening assignments of mortgage with evidence of
recording thereon, or if any such intervening assignment of mortgage 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, a
photocopy of such intervening assignment of mortgage, certified by the Seller to
be a true and complete copy of the original recorded intervening assignment of
mortgage;
(g) the original mortgagee title insurance policy including an Environmental
Protection Agency Endorsement and, with respect to any Adjustable Rate Mortgage
Loan, an adjustable-rate endorsement;
(h) the original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage;
(i) a copy of any applicable power of attorney; and
(j) with respect to any Cooperative Loan, the applicable Cooperative Loan
Documents.
EXHIBIT D
FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of IndyMac
Bank, F.S.B., (the "Servicer"), hereby certify, pursuant to Section 5.4 of that
certain Servicing Agreement (the "Agreement"), dated as of [DATE] between the
Servicer and Xxxxxxx Sachs Mortgage Company (the "Owner"), to [ENTITY NAME] (the
"Beneficiary") with respect to the calendar year immediately preceding the date
of this Certificate, as follows:
1. I have reviewed the annual statement of compliance ("Annual Statement of
Compliance") prepared by Servicer, and the annual independent public
accountant's servicing report made in accordance with the Uniform Single
Attestation Program for Mortgage Bankers ("Annual Independent Public
Accountant's Servicing Report"), which have been furnished to the
Beneficiary pursuant to the Agreement and any subsequent servicing
agreement related thereto or to the Mortgage Loans (collectively, the
"Servicing Agreement");
2. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report
and all final servicing reports prepared by Servicer and delivered to the
Beneficiary pursuant to the Servicing Agreement relating to the servicing
of the Mortgage Loans, taken as a whole, does not contain any untrue
statement of material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period
covered by such statements or reports;
3. Based on my knowledge, the servicing information required to be provided
to the Beneficiary by the Servicer under the Servicing Agreement has been
provided to the Beneficiary;
4. I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required by the
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance and the Annual Independent Public Accountant's Servicing Report
submitted to the Beneficiary, the Servicer has, as of the last day of the
period covered by the Annual Statement of Compliance, fulfilled its
obligations under the Servicing Agreement; and
5. I have disclosed to the Beneficiary's certified public accountants all
significant deficiencies relating to the Servicer's compliance with the
minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Servicing Agreement.
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of June 1, 2004 ("Amendment"), to the
Servicing Agreement, dated as of February 1, 2004, and as further amended,
modified and supplemented from time to time (the "Servicing Agreement"), between
XXXXXXX XXXXX MORTGAGE COMPANY, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Owner"), and INDYMAC BANK, F.S.B., having an address at 0000
Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("Servicer").
RECITALS
WHEREAS, the parties hereto have entered into the Servicing
Agreement;
WHEREAS, the parties hereto desire to modify the Servicing Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Servicing Agreement are used herein as therein defined.
2. Amendments.
(a) The defined term "Ancillary Income" of the Servicing Agreement
is hereby amended by deleting such tem in its entirety and replacing it with the
following:
"Ancillary Income: All income if any, derived from any Mortgage
Loan, including but not limited to late charges, fees received with
respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, speed pay fees, reconveyance
and demand statement fees, loan modification fees and reamortization
fees."
(b) Section 3.4 of the Servicing Agreement is hereby amended by
deleting clause (b)(i) in its entirety and replacing it with the following
clause:
"all payments on account of principal, including Principal
Prepayments and, except as otherwise expressly provided in the
related Purchase Price and Terms Letter, the Prepayment Charges,
actually collected by the Servicer on the Mortgage Loans;"
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Servicing Agreement is in all
respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SERVICER:
INDYMAC BANK, F.S.B.
By:
------------------------------------
Name:
Title:
OWNER:
XXXXXXX SACHS MORTGAGE COMPANY
By:
------------------------------------
Name:
Title:
EXHIBIT P
MASTER MORTGAGE LOAN PURCHASE AGREEMENT,
DATED AS OF JULY 1, 2004, BETWEEN COUNTRYWIDE HOME
LOANS, INC. AND XXXXXXX XXXXX MORTGAGE COMPANY
COUNTRYWIDE HOME LOANS, INC.,
as Seller
and
XXXXXXX SACHS MORTGAGE COMPANY,
as Purchaser
-----------------------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of July 1, 2004
----------------------------------------
Fixed and Adjustable Rate Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I.
DEFINITIONS
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans..........
Section 2.02 Due Diligence by the Purchaser..........................
Section 2.03 Identification of Mortgage Loan Package.................
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence...............................................
Section 2.05 Delivery of Collateral Files............................
Section 2.06 Purchase Confirmation...................................
Section 2.07 Closing.................................................
Section 2.08 Payment of the Purchase Proceeds........................
Section 2.09 Entitlement to Payments on the Mortgage Loans...........
Section 2.10 Payment of Costs and Expenses...........................
Section 2.11 MERS Mortgage Loans and the MERS System.................
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide...
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans..........................................
Section 3.03 Remedies for Breach of Representations and Warranties...
Section 3.04 Accrual of Cause of Action..............................
Section 3.05 Representations and Warranties Respecting the
Purchaser...............................................
ARTICLE IV.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Countrywide to Act as Servicer..........................
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide..........................
Section 5.02 Third Party Claims......................................
Section 5.03 Merger or Consolidation of Countrywide..................
Section 5.04 Limitation on Liability of Countrywide and Others.......
Section 5.05 No Transfer of Servicing................................
ARTICLE VI.
MISCELLANEOUS
Section 6.01 Notices.................................................
Section 6.02 Sale Treatment..........................................
Section 6.03 Exhibits................................................
Section 6.04 General Interpretive Principles.........................
Section 6.05 Reproduction of Documents...............................
Section 6.06 Further Agreements......................................
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers..................................
Section 6.08 Conflicts between Transaction Documents.................
Section 6.09 Governing Law...........................................
Section 6.10 Severability Clause.....................................
Section 6.11 Successors and Assigns..................................
Section 6.12 Relationship of Parties.................................
Section 6.13 Solicitation of Mortgagor...............................
Section 6.14 Confidentiality.........................................
Section 6.15 Entire Agreement........................................
EXHIBITS
--------
Exhibit A Schedule of Collateral Documents...........................
Exhibit B Form of Purchase Confirmation..............................
Exhibit C Form of Custodial Agreement................................
Exhibit D Form of Trade Confirmation.................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of July 1, 2004 (the "Agreement"), between Countrywide Home Loans, Inc.,
having an address at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Countrywide"), and Xxxxxxx Xxxxx Mortgage Company, having an address at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 the "Purchaser").
R E C I T A L S
- - - - - - - -
The Purchaser has agreed to purchase from Countrywide and
Countrywide has agreed to sell from time to time to the Purchaser all of
Countrywide's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Countrywide and the Purchaser. This Agreement is intended to
set forth the terms and conditions by which Countrywide shall transfer and the
Purchaser shall acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Mae or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California, the State of New York, or the State of Texas are authorized or
obligated by law or executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 4.4 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The letter agreement, substantially in the form
of Exhibit C, that governs the temporary retention of the Collateral Files by
the Custodian with respect to a Closing Date.
Custodian: JPMorgan Chase Bank, its successor in interest or assign,
or such other custodian that may be designated by the Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in its highest rating categories
at the time of any deposit therein [or one of its two highest rating categories
for long term debt obligations], or (ii) the deposits of which are insured up to
the maximum permitted by the FDIC.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
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 Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Countrywide in connection
with the liquidation of a defaulted Mortgage Loan through trustee's sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Cooperative
Loan, The mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien , upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security 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 Cooperative Loan
and the related Cooperative Lease
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note..
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Other Insurance Proceeds, REO Disposition proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) Countrywide's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property; (3) a code indicating
whether the Mortgaged Property is a single family residence, two-family
residence, three-family residence, four family residence or planned unit
development; (4) the purpose of the Mortgage Loan; (5) the Mortgagor's social
security number; (6) a code indicating the occupancy status of the Mortgaged
Property (i.e., owner-occupied, non-owner, second home); (7) a code indicating
whether the Mortgagor was self-employed at the time of origination; (8) the
Mortgage Interest Rate at origination; (9) the current Mortgage Interest Rate;
(10) whether the Mortgage Loan has Monthly Payments that are interest only for a
period of time; (11) the Servicing Fee Rate; (12) the current Monthly Payment;
(13) the original term to maturity; (14) the remaining term to maturity; (15)
the scheduled principal balance of the Mortgage Loan as of the Cut-off Date;
(16) the principal balance of the Mortgage Loan at origination; (17) the
principal balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (18) the LTV at origination or, if the Mortgage Loan was secured by a
second lien, the combined LTV at origination; (19) the due date of the Mortgage
Loan; (20) a PMI Policy insurer name, percent and policy number (if applicable);
(21) the type of appraisal; (22) a code indicating whether the Mortgage Loan is
a MERS Mortgage Loan; (23) a code indicating whether the Mortgaged Property has
any subordinate financing; (24) a code indicating whether the Mortgage Loan is
secured by a leasehold interest in the related Mortgaged Property; (25) a code
indicating whether the Mortgage Loan is subject to a prepay penalty; (26)
documentation type; (27) a code indicating whether the Mortgage Loan is a
buydown loan; (28) first payment date and (29) FICO score. With respect to any
Adjustable Rate Mortgage Loan, in addition to (1) through (29) above: (a) the
Gross Margin; (b) the Periodic Rate Cap; (c) the Lifetime Rate Cap; (d) the
first Interest Adjustment Date and the Interest Adjustment Date frequency; (e)
the Maximum Rate; (f) the Minimum Rate; (g) the first Interest Adjustment Date
immediately following the Cut-off Date; and (h) the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative 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 and their successors in
title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
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 Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02, are intended to be sold under this
Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), 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.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Countrywide and the Purchaser in connection
with the purchase and sale of each Mortgage Loan Package, which sets forth the
terms relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Countrywide in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 6.07.
Qualification Defect: With respect to a Mortgage Loan, (a) a
materially defective document in the Mortgage File, (b) the absence of a
material document in the Mortgage File, or (c) the breach of any material
representation, warranty or covenant with respect to the Mortgage Loan made by
Countrywide, but, in each case, only if the affected Mortgage Loan would cease
to qualify as a "qualified mortgage" for purposes of the REMIC Provisions.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., an Adjustable Rate
Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 6.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate in writing.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan as of the date of
repurchase plus (ii) interest on such Stated Principal Balance at the Mortgage
Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect to
any Mortgage Loan included in a Pass-Through Transfer, damages incurred by the
Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law.
S&P: Standard and Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor in interest
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicing Agreement: The agreement dated as of July 1, 2004 and
signed by the Purchaser and Countrywide with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion of such
Monthly Payment collected by Countrywide, or as otherwise provided herein.
Subject to the foregoing, and with respect to each Mortgage Loan, Countrywide
shall be entitled to receive its Servicing Fee through the disposition of any
related REO Property and the Servicing Fee payable with respect to any REO
Property shall be based on the Stated Principal Balance of the related Mortgage
Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the 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.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Countrywide and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation and this
Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer.
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans
From and after the sale of the Mortgage Loans to the Purchaser, all
rights arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans on account of interest and
principal due after the Cut-off Date, shall be held by the Servicer in trust for
the benefit of the Purchaser as owner of the Mortgage Loans, and the Servicer
shall retain record title to the related Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The sale of each Mortgage Loan shall be reflected on Countrywide's
balance sheet and other financial statements as a sale of assets by Countrywide.
Countrywide shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
Countrywide shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of FNMA or FHLMC, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by FNMA or FHLMC, and periodic
inspection reports as required by Section 3.15 of the Servicing Agreement. To
the extent that original documents are not required for purposes of realization
of Liquidation Proceeds or Insurance Proceeds, documents maintained by
Countrywide may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including but not limited to, optical
imagery techniques so long as Countrywide complies with the requirements of the
FNMA or FHLMC Selling and Servicing Guide, as amended from time to time.
Section 2.02 Due Diligence by the Purchaser.
Review of Credit File. Prior to the Closing Date, Countrywide shall
make available to the Purchaser the Credit File for each Preliminary Mortgage
Loan in the related Preliminary Mortgage Loan Package and shall accommodate
reasonable requests by the Purchaser to provide personnel and documents as
necessary to facilitate the review. The Purchaser shall have the right to review
the Credit File for each such Preliminary Mortgage Loan, at Countrywide's
offices or such other location agreed upon by the Purchaser and Countrywide, for
the purpose of determining whether each Preliminary Mortgage Loan conforms in
all material respects to the applicable terms contained in the Transaction
Documents, which determination shall be made in the Purchaser's reasonable and
good faith discretion. In the event that the Purchaser rejects any Preliminary
Mortgage Loan based on such review, Countrywide shall have the opportunity, at
the discretion of the Purchaser, to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's or any of its successors' rights to demand
repurchase or other relief or remedy provided for in this Agreement.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File is
missing material documentation (as used therein, the "Missing Credit
Documents"), Countrywide agrees to use its best efforts to procure each such
Missing Credit Document within sixty (60) days following the related Closing
Date. In the event of a default by a Mortgagor or any material impairment of the
Mortgaged Property, in either case directly arising from a breach of
Countrywide's obligation to deliver the Missing Credit Document within the time
specified above, Countrywide shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Countrywide shall, on or before the Business
Day prior to the related Closing Date, pursuant to the Custodial Agreement
deliver and release to the Custodian the Collateral File for each Mortgage Loan
in the Mortgage Loan Package and shall execute, and cause the Custodian to
execute, the Custodial Agreement. The Custodian has certified its receipt of all
such Collateral Documents required to be delivered pursuant to the Custodial
Agreement. Countrywide will be responsible for the fees and expenses with
respect to the delivery and will be responsible for the fees and expenses
related to the recording of the initial Assignments of Mortgage (including any
fees and expenses related to any preparation and recording of any intervening or
prior assignments of the Mortgage Loans to Countrywide or to any prior owners of
or mortgagees with respect to the Mortgage Loans) or Form UCC-3's for
Cooperative Loans. The Purchaser will be responsible for the Custodian's fees
and expenses with respect to the initial inventory and maintenance of the
Mortgage Loans on or after the Closing Date, including the costs associated with
clearing exceptions.
Countrywide shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 3.1(c) or 5.1 of the
Servicing Agreement within thirty (30) days of their execution, provided,
however, that Countrywide shall provide the Custodian with a certified true copy
of any such document submitted for recordation within ten (10) days of its
execution, and shall provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 120 days
of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, Countrywide shall deliver to the Custodian within 360 days of
its submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. Countrywide will be required to
deliver the document to the Custodian by the date specified in (iv) above. An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.05 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
Countrywide in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Countrywide cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Countrywide shall deliver instead a
recording receipt of such recording office or, if such recording receipt is not
available, an Officer's Certificate from Countrywide confirming that such
documents have been accepted for recording. Any such document shall be delivered
to the Purchaser or its designee promptly upon receipt thereof from the related
recording office.
If Countrywide, the Purchaser or the Custodian finds any document or
documents constituting a part of a Mortgage File pertaining to a Mortgage Loan
to be defective (or missing) in any material respect, and such defect or missing
document materially and adversely affects the value of the related Mortgage Loan
or the interests of the Purchaser therein, the party discovering such defect
shall promptly so notify Countrywide. Countywide shall have a period of 90 days
after receipt of such written notice within which to correct or cure any such
defect. Countrywide hereby covenants and agrees that, if any material defect
cannot be corrected or cured, Countrywide will, upon the expiration of the
applicable cure period described above, repurchase the related Mortgage Loan in
the manner set forth in Section 3.03; provided, however, that with respect to
any Mortgage Loan, if such defect constitutes a Qualification Defect, any such
repurchase must take place within 90 days of the date such defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, Countrywide delivers an Officer's Certificate
to the Purchaser certifying that Countrywide is using good faith efforts to
correct or cure such defect and identifying progress made, then the Purchaser
shall grant Countrywide an extension to correct or cure such defect. The
extension shall not extend beyond (1) the date that is 90 days after the date
the defect is discovered, or, (2) if the defect is not a Qualification Defect
(as evidenced by an Opinion of Counsel), the date that is 30 days beyond the
original 90-day cure period. If the defect is not a Qualification Defect,
additional 30-day extensions may be obtained pursuant to the same procedure, as
long as Countrywide demonstrates continued progress toward a correction or cure;
provided that no extension shall be granted beyond 180 days from the date on
which Countrywide received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify Countrywide of any defective or missing
document in a Mortgage File within such 90-day period, or the failure of the
Purchaser to require Countrywide to cure or repurchase the related Mortgage Loan
upon expiration of such 90-day period, shall not constitute a waiver of its
rights hereunder, including the rights with respect to a Mortgage Loan, to
require Countrywide to repurchase the affected Mortgage Loan and the right to
indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Countrywide shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Countrywide.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Countrywide under
this Agreement shall be true and correct as of the Closing Date and no event
shall have occurred that, with notice or the passage of time, would constitute a
default under this Agreement;
(b) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct as of the Closing Date and no event
shall have occurred that, with notice or the passage of time, would constitute a
default under this Agreement;
(c) Both parties shall have executed and delivered the related
Purchase Confirmation and Custodial Agreement;
(d) Countrywide shall have delivered and released to the Custodian
all documents required pursuant to this Agreement and the Custodial Agreement;
and
(e) All other terms and conditions of this Agreement have been
complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Countrywide on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Countrywide on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Countrywide shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. Without limiting the generality
of the foregoing, any costs and expenses incurred in connection with recording
the Assignment of Mortgage or any subsequent assignment thereof shall be paid
for by the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Countrywide pursuant to this Agreement, Countrywide shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Countrywide shall be in lieu of Countrywide delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Countrywide shall, in accordance with Section 2.05, provide the Purchaser with
the original Mortgage with evidence of registration with MERS and, as
applicable, the originals of all intervening assignments of the Mortgage with
evidence of recording thereon prior to the registration of the Mortgage Loan
with the MERS System.
(b) In connection with the MERS System, Countrywide is hereby
authorized and empowered, in its own name, to register, or change the
registration of any MERS Mortgage Loan to effectuate such registration. Further,
Countrywide is authorized to cause the removal of any MERS Mortgage Loan from
such registration, and to execute and deliver on behalf of itself and the
Purchaser, any and all instruments of assignment and comparable instruments with
respect to any registration and/or removal of such MERS Mortgage Loan on or from
the MERS System.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement. The execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
Countrywide and the consummation of the transactions contemplated hereby have
been duly and validly authorized. This Agreement evidences the valid, binding
and enforceable obligation of Countrywide; and all requisite corporate action
has been taken by Countrywide to make this Agreement valid and binding upon
Countrywide in accordance with its terms;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Countrywide, which is in the business of selling and servicing
loans, and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Countrywide pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of the
Mortgage Loans by Countrywide, 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
Countrywide's certificate of incorporation or by-laws or result in a material
breach of any legal restriction or any material agreement or instrument to which
Countrywide is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Countrywide or its property is subject;
(e) Approved Seller. Countrywide is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of
HUD. No event has occurred, including a change in insurance coverage, which
would make Countrywide unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD
eligibility requirements;
(f) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Countrywide to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Countrywide's ability to
perform its obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Countrywide, of or compliance by Countrywide with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Countrywide acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Countrywide, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Countrywide 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. Countrywide is solvent and the sale of the
Mortgage Loans will not cause Countrywide to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of
Countrywide's creditors;
(j) No Untrue Information. Neither this Agreement nor any statement,
report or other document prepared and furnished, or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby, by
Countrywide contains any untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading;
(k) Sale Treatment. Countrywide has determined that the disposition
of the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) Fair Credit Report Act. Servicing LP, in its capacity as
servicer for each Mortgage Loan, has fully furnished (or caused to be
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) or their
successors and assigns, on a monthly basis; and
(m) No Brokers' Fees. Countrywide has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Countrywide represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
and credited prior to the related Cut-off Date for such Mortgage Loan under the
terms of the Mortgage Note have been made; Countrywide has not advanced funds,
or induced, solicited or knowingly received any advance of funds from a party
other than the owner of the Mortgaged Property subject to the Mortgage, directly
or indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no delinquency of more than thirty (30) days in any payment by
the Mortgagor thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. There
are no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The substance
of any such waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Collateral File and the terms of
which are reflected in the Mortgage Loan Schedule if executed prior to the
Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings upon the Mortgaged
Property are insured in an amount which is not less than the lesser of (i) the
maximum insurable value of the Mortgaged Property and (ii) the greater if (a)
the outstanding principal balance of the Mortgage Loan, and (b) an amount that
would prevent the Mortgagor from becoming a co-insurer, by an insurer acceptable
to an Agency against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
and such insurer is licensed to do business in the state where the Mortgaged
Property is located. All such insurance policies contain a standard mortgagee
clause naming Countrywide, its successors and assigns as mortgagee, and all
premiums thereon have been paid. If, upon the origination of the Mortgage Loan,
the Mortgaged Property was, or was subsequently deemed to be, 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),
a flood insurance policy that meets the requirements of the current guidelines
of the Federal Insurance Administration (or any successor thereto) and conforms
to the requirements of an Agency is in effect. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's expense
and, upon the failure of the Mortgagor to do so, the holder of the Mortgage is
authorized to maintain such insurance at the Mortgagor's expense and to seek
reimbursement therefor from the Mortgagor;
(g) Compliance with Applicable Law. Each Mortgage Loan at the time
of origination complied in all material respects with applicable local, state
and federal laws including without limitation usury, truth in lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity, fair housing, predatory and abusive lending and disclosure laws
applicable to the Mortgage Loan, including applicable regulations, and
Countrywide 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 Release 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;
(i) Enforceability of Mortgage Documents. The Mortgage Note, the
Mortgage and any related modifications, assignments and assumptions are genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or similar laws;
(j) Valid First Lien on Mortgage Loans that are not Cooperative
Loans. Each related Mortgage is a valid, subsisting and enforceable first lien
or a first priority ownership interest in an estate in fee simple in the
Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related Mortgage
Note, except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgage may secure and create a first lien upon a
leasehold estate of the Mortgagor. 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 public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that do not adversely affect
the Appraised Value (as evidenced by an appraisal referred to in such
definition) 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 and enforceable first lien and first priority
security interest on the property described therein and Countrywide has full
right to sell and assign the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to each
Cooperative Loan, the related Mortgage is a valid, enforceable and subsisting
first security interest on the related cooperative shares securing the related
cooperative note and lease, subject only to (a) liens of the cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
cooperative'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 intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Countrywide's security interest in such
cooperative shares;
(l) With respect to each Cooperative Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to FNMA and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Cooperative Loan;
(m) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the
Internal Revenue Code, and is in material compliance with applicable federal,
state and local laws which, if not complied with, could have a material adverse
effect on the Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to which a
Mortgaged Property may be subject: (i) the Mortgagor is the owner of a valid and
subsisting leasehold interest under such ground lease: (ii) such ground lease is
in full force and effect, unmodified and not supplemented by any writing or
otherwise; (iii) all rent, additional rent and other charges reserved therein
have been fully paid to the extent payable as of the Closing Date; (iv) the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any of the
terms of such ground lease, and there are no circumstances which, with the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not in
default under any of the terms or provisions of such ground lease on the part of
the lessor to be observed or performed; (vii) the lessor under such ground lease
has satisfied any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; and (viii) the execution, delivery
and performance of the Mortgage do not require the consent (other than those
consents which have been obtained and are in full force and effect) under, and
will not contravene any provision of or cause a default under, such ground lease
(p) Disbursements of Proceeds. 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 recording 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;
(q) Sole Owner. Countrywide is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Countrywide has
good 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, lien,
pledge, participation interests, charge, claim or security interest not
specifically set forth in the related Mortgage Loan Schedule 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 the terms of this
Agreement;
(r) Title Insurance. Each Mortgage Loan is covered by an ALTA
lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Countrywide, its successors and assigns as to
the first priority lien of the Mortgage. 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.
Countrywide is the sole insured of such lender's title insurance policy, and
such lender's title insurance policy is in full force and effect and will be in
full force and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including Countrywide, has
done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy;
(s) No Default. There is no default, breach, violation or event of
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 of
acceleration, and Countrywide has not waived any default, breach, violation or
event of acceleration;
(t) 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 lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(u) Origination and Collection Practices. The origination and
collection practices used by Countrywide with respect to each Mortgage Loan and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
Escrow Payments, if any, all such payments are in the possession of, or under
the control of, Countrywide and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Countrywide have been capitalized under any Mortgage or the related Mortgage
Note. All payments have been collected in compliance with local, state and
federal law and the terms of the related Mortgage Note. With respect to
Adjustable Rate Mortgage Loans, all Mortgage Interest Rate adjustments have been
made in strict compliance with local, state and federal law and the terms of the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(v) No Condemnation or Damage. Each Mortgaged Property is free of
material damage and waste and there is no proceeding pending or, to the best of
Countrywide's knowledge, threatened for the total or partial condemnation
thereof;
(w) Customary and Enforceable 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 (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. 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;
(x) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage;
(y) Appraisal. Unless the Mortgage Loan was underwritten pursuant to
one of Countrywide's streamline documentation programs, the Credit File contains
an appraisal of the related Mortgaged Property signed prior to the approval of
the Mortgage Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency for appraisers, duly appointed by the originator,
that had no interest, direct or indirect in the Mortgaged Property, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan; the appraisal is in a form acceptable to an Agency, with such riders as
are acceptable to such Agency; furthermore, the appraisal type for each Mortgage
Loan is accurately reflected on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage constitutes
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in 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;
(aa) Private Mortgage Insurance. Each Mortgage Loan, with an LTV at
origination in excess of eighty percent (80%) is and will be subject to a PMI
Policy issued by an insurer acceptable to FNMA or FHLMC, in at least such
amounts as required by FHMA or FHLMC. 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. Any Mortgage subject to any such PMI
Policy obligates the Mortgagor thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith or, in the case of a lender
paid mortgage insurance policy, the premiums and charges are included in the
Mortgage Interest Rate for the Mortgage Loan;
(bb) Lawfully Occupied. At origination, the Mortgaged Property was
lawfully occupied under applicable law. To the best of Countrywide's knowledge,
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 certificates of occupancy, have been
made or obtained from the appropriate authorities. No improvements violate local
zoning laws;
(cc) Assignment of Mortgage. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to an Agency;
(ee) Predatory Lending Regulations; High Cost Loans. None of the
Mortgage Loans are classified as (a) "high cost" loans under the Home Ownership
and Equity Protection Act of 1994 or (b) "high cost," "threshold," "predatory"
or "covered" loans or "High Cost Home Loans" under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology);
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The consolidated principal amount does not exceed the original principal amount
of the Mortgage Loan;
(gg) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the Mortgage Loan Schedule and consists of
a single parcel (or more than one contiguous parcels) of real property with a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project, or an
individual unit in a planned unit development or a townhouse;
(hh) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above
(ii) Servicemembers Civil Relief Act. The Mortgagor has not notified
Countrywide, and Countrywide has no knowledge of any relief requested or allowed
to the Mortgagor under the Servicemembers Civil Relief Act or any similar state
law;
(jj) Payment Terms. The Mortgage Note is payable on the first day of
each month in equal monthly installments of principal and interest (or interest,
in the case of any Mortgage Loan for which monthly payments consist of only
interest for a period of time specified on the Mortgage Loan Schedule),
(provided that, the installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date
with respect to an Adjustable Rate Mortgage, and interest is calculated and
payable in arrears) providing for full amortization by maturity over a scheduled
term of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of the related Mortgage Note, from having interest accrue on the principal
amount thereof based on an adjustable rate to having interest accrue based on a
fixed rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination. At the time the Mortgage Loan was originated, the
originator was a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or a
savings and loan association, a saving bank, a commercial bank or similar
banking institution which is supervised by a Federal or State authority.
(ll) Loan-to-Value Ratio; Modifications; No Foreclosures. The
Loan-to-Value Ratio of each Mortgage Loan was no greater than 100% at the time
of its origination or refinancing, as applicable. No Mortgage Loan is subject to
a written foreclosure agreement or pending foreclosure proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was underwritten in
accordance with Countrywide's underwriting guidelines in effect at the time of
origination with exceptions thereto exercised in a reasonable manner;
(nn) Adverse Selection. Countrywide used no adverse selection
procedures in selecting the Mortgage Loan from among the outstanding first-lien
residential mortgage loans owned by it which were available for inclusion in the
Mortgage Loan Package;
(oo) Environmental Matters. To the best of Countrywide's knowledge,
the Mortgaged Property is free from any and all toxic or hazardous standards and
there exists no violation of any local, state or federal environmental law, rule
or regulation. There is no pending action or proceeding directly involving any
Mortgaged Property of which Countrywide is aware in which compliance with any
environmental law, rule or regulation is an issue. To the best of Countrywide's
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation consisting a prerequisite to
use and enjoyment of said property;
(pp) No Bankruptcy. No Mortgagor was a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated and as of the Closing Date, Countrywide has not received notice that
any Mortgagor is a debtor under any state or federal bankruptcy or insolvency
proceeding;
(qq) No Additional Payments. There is no obligation on the part of
Countrywide or any other party to make payments in addition to those made by the
Mortgagor;
(rr) Georgia Fair Lending Act. None of the Mortgage Loans is subject
to the Georgia Fair Lending Act, as amended;
(ss) No Credit Insurance Policies. No proceeds from any Mortgage
Loan were used to purchase single-premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan;
(tt) Prepayment Penalty Term. No Mortgage Loan will impose a
prepayment premium in violation of federal, state or local law or regulations;
and
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 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 failure to examine any Collateral Documents or
Credit File. Upon discovery by either Countrywide or the Purchaser of a breach
of any of the foregoing representations and warranties that materially and
adversely affects the value of one or more of the related Mortgage Loans, the
party discovering such breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within ninety (90) days from the earlier of
either discovery by or notice to Countrywide of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, Countrywide shall use its best efforts to cure such breach
in all material respects, and, if such breach cannot be cured, Countrywide
shall, at the Purchaser's option, repurchase such Mortgage Loan at the
Repurchase Price. In the event that a breach shall involve any representation or
warranty set forth in Section 3.01 and such breach cannot be cured within ninety
(90) days of the earlier of either discovery by or notice to Countrywide of such
breach, all of the Mortgage Loans shall, at the Purchaser's option, be
repurchased by Countrywide at the Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve a
representation or warranty set forth in Section 3.02, Countrywide may at the
discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans. If Countrywide has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan(s) pursuant to the provisions of this Section 3.03
shall be accomplished by deposit in the Custodial Account of the amount of the
Repurchase Price for distribution to the Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution. At the time of repurchase or substitution, the
Purchaser and Countrywide shall arrange for the reassignment of such Mortgage
Loan and release of the related Collateral File to Countrywide and the delivery
to Countrywide of any documents held by the Purchaser or its designee relating
to such Mortgage Loan. In the event Countrywide is authorized to substitute a
Qualified Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide
shall, simultaneously with such reassignment, give written notice to the
Purchaser that substitution has taken place and identify the Qualified
Substitute Mortgage Loan(s). In connection with any such substitution,
Countrywide shall be deemed to have made as to such Qualified Substitute
Mortgage Loan(s) the representations and warranties except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. Countrywide shall effect such substitution
by delivering to the Purchaser the Collateral Documents for such Qualified
Substitute Mortgage Loan(s). Countrywide shall deposit in the Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan(s) in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by Countrywide. For the month of substitution,
distributions to the Purchaser shall include the Monthly Payment due on any
substituted Mortgage Loan in the month of substitution, and Countrywide shall
thereafter be entitled to retain all amounts subsequently received by
Countrywide in respect of such substituted Mortgage Loan.
For any month in which Countrywide substitutes a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all substituted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Countrywide in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, Countrywide shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall. Notwithstanding the
above, in no event shall Countrywide substitute a loan that has been placed in a
trust with respect to a securitization.
In addition to such cure and repurchase obligations, Countrywide
shall indemnify the Purchaser and hold it harmless against any damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion by any third party that is based on or grounded upon, or
resulting from, a breach of Countrywide representations and warranties contained
in this Agreements; provided however, indemnification shall not be available for
any economic losses of the Purchaser due to reinvestment losses, loss of
investment income or any other special, indirect or consequential losses or
damages.
Section 3.04 Accrual of Cause of Action.
Any cause of action against Countrywide relating to or arising out
of the breach of any representations and warranties made in Sections 3.01 or
3.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by Countrywide to the Purchaser, (ii) failure by
Countrywide to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon Countrywide by the Purchaser for compliance with
the relevant provisions of this Agreement.
Section 3.05 Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to Countrywide
that, as of each Closing Date:
(a) Organization and Standing. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified to transact business in and is in good
standing under the laws of each state in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such qualification;
(b) Due Authority. The Purchaser has the full power and authority to
perform, and to enter into and consummate, all transactions contemplated by this
Agreement; the Purchaser has the full power and authority to purchase and hold
each Mortgage Loan;
(c) No Conflict. Neither the acquisition of the Mortgage Loans by
the Purchaser pursuant to this Agreement, 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 Purchaser's charter or by-laws or
result in a material breach of any legal restriction or any material agreement
or instrument to which the Purchaser is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which the Purchaser or its property is subject;
(d) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to the Purchaser's knowledge,
threatened, which either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans by the Purchaser hereunder, or the Purchaser's ability to perform its
obligations under this Agreement; and
(e) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement or the consummation of the transactions contemplated by this
Agreement (including, but not limited to, any approval from HUD), or if
required, such consent, approval, authorization or order has been obtained prior
to the related Closing Date.
(f) Securities. Without conceding that the Mortgage Loans are
securities, the Purchaser hereby makes the following representations, warranties
and agreements, which shall have been deemed to have been made as of each
Closing Date:
(i) the Purchaser understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any
state;
(ii) the Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Mortgage Loans;
(iii) the Purchaser has been furnished with all information
regarding he Mortgage Loans which it has requested to date from
Countrywide; and
(iv) neither the Purchaser nor anyone acting on its behalf
offered, transferred, pledged, sold or otherwise disposed of any
Mortgage Loan, any interest in any Mortgage Loan or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of any Mortgage Loan, any
interest in any Mortgage Loan or any other similar security from, or
otherwise approached or negotiated with respect to any Mortgage
Loan, any interest in any Mortgage Loan or any other similar
security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner,
or taken any other action which would constitute a distribution of
the Mortgage Loans under the 1933 Act or which would render the
disposition of any Mortgage Loan a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in
such manner with respect to the Mortgage Loans.
Section 3.06 Indemnification by the Purchaser.
The Purchaser shall indemnify Countrywide and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Purchaser's representations and
warranties contained in Section 3.05 above.
ARTICLE IV.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicing LP to Act as Servicer.
Servicing LP shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of the Servicing
Agreement and shall have full power and authority, acting alone, to do or cause
to be done any and all things, in connection with such servicing and
administration, that Servicing LP may deem necessary or desirable and consistent
with the terms of the Servicing Agreement. In servicing and administering the
Mortgage Loans, Servicing LP shall employ procedures in accordance with the
customary and usual standards of practice of prudent mortgage servicers, and
exercise the same care that it customarily employs and exercises in servicing
and administering mortgage loans for its own account.
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide; Third Party Claims.
Countrywide shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way related
to the failure of Countrywide to perform its obligations hereunder including its
obligations to service and administer the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify Countrywide and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that
Countrywide may sustain in any way related to (a) actions or inactions of
Countrywide which were taken or omitted upon the instruction or direction of the
Purchaser, or (b) the failure of the Purchaser to perform its obligations
hereunder.
Countrywide and the Purchaser shall immediately notify the other if
a claim is made upon such party by a third party with respect to this Agreement
or the Mortgage Loans. Upon the prior written consent of the Purchaser, which
consent shall not be unreasonably withheld, Countrywide shall assume the defense
of any such claim and pay all expenses in connection therewith, including
attorneys' fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or the Purchaser in respect of such claim. The
Purchaser promptly shall reimburse Countrywide for all costs, fees or expenses
advanced by it pursuant to this paragraph except when the claim in any way
results from, relates to or arises out of any liability, obligation, act or
omission of Countrywide (other than acts or omissions taken or omitted at the
direction of the Purchaser), including without limitation, Countrywide's
indemnification obligation hereunder, any repurchase obligation of Countrywide
hereunder including Sections 2.04, 2.05 and 3.03, or the failure of Countrywide
to service and administer the Mortgage Loans and otherwise perform its
obligations hereunder in strict compliance with the terms of this Agreement.
Section 5.02 [Reserved.]
Section 5.03 Merger or Consolidation of Countrywide.
Countrywide shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans, and to perform
its duties under this Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Countrywide may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Countrywide
shall be a party, or any Person succeeding to the business of Countrywide, shall
be the successor of Countrywide hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; 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, and shall be qualified to
service mortgage loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Countrywide and Others.
Neither Countrywide nor any of the officers, employees or agents of
Countrywide shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Countrywide or any such person against any breach of
warranties or representations made herein, or the failure to perform its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. Countrywide and any officer, employee or
agent of Countrywide may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event of Default by Countrywide shall occur and
shall not have been remedied within the time limits set forth in Section 7.1 of
the Servicing Agreement, the Purchaser shall not record or cause to be recorded
an Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Countrywide's indemnification under Section 5.01.
Section 5.05 No Transfer of Servicing.
Countrywide acknowledges that the Purchaser acts in reliance upon
Countrywide's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Countrywide shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld; provided, however, that nothing
in this Agreement shall limit the right of Countrywide to assign the servicing
rights hereunder to Servicing LP.
ARTICLE VI.
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Executive Vice President
With copy to: General Counsel
(ii) the Purchaser:
To the address and contact set forth in the related Purchase
Confirmation
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 6.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Countrywide and not a pledge of the Mortgage Loans by Countrywide to
the Purchaser to secure a debt or other obligation of Countrywide. Consequently,
the sale of each Mortgage Loan shall be reflected as a sale on Countrywide's
business records, tax returns and financial statements. Accordingly, Countrywide
and the Purchaser shall each treat the transaction for federal income tax
purposes as a sale by Countrywide, and a purchase by the Purchaser, of the
Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 6.04 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;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including (a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Countrywide.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than four (4) "Purchasers" outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall constitute
a single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Countrywide agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 6.07(a) hereof, may effect Pass-Through
Transfers, retaining Countrywide as the servicer thereof or subservicer if a
master servicer is employed, or as applicable the "seller/servicer." On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 6.07 is rejected by the
related transferee, Countrywide shall continue to service such rejected Mortgage
Loan on behalf of the Purchaser in accordance with the terms and provisions of
this Agreement. Countrywide shall cooperate with the Purchaser in connection
with each Pass-Through Transfer in accordance with this Section 6.07. In
connection therewith Countrywide shall:
(i) negotiate in good faith and execute any seller/servicer
agreement reasonably required to effectuate the Pass-Through
Transfer, provided such agreement creates no greater obligation or
cost on the part of Countrywide than otherwise set forth in this
Agreement, and provided further that Countrywide shall be entitled
to a servicing fee under that agreement at a rate per annum no less
than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Countrywide of the type
and scope customarily included in offering documents for
residential mortgage-backed securities transactions involving
multiple loan originators;
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Countrywide as
are reasonably believed necessary by the trustee, any rating
agency or the Purchaser, as the case may be, in connection
with such Pass-Through Transfer. The Purchaser shall pay all
third party costs associated with the preparation of the
information described in clause (ii)(A) above and the delivery
of any opinions, letters or certificates described in this
clause (ii)(B). Countrywide shall not be required to execute
any seller/servicer agreement unless a draft of the agreement
is provided to Countrywide at least 10 days before the
Reconstitution Date; and
(C) certain additional information with respect to the
Mortgage Loans, including but not limited to (x) payment
history and (y) income verification, asset verification and
verification of employment.
(c) In connection with any Pass-Through Transfer, Countrywide shall
make all representations and warranties with respect to the Mortgage Loans as of
the Closing Date and with respect to Countrywide itself as of the closing date
of each whole loan transfer or Pass-Through Transfer.
(d) In connection with any Pass-Through Transfer, Countrywide shall
indemnify, defend and hold harmless the Purchaser from and against any and all
losses, claims, expenses, damages or liabilities to which the Purchaser may be
subject to as a result of (i) any inaccuracy or omission in information provided
to the Purchaser pursuant to Section 6.07(b)(ii)(C) and (ii) any untrue
statement of any material fact contained in any information (such information,
the "Countrywide Information") prepared and furnished to the Purchaser by
Countrywide for inclusion in any related offering document or prospectus
(collectively, "Offering Materials"), or arise out of, or are based upon, any
omission in the Countrywide Information necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse the Purchaser for damages or expenses reasonably
incurred by it; provided, however, that Countrywide shall be liable only insofar
as such untrue statement or omission relates solely to the Countrywide
Information in the Offering Materials furnished to the Purchaser by Countrywide
specifically for inclusion in the Prospectus Supplement. The Purchaser shall
indemnify, defend and hold harmless Countrywide from and against any and all
losses, claims, expenses, damages or liabilities to which Countrywide may be
subject to as a result of any untrue statement of any material fact contained in
any Offering Materials, or arise out of, or are based upon, any omission in any
information included in the Offering Materials necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse Countrywide for damages or expenses reasonably
incurred by it; provided, however, that Purchaser shall be liable only insofar
as such untrue statement or omission does not relate to the Countrywide
Information in the Offering Materials furnished to the Purchaser by Countrywide
specifically for inclusion in the Prospectus Supplement; and.
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers 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 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Servicing Agreement, and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and the State of California applicable to
agreements entered into and wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide and the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
Countrywide shall be rendered as an independent contractor and not as agent for
the Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Countrywide hereby 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 or independent mortgage
brokerage companies on its behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided, that Countrywide may solicit any mortgagor from whom it
or its servicing affiliate has received a request for verification of mortgage,
a request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
(i) concern optional insurance products or other additional projects or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Countrywide
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Countrywide or any affiliate of
Countrywide, shall not be prohibited: (i) solicitations that are directed to the
general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Countrywide.
Section 6.14 Confidentiality.
Countrywide, the Purchaser and their agents shall keep confidential
and shall not divulge to any person, other than affiliates, without the written
consent of the other party, the terms of this agreement, except (i) to the
extent required by law or judicial order or to enforce its rights or remedies
under this agreement, the Servicing Agreement, or any applicable agreements,
(ii) to the extent such information enters into the public domain other than
through the wrongful act of Countrywide or the Purchaser, as the case may be,
(iii) as is necessary in working with legal counsel, auditors, rating agencies,
agents, taxing authorities or other governmental agencies, or (iv) in order to
disclose to any and all persons, without limitation of any kind, the structure
and tax aspects of this sale or any transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986.
Moreover, Countrywide understands and agrees that this Agreement,
the Servicing Agreement, any other agreements executed in connection with the
sale and servicing contemplated hereunder, any agreements executed in connection
with a securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and Countrywide agrees to hold
such documents confidential and not to divulge such documents to anyone except
(a) to the extent required by law or judicial order or to enforce its rights or
remedies under this letter agreement or the Agreements, (b) to the extent such
information enters into the public domain other than through the wrongful act of
Countrywide (c) as is necessary in working with legal counsel, auditors, agents,
taxing authorities or other governmental agencies, or (d) in order to disclose
to any and all persons, without limitation of any kind, the structure and tax
aspects of this sale or such securitization and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, securitization and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986. The rights
and obligations set forth in this paragraph shall survive the Closing Date and
shall not merge into the closing documents but shall be independently
enforceable by the parties hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to each Mortgage Loan Package and supersede all prior or contemporaneous
oral or written communications regarding same. Countrywide and the Purchaser
understand and agree that no employee, agent or other representative of
Countrywide or the Purchaser has any authority to bind such party with regard to
any statement, representation, warranty or other expression unless said
statement, representation, warranty or other expression is specifically included
within the express terms of this Agreement or the related Trade Confirmation or
Purchase Confirmation. Neither this Agreement nor the related Trade Confirmation
or Purchase Confirmation shall be modified, amended or in any way altered except
by an instrument in writing signed by both parties.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.,
the Seller
By:________________________________
Name:
Title:
XXXXXXX SACHS MORTGAGE COMPANY,
the Purchaser
By: Xxxxxxx Xxxxx Real Estate
Funding Corp., its General Partner
By:________________________________
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original Mortgage Note (or, if acceptable to the
Purchaser, a lost note affidavit in a form acceptable to an Agency)
bearing all intervening endorsements, endorsed "Pay to the order of
_____________, without recourse" and signed in the name of the last
endorsee by an authorized officer thereof.
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage Loan,
the original Assignment of Mortgage in blank.
3. Guarantee: The original of any guarantee executed in connection with the
Mortgage Note.
4. Mortgage: The original Mortgage with evidence of recording thereon or, if
such original Mortgage has not been returned to Countrywide on or prior to
the Closing Date by the public recording office where such Mortgage has
been delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage sent
for recordation.
5. Modifications: Unless the Mortgage Loan is a MERS Mortgage Loan, the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if any.
6. Intervening Assignments: The originals of all intervening assignments of
Mortgage with evidence of recording thereon, provided that such originals
have been returned to Countrywide by the public recording office where
such intervening assignment of Mortgage has been delivered for
recordation.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an original
copy of the Cooperative Lease naming the Mortgagor, as tenant, or an
original copy of the assignment of the Cooperative Lease to Mortgagor
together with the original copy of all intervening assignments showing a
complete and unbroken chain of title from the original tenant to Mortgagor
and an original undated assignment, in blank, of the Cooperative Lease
executed by Mortgagor; (ii) the original stock certificate in the name of
the Mortgagor together with an undated original stock power relating to
such stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same form as
a standard "AZTECH" form and the original assignment thereof from
Countrywide to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of title
from the originator of the Mortgage Loan to the Purchaser; (iv) copies of
the UCC-1 financing statement naming the originator of the Cooperative
Loan, as secured party, with evidence of recording thereon and, if
applicable, the executed UCC-3 financing statements (Assignment) or other
appropriate UCC financing statements required by applicable state law
evidencing a complete and unbroken chain of title from the originator of
the Cooperative Loan to Countrywide, with evidence of recording thereon,
(v) an executed UCC-3 financing statement (Assignment), or other
appropriate UCC financing statement required by applicable state law,
evidencing the assignment by Countrywide to the Purchaser of its interest
in the Cooperative Loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor's acquisition of the coop apartment
8. Power of Attorney: Original power of attorney, if applicable.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
--------------------------------------------------------
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between
Countrywide Home Loans, Inc. ("Countrywide") and Xxxxxxx Sachs Mortgage Company
("Purchaser") sets forth our agreement pursuant to which Purchaser is
purchasing, and Countrywide is selling, on a servicing-retained basis, those
certain mortgage loans identified in Exhibit A hereto and more particularly
described herein (the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of July 1, 2004, between Countrywide and Purchaser
(as amended herein and otherwise, the "Agreement"). By executing this Purchase
Confirmation, each of Countrywide and Purchaser again makes, with respect to
itself and each Mortgage Loan, as applicable, all of the covenants,
representations and warranties made by each such party in the Agreement, except
as the same may be amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the
Agreement, Countrywide shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Agreement, all of the right, title and interest of Countrywide in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Countrywide pursuant to the terms of the Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
[d. Index: On each Interest Adjustment Date, the applicable
index rate shall be a rate per annum equal to [the weekly average yield on
U.S. Treasury securities adjusted to a constant maturity of one year, as
published by the Board of Governors of the Federal Reserve System in
Statistical Release No. H.15] [the average of interbank offered rates for
six-month U.S. dollar denominated deposits in the London market (LIBOR),
as published [in the Wall Street Journal] [by Xxxxxx Xxx] [the 11th
District Cost of Funds as made available by the Federal Home Loan Bank]
[the weekly average yield on certificates of deposit adjusted to a
constant maturity of six months as published by the Board of Governors of
the Federal Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Countrywide's obligation to repurchase from the Purchaser the
Mortgage Loan related to a Missing Credit Document shall occur only in the
event of a default by a Mortgagor or any material impairment of the
Mortgaged Property directly arising a breach of Countrywide's obligation
to deliver the Missing Credit Document within the time specified in
Section 2.04 of the Agreement.
f. Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans]
[each Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B]
hereto, the sum of (a) the product of (i) the Cut-off Date Balance of
[such Mortgage Loan] [such Mortgage Loans], and (ii) the purchase price
percentage set forth in Exhibit [A] hereto for such [Mortgage Loan]
[Mortgage Loans], and (b) accrued interest from the Cut-off Date through
the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the
period prior to the initial Interest Adjustment Date, [0.25]% and,
thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Countrywide's credit underwriting guidelines
in effect at the time such Mortgage Loan was originated] [conforms to the
Xxxxxx Xxx or Xxxxxxx Mac mortgage eligibility criteria (as such criteria
applies to Countrywide) and is eligible for sale to, and securitization
by, Xxxxxx Mae or Xxxxxxx Mac] [at the time of origination was
underwritten to guidelines which are consistent with an institutional
investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. XXXXXXX SACHS MORTGAGE COMPANY
By: _______________________________ By: _______________________________
Name: Xxxxx Xxxxxxx Name:
Title: Executive Vice President Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(Available upon request to the Trustee)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
[CUSTODIAN'S LETTERHEAD]
_______________, (YEAR)
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxxxxxx
Executive Vice President
Countrywide Home Loans Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
RE: Sale of Mortgage Loans pursuant to that certain Master Mortgage
Loan Purchase Agreement, dated July 1, 2004, (YEAR) and Purchase Confirmation
dated ____________, (YEAR), (collectively the "Agreement") between Countrywide
Home Loans Inc. ("SELLER") and Xxxxxxx Xxxxx Mortgage Company ("PURCHASER").
Ladies and Gentlemen:
Treasury Bank, National Association, a nationally chartered bank and
an affiliate of SELLER ("TREASURY BANK"), has been advised of an impending sale
by SELLER to PURCHASER, of certain mortgage loans described on Exhibit "A"
attached hereto (the "Mortgage Loans"), which sale is expected to occur on [SALE
DATE], (YEAR). The Mortgage Loans are currently held by TREASURY BANK as
custodian for SELLER. SELLER has requested that upon TREASURY BANK's receipt of
written confirmation from SELLER that it has received the Purchase Price,
TREASURY BANK (i) hold such Mortgage Loans in custody for the exclusive benefit
of PURCHASER; (ii) by its execution hereof, certify to PURCHASER its possession
of the Mortgage Note, Assignment of Mortgage and a certified copy of the
Mortgage for each Mortgage Loan except as TREASURY BANK may separately notify
PURCHASER in writing; (iii) segregate and maintain continuous custody of all
Mortgage Files in secure and fire-resistant facilities in accordance with
customary standards for such custody: and (iv) ship the Mortgage Loans to such
address as PURCHASER may instruct TREASURY BANK in writing upon consummation of
the sale. Except as specifically required to be stated herein, TREASURY BANK
makes no representation or warranty with respect to any of the Mortgage Loans or
Mortgage Files. This is to advise SELLER and PURCHASER that TREASURY BANK hereby
agrees to perform the services stated in the immediately preceding sentence,
subject to the terms and conditions set forth herein. All capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to such terms
in the Agreement.
TREASURY BANK shall charge such fees for its custodial services
under this letter agreement as are set forth in a separate agreement between
TREASURY BANK and SELLER, the payment of which fees, together with TREASURY
BANK's expenses in connection herewith, shall be solely the obligation of
SELLER.
The sole obligation of TREASURY BANK with respect to the Mortgage
Loans shall be to perform the services expressly described herein, there being
no implied duties hereunder. It is expressly agreed that in no event shall
TREASURY BANK have any (i) responsibility for documents which it has delivered
to a shipper in accordance with the terms hereof while such documents are not in
its possession or (ii) liability for any losses or damages to any person,
including without limitation SELLER or PURCHASER, arising out of action taken by
TREASURY BANK consistent with instructions given hereunder (including without
limitation, losses or damages arising out of non-performance or faulty
performance by a shipper). SELLER agrees to reimburse, indemnify and hold
harmless TREASURY BANK, its directors, officers, employees and agents from and
against any and all liability, loss, cost and expense, including reasonable fees
and expenses of counsel arising from or connected with TREASURY BANK's execution
and performance of this letter agreement, including but not limited to claims of
any third parties, including PURCHASER, except in the case of loss, liability or
expense resulting from gross negligence or willful misconduct on the part of
TREASURY BANK. TREASURY BANK agrees to reimburse, indemnify and hold harmless
PURCHASER, its directors, officers, employees, and agents from and against any
and all liability, loss, cost and expense, including reasonable fees and
expenses of counsel arising from or connected with PURCHASER's execution of this
letter agreement, including but not limited to, claims of any third parties
resulting from gross negligence or willful misconduct on the part of TREASURY
BANK. In no event shall TREASURY BANK, its directors, officers, employees or
agents be liable for any indirect, special or consequential damages, even if
such party has been advised of the possibility of such damages.
For the purpose of facilitating the execution of this letter
agreement, this letter agreement may be executed simultaneously in any number of
counterparts, each of which counterpart shall be deemed to be an original and
all of which shall constitute one and the same instrument. By execution of this
letter agreement, TREASURY BANK represents and warrants that as of the
consummation of the referenced transaction it holds and thereafter during the
existence of this letter agreement shall hold, no adverse interest, by way of
security or otherwise, in any Mortgage Loan and hereby waives and releases any
such interest which it may have in any Mortgage Loan as of the consummation of
the referenced transaction. All notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
recipient party at the address shown in this letter. This letter agreement shall
inure to the benefit of the successors and assigns of the parties hereto.
TREASURY BANK agrees that its rights and obligations hereunder shall not be
assigned without the prior written consent of PURCHASER. PURCHASER, shall
provide written instructions as to the method of shipment and shippers TREASURY
BANK is to utilize in connection with the transmission the Mortgage Files and
Loan Documents. Each individual executing this letter agreement is authorized to
give and receive notices and is authorized to execute this letter agreement on
behalf of and bind the respective party. This letter agreement may be amended
from time to time by written agreement only signed by PURCHASER, TREASURY BANK
and SELLER.
This letter agreement shall (i) become effective as of the date
hereof upon execution by SELLER, PURCHASER, and TREASURY BANK and (ii) will
expire on [EXPIRATION DATE], (YEAR), if the sale described herein is not
consummated by such date, unless the parties otherwise agree in writing.
Very truly yours,
TREASURY BANK, NATIONAL ASSOCIATION
Xxxxx Xxxxxx
Officer
0000 X. Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Accepted and Agreed Acknowledge:
COUNTRYWIDE HOME LOANS, INC. XXXXXXX SACHS MORTGAGE
COMPANY
By: _________________________________ By: __________________________________
Name: Xxxxx Xxxxxxx Name:
Title: Executive Vice President Title:
EXHIBIT D
FORM OF TRADE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx
Sachs Mortgage Company
(Deal No. yrmm-xxx)
--------------------------------------------------------------
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Xxxxxxx Xxxxx
Mortgage Company ("Purchaser") and Countrywide Home Loans, Inc. ("Countrywide")
pursuant to which Purchaser has agreed to purchase, and Countrywide has agreed
to sell, those certain mortgage loans [identified] [summarized] in Exhibit A
hereto (the "Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year] [, provided, however, that the
parties shall use their best efforts to consummate the transaction prior to
[DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in Exhibit
A. [Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo] ["A"] ["A-"] ["Alt A"] [Sub-prime] [Conforming]
[fixed] [(x/1) Index adjustable] rate mortgage loans]. (undefined terms should
not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Countrywide and serviced on
a [scheduled/scheduled] [actual/actual] [scheduled][actual] basis for the
servicing fee rate [equal to FEE% per annum][set forth in Exhibit A [for each
Mortgage Loan]]. [ With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter, 0.375%].
Prepayment Penalties: [Countrywide] [Purchaser] shall be entitled to
any penalties resulting from the prepayment of any Mortgage Loans by the related
mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Countrywide may, at its option, elect
to substitute comparable mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Countrywide's sale of the Mortgage Loans is expressly subject to
(a) the review of the Mortgage Loans by Purchaser to confirm conformance with
the Trade Confirmation, and (b) purchase of the Mortgage Loans by Countrywide on
or before the Closing Date from the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing conditions are not satisfied,
Countrywide shall have no liability to Purchaser.]
Non-Circumvent: Countrywide and Purchaser understand and agree that
Countrywide may introduce the owner of the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Countrywide and that such relationship of
Countrywide is confidential. Purchaser agrees, with respect to the Current
Owner, Purchaser will not, for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date], communicate with or purchase
such other mortgage loans from the Current Owner unless the Current Owner has
had previous business dealings (other than any transactions involving
Countrywide) with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. XXXXXXX SACHS MORTGAGE
COMPANY
By: ___________________________________
Name:
By: __________________________________ Title:
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(Available upon request to the Trustee)
EXHIBIT B
UNDERWRITING GUIDELINES
(Available upon request to the Trustee)
EXHIBIT Q
MASTER MORTGAGE LOAN PURCHASE AGREEMENT,
DATED AS OF NOVEMBER 1, 2003, BETWEEN COUNTRYWIDE HOME
LOANS, INC. AND XXXXXXX SACHS MORTGAGE COMPANY
COUNTRYWIDE HOME LOANS, INC.,
as Seller
and
XXXXXXX XXXXX MORTGAGE COMPANY,
as Purchaser
________________________________________
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of November 1, 2003
________________________________________
Fixed and Adjustable Rate Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I.
DEFINITIONS
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans............
Section 2.02 Due Diligence by the Purchaser............................
Section 2.03 Identification of Mortgage Loan Package...................
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence....................................................
Section 2.05 Delivery of Collateral Files..............................
Section 2.06 Purchase Confirmation.....................................
Section 2.07 Closing...................................................
Section 2.08 Payment of the Purchase Proceeds..........................
Section 2.09 Entitlement to Payments on the Mortgage Loans.............
Section 2.10 Payment of Costs and Expenses.............................
Section 2.11 MERS Mortgage Loans and the MERS System...................
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.....
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans...............................................
Section 3.03 Remedies for Breach of Representations and Warranties.....
Section 3.04 Accrual of Cause of Action................................
Section 3.05 Representations and Warranties Respecting the
Purchaser....................................................
ARTICLE IV.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Countrywide to Act as Servicer............................
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide............................
Section 5.02 Third Party Claims........................................
Section 5.03 Merger or Consolidation of Countrywide....................
Section 5.04 Limitation on Liability of Countrywide and Others.........
Section 5.05 No Transfer of Servicing..................................
ARTICLE VI.
MISCELLANEOUS
Section 6.01 Notices...................................................
Section 6.02 Sale Treatment............................................
Section 6.03 Exhibits..................................................
Section 6.04 General Interpretive Principles...........................
Section 6.05 Reproduction of Documents.................................
Section 6.06 Further Agreements........................................
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.......................................
Section 6.08 Conflicts between Transaction Documents...................
Section 6.09 Governing Law.............................................
Section 6.10 Severability Clause.......................................
Section 6.11 Successors and Assigns....................................
Section 6.12 Relationship of Parties...................................
Section 6.13 Solicitation of Mortgagor.................................
Section 6.14 Confidentiality...........................................
Section 6.15 Entire Agreement..........................................
EXHIBITS
Exhibit A Schedule of Collateral Documents............................
Exhibit B Form of Purchase Confirmation...............................
Exhibit C Form of Custodial Agreement.................................
Exhibit D Form of Trade Confirmation..................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of November 1, 2003 (the "Agreement"), between Countrywide Home Loans,
Inc., having an address at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Countrywide"), and Xxxxxxx Sachs Mortgage Company, having an address At 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 the "Purchaser").
R E C I T A L S
- - - - - - - -
The Purchaser has agreed to purchase from Countrywide and
Countrywide has agreed to sell from time to time to the Purchaser all of
Countrywide's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Countrywide and the Purchaser. This Agreement is intended to
set forth the terms and conditions by which Countrywide shall transfer and the
Purchaser shall acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California, the State of New York, or the State of Texas are authorized or
obligated by law or executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 4.4 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The letter agreement, substantially in the form
of Exhibit C, that governs the temporary retention of the Collateral Files by
the Custodian with respect to a Closing Date.
Custodian: JPMorgan Chase Bank, its successor in interest or assign,
or such other custodian that may be designated by the Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in its highest rating categories
at the time of any deposit therein [or one of its two highest rating categories
for long term debt obligations], or (ii) the deposits of which are insured up to
the maximum permitted by the FDIC.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
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 Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Countrywide in connection
with the liquidation of a defaulted Mortgage Loan through trustee's sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Cooperative
Loan, The mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien , upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security 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 Cooperative Loan
and the related Cooperative Lease
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Other Insurance Proceeds, REO Disposition proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Company's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Co-op Loan, of the related cooperative apartment building); (3) a code
indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence, planned
unit development or cooperative stock in a cooperative housing corporation; (4)
the purpose of the Mortgage Loan; (5) the current Mortgage Interest Rate; (6)
whether the Mortgage Loan has Monthly Payments that are interest only for a
period of time; (7) the Servicing Fee Rate; (8) the current Monthly Payment; (9)
the original term to maturity; (10) the remaining term to maturity; (11) the
principal balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (12) the LTV at origination; (13) the due date of the Mortgage Loan;
(14) whether the Mortgage Loan is insured by a Primary Mortgage Insurance
Policy; (15) the type of appraisal; (16) a code indicating whether the Mortgage
Loan is a MERS Mortgage Loan; (17) a code indicating whether the Mortgage Loan
is subject to a prepay penalty; (18) documentation type; (19) first payment
date; and (20) FICO score. With respect to any Adjustable Rate Mortgage, in
addition to (1) through (17) above: (a) the Gross Margin; (b) the Periodic Rate
Cap; (c) the Lifetime Rate Cap; (d) the first Interest Adjustment Date and the
Interest Adjustment Date frequency; (e) the minimum Mortgage Interest Rate; (f)
the first Interest Adjustment Date immediately following the Cut-off Date; and
(g) the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative 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 and their successors in
title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
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 Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02, are intended to be sold under this
Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), 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.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Countrywide and the Purchaser in connection
with the purchase and sale of each Mortgage Loan Package, which sets forth the
terms relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Countrywide in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 6.07.
Qualification Defect: With respect to a Mortgage Loan, (a) a
materially defective document in the Mortgage File, (b) the absence of a
material document in the Mortgage File, or (c) the breach of any material
representation, warranty or covenant with respect to the Mortgage Loan made by
the Company, but, in each case, only if the affected Mortgage Loan would cease
to qualify as a "qualified mortgage" for purposes of the REMIC Provisions.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., an Adjustable Rate
Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 6.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate in writing.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan as of the date of
repurchase plus (ii) interest on such Stated Principal Balance at the Mortgage
Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect to
any Mortgage Loan included in a Pass-Through Transfer, damages incurred by the
Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicing Agreement: The agreement dated as of November 1, 2003 and
signed by the Purchaser and Countrywide with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion of such
Monthly Payment collected by Countrywide, or as otherwise provided herein.
Subject to the foregoing, and with respect to each Mortgage Loan, Countrywide
shall be entitled to receive its Servicing Fee through the disposition of any
related REO Property and the Servicing Fee payable with respect to any REO
Property shall be based on the Stated Principal Balance of the related Mortgage
Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the 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.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Countrywide and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation and this
Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer.
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans
From and after the sale of the Mortgage Loans to the Purchaser, all
rights arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans on account of interest and
principal due after the Cut-off Date, shall be held by the Servicer in trust for
the benefit of the Purchaser as owner of the Mortgage Loans, and the Servicer
shall retain record title to the related Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The sale of each Mortgage Loan shall be reflected on Countrywide's
balance sheet and other financial statements as a sale of assets by Countrywide.
Countrywide shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
Countrywide shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of FNMA or FHLMC, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by FNMA or FHLMC, and periodic
inspection reports as required by Section 3.15 of the Servicing Agreement. To
the extent that original documents are not required for purposes of realization
of Liquidation Proceeds or Insurance Proceeds, documents maintained by
Countrywide may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including but not limited to, optical
imagery techniques so long as Countrywide complies with the requirements of the
FNMA or FHLMC Selling and Servicing Guide, as amended from time to time.
Section 2.02 Due Diligence by the Purchaser.
Review of Credit File. Prior to the Closing Date, Countrywide shall
make available to the Purchaser the Credit File for each Preliminary Mortgage
Loan in the related Preliminary Mortgage Loan Package and shall accommodate
reasonable requests by the Purchaser to provide personnel and documents as
necessary to facilitate the review. The Purchaser shall have the right to review
the Credit File for each such Preliminary Mortgage Loan, at Countrywide's
offices or such other location agreed upon by the Purchaser and Countrywide, for
the purpose of determining whether each Preliminary Mortgage Loan conforms in
all material respects to the applicable terms contained in the Transaction
Documents, which determination shall be made in the Purchaser's reasonable and
good faith discretion. In the event that the Purchaser rejects any Preliminary
Mortgage Loan based on such review, Countrywide shall have the opportunity, at
the discretion of the Purchaser, to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's or any of its successors' rights to demand
repurchase or other relief or remedy provided for in this Agreement.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File is
missing material documentation (as used therein, the "Missing Credit
Documents"), Countrywide agrees to use its best efforts to procure each such
Missing Credit Document within sixty (60) days following the related Closing
Date. In the event of a default by a Mortgagor or any material impairment of the
Mortgaged Property, in either case directly arising from a breach of
Countrywide's obligation to deliver the Missing Credit Document within the time
specified above, Countrywide shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Countrywide shall, on or before the Business
Day prior to the related Closing Date, pursuant to the Custodial Agreement
deliver and release to the Custodian the Collateral File for each Mortgage Loan
in the Mortgage Loan Package and shall execute, and cause the Custodian to
execute, the Custodial Agreement. The Custodian has certified its receipt of all
such Collateral Documents required to be delivered pursuant to the Custodial
Agreement. Countrywide will be responsible for the fees and expenses with
respect to the delivery and will be responsible for the fees and expenses
related to the recording of the initial Assignments of Mortgage (including any
fees and expenses related to any preparation and recording of any intervening or
prior assignments of the Mortgage Loans to Countrywide or to any prior owners of
or mortgagees with respect to the Mortgage Loans) or Form UCC-3's for
Cooperative Loans. The Purchaser will be responsible for the Custodian's fees
and expenses with respect to the initial inventory and maintenance of the
Mortgage Loans on or after the Closing Date, including the costs associated with
clearing exceptions.
Countrywide shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 3.1(c) or 5.1 of the
Servicing Agreement within thirty (30) days of their execution, provided,
however, that Countrywide shall provide the Custodian with a certified true copy
of any such document submitted for recordation within ten (10) days of its
execution, and shall provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 120 days
of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, Countrywide shall deliver to the Custodian within 360 days of
its submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above. An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.05 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
Countrywide in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Countrywide cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Countrywide shall deliver instead a
recording receipt of such recording office or, if such recording receipt is not
available, an Officer's Certificate from Countrywide confirming that such
documents have been accepted for recording. Any such document shall be delivered
to the Purchaser or its designee promptly upon receipt thereof from the related
recording office.
If Countrywide, the Purchaser or the Custodian finds any document or
documents constituting a part of a Mortgage File pertaining to a Mortgage Loan
to be defective (or missing) in any material respect, and such defect or missing
document materially and adversely affects the value of the related Mortgage Loan
or the interests of the Purchaser therein, the party discovering such defect
shall promptly so notify Countrywide. Countywide shall have a period of 90 days
after receipt of such written notice within which to correct or cure any such
defect. Countrywide hereby covenants and agrees that, if any material defect
cannot be corrected or cured, Countrywide will, upon the expiration of the
applicable cure period described above, repurchase the related Mortgage Loan in
the manner set forth in Section 3.03; provided, however, that with respect to
any Mortgage Loan, if such defect constitutes a Qualification Defect, any such
repurchase must take place within 90 days of the date such defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, Countrywide delivers an Officer's Certificate
to the Purchaser certifying that Countrywide is using good faith efforts to
correct or cure such defect and identifying progress made, then the Purchaser
shall grant Countrywide an extension to correct or cure such defect. The
extension shall not extend beyond (1) the date that is 90 days after the date
the defect is discovered, or, (2) if the defect is not a Qualification Defect
(as evidenced by an Opinion of Counsel), the date that is 30 days beyond the
original 90-day cure period. If the defect is not a Qualification Defect,
additional 30-day extensions may be obtained pursuant to the same procedure, as
long as Countrywide demonstrates continued progress toward a correction or cure;
provided that no extension shall be granted beyond 180 days from the date on
which the Company received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify Countrywide of any defective or missing
document in a Mortgage File within such 90-day period, or the failure of the
Purchaser to require Countrywide to cure or repurchase the related Mortgage Loan
upon expiration of such 90-day period, shall not constitute a waiver of its
rights hereunder, including the rights with respect to a Mortgage Loan, to
require Countrywide to repurchase the affected Mortgage Loan and the right to
indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Countrywide shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Countrywide.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Countrywide under
this Agreement shall be true and correct as of the Closing Date and no event
shall have occurred that, with notice or the passage of time, would constitute a
default under this Agreement;
(b) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct as of the Closing Date and no event
shall have occurred that, with notice or the passage of time, would constitute a
default under this Agreement;
(c) Both parties shall have executed and delivered the related
Purchase Confirmation and Custodial Agreement;
(d) Countrywide shall have delivered and released to the Custodian
all documents required pursuant to this Agreement and the Custodial Agreement;
and
(e) All other terms and conditions of this Agreement have been
complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Countrywide on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Countrywide on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Countrywide shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. Without limiting the generality
of the foregoing, any costs and expenses incurred in connection with recording
the Assignment of Mortgage or any subsequent assignment thereof shall be paid
for by the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Countrywide pursuant to this Agreement, Countrywide shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Countrywide shall be in lieu of Countrywide delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Countrywide shall, in accordance with Section 2.05, provide the Purchaser with
the original Mortgage with evidence of registration with MERS and, as
applicable, the originals of all intervening assignments of the Mortgage with
evidence of recording thereon prior to the registration of the Mortgage Loan
with the MERS System.
(b) In connection with the MERS System, Countrywide is hereby
authorized and empowered, in its own name, to register, or change the
registration of any MERS Mortgage Loan to effectuate such registration. Further,
Countrywide is authorized to cause the removal of any MERS Mortgage Loan from
such registration, and to execute and deliver on behalf of itself and the
Purchaser, any and all instruments of assignment and comparable instruments with
respect to any registration and/or removal of such MERS Mortgage Loan on or from
the MERS System.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement. The execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
Countrywide and the consummation of the transactions contemplated hereby have
been duly and validly authorized. This Agreement evidences the valid, binding
and enforceable obligation of Countrywide; and all requisite corporate action
has been taken by Countrywide to make this Agreement valid and binding upon
Countrywide in accordance with its terms;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Countrywide, which is in the business of selling and servicing
loans, and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Countrywide pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of the
Mortgage Loans by Countrywide, 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
Countrywide's certificate of incorporation or by-laws or result in a material
breach of any legal restriction or any material agreement or instrument to which
Countrywide is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Countrywide or its property is subject;
(e) Approved Seller. Countrywide is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of
HUD. No event has occurred, including a change in insurance coverage, which
would make Countrywide unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD
eligibility requirements;
(f) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Countrywide to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Countrywide's ability to
perform its obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Countrywide, of or compliance by Countrywide with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Countrywide acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Countrywide, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Countrywide 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. Countrywide is solvent and the sale of the
Mortgage Loans will not cause Countrywide to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of
Countrywide's creditors;
(j) No Untrue Information. Neither this Agreement nor any statement,
report or other document prepared and furnished, or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby, by
Countrywide contains any untrue statement of fact or omits to state a fact
necessary to make the statements contained therein not misleading;
(k) Sale Treatment. Countrywide has determined that the disposition
of the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) Fair Credit Report Act. Servicing LP, in its capacity as
servicer for each Mortgage Loan, has fully furnished (or caused to be
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) or their
successors and assigns, on a monthly basis; and
(m) No Brokers' Fees. Countrywide has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Countrywide represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
and credited prior to the related Cut-off Date for such Mortgage Loan under the
terms of the Mortgage Note have been made; Countrywide has not advanced funds,
or induced, solicited or knowingly received any advance of funds from a party
other than the owner of the Mortgaged Property subject to the Mortgage, directly
or indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no delinquency of more than thirty (30) days in any payment by
the Mortgagor thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. To the
best knowledge of Countrywide, there are no delinquent taxes, ground rents,
water charges, sewer rents, assessments, insurance premiums, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The substance
of any such waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Collateral File and the terms of
which are reflected in the Mortgage Loan Schedule if executed prior to the
Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings upon the Mortgaged
Property are insured in an amount which is not less than the lesser of (i) the
maximum insurable value of the Mortgaged Property and (ii) the greater if (a)
the outstanding principal balance of the Mortgage Loan, and (b) an amount that
would prevent the Mortgagor from becoming a co-insurer, by an insurer acceptable
to an Agency against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
and such insurer is licensed to do business in the state where the Mortgaged
Property is located. All such insurance policies contain a standard mortgagee
clause naming Countrywide, its successors and assigns as mortgagee, and all
premiums thereon have been paid. If, upon the origination of the Mortgage Loan,
the Mortgaged Property was, or was subsequently deemed to be, 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),
a flood insurance policy that meets the requirements of the current guidelines
of the Federal Insurance Administration (or any successor thereto) and conforms
to the requirements of an Agency is in effect. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's expense
and, upon the failure of the Mortgagor to do so, the holder of the Mortgage is
authorized to maintain such insurance at the Mortgagor's expense and to seek
reimbursement therefor from the Mortgagor;
(g) Compliance with Applicable Law. Each Mortgage Loan at the time
of origination complied in all material respects with applicable local, state
and federal laws including without limitation usury, truth in lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity, fair housing, predatory and abusive lending and disclosure laws
applicable to the Mortgage Loan, including applicable regulations, and
Countrywide 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 Release 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;
(i) Enforceability of Mortgage Documents. The Mortgage Note, the
Mortgage and any related modifications, assignments and assumptions are genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or similar laws;
(j) Valid First Lien on Mortgage Loans that are not Cooperative
Loans. Each related Mortgage is a valid, subsisting and enforceable first lien
or a first priority ownership interest in an estate in fee simple in the
Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related Mortgage
Note, except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgage may secure and create a first lien upon a
leasehold estate of the Mortgagor. 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 public record as of the date of
recording that are acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and that do not adversely affect the Appraised Value (as evidenced
by an appraisal referred to in such definition) 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 and enforceable first lien and first priority
security interest on the property described therein and the Company has full
right to sell and assign the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to each
Cooperative Loan, the related Mortgage is a valid, enforceable and subsisting
first security interest on the related cooperative shares securing the related
cooperative note and lease, subject only to (a) liens of the cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
cooperative'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 intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Countrywide's security interest in such
cooperative shares;
(l) With respect to each Cooperative Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to FNMA and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Cooperative Loan;
(m) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the
Internal Revenue Code, and is in material compliance with applicable federal,
state and local laws which, if not complied with, could have a material adverse
effect on the Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to which a
Mortgaged Property may be subject: (i) the Mortgagor is the owner of a valid and
subsisting leasehold interest under such ground lease: (ii) such ground lease is
in full force and effect, unmodified and not supplemented by any writing or
otherwise; (iii) all rent, additional rent and other charges reserved therein
have been fully paid to the extent payable as of the Closing Date; (iv) the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any of the
terms of such ground lease, and there are no circumstances which, with the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not in
default under any of the terms or provisions of such ground lease on the part of
the lessor to be observed or performed; (vii) the lessor under such ground lease
has satisfied any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; and (viii) the execution, delivery
and performance of the Mortgage do not require the consent (other than those
consents which have been obtained and are in full force and effect) under, and
will not contravene any provision of or cause a default under, such ground lease
(p) Disbursements of Proceeds. 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 recording 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;
(q) Sole Owner. Countrywide is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Countrywide has
good 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, lien,
pledge, participation interests, charge, claim or security interest not
specifically set forth in the related Mortgage Loan Schedule 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 the terms of this
Agreement;
(r) Title Insurance. Each Mortgage Loan is covered by an ALTA
lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Countrywide, its successors and assigns as to
the first priority lien of the Mortgage. 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.
Countrywide is the sole insured of such lender's title insurance policy, and
such lender's title insurance policy is in full force and effect and will be in
full force and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including Countrywide, has
done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy;
(s) No Default. There is no default, breach, violation or event of
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 of
acceleration, and Countrywide has not waived any default, breach, violation or
event of acceleration;
(t) 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 lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(u) Origination and Collection Practices. The origination and
collection practices used by Countrywide with respect to each Mortgage Loan and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
Escrow Payments, if any, all such payments are in the possession of, or under
the control of, Countrywide and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Countrywide have been capitalized under any Mortgage or the related Mortgage
Note. All payments have been collected in compliance with local, state and
federal law and the terms of the related Mortgage Note. With respect to
Adjustable Rate Mortgage Loans, all Mortgage Interest Rate adjustments have been
made in strict compliance with local, state and federal law and the terms of the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(v) No Condemnation or Damage. To the best of Countrywide's
knowledge, each Mortgaged Property is free of material damage and waste and
there is no proceeding pending or threatened for the total or partial
condemnation thereof;
(w) Customary and Enforceable 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 (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. 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;
(x) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage;
(y) Appraisal. Unless the Mortgage Loan was underwritten pursuant to
one of Countrywide's streamline documentation programs, the Credit File contains
an appraisal of the related Mortgaged Property signed prior to the approval of
the Mortgage Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency for appraisers, duly appointed by the originator,
that had no interest, direct or indirect in the Mortgaged Property, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan; the appraisal is in a form acceptable to an Agency, with such riders as
are acceptable to such Agency; furthermore, the appraisal type for each Mortgage
Loan is accurately reflected on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage constitutes
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in 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;
(aa) Private Mortgage Insurance. Each Mortgage Loan, with an LTV at
origination in excess of eighty percent (80%) is and will be subject to a PMI
Policy issued by an insurer acceptable to FNMA or FHLMC, in at least such
amounts as required by FHMA or FHLMC. 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. Any Mortgage subject to any such PMI
Policy obligates the Mortgagor thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith or, in the case of a lender
paid mortgage insurance policy, the premiums and charges are included in the
Mortgage Interest Rate for the Mortgage Loan;
(bb) Lawfully Occupied. To the best of Countrywide's knowledge, at
origination, the Mortgaged Property was lawfully occupied under applicable law.
To the best of Countrywide's knowledge, 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 certificates of occupancy, have been made or obtained from the
appropriate authorities. No improvements violate local zoning laws;
(cc) Assignment of Mortgage. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to an Agency;
(ee) Section 32 Loans. No Mortgage Loan is classified as a
"covered," "high cost," "high cost home loan," "threshold," "predatory loan," or
any other designation that indicates that such Mortgage Loan has terms that
result in costs to the Mortgagor in excess of a specified limit under the Home
Ownership and Equity Protection Act of 1994, as amended, or any similar federal,
state or local statutes or regulations related to "high cost" mortgage loans or
"predatory lending" (as such terms are defined in the applicable statute or
regulation);
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The consolidated principal amount does not exceed the original principal amount
of the Mortgage Loan;
(gg) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the Mortgage Loan Schedule and consists of
a single parcel (or more than one contiguous parcels) of real property with a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project, or an
individual unit in a planned unit development or a townhouse;
(hh) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above
(ii) Soldiers' and Sailors' Civil Relief Act. The Mortgagor has not
notified Countrywide, and Countrywide has no knowledge of any relief requested
or allowed to the Mortgagor under the Soldiers' and Sailors' Civil Relief Act of
1940, as amended, or any similar state law;
(jj) Payment Terms. The Mortgage Note is payable on the first day of
each month in equal monthly installments of principal and interest (or interest,
in the case of any Mortgage Loan for which monthly payments consist of only
interest for a period of time specified on the Mortgage Loan Schedule),
(provided that, the installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date
with respect to an Adjustable Rate Mortgage, and interest is calculated and
payable in arrears) providing for full amortization by maturity over a scheduled
term of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of the related Mortgage Note, from having interest accrue on the principal
amount thereof based on an adjustable rate to having interest accrue based on a
fixed rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination. At the time the Mortgage Loan was originated, the
originator was a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or a
savings and loan association, a saving bank, a commercial bank or similar
banking institution which is supervised by a Federal or State authority.
(ll) Loan-to-Value Ratio; Modifications; No Foreclosures. The
Loan-to-Value Ratio of each Mortgage Loan was no greater than 100% at the time
of its origination or refinancing, as applicable. No Mortgage Loan is subject to
a written foreclosure agreement or pending foreclosure proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was underwritten in
accordance with Countrywide's underwriting guidelines in effect at the time of
origination with exceptions thereto exercised in a reasonable manner;
(nn) Adverse Selection. Countrywide used no adverse selection
procedures in selecting the Mortgage Loan from among the outstanding first-lien
residential mortgage loans owned by it which were available for inclusion in the
Mortgage Loan Package;
(oo) Environmental Matters. To the best knowledge of Countrywide,
the Mortgaged Property is free from any and all toxic or hazardous standards and
there exists no violation of any local, state or federal environmental law, rule
or regulation. There is no pending action or proceeding directly involving any
Mortgaged Property of which Countrywide is aware in which compliance with any
environmental law, rule or regulation is an issue. To the best of Countrywide's
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation consisting a prerequisite to
use and enjoyment of said property;
(pp) No Bankruptcy. To the best of Countrywide's knowledge, no
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and as of the Closing
Date, Countrywide has not received notice that any Mortgagor is a debtor under
any state or federal bankruptcy or insolvency proceeding;
(qq) No Additional Payments. There is no obligation on the part of
Countrywide or any other party to make payments in addition to those made by the
Mortgagor;
(rr) Georgia Fair Lending Act. None of the Mortgage Loans is subject
to the Georgia Fair Lending Act, as amended;
(ss) No Credit Insurance Policies. No proceeds from any Mortgage
Loan were used to purchase single-premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan;
(tt) Prepayment Penalty Term. No Mortgage Loan will impose a
prepayment premium in violation of federal, state or local law or regulations;
and
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 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 failure to examine any Collateral Documents or
Credit File. Upon discovery by either Countrywide or the Purchaser of a breach
of any of the foregoing representations and warranties that materially and
adversely affects the value of one or more of the related Mortgage Loans, the
party discovering such breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within ninety (90) days from the earlier of
either discovery by or notice to Countrywide of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, Countrywide shall use its best efforts to cure such breach
in all material respects, and, if such breach cannot be cured, Countrywide
shall, at the Purchaser's option, repurchase such Mortgage Loan at the
Repurchase Price. In the event that a breach shall involve any representation or
warranty set forth in Section 3.01 and such breach cannot be cured within ninety
(90) days of the earlier of either discovery by or notice to Countrywide of such
breach, all of the Mortgage Loans shall, at the Purchaser's option, be
repurchased by Countrywide at the Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve a
representation or warranty set forth in Section 3.02, Countrywide may at the
discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans. If Countrywide has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan(s) pursuant to the provisions of this Section 3.03
shall be accomplished by deposit in the Custodial Account of the amount of the
Repurchase Price for distribution to the Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution. At the time of repurchase or substitution, the
Purchaser and Countrywide shall arrange for the reassignment of such Mortgage
Loan and release of the related Collateral File to Countrywide and the delivery
to Countrywide of any documents held by the Purchaser or its designee relating
to such Mortgage Loan. In the event Countrywide is authorized to substitute a
Qualified Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide
shall, simultaneously with such reassignment, give written notice to the
Purchaser that substitution has taken place and identify the Qualified
Substitute Mortgage Loan(s). In connection with any such substitution,
Countrywide shall be deemed to have made as to such Qualified Substitute
Mortgage Loan(s) the representations and warranties except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. Countrywide shall effect such substitution
by delivering to the Purchaser the Collateral Documents for such Qualified
Substitute Mortgage Loan(s). Countrywide shall deposit in the Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan(s) in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by Countrywide. For the month of substitution,
distributions to the Purchaser shall include the Monthly Payment due on any
substituted Mortgage Loan in the month of substitution, and Countrywide shall
thereafter be entitled to retain all amounts subsequently received by
Countrywide in respect of such substituted Mortgage Loan.
For any month in which Countrywide substitutes a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all substituted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Countrywide in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, Countrywide shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall. Notwithstanding the
above, in no event shall Countrywide substitute a loan that has been placed in a
trust with respect to a securitization.
In addition to such cure and repurchase obligations, Countrywide
shall indemnify the Purchaser and hold it harmless against any damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion by any third party that is based on or grounded upon, or
resulting from, a breach of Countrywide representations and warranties contained
in this Agreements; provided however, indemnification shall not be available for
any economic losses of the Purchaser due to reinvestment losses, loss of
investment income or any other special, indirect or consequential losses or
damages.
Section 3.04 Accrual of Cause of Action. Any cause of action against
Countrywide relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 shall accrue as to any Mortgage Loan
upon (i) discovery of such breach by the Purchaser or notice thereof by
Countrywide to the Purchaser, (ii) failure by Countrywide to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon
Countrywide by the Purchaser for compliance with the relevant provisions of this
Agreement.
Section 3.05 Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to Countrywide
that, as of each Closing Date:
(a) Organization and Standing. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified to transact business in and is in good
standing under the laws of each state in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such qualification;
(b) Due Authority. The Purchaser has the full power and authority to
perform, and to enter into and consummate, all transactions contemplated by this
Agreement; the Purchaser has the full power and authority to purchase and hold
each Mortgage Loan;
(c) No Conflict. Neither the acquisition of the Mortgage Loans by
the Purchaser pursuant to this Agreement, 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 Purchaser's charter or by-laws or
result in a material breach of any legal restriction or any material agreement
or instrument to which the Purchaser is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which the Purchaser or its property is subject;
(d) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to the Purchaser's knowledge,
threatened, which either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans by the Purchaser hereunder, or the Purchaser's ability to perform its
obligations under this Agreement; and
(e) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement or the consummation of the transactions contemplated by this
Agreement (including, but not limited to, any approval from HUD), or if
required, such consent, approval, authorization or order has been obtained prior
to the related Closing Date.
(f) Securities. Without conceding that the Mortgage Loans are
securities, the Purchaser hereby makes the following representations, warranties
and agreements, which shall have been deemed to have been made as of each
Closing Date:
(i) the Purchaser understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any
state;
(ii) the Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Mortgage Loans;
(iii) the Purchaser has been furnished with all information
regarding he Mortgage Loans which it has requested to date from
Countrywide; and
(iv) neither the Purchaser nor anyone acting on its behalf
offered, transferred, pledged, sold or otherwise disposed of any
Mortgage Loan, any interest in any Mortgage Loan or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of any Mortgage Loan, any
interest in any Mortgage Loan or any other similar security from, or
otherwise approached or negotiated with respect to any Mortgage
Loan, any interest in any Mortgage Loan or any other similar
security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner,
or taken any other action which would constitute a distribution of
the Mortgage Loans under the 1933 Act or which would render the
disposition of any Mortgage Loan a violation of Section 5 of the
1933 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in
such manner with respect to the Mortgage Loans.
Section 3.06 Indemnification by the Purchaser.
The Purchaser shall indemnify Countrywide and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Purchaser's representations and
warranties contained in Section 3.05 above.
ARTICLE IV.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicing LP to Act as Servicer.
Servicing LP shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of the Servicing
Agreement and shall have full power and authority, acting alone, to do or cause
to be done any and all things, in connection with such servicing and
administration, that Servicing LP may deem necessary or desirable and consistent
with the terms of the Servicing Agreement. In servicing and administering the
Mortgage Loans, Servicing LP shall employ procedures in accordance with the
customary and usual standards of practice of prudent mortgage servicers, and
exercise the same care that it customarily employs and exercises in servicing
and administering mortgage loans for its own account.
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide.
Countrywide shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way related
to the failure of Countrywide to perform its obligations hereunder including its
obligations to service and administer the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify Countrywide and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that
Countrywide may sustain in any way related to (a) actions or inactions of
Countrywide which were taken or omitted upon the instruction or direction of the
Purchaser, or (b) the failure of the Purchaser to perform its obligations
hereunder, including subsections (i) and (ii) in Section 5.04.
Section 5.02 Third Party Claims.
Countrywide and the Purchaser shall immediately notify the other if
a claim is made upon such party by a third party with respect to this Agreement
or the Mortgage Loans. Upon the prior written consent of the Purchaser, which
consent shall not be unreasonably withheld, Countrywide shall assume the defense
of any such claim and pay all expenses in connection therewith, including
attorneys' fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or the Purchaser in respect of such claim. The
Purchaser shall promptly reimburse Countrywide for all amounts advanced by it
pursuant to the preceding sentence except when as a result of such claim
Countrywide is otherwise required to indemnify the Purchaser pursuant to Section
5.01 hereof.
Section 5.03 Merger or Consolidation of Countrywide.
Countrywide shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans, and to perform
its duties under this Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Countrywide may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Countrywide
shall be a party, or any Person succeeding to the business of Countrywide, shall
be the successor of Countrywide hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; 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, and shall be qualified to
service mortgage loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Countrywide and Others.
Neither Countrywide nor any of the officers, employees or agents of
Countrywide shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Countrywide or any such person against any breach of
warranties or representations made herein, or the failure to perform its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. Countrywide and any officer, employee or
agent of Countrywide may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event of Default by Countrywide shall occur and
shall not have been remedied within the time limits set forth in Section 7.1 of
the Servicing Agreement, the Purchaser shall not record or cause to be recorded
an Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Countrywide's indemnification under Section 5.01.
Section 5.05 No Transfer of Servicing.
Countrywide acknowledges that the Purchaser acts in reliance upon
Countrywide's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Countrywide shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld; provided, however, that nothing
in this Agreement shall limit the right of Countrywide to assign the servicing
rights hereunder to Servicing LP.
ARTICLE VI.
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Executive Vice President
With copy to: General Counsel
(ii) the Purchaser:
To the address and contact set forth in the related Purchase
Confirmation
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 6.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Countrywide and not a pledge of the Mortgage Loans by Countrywide to
the Purchaser to secure a debt or other obligation of Countrywide. Consequently,
the sale of each Mortgage Loan shall be reflected as a sale on Countrywide's
business records, tax returns and financial statements. Accordingly, Countrywide
and the Purchaser shall each treat the transaction for federal income tax
purposes as a sale by Countrywide, and a purchase by the Purchaser, of the
Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 6.04 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;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including (a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Countrywide.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than four (4) "Purchasers" outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall constitute
a single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Countrywide agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 6.07(a) hereof, may effect Pass-Through
Transfers, retaining Countrywide as the servicer thereof or subservicer if a
master servicer is employed, or as applicable the "seller/servicer." On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 6.07 is rejected by the
related transferee, Countrywide shall continue to service such rejected Mortgage
Loan on behalf of the Purchaser in accordance with the terms and provisions of
this Agreement. Countrywide shall cooperate with the Purchaser in connection
with each Pass-Through Transfer in accordance with this Section 6.07. In
connection therewith Countrywide shall:
(i) negotiate in good faith and execute any seller/servicer
agreement reasonably required to effectuate the Pass-Through
Transfer, provided such agreement creates no greater obligation or
cost on the part of Countrywide than otherwise set forth in this
Agreement, and provided further that Countrywide shall be entitled
to a servicing fee under that agreement at a rate per annum no less
than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Countrywide of the type
and scope customarily included in offering documents for
residential mortgage-backed securities transactions involving
multiple loan originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Countrywide as
are reasonably believed necessary by the trustee, any rating
agency or the Purchaser, as the case may be, in connection
with such Pass-Through Transfer. The Purchaser shall pay all
third party costs associated with the preparation of the
information described in clause (ii)(A) above and the delivery
of any opinions, letters or certificates described in this
clause (ii)(B). Countrywide shall not be required to execute
any seller/servicer agreement unless a draft of the agreement
is provided to Countrywide at least 10 days before the
Reconstitution Date.
(c) In connection with any Pass-Through Transfer, Countrywide shall
make all representations and warranties with respect to the Mortgage Loans as of
the Closing Date and with respect to Countrywide itself as of the closing date
of each whole loan transfer or Pass-Through Transfer.
(d) In connection with any Pass-Through Transfer, Countrywide shall
indemnify, defend and hold harmless the Purchaser from and against any and all
losses, claims, expenses, damages or liabilities to which the Purchaser may be
subject to as a result of any untrue statement of any material fact contained in
any information (such information, the "Countrywide Information") prepared and
furnished to the Purchaser by Countrywide for inclusion in any related offering
document or prospectus (collectively, "Offering Materials"), or arise out of, or
are based upon, any omission in the Countrywide Information necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse the Purchaser for damages or expenses
reasonably incurred by it; provided, however, that Countrywide shall be liable
only insofar as such untrue statement or omission relates solely to the
Countrywide Information in the Offering Materials furnished to the Purchaser by
Countrywide specifically for inclusion in the Prospectus Supplement. The
Purchaser shall indemnify, defend and hold harmless Countrywide from and against
any and all losses, claims, expenses, damages or liabilities to which
Countrywide may be subject to as a result of any untrue statement of any
material fact contained in any Offering Materials, or arise out of, or are based
upon, any omission in any information included in the Offering Materials
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and will reimburse Countrywide for damages
or expenses reasonably incurred by it; provided, however, that Purchaser shall
be liable only insofar as such untrue statement or omission does not relate to
the Countrywide Information in the Offering Materials furnished to the Purchaser
by Countrywide specifically for inclusion in the Prospectus Supplement; and.
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers 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 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Servicing Agreement, and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and the State of California applicable to
agreements entered into and wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide and the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
Countrywide shall be rendered as an independent contractor and not as agent for
the Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Countrywide hereby 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 or independent mortgage
brokerage companies on its behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided, that Countrywide may solicit any mortgagor from whom it
or its servicing affiliate has received a request for verification of mortgage,
a request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
(i) concern optional insurance products or other additional projects or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Countrywide
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Countrywide or any affiliate of
Countrywide, shall not be prohibited: (i) solicitations that are directed to the
general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Countrywide.
Section 6.14 Confidentiality.
Countrywide, the Purchaser and their agents shall keep confidential
and shall not divulge to any person, other than affiliates, without the written
consent of the other party, the terms of this agreement, except (i) to the
extent required by law or judicial order or to enforce its rights or remedies
under this agreement, the Servicing Agreement, or any applicable agreements,
(ii) to the extent such information enters into the public domain other than
through the wrongful act of Countrywide or the Purchaser, as the case may be,
(iii) as is necessary in working with legal counsel, auditors, rating agencies,
agents, taxing authorities or other governmental agencies, or (iv) in order to
disclose to any and all persons, without limitation of any kind, the structure
and tax aspects of this sale or any transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986.
Moreover, Countrywide understands and agrees that this Agreement,
the Servicing Agreement, any other agreements executed in connection with the
sale and servicing contemplated hereunder, any agreements executed in connection
with a securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and Countrywide agrees to hold
such documents confidential and not to divulge such documents to anyone except
(a) to the extent required by law or judicial order or to enforce its rights or
remedies under this letter agreement or the Agreements, (b) to the extent such
information enters into the public domain other than through the wrongful act of
Countrywide (c) as is necessary in working with legal counsel, auditors, agents,
taxing authorities or other governmental agencies, or (d) in order to disclose
to any and all persons, without limitation of any kind, the structure and tax
aspects of this sale or such securitization and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, securitization and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986. The rights
and obligations set forth in this paragraph shall survive the Closing Date and
shall not merge into the closing documents but shall be independently
enforceable by the parties hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to each Mortgage Loan Package and supersede all prior or contemporaneous
oral or written communications regarding same. Countrywide and the Purchaser
understand and agree that no employee, agent or other representative of
Countrywide or the Purchaser has any authority to bind such party with regard to
any statement, representation, warranty or other expression unless said
statement, representation, warranty or other expression is specifically included
within the express terms of this Agreement or the related Trade Confirmation or
Purchase Confirmation. Neither this Agreement nor the related Trade Confirmation
or Purchase Confirmation shall be modified, amended or in any way altered except
by an instrument in writing signed by both parties.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.,
the Seller
By:
--------------------------------------
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
the Purchaser
By: Xxxxxxx Sachs Real Estate
--------------------------------------
Funding Corp.,
General Partner
By:
--------------------------------------
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original Mortgage Note (or, if acceptable to the
Purchaser, a lost note affidavit in a form acceptable to an Agency)
bearing all intervening endorsements, endorsed "Pay to the order of
_____________, without recourse" and signed in the name of the last
endorsee by an authorized officer thereof.
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage Loan,
the original Assignment of Mortgage in blank.
3. Guarantee: The original of any guarantee executed in connection with the
Mortgage Note.
4. Mortgage: The original Mortgage with evidence of recording thereon or, if
such original Mortgage has not been returned to Countrywide on or prior to
the Closing Date by the public recording office where such Mortgage has
been delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage sent
for recordation.
5. Modifications: Unless the Mortgage Loan is a MERS Mortgage Loan, the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if any.
6. Intervening Assignments: The originals of all intervening assignments of
Mortgage with evidence of recording thereon, provided that such originals
have been returned to Countrywide by the public recording office where
such intervening assignment of Mortgage has been delivered for
recordation.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an original
copy of the Cooperative Lease naming the Mortgagor, as tenant, or an
original copy of the assignment of the Cooperative Lease to Mortgagor
together with the original copy of all intervening assignments showing a
complete and unbroken chain of title from the original tenant to Mortgagor
and an original undated assignment, in blank, of the Cooperative Lease
executed by Mortgagor; (ii) the original stock certificate in the name of
the Mortgagor together with an undated original stock power relating to
such stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same form as
a standard "AZTECH" form and the original assignment thereof from
Countrywide to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of title
from the originator of the Mortgage Loan to the Purchaser; (iv) copies of
the UCC-1 financing statement naming the originator of the Cooperative
Loan, as secured party, with evidence of recording thereon and, if
applicable, the executed UCC-3 financing statements (Assignment) or other
appropriate UCC financing statements required by applicable state law
evidencing a complete and unbroken chain of title from the originator of
the Cooperative Loan to Countrywide, with evidence of recording thereon,
(v) an executed UCC-3 financing statement (Assignment), or other
appropriate UCC financing statement required by applicable state law,
evidencing the assignment by Countrywide to the Purchaser of its interest
in the Cooperative Loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor's acquisition of the coop apartment
8. Power of Attorney: Original power of attorney, if applicable.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between
Countrywide Home Loans, Inc. ("Countrywide") and Xxxxxxx Xxxxx Mortgage Company
("Purchaser") sets forth our agreement pursuant to which Purchaser is
purchasing, and Countrywide is selling, on a servicing-retained basis, those
certain mortgage loans identified in Exhibit A hereto and more particularly
described herein (the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of November 1, 2003, between Countrywide and
Purchaser (as amended herein and otherwise, the "Agreement"). By executing this
Purchase Confirmation, each of Countrywide and Purchaser again makes, with
respect to itself and each Mortgage Loan, as applicable, all of the covenants,
representations and warranties made by each such party in the Agreement, except
as the same may be amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the
Agreement, Countrywide shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Agreement, all of the right, title and interest of Countrywide in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Countrywide pursuant to the terms of the Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
[d. Index: On each Interest Adjustment Date, the applicable
index rate shall be a rate per annum equal to [the weekly average yield on
U.S. Treasury securities adjusted to a constant maturity of one year, as
published by the Board of Governors of the Federal Reserve System in
Statistical Release No. H.15] [the average of interbank offered rates for
six-month U.S. dollar denominated deposits in the London market (LIBOR),
as published [in the Wall Street Journal] [by Xxxxxx Mae] [the 11th
District Cost of Funds as made available by the Federal Home Loan Bank]
[the weekly average yield on certificates of deposit adjusted to a
constant maturity of six months as published by the Board of Governors of
the Federal Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Countrywide's obligation to repurchase from the Purchaser the
Mortgage Loan related to a Missing Credit Document shall occur only in the
event of a default by a Mortgagor or any material impairment of the
Mortgaged Property directly arising a breach of Countrywide's obligation
to deliver the Missing Credit Document within the time specified in
Section 2.04 of the Agreement.
f. Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans]
[each Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B]
hereto, the sum of (a) the product of (i) the Cut-off Date Balance of
[such Mortgage Loan] [such Mortgage Loans], and (ii) the purchase price
percentage set forth in Exhibit [A] hereto for such [Mortgage Loan]
[Mortgage Loans], and (b) accrued interest from the Cut-off Date through
the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the
period prior to the initial Interest Adjustment Date, [0.25]% and,
thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Countrywide's credit underwriting guidelines
in effect at the time such Mortgage Loan was originated] [conforms to the
Xxxxxx Mae or Xxxxxxx Mac mortgage eligibility criteria (as such criteria
applies to Countrywide) and is eligible for sale to, and securitization
by, Xxxxxx Mae or Xxxxxxx Mac] [at the time of origination was
underwritten to guidelines which are consistent with an institutional
investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. XXXXXXX SACHS MORTGAGE COMPANY
By: By:
---------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name:
Title: Executive Vice President Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(Available upon request to the Trustee)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
--------------------------------------------------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------
5.
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EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
[CUSTODIAN'S LETTERHEAD]
_______________, (YEAR)
Xxxxxx Xxxxxxxxx
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxxxxxx
Executive Vice President
Countrywide Home Loans Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
RE: Sale of Mortgage Loans pursuant to that certain Master Mortgage
Loan Purchase Agreement, dated November 1, 2003, (YEAR) and Purchase
Confirmation dated ____________, (YEAR), (collectively the "Agreement") between
Countrywide Home Loans Inc. ("SELLER") and Xxxxxxx Sachs Mortgage Company
("PURCHASER").
Ladies and Gentlemen:
Treasury Bank, National Association, a nationally chartered bank and
an affiliate of SELLER ("TREASURY BANK"), has been advised of an impending sale
by SELLER to PURCHASER, of certain mortgage loans described on Exhibit "A"
attached hereto (the "Mortgage Loans"), which sale is expected to occur on [SALE
DATE], (YEAR). The Mortgage Loans are currently held by TREASURY BANK as
custodian for SELLER. SELLER has requested that upon TREASURY BANK's receipt of
written confirmation from SELLER that it has received the Purchase Price,
TREASURY BANK (i) hold such Mortgage Loans in custody for the exclusive benefit
of PURCHASER; (ii) by its execution hereof, certify to PURCHASER its possession
of the Mortgage Note, Assignment of Mortgage and a certified copy of the
Mortgage for each Mortgage Loan except as TREASURY BANK may separately notify
PURCHASER in writing; (iii) segregate and maintain continuous custody of all
Mortgage Files in secure and fire-resistant facilities in accordance with
customary standards for such custody: and (iv) ship the Mortgage Loans to such
address as PURCHASER may instruct TREASURY BANK in writing upon consummation of
the sale. Except as specifically required to be stated herein, TREASURY BANK
makes no representation or warranty with respect to any of the Mortgage Loans or
Mortgage Files. This is to advise SELLER and PURCHASER that TREASURY BANK hereby
agrees to perform the services stated in the immediately preceding sentence,
subject to the terms and conditions set forth herein. All capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to such terms
in the Agreement.
TREASURY BANK shall charge such fees for its custodial services
under this letter agreement as are set forth in a separate agreement between
TREASURY BANK and SELLER, the payment of which fees, together with TREASURY
BANK's expenses in connection herewith, shall be solely the obligation of
SELLER.
The sole obligation of TREASURY BANK with respect to the Mortgage
Loans shall be to perform the services expressly described herein, there being
no implied duties hereunder. It is expressly agreed that in no event shall
TREASURY BANK have any (i) responsibility for documents which it has delivered
to a shipper in accordance with the terms hereof while such documents are not in
its possession or (ii) liability for any losses or damages to any person,
including without limitation SELLER or PURCHASER, arising out of action taken by
TREASURY BANK consistent with instructions given hereunder (including without
limitation, losses or damages arising out of non-performance or faulty
performance by a shipper). SELLER agrees to reimburse, indemnify and hold
harmless TREASURY BANK, its directors, officers, employees and agents from and
against any and all liability, loss, cost and expense, including reasonable fees
and expenses of counsel arising from or connected with TREASURY BANK's execution
and performance of this letter agreement, including but not limited to claims of
any third parties, including PURCHASER, except in the case of loss, liability or
expense resulting from gross negligence or willful misconduct on the part of
TREASURY BANK. TREASURY BANK agrees to reimburse, indemnify and hold harmless
PURCHASER, its directors, officers, employees, and agents from and against any
and all liability, loss, cost and expense, including reasonable fees and
expenses of counsel arising from or connected with PURCHASER's execution of this
letter agreement, including but not limited to, claims of any third parties
resulting from gross negligence or willful misconduct on the part of TREASURY
BANK. In no event shall TREASURY BANK, its directors, officers, employees or
agents be liable for any indirect, special or consequential damages, even if
such party has been advised of the possibility of such damages.
For the purpose of facilitating the execution of this letter
agreement, this letter agreement may be executed simultaneously in any number of
counterparts, each of which counterpart shall be deemed to be an original and
all of which shall constitute one and the same instrument. By execution of this
letter agreement, TREASURY BANK represents and warrants that as of the
consummation of the referenced transaction it holds and thereafter during the
existence of this letter agreement shall hold, no adverse interest, by way of
security or otherwise, in any Mortgage Loan and hereby waives and releases any
such interest which it may have in any Mortgage Loan as of the consummation of
the referenced transaction. All notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
recipient party at the address shown in this letter. This letter agreement shall
inure to the benefit of the successors and assigns of the parties hereto.
TREASURY BANK agrees that its rights and obligations hereunder shall not be
assigned without the prior written consent of PURCHASER. PURCHASER, shall
provide written instructions as to the method of shipment and shippers TREASURY
BANK is to utilize in connection with the transmission the Mortgage Files and
Loan Documents. Each individual executing this letter agreement is authorized to
give and receive notices and is authorized to execute this letter agreement on
behalf of and bind the respective party. This letter agreement may be amended
from time to time by written agreement only signed by PURCHASER, TREASURY BANK
and SELLER.
This letter agreement shall (i) become effective as of the date
hereof upon execution by SELLER, PURCHASER, and TREASURY BANK and (ii) will
expire on [EXPIRATION DATE], (YEAR), if the sale described herein is not
consummated by such date, unless the parties otherwise agree in writing.
Very truly yours,
TREASURY BANK, NATIONAL ASSOCIATION
Xxxxx Xxxxxx
Officer
0000 X. Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Accepted and Agreed Acknowledge:
COUNTRYWIDE HOME LOANS, INC. XXXXXXX SACHS MORTGAGE COMPANY
By: By:
---------------------------- ------------------------------
Name: Xxxxx Xxxxxxx Name:
Title: Executive Vice President Title:
EXHIBIT D
FORM OF TRADE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx
Sachs Mortgage Company
(Deal No. yrmm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Xxxxxxx Xxxxx
Mortgage Company ("Purchaser") and Countrywide Home Loans, Inc. ("Countrywide")
pursuant to which Purchaser has agreed to purchase, and Countrywide has agreed
to sell, those certain mortgage loans [identified] [summarized] in Exhibit A
hereto (the "Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year] [, provided, however, that the
parties shall use their best efforts to consummate the transaction prior to
[DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in Exhibit A.
[Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo] ["A"] ["A-"] ["Alt A"] [Sub-prime] [Conforming]
[fixed] [(x/1) Index adjustable] rate mortgage loans]. (undefined terms should
not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Countrywide and serviced on
a [scheduled/scheduled] [actual/actual] [scheduled][actual] basis for the
servicing fee rate [equal to FEE% per annum][set forth in Exhibit A [for each
Mortgage Loan]]. [ With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter, 0.375%].
Prepayment Penalties: [Countrywide] [Purchaser] shall be entitled to
any penalties resulting from the prepayment of any Mortgage Loans by the related
mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Countrywide may, at its option, elect
to substitute comparable mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Countrywide's sale of the Mortgage Loans is expressly subject to
(a) the review of the Mortgage Loans by Purchaser to confirm conformance with
the Trade Confirmation, and (b) purchase of the Mortgage Loans by Countrywide on
or before the Closing Date from the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing conditions are not satisfied,
Countrywide shall have no liability to Purchaser.]
Non-Circumvent: Countrywide and Purchaser understand and agree that
Countrywide may introduce the owner of the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Countrywide and that such relationship of
Countrywide is confidential. Purchaser agrees, with respect to the Current
Owner, Purchaser will not, for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date], communicate with or purchase
such other mortgage loans from the Current Owner unless the Current Owner has
had previous business dealings (other than any transactions involving
Countrywide) with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. XXXXXXX SACHS MORTGAGE COMPANY
By: By:
---------------------------- --------------------------------
Name: Xxxxx Xxxxxxx Name:
Title: Executive Vice President Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(Available upon request to the Trustee)
EXHIBIT B
UNDERWRITING GUIDELINES
(Available upon request to the Trustee)
EXHIBIT R
SERVICING AGREEMENT,
DATED AS OF JULY 1, 2004, BETWEEN COUNTRYWIDE HOME
LOANS, INC. AND XXXXXXX SACHS MORTGAGE COMPANY
================================================================================
SERVICING AGREEMENT
between
COUNTRYWIDE HOME LOANS SERVICING LP
(Servicer)
and
XXXXXXX XXXXX MORTGAGE COMPANY
(Owner)
Dated as of July 1, 2004
Fixed & Adjustable-Rate First Lien Residential Mortgage Loans
================================================================================
DESCRIPTION OF ATTACHMENTS
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of July 1, 2004, is
by and between COUNTRYWIDE HOME LOANS SERVICING LP, in its capacity as servicer
(the "Servicer"), and XXXXXXX XXXXX MORTGAGE COMPANY, and its successors and
assigns, as owner (the "Owner").
PRELIMINARY STATEMENT
WHEREAS, the Owner and Countrywide Home Loans, Inc. ("Countrywide") have
entered into that certain Master Mortgage Loan Purchase Agreement dated as of
July 1, 2004 between the Owner, as purchaser and Countrywide, as seller,
pursuant to which the Owner will purchase and Countrywide will sell from time to
time, certain fixed and adjustable-rate first lien residential mortgage loans
(the "Master Mortgage Loans Purchase Agreement");
WHEREAS, the Servicer is in the business of providing primary servicing of
mortgage loans and owns the right to service the Mortgage Loans (as hereinafter
defined) listed on the Mortgage Loan Schedule (as hereinafter defined);
WHEREAS, the Owner has requested the Servicer to service the Mortgage
Loans and Servicer has agreed to service, as an independent contractor, such
mortgage loans for the Owner on the terms and conditions set forth herein; and
WHEREAS, the Servicer and the Owner desire to prescribe the terms and
conditions regarding the management, servicing, and control of such mortgage
loans.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Servicer and the Owner agree
as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including prudent
collection and loan administration procedures, and standard of care employed by
prudent mortgage servicers. Such standard of care (i) shall not be lower than
that the Servicer customarily employs and exercises in servicing and
administering similar mortgage loans for its own account, (ii) shall be in
accordance with the requirements of the Servicer's policies and procedures,
(iii) shall be, at a minimum, at least as prudent as the requirements of Xxxxxx
Mae as set forth from time to time in the Xxxxxx Xxx Selling and Servicing
Guide, as amended from time to time, and (iv) shall be in full compliance with
all federal, state and local laws, ordinances, rules and regulations.
Agreement: This Servicing Agreement, including all exhibits and schedules
hereto, and all amendments hereof and supplements hereto.
Ancillary Income: All income if any, derived from any Mortgage Loan,
including but not limited to late charges, fees received with respect to checks
or bank drafts returned by the related bank for non-sufficient funds, assumption
fees, speed pay fees, Prepayment Charges, reconveyance and demand statement
fees, loan modification fees and reamortization fees.
Applicable Requirements: The (i) terms of the Mortgage and Mortgage Note
related to each Mortgage Loan, (ii) the federal, state, local and foreign laws,
statutes, rules, regulations, ordinances, standards, requirements,
administrative rulings, orders and processes pertaining to Mortgage Loans,
including but not limited to those pertaining to the processing, origination and
servicing of the Mortgage Loans and the servicer's policies and procedures,
(iii) the requirements of a Primary Mortgage Insurer (if any) with respect to
the processing, origination, insuring, servicing or filing of claims in
connection with the Mortgage Loans, (iv) the requirements of the Owner as set
forth in this Agreement, and (v) the reasonable and customary mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note provides
that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of transfer, or
equivalent instrument, in recordable form, sufficient under and complying with
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect of record the sale of the Mortgage Loan to the assignee named
therein.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which banking or savings and loan institutions in the States of New York,
California or Texas are authorized or obligated by law or executive order to be
closed.
Closing Date: The date on which the sale and purchase of a Mortgage Loan
Package is consummated between the owner and Countrywide pursuant to the terms
of the Mortgage Loan Purchase Agreement.
Code: The Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the mortgage loan
documents pertaining to such Mortgage Loan which are specified in Exhibit B
hereto and any additional mortgage documents pertaining to such Mortgage Loan
required to be added to the related Collateral File pursuant to the terms of
this Agreement.
Collateral File: With respect to any Mortgage Loan, the file pertaining to
such Mortgage Loan that contains each of the related Collateral Documents.
Condemnation Proceeds: All awards or settlements in respect of a taking of
all or part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation.
Consents: shall mean the unconditional written consent or approval, as
necessary, of an Investor and any applicable Insurer to the Servicer's servicing
of the Mortgage Loans hereunder.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Countrywide: Countrywide Home Loans, Inc., or any successor or assign to
Countrywide under this Agreement as provided herein.
Credit File: With respect to any Mortgage Loan, a file pertaining to such
Mortgage Loan and containing copies of the mortgage loan documents described on
Exhibit C attached hereto, the credit documentation relating to the origination
of such Mortgage Loan and copies of the Collateral Documents. Each Credit File
shall be maintained by the Servicer (either on paper or on microfilm or any
other comparable medium), and shall be delivered to the Owner as soon as
practicable upon request.
Custodial Account: The account or accounts created and maintained pursuant
to Section 3.4 of this Agreement which account(s) shall be an Eligible Account.
Custodial Agreement: Any agreement with respect to the Mortgage Loans
governing the retention of the originals of each Mortgage Note, Mortgage,
Assignment of Mortgage and other Mortgage Loan Documents, entered into among
Countrywide, the Servicer and JPMorgan.
Custodian: With respect to any Mortgage Loan and the related Collateral
File, JPMorgan Chase Bank and any successor custodian under any custodial
agreement which may be entered into between the Servicer, the Owner or any
subsequent Owner and the custodian named therein regarding the warehousing and
safekeeping of such Collateral File.
Cut-off Date: With respect to a Mortgage Loan Package, the first day of
the month in which the related Cutoff Date occurs or such other date as may be
mutually agreed to by the parties.
Default: Any condition or circumstance that is, or with notice or the
lapse of time or both, would become, an Event of Default.
Determination Date: The Business Day immediately preceding the related
Remittance Date.
Due Date: With respect to any Mortgage Loan, the first day of the month on
which Monthly Payments on such Mortgage Loan are due, exclusive of any days of
grace.
Due Period: With respect to each Remittance Date, the period beginning on
the second day of the month immediately preceding the month of such Remittance
Date and ending on the first day of the month of such Remittance Date.
Eligible Account: An account or accounts maintained with a Qualified
Depository.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 3.6.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, if any, fire and hazard
insurance premiums, and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances enumerated in
Section 7.1.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
Xxxxxx Xxx: Xxxxxx Xxx, formerly known as the Federal National Mortgage
Association, or any successor thereto.
Fidelity Bond: A fidelity bond to be obtained by the Servicer pursuant to
Section 3.12.
Xxxxxxx Mac: Xxxxxxx Mac, formerly known as the Federal Home Loan Mortgage
Corporation or any successor thereto.
Gross Margin: With respect to each ARM Loan, the fixed percentage amount
set forth in the related Mortgage Note as shown in the Mortgage Loan Schedule,
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.
Index: With respect to any ARM Loan, the index set forth in the applicable
Mortgage Note which is added to the Gross Margin to determine the Mortgage
Interest Rate on each Interest Rate Adjustment Date. In the event the Index
becomes unavailable for any reason, the Servicer shall select an alternative
index, in accordance with the terms of the Mortgage Note, and such alternative
index shall thereafter be the Index for such Mortgage Loan.
Insurance Proceeds: Proceeds of any Primary Mortgage Insurance Policy, any
title policy, any hazard insurance policy or any other insurance policy covering
a Mortgage Loan or the related Mortgaged Property, including any amounts
required to be deposited in the Custodial Account pursuant to Section 3.10, to
the extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with Acceptable
Servicing Procedures and Section 3.14.
Interest Rate Adjustment Date: As to any ARM Loan, the date specified in a
Mortgage Note on which the Mortgage Interest Rate for the related Mortgage Loan
is subject to adjustment.
Investor: With respect to any Mortgage Loan, a Person who has a beneficial
interest in, or is a record owner of, such Mortgage Loan or any trustee acting
on behalf of any such Person.
Late Collections: With respect to any Mortgage Loan, all amounts (other
than Monthly Advances) received during any Due Period, whether as late payments
of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds, Condemnation
Proceeds or otherwise, which represent late payments or collections of Monthly
Payments due but delinquent for a previous Due Period and not previously
recovered.
Liquidation Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment of the
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or in connection
with the sale of the Mortgaged Property if the Mortgaged Property is a REO
Property.
LPMI Fee: The portion of the Mortgage Interest Rate relating to a LPMI
Loan, which is set forth on the related Mortgage Loan Schedule, to be retained
by the Servicer to pay the premium due on a Primary Mortgage Insurance Policy
with respect to a LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the Servicer is
responsible for paying the premium due on the related Primary Mortgage Insurance
Policy with the proceeds generated by the LPMI Fee relating to such Mortgage
Loan, as set forth on the related Mortgage Loan Schedule.
Losses: Any claims, penalties, fines, forfeitures, damages, liabilities,
losses and expenses, including reasonable attorneys' fees.
Maturity Date: With respect to any Mortgage Loan, the maturity date of the
related Mortgage Note and Mortgage as specified therein.
MERS: Mortgage Electronic Registration, Inc. a corporation organized and
existing under the laws of the State of Delaware, or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: Commencing with each Monthly Payment due on or after the
related Cutoff Date, the portion of each Monthly Payment that is delinquent with
respect to each Mortgage Loan at the close of business on the Determination Date
required to be advanced by the Servicer pursuant to Section 4.3 on the Business
Day immediately preceding the Remittance Date of the related month.
Monthly Payment: The scheduled monthly payment of principal and interest
on a Mortgage Loan which is payable by a Mortgagor from time to time under the
related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust or other instrument
creating a first lien on or first priority ownership interest on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor, as the case may be, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgage Interest Rate: As to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan and, with respect to an ARM Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this Agreement,
as evidenced by such mortgage loan's inclusion on the related Mortgage Loan
Schedule, which mortgage loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds (if applicable) and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan,
excluding the servicing rights relating thereto. Unless the context requires
otherwise, any reference to the Mortgage Loans in this Agreement shall refer to
the Mortgage Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: Pools of Mortgage Loans sold to the Owner pursuant
the Master Mortgage Loan Purchase Agreement.
Mortgage Loan Remittance Rate: with respect to each Mortgage Loan, the
interest rate payable to the Owner on each Remittance Date which shall equal the
Mortgage Interest Rate less the Servicing Fee and any LPMI Fees, if applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto as
Exhibit A, such schedule setting forth the following information with respect to
each Mortgage Loan: (1) Countrywide's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property; (3) a code indicating
whether the Mortgaged Property is a single family residence, two-family
residence, three-family residence, four family residence or planned unit
development; (4) the purpose of the Mortgage Loan; (5) the Mortgagor's social
security number; (6) a code indicating the occupancy status of the Mortgaged
Property (i.e., owner-occupied, non-owner, second home); (7) a code indicating
whether the Mortgagor was self-employed at the time of origination; (8) the
Mortgage Interest Rate at origination; (9) the current Mortgage Interest Rate;
(10) whether the Mortgage Loan has Monthly Payments that are interest only for a
period of time; (11) the Servicing Fee Rate; (12) the current Monthly Payment;
(13) the original term to maturity; (14) the remaining term to maturity; (15)
the scheduled principal balance of the Mortgage Loan as of the Cut-off Date;
(16) the principal balance of the Mortgage Loan at origination; (17) the
principal balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (18) the LTV at origination or, if the Mortgage Loan was secured by a
second lien, the combined LTV at origination; (19) the due date of the Mortgage
Loan; (20) a PMI Policy insurer name, percent and policy number (if applicable);
(21) the type of appraisal; (22) a code indicating whether the Mortgage Loan is
a MERS Mortgage Loan; (23) a code indicating whether the Mortgaged Property has
any subordinate financing; (24) a code indicating whether the Mortgage Loan is
secured by a leasehold interest in the related Mortgaged Property; (25) a code
indicating whether the Mortgage Loan is subject to a prepay penalty; (26)
documentation type; (27) a code indicating whether the Mortgage Loan is a
buydown loan; (28) first payment date and (29) FICO score.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagor: The obligor on a Mortgage Note and their successors in title to
the Mortgage Property.
Nonrecoverable Advance: Any portion of any of a Monthly Advance or
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer hereunder which, in the good faith judgment of the
Servicer, will not be ultimately recoverable from Late Collections.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President, the Servicer,
and delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee
of the Servicer or an affiliate thereof, reasonably acceptable to the Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company or any permitted successor owner of
any of the Mortgage Loans.
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage
Loans to a REMIC or other trust to be formed as part of a publicly or privately
traded pass-through transaction retaining the Servicer as "servicer" thereunder.
Periodic Rate Cap: With respect to each ARM 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,
equal to the rate set forth on the Mortgage Loan Schedule per adjustment.
Permitted Instruments: Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security described
in clause (i) above, provided that the unsecured long-term obligations of
the party agreeing to repurchase such obligations are at the time rated by
Standard & Poor's Corporation in one of its three highest rating
categories;
(iii) federal funds, certificates of deposit, time deposits, and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state, provided that the long-term debt
obligations of such bank or trust company (or, in the case of the
principal bank in a bank holding company system, the long-term debt
obligations of the bank holding company) at the date of acquisition
thereof have been rated by Standard & Poor's Corporation in one of its
three highest rating categories;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has been rated by Standard & Poor's Corporation in its highest short-term
rating category; and
(v) any other obligation or security acceptable to Standard &
Poor's Corporation in respect of mortgage pass-through certificates rated
in one of its three highest rating categories, as evidenced by a letter
from Standard & Poor's Corporation to such effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment Charge: With respect to any Mortgage Loan, the prepayment
premium or charge, if any, required under the terms of the related Mortgage Note
to be paid in connection with a Principal Prepayment, to the extent permitted by
applicable law.
Prepayment Period: With respect to a Remittance Date, the prior
calendar month.
Prepayment Interest Shortfall Amount: With respect to any Remittance Date
and Mortgage Loan that was subject to a Principal Prepayment in full or in part
during the related Principal Prepayment Period, which Principal Prepayment was
applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Primary Mortgage Insurance Policy: With respect to any Mortgage Loan, the
policy of primary mortgage guaranty insurance (including all endorsements
thereto), if any, issued by a Qualified Insurer with respect to such Mortgage
Loan, or any replacement policy.
Primary Mortgage Insurer: The named insurer under any Primary Mortgage
Insurance Policy.
Prime: As of any date of determination, the annual interest rate, adjusted
daily, published from time to time in The Wall Street Journal (Western Edition)
as the "PRIME RATE" in the "MONEY RATES" section.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan (other than Condemnation Proceeds, Insurance Proceeds, and
Liquidation Proceeds) which is received in advance of its scheduled Due Date
(not including any Prepayment Charge) and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Qualified Depository: (i) A depository, the long-term unsecured debt
obligations of which are rated by a nationally recognized statistical rating
agency in one of its two highest rating categories at the time of any deposit
therein, or (ii) a depository, the deposits of which are fully insured to the
maximum extent permitted by the FDIC or (iii) the corporate trust department of
a national bank; provided that they maintain a rating by a nationally recognized
statistical rating agency in the highest rating categories for short term debt
obligations.
Qualified Insurer: An insurance company duly qualified as such under the
laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Reconstitution Agreements: The agreement or agreements entered into by the
Servicer and the Owner and/or certain third parties on the Reconstitution Date
or Dates with respect to any or all of the Mortgage Loans serviced hereunder, in
connection with a Whole Loan Transfer or a Pass-Through Transfer. Such agreement
or agreements shall prescribe the rights and obligations of the Servicer in
servicing the related Mortgage Loans.
Reconstitution Date: The date or dates on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Whole Loan Transfer or Pass-Through Transfer pursuant
to Section 5.9 hereof. On such date, the Mortgage Loans transferred shall cease
to be covered by this Agreement and the Servicer shall cease to service those
Mortgage Loans under this Agreement in accordance with the termination
provisions set forth in Section 5.9 hereof.
Remittance Advice Date: The 10th day of each month or, if such 10th day is
not a Business Day, the first Business Day immediately following such day.
Remittance Date: With respect to each Mortgage Loan: the eighteenth (18th)
day of any month, beginning with the eighteenth (18th) day of the month next
following the month in which the related Cut-off Date occurs, or if such
eighteenth (18th) day is not a Business Day, the first Business Day immediately
following such day.
REO Property: A Mortgaged Property acquired in foreclosure or by deed in
lieu of foreclosure, as described in Section 3.13.
Security Agreement: With respect to any Cooperative Loan, the agreement
between the owner of the related Coop Shares and the originator of the related
Mortgage Note that defines the terms of the security interest in such Coop
Shares and the related Proprietary Lease.
Servicer: Countrywide Home Loans Servicing LP, a Texas limited partnership
or its permitted successor in interest or any successor to the Servicer as
permitted under this Agreement.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) that are incurred by the Servicer in the performance of its
servicing obligations hereunder, including, but not limited to, the cost of (i)
the preservation, restoration, and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) compliance with the
obligations of this Agreement, including without limitation under Sections 3.8
and 3.10.
Servicing Fee: With respect to each Mortgage Loan being serviced and
administered pursuant to this Agreement, the amount of the annual fee payable to
the Servicer as compensation for servicing and administering such Mortgage Loan
and for managing and disposing of REO Property in accordance with the terms of
this Agreement. For each Mortgage Loan, such fee shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate,
multiplied by (ii) the outstanding Unpaid Principal Balance of such Mortgage
Loan as of the first day of such month, and shall be payable in accordance with
Section 5.3. With respect to any REO Property that is being managed by the
Servicer in accordance with Section 3.13 of this Agreement, such fee shall be
payable through and until the disposition of such REO Property or the transfer
of the REO Property to the Owner for management by the Owner, and the amount of
such fee shall be based upon the Unpaid Principal Balance of the related
Mortgage Loan at the time of the related foreclosure.
Servicing Fee Rate: As to (i) each Mortgage Loan that is an ARM Loan, .25%
per annum with respect to each Due Period occurring before the initial Interest
Rate Adjustment Date, and with respect to 5/1, 7/1 and 10/1 Loans, .375% per
annum thereafter, and (ii) each Mortgage Loan that is not an ARM Loan, .25% per
annum.
Servicing File: As to each Mortgage Loan, the copies of the Collateral
Documents, as well as the credit and closing packages, disclosures, copies of
the all other files, books, records and documents necessary to (a) establish the
eligibility of the Mortgage Loan for insurance by a Qualified Insurer, if any;
and/or (b) service the Mortgage Loan in accordance with Acceptable Servicing
Procedures, including the documents listed on Exhibit B hereto, some of which
maybe held by the Custodian.
Unpaid Principal Balance: With respect to each Mortgage Loan as of any
date of determination: (i) the unpaid principal balance of the Mortgage Loan at
the 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 Owner with respect to the related Mortgage Loan representing
payments or recoveries of principal or advances in lieu thereof.
Whole Loan Transfer: The sale or transfer by the Owner of some or all of
the Mortgage Loans in a whole loan or participation certificate format pursuant
to a Reconstitution Agreement retaining the Servicer as "servicer" thereunder.
3/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 36 months.
5/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 60 months.
7/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 84 months.
10/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 120 months.
Any capitalized term used herein and not otherwise defined, shall have the
meaning assigned to such term in the Master Mortgage Loan Purchase Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer
With respect to a Mortgage Loan Package, the Servicer represents, warrants
and covenants to the Owner that, as of the related Closing Date:
(a) The Servicer is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is organized and is qualified and
licensed to transact business in and is in good standing under the laws of each
state where each Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and the servicing of the Mortgage Loan
in accordance with the terms of this Agreement. The execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Servicer and the consummation of
the transactions contemplated hereby have been duly and validly authorized. This
Agreement evidences the valid, binding and enforceable obligation of the
Servicer; and all requisite action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with its term;
(b) The Servicer has the full power and authority to (i) perform and enter
into and consummate all transactions contemplated by this Agreement and (ii) to
service each Mortgage Loan;
(c) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Servicer, which is in the business
of servicing loans;
(d) Neither 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 Servicer's certificate of limited partnership or
partnership agreement or result in a material breach of any legal restriction or
any material agreement or instrument to which the Servicer is now a party or by
which it is bound, or constitute a material default or result in an acceleration
under any of the foregoing, or result in the violation of any material law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject;
(e) The Servicer is an approved servicer for Xxxxxx Xxx and Xxxxxxx Mac in
good standing. No event has occurred, including a change in insurance coverage,
which would make the Servicer unable to comply with Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements;
(f) There is no action, suit, proceeding, investigation or litigation
pending or, to the Servicer's knowledge, threatened, which either in any one
instance or in the aggregate, if determined adversely to the Servicer would
materially and adversely affect the Servicer's ability to service the Mortgage
Loans hereunder in accordance with the terms hereof, or the Servicer's ability
to perform its obligations under this Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, of or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) The Servicer 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 Servicer, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement;
(i) The Servicer 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;
(j) The Servicer is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in connection with
the servicing of the Mortgage Loans registered with MERS;
(k) The Servicer has serviced, and shall at all times service, the
Mortgage Loans in accordance with the Acceptable Servicing Procedures, the
Mortgage Note and applicable federal, state and local laws and regulations,
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws, and the Servicer shall maintain in its possession, available for the
Owner's inspection and shall deliver to the Owner upon demand, evidence of
compliance with all such requirements. 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;
(l) The Servicer has fully furnished (or caused to be 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, or any their successors and assigns (three of the credit repositories),
on a monthly basis; and
(m) No statement, report or other document prepared and furnished by the
Servicer or to be prepared and furnished by the Servicer pursuant to this
Agreement in connection with the transactions contemplated hereby contain or
will contain any untrue statement of fact or omit to state a fact necessary to
make the statements contained therein not misleading.
Section 2.2 Remedies for Breaches of Representations or Warranties.
The Servicer shall indemnify the Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses resulting from a
breach of the Servicer's representations and warranties contained in Section 2.1
that materially and adversely affects the value of one or more of the Mortgage
Loans. The obligations of the Servicer set forth in this Section 2.2 to
indemnify the Owner as provided in this Section 2.2 constitute the sole remedies
of the Owner with respect to a breach of the foregoing representations and
warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as Servicer
(a) The Servicer, as independent servicer, shall commence servicing and
administering each Mortgage Loan on behalf of the Owner from and after the
Cut-off Date in accordance with the terms and conditions of this Agreement and
Acceptable Servicing Procedures. Except as otherwise expressly provided in this
Agreement, the Servicer shall have full power and authority, acting alone, to do
any and all things reasonably consistent with the terms of this Agreement,
including but not limited to the following: (i) to execute and deliver, on
behalf of the Owner, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and other
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan; provided
that the Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Owner under this Agreement. The Servicer further
is authorized and empowered by the Owner, in its own name when the Servicer,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Owner, any
and all instruments of assignment and other comparable instruments with respect
to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. The Servicer shall at
all times act in the best interests of the Owner in performing its obligations
under this Agreement.
(b) The documents comprising the Collateral File relating to each Mortgage
Loan serviced hereunder and that are retained by the Servicer pursuant to the
terms hereof, together with all other documents with respect to each such
Mortgage Loan which are prepared by or which come into the possession of the
Servicer, shall immediately vest in the Owner and shall be held and maintained
in trust by the Servicer at the will of the Owner and in a custodial capacity
only. The documents comprising each Collateral File and all related documents
which come into the possession of the Servicer and are so held by the Servicer
shall be segregated from the other books and records of the Servicer and shall
be appropriately marked to clearly reflect the ownership interest of the Owner
in such Collateral File and related documents. The Servicer shall release its
custody of any such documents only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with Applicable Law. The Servicer shall keep at its
servicing office books and records in which, subject to such reasonable
regulations as it may prescribe, the Servicer shall note transfers of Mortgage
Loans. No transfer of a Mortgage Loan may be made unless such transfer is in
compliance with the terms hereof. For the purposes of this Agreement, the
Servicer shall be under no obligation to deal with any person with respect to
this Agreement or the Mortgage Loans unless the books and records show such
person as the owner of the Mortgage Loan. The Owner may, subject to the terms of
this Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that in no event shall there be more than four Persons at any given
time having the status of "Owner" hereunder. The Owner also shall advise the
Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. If the
Servicer receives written notification of a transfer less than five (5) Business
Days before the monthly Determination Date, the Servicer's duties to remit and
report to the new purchaser(s) as required by Section 5.9 hereof shall begin
with the first Determination Date after the Reconstitution Date.
(c) Consistent with the terms of this Agreement and subject to the REMIC
Provisions if the Mortgage Loans have been transferred to a REMIC, 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 if in the Servicer's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Owner. In the event of any such modification which
permits the deferral of interest or principal payments on any Mortgage Loan, the
Servicer shall, on the Business Day immediately preceding the Remittance Date in
any month in which any such principal or interest payment has been deferred,
deposit in the Custodial Account from its own funds, in accordance with Section
5.3, the difference between (a) such month's principal and one month's interest
at the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Servicer shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 5.3. Without limiting the generality of the
foregoing, the Servicer shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Owner, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Servicer, the
Owner shall furnish the Servicer with any powers of attorney and other documents
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, in strict
compliance with (i) the terms of the Mortgage and Mortgage Note, (ii) all
applicable law, and (iii) Acceptable Servicing Procedures.
Section 3.2 Liquidation of Mortgage Loans
In the event that any payment due under any Mortgage Loan is not paid when
the same becomes due and payable, or in the event the Mortgagor fails to perform
any other covenant or obligation under the Mortgage Loan and such failure
continues beyond any applicable grace period, the Servicer shall take such
action as (1) the Servicer would take under similar circumstances with respect
to a similar mortgage loan held for its own account for investment, (2) shall be
consistent with Accepted Servicing Practices, and (3) the Servicer shall
determine prudently to be in the best interest of the Owner. In the event that
any payment due under any Mortgage Loan remains delinquent for a period of 90
days or any other default continues for a period of 30 days beyond the
expiration of any grace or cure period, the Servicer shall commence foreclosure
proceedings, the Servicer shall notify the Owner in writing of the Servicer's
intention to do so, and the Servicer shall not commence foreclosure proceedings
if the Owner objects to such action within ten (10) Business Days of receiving
such notice. In the event the Owner objects to such foreclosure action, the
Servicer shall not be required to make Monthly Advances with respect to such
Mortgage Loan, pursuant to Section 4.3, and the Servicer's obligation to make
such Monthly Advances shall terminate on the 90th day referred to above. In such
connection, the Servicer shall from its own funds make all necessary and proper
Servicing Advances, provided, however, that the Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration or preservation of any Mortgaged Property, unless it shall determine
(a) that such preservation, restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan to the Owner after reimbursement to
itself for such expenses and (b) that such expenses will be recoverable by it
either through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 3.5) or
through Insurance Proceeds (respecting which it shall have similar priority).
Section 3.3 Collection of Mortgage Loan Payments
Continuously from the date hereof until the principal and interest on all
Mortgage Loans being serviced hereunder are paid in full or this Agreement is
otherwise terminated, the Servicer will proceed diligently to collect all
payments due under each of such Mortgage Loans when the same shall become due
and payable. With respect to those Mortgage Loans, if any, as to which the
Servicer collects Escrow Payments, the Servicer will ascertain or estimate, as
the case may be, annual ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums, mortgage insurance premiums and all other charges
that, as provided in any Mortgage, will become due and payable so that the
Escrow Payments payable by the Mortgagors will be sufficient to pay such charges
as and when they become due and payable. The Servicer shall not be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note, Primary Mortgage Insurance Policy or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if in its reasonable judgment it believes that it will
be unable to enforce the provision of the Mortgage or other instrument pursuant
to which payment is required.
Section 3.4 Establishment of Custodial Account; Deposits in Custodial Account
(a) The Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts
(collectively, with respect to the accounts maintained by any one Servicer, its
"Custodial Account"), in the form of time deposit or demand accounts, which may
be interest bearing, titled, with respect to the Servicer, "Countrywide Home
Loans Servicing LP, in trust for Xxxxxxx Xxxxx Mortgage Company as Owner, and
any successor Owner.
(b) With respect to each Mortgage Loan, the Servicer shall not later than
the end of the second Business Day following receipt thereof, deposit in the
Custodial Account and retain therein the following payments and collections
received by the Servicer subsequent to the Cut-off Date:
(i) all payments on account of principal, including Principal
Prepayments, actually collected by the Servicer on the Mortgage Loans;
(ii) all payments on account of interest actually collected by the
Servicer on the Mortgage Loans less the Servicing Fee;
(iii)all Liquidation Proceeds;
(iv) all Insurance Proceeds, other than Insurance Proceeds to be
held in the Escrow Account and applied to the restoration and repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures;
(v) all Condemnation Proceeds which are not released to the
Mortgagor in accordance with the Owner's written consent and Acceptable
Servicing Procedures and Section 3.14;
(vi) any amounts with respect to Monthly Advances required to be
deposited in the Custodial Account pursuant to Section 4.3;
(vii)any amount required to be deposited in the Custodial Account
pursuant to Sections 3.1(c), 3.1(d), 3.4(c), 3.10(a) or (b), 3.11(b),
3.13(c), (d) and (f), and 4.1(b) of this Agreement; and
(vii)the Prepayment Interest Shortfall Amount, if any, for the month
of distribution (such deposit shall be made from the Servicer's own funds,
without reimbursement therefor up to a maximum amount per month equal to
the lesser of one half of (a) one-twelfth of the product of (i) the
Servicing Fee Rate and (ii) the Unpaid Principal Balance of such Mortgage
Loans, or (b) the aggregate Servicing Fee actually received for such month
for the Mortgage Loans)
(c) The Servicer may cause the funds on deposit from time to time in the
Custodial Account to be invested in Permitted Instruments, which investments
shall mature not later than the Business Day immediately preceding the
applicable Remittance Date next following the date of such investment. All such
investments shall be made in the name of the Servicer or its nominee. All income
and gain realized from any such investment shall be for the benefit of the
Servicer and shall be subject to its withdrawal or order from time to time. The
Servicer shall indemnify the Owner for any and all losses incurred in respect of
any such investment by the Servicer, and the amount of any losses incurred in
respect of any such investment shall be deposited in the Custodial Account by
the Servicer out if its own funds immediately, without reimbursement therefor.
(d) It is understood and agreed that payments in the nature of Ancillary Income
need not be deposited by the Servicer in the Custodial Account.
Section 3.5 Permitted Withdrawals from the Custodial Account
(a) The Servicer may, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to make payments and distributions to the Owner in the amounts
and in the manner provided for in Section 4.1;
(ii) to reimburse itself for Monthly Advances made by the Servicer
from its own funds pursuant to Section 4.3, the Servicer's right to
reimburse itself pursuant to this subclause (ii) being limited to amounts
received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such Monthly Advance was
made and such other amounts as are collected by the Servicer from the
related Mortgagor or otherwise relating to the Mortgage Loan; (or to
amounts received on the Mortgage Loans as a whole in the event that such
Monthly Advance is made to pay a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Servicemembers Civil Relief Act).
Notwithstanding the foregoing, the Servicer may reimburse itself for
Monthly Advances from any funds in the Custodial Account if it has
determined that such funds are Nonrecoverable Advances (or if all funds,
with respect to the related Mortgage Loan, have previously been remitted
to the Owner);
(iii) to reimburse itself for unreimbursed Servicing Advances and
any unpaid Servicing Fees, Servicer's right to reimburse itself pursuant
to this subclause (ii) with respect to any Mortgage Loan being limited to
related proceeds from Liquidation Proceeds, Condemnation Proceeds, Primary
Mortgage Insurance Proceeds and Other Insurance Proceeds; provided that
the Servicer may reimburse itself from any funds in the Custodial Account
for Servicing Advances and Servicing Fees if all funds with respect to the
related Mortgage Loan have previously been remitted to Owner; provided,
however, that the Servicer may reimburse itself for Servicing Advances
which it has determined are Nonrecoverable Advances.
(iv) to pay itself any Servicing Fee and other servicing
compensation not paid to the Servicer pursuant to Section 5.3;
(v) to pay to itself any interest earned on funds deposited in the
Custodial Account;
(vi) if there shall be amounts deposited in the Custodial Account in
error, including the Servicing Fee and other servicing compensation not
required to be deposited therein, to withdraw such amounts; and
(vii)to clear and terminate the Custodial Account upon the
termination of this Agreement in accordance with Article 8.
Section 3.6 Establishment of Escrow Account; Deposits in Escrow Account; Escrow
Analysis
(a) The Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts (collectively, with respect to the accounts
maintained by any one Servicer, its "Escrow Account"), in the form of time
deposit or demand accounts, which may be interest bearing, titled, with respect
to the Servicer, "Countrywide Home Loans Servicing LP, in trust for Xxxxxxx
Sachs Mortgage Company, as Owner, and any successor Owner, and certain
Mortgagors." The Escrow Account shall be an Eligible Account.
(b) The Servicer shall not later than the end of the second Business Day
following receipt thereof (or sooner if required by applicable law) deposit in
the Escrow Account maintained by the Servicer and retain therein: (i) all Escrow
Payments collected on account of the Mortgage Loans for the purpose of effecting
timely payment of any such items as required under the terms of this Agreement,
and (ii) all amounts representing proceeds of any hazard insurance policy which
are to be applied to the restoration or repair of any Mortgaged Property. The
Servicer shall make withdrawals from the Escrow Account maintained by the
Servicer only in accordance with Section 3.7. The Servicer shall be entitled to
retain any interest earned on funds deposited in the Escrow Account maintained
by the Servicer other than interest on escrowed funds required by law to be paid
to the Mortgagor and, to the extent required by law, the Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account maintained by the Servicer may not bear interest or that the interest
earned on such escrowed funds is insufficient for such purpose.
Section 3.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the Servicer may be made
by the Servicer only (a) to effect timely payments of taxes, assessments, water
rates, insurance premiums, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage; (b) to reimburse the
Servicer for any Servicing Advance made by the Servicer pursuant to Sections
3.8, 3.10 and 3.11 with respect to a related Mortgage Loan, the Servicer's right
to reimburse itself pursuant to this clause (b) being limited to the amounts as
may be collected by the Servicer from the related Mortgagor or from the related
insurer; (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 in accordance with the terms of this Agreement; (e) for
application to restoration or repair of the related Mortgaged Property in
accordance with the provisions of Section 3.14, (f) to pay to a Mortgagor, to
the extent required by Applicable Requirements, interest 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 related
Mortgagor), (h) to remove funds inadvertently placed in the Escrow Account by
the Servicer; or (i) to clear and terminate the Escrow Account upon the
termination of this Agreement, in accordance with Article 8.
Section 3.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of property taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
Primary Mortgage Insurance Policy premiums, if any, and fire and hazard
insurance coverage and flood insurance, all as required hereunder. If a Mortgage
Loan requires Escrow Payments, the Servicer shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date in a
manner consistent with Acceptable Servicing Procedures, employing for such
purpose Mortgagor deposits in the Escrow Account. The Servicer shall, with
respect to each Mortgage Loan for which Escrow Payments are maintained, conduct
an escrow analysis in accordance with industry standard procedures. If a
Mortgage Loan does not require Escrow Payments, or if there are insufficient
funds in the related Escrow Account, the Servicer shall cause all such bills to
be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to make timely payment of all such bills. The Servicer shall
monitor the payment status of such charges (including renewal premiums) by the
related Mortgagor, and shall effect payment thereof in a manner consistent with
Acceptable Servicing Procedures, and in all events prior to the foreclosure of
any lien against the Mortgaged Property resulting from non-payment of such
property taxes, assessments and other charges and prior to the termination of
any such insurance coverage.
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts
The Servicer may from time to time transfer the Custodial Account or the
Escrow Account maintained by it to a different depository institution, provided
that each such account shall be and remain an Eligible Account.
Section 3.10 Maintenance of Hazard Insurance
The Servicer shall cause to be maintained, with a Qualified Insurer for
each Mortgage Loan serviced by it, fire and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located pursuant
to insurance policies conforming to the requirements of Xxxxxx Xxx and Xxxxxxx
Mac, in an amount which is at least equal to the lesser of (i) 100% of the
maximum insurable value of the improvements securing the Mortgage Loan or (ii)
the Unpaid Principal Balance of the Mortgage Loan. If the Mortgaged Property is
in an area then identified on a flood hazard boundary map or flood insurance
rate map issued by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance is available), the Servicer will cause
to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx Mac. Such flood
insurance shall be in an amount representing coverage not less than the least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the full
insurable value of the improvements securing such Mortgage Loan or (iii) the
maximum amount of insurance available under the National Flood Insurance Act of
1968 and the Flood Disaster Protection Act of 1973, each as amended. The
Servicer shall also maintain on each REO Property with an insurer acceptable to
Xxxxxx Mae or Xxxxxxx Mac (x) fire and hazard insurance with extended coverage
in an amount that is at least equal to the maximum insurable value of the
improvements securing the Mortgage Loan that are a part of such property, (y)
liability insurance and (z) to the extent required and available under the
National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973,
each as amended, or other applicable federal law, flood insurance in an amount
as provided above. Any costs incurred by the Servicer maintaining insurance
under this Section 3.10 shall be recoverable as Servicing Advances. Any amounts
collected by the Servicer under any such policies shall be paid over or applied
by the Servicer in accordance with Acceptable Servicing Procedures for the
restoration or repair of the Mortgaged Property subject to the related Mortgage,
for release to the Mortgagor in accordance with Acceptable Servicing Procedures,
or for application in reduction of the Mortgage Loan. Any such amounts shall be
deposited in the Custodial Account and subject to withdrawal pursuant to Section
3.5. It is understood and agreed that no earthquake or other additional
insurance is required to be maintained by the Servicer hereunder in connection
with any Mortgage Loan or Mortgaged Property, other than pursuant to applicable
laws and regulations that are at any time in force and require such additional
insurance. All policies required hereunder shall be endorsed with standard
mortgagee clauses with loss payable to the Servicer, and shall provide for at
least 30 days prior written notice to the Servicer of any cancellation,
reduction in amount, or material change in coverage. The Servicer shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent upon any policy renewal; provided, however, upon any
such policy renewal, the Servicer shall not accept any such insurance policies,
unless the insurers are acceptable to Xxxxxx Xxx or Xxxxxxx Mac and are licensed
to do business in the jurisdiction in which the Mortgaged Property is located.
In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable to Xxxxxx
Mae and Xxxxxxx Mac, the Servicer shall notify the Owner and the related
Mortgagor, and shall use its best efforts, as permitted by applicable law, to
obtain from another Qualified Insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time.
If a Mortgage is secured by a unit in a condominium project, the Servicer
shall verify that the coverage required of the owner's association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current requirements of Xxxxxx Mae, Xxxxxxx Mac, and secure
from the owner's association its agreement to notify the Servicer promptly of
any change in the insurance coverage or of any condemnation or casualty loss
that may have a material effect on the value of the Mortgaged Property as
security.
Notwithstanding anything set forth in the preceding paragraphs, the
Servicer agrees to indemnify the Owner for any claims, losses, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses that the Owner may sustain in any way related to
the failure of the Mortgagor (or the Servicer) to maintain hazard insurance or
flood insurance with respect to the related Mortgaged Property which complies
with the requirements of this section.
Section 3.11 Maintenance of Primary Mortgage Insurance Policies; Collections
Thereunder
(a) The parties acknowledge that not all Mortgage Loans will be covered by
Primary Mortgage Insurance. In the event that any Mortgage Loans are or become
covered by Primary Mortgage Insurance, the provisions set forth below shall
apply.
(b) If a Mortgage Loan is covered by a Primary Mortgage Insurance Policy
as of the Cut-off Date, or if a Mortgage Loan becomes covered by a Primary
Mortgage Insurance Policy pursuant to subsection 3.11(c) below, the Servicer
shall cause the premium for each such Primary Mortgage Insurance Policy,
beginning with the premium due after the Cut-off Date in the case of any
Mortgage Loan covered by a Primary Insurance Policy prior to the Cut-off Date,
to be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to pay the premium on a timely basis. The Servicer will not
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is
required to be kept in force under any Mortgage and pursuant to this subsection,
or pursuant to subsection 3.11(c) below, unless a replacement Primary Mortgage
Insurance Policy for such canceled or non renewed policy is obtained from and
maintained with an insurer that satisfies the standards set forth in this
subsection. The Servicer shall not take any action or fail to take any action
that would result in non-coverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Servicer, would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 4.1, the
Servicer shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such Primary Mortgage Insurance Policy. If such Primary Mortgage Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
(c) As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Owner,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section 3.4,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.5, and remitted to the Owner on the appropriate Remittance
Date.
Section 3.12 Fidelity Bond; Errors and Omissions Insurance
The Servicer shall maintain, at its own expense, with responsible
companies that meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
on all officers, employees, agents and other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans (collectively, the "Servicer Employees"). Any such fidelity
bond and errors and omissions insurance shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions, failure to
maintain any insurance policies required pursuant to this Agreement, and
negligent acts of such Servicer Employees. Such 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 Section 3.12 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
terms of any such fidelity bond and errors and omissions insurance policy shall
be at least equal to the corresponding amounts required by Xxxxxx Mae in the
Xxxxxx Xxx Selling and Servicing Guide, or by Xxxxxxx Mac in the Xxxxxxx Mac
Seller's and Servicer's Guide. Upon the request of the Owner, the Servicer shall
cause to be delivered to the Owner a certified true copy of such fidelity bond
and errors and omissions insurance policy and a statement from the surety and
the insurer that such fidelity bond and errors and omissions insurance policy
shall in no event be terminated or materially modified without 30 days prior
written notice to the Owner.
Section 3.13 Title, Management and Disposition of Real Estate Owned
(a) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure ("REO Property"), the deed or
certificate of sale shall be taken in the name of the Servicer for the benefit
of the Owner or, in the event the Owner 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 from any attorney duly licensed to practice law in the
state where the REO Property is located. The Person or Persons holding such
title other than the Owner shall acknowledge in writing that such title is being
held as nominee for the Owner.
(b) The Servicer shall manage, conserve, protect, and operate each REO
Property solely for the purpose of its prompt disposition and sale. The Servicer
shall either itself or through an agent selected by the Servicer, manage,
conserve, protect, and operate the REO Property in accordance with Acceptable
Servicing Procedures. The Servicer shall attempt to sell the same (and may
temporarily rent the same for a period not greater than one year) on such terms
and conditions as the Servicer deems to be in the best interest of the Owner. In
the event that the Owner elects to manage an REO Property, the Owner shall,
prior to assuming such management, reimburse the Servicer for all unreimbursed
Servicing Advances, Nonrecoverable Advances and Servicing Fees related to such
REO Property.
The Servicer shall use its best efforts to dispose of the REO Property as
soon as possible and shall sell such REO Property in any event within three
years after title has been taken to such REO Property, not later than the end of
the third taxable year after the year of its acquisition unless (i) (A) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Servicer determines,
and gives an appropriate notice to the Owner to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than three years is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Servicer shall report monthly to the
Owner as to the progress being made in selling such REO Property and (ii) if,
with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
Notwithstanding anything to the contrary contained in this Section 3.13,
in connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in the event the Servicer has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, or if the
Owner otherwise requests, an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector shall be arranged by
the Servicer. Upon completion of the inspection, the Servicer shall provide the
Owner with a written report of such environmental inspection. In the event that
the environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Servicer shall not
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In the
event that the environmental inspection report is inconclusive as to the whether
or not the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the Servicer shall not, without the prior approval of the Owner,
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In the
event the Owner or its designee directs the Servicer not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all customary, reasonable, and necessary "out of pocket" costs
and expenses that are incurred by the Servicer with respect to the related
Mortgaged Property from the Custodial Account, as though such costs were
Servicing Advances, pursuant to Section 3.4 hereof.
(c) The Servicer shall hold all funds collected and received in connection
with the operation of REO Property separate and apart from its own funds or
general assets, in the Custodial Account.
(d) The Servicer shall deposit, or cause to be deposited not later than
the end of the second Business Day following receipt thereof in the Custodial
Account maintained by it all revenues received with respect to the conservation
and disposition of any REO Property for distribution to the Owner pursuant to
the provisions of Section 4.1.
(e) The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage, liability insurance, and flood insurance in
accordance with the provisions of Sections 3.8 and 3.10 hereof.
(f) The Servicer shall undertake to sell the REO Property at such price
and upon such terms and conditions as the Owner shall approve that shall
maximize the proceeds from the disposition of the REO Property. The proceeds of
sale of the REO Property shall be promptly deposited in the Custodial Account
and the Servicer shall xxxx the Owner in accordance with Section 3.5(b) for such
expenses and for any related unreimbursed Servicing Advances, unreimbursed
Nonrecoverable Advances, unpaid Servicing Fees, unpaid property management fees.
Section 3.14 Application of Proceeds of Insurance to Repair or Restoration
The Servicer shall collect the proceeds from all policies of insurance
required to be maintained pursuant to Section 3.10 with respect to all losses
that may occur. The Servicer may remit such proceeds to the Mortgagor toward the
restoration or repair of the related property in a manner, and shall otherwise
take such actions in connection with such restoration and repair, as shall be
consistent with Acceptable Servicing Procedures.
The Servicer need not obtain the approval of the Owner prior to releasing
any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. For claims greater than the lesser
of $15,000, at a minimum the Servicer shall comply with the following conditions
in connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
(1) The Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of
any required approvals with respect thereto;
(2) the Servicer shall take all steps necessary to preserve
the priority of the lien of the Mortgage, including, but
not limited to requiring waivers with respect to
mechanics' and materialmen's liens;
(3) the Servicer shall verify that the Mortgage Loan is not
in default; and
(4) pending repairs or restoration, the Servicer shall place
the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Owner.
Section 3.15 Inspections
The Servicer or its authorized representative shall conduct inspections of
Mortgaged Properties at such times and in a manner consistent with Acceptable
Servicing Procedures. For any Mortgage Loan that is not insured by a Primary
Mortgage Insurance Policy, in the event such Mortgage Loan becomes 45 days
delinquent, (a) the Servicer shall inspect the related Mortgage Property as
promptly as practicable after the 45th day of delinquency, (b) the Servicer may
perform an inspection at such other times and at such intervals as the Servicer
deems appropriate and (c) the Servicer shall immediately perform an inspection
upon any abandonment of the related Mortgaged Property. For any Mortgage Loan
that is insured by a Primary Mortgage Insurance Policy, the Servicer shall
inspect the related Mortgaged Property as directed by the related Primary
Insurer; provided, however, that, at a minimum, in the event the Mortgage Loan
becomes 60 days delinquent, the Servicer shall inspect the related Mortgaged
Property prior to the 90th day of delinquency. The Servicer shall keep a written
report of each such inspection.
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions
(a) On each Remittance Date the Servicer shall remit to the Owner (a) all
amounts credited to the Custodial Account as of the close of business on the
preceding Determination Date, net of charges or withdrawals from the Custodial
Account pursuant to Section 3.5, plus (b) all Monthly Advances, if any, that the
Servicer is obligated to distribute pursuant to Section 4.3; minus (c) any
amounts attributable to Principal Prepayments received after the related
Principal Prepayment Period; minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that by operation of Section 3.4, the
remittance on the first Remittance Date with respect to a Mortgage Loan Package
is to include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance Rate,
collected through such Determination Date exclusive of any portion thereof
allocable to the period of time prior to the Cut-off Date, with the adjustments
specified in (b), (c) and (d) above. Each such remittance shall be made by wire
or other electronic funds transfer of immediately available funds to the account
of the Owner according to the written wire instructions provided by the Owner to
the Servicer from time to time.
(b) With respect to any remittance to the Owner made by the Servicer after
the second Business Day following the Business Day on which such remittance was
due, the Servicer shall pay to the Owner interest on such late remittance at an
annual rate equal to Prime plus two percent (2.0%), but in no event greater than
the maximum amount permitted by applicable law. Such interest shall be deposited
in the Custodial Account by the Servicer on the date such late remittance is
made and shall cover the period commencing with the date on which such
remittance was due and ending with the Business Day on which such late
remittance is made, both inclusive. Such interest shall be remitted along with
such late remittance. 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.
Section 4.2 Reports
(a) Not later than each Remittance Advice Date, the Servicer shall furnish
to the Owner via any electronic medium a monthly report in a form reasonable
acceptable to institutional buyers of mortgage loans, which report shall
include, without limitation, with respect to each Mortgage Loan the following
loan-level information: (i) the balance due as of the last day of the related
Due Period, (ii) all Principal Prepayments applied to the Mortgagor's account
during the related Prepayment Period, and (iii) the delinquency and bankruptcy
status of the Mortgage Loan, if applicable.
(b) With respect to any REO Property, and upon the request of the Owner,
the Servicer shall furnish to the Owner a statement describing the Servicer's
efforts during the previous month in connection with the sale of such REO
Property, including any rental of such REO Property incidental to the sale
thereof and an operating statement. The Servicer shall also provide the Owner
with such information concerning the Mortgage Loans as is necessary for Owner to
prepare its federal income tax return and as the Owner may reasonably request
from time to time. The Owner agrees to pay for all reasonable out-of-pocket
expenses incurred by the Servicer in connection with complying with any request
made by the Owner hereunder if such information is not customarily provided by
the Servicer in the ordinary course of servicing mortgage loans similar to the
Mortgage Loans.
Section 4.3 Monthly Advances by Servicer
On the Determination Date, the Servicer shall deposit in the Custodial
Account from its own funds or from amounts held for future distribution an
amount equal to all Monthly Payments to the extent not allocable to the period
prior to the Cut-off Date (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 as of the close of business on the Business Day
prior to the related Determination Date or which were deferred pursuant to
Section 3.1(c). 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 Owner required to be made on such Remittance
Date. The Servicer's obligation to make such Monthly Advances as to any Mortgage
Loan will continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or through the earlier of: (i) the last Remittance
Date prior to the Remittance Date for the distribution of all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds and
Condemnation Proceeds) with respect to the Mortgage Loan; and (ii) the
Remittance Date prior to the date the Mortgage Loan is converted to REO
Property, provided however, that if requested by a Rating Agency in connection
with Pass-Through Transfer, the Servicer shall be obligated to make such
advances through the Remittance Date prior to the date on which cash is received
in connection with the liquidation of REO Property; provided, however, that such
obligation shall cease if the Servicer determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable by
the Servicer from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, or otherwise with respect to a particular Mortgage Loan. In the event
that the Servicer determines that any such advances are non-recoverable, the
Servicer shall provide the Owner with a certificate signed by two officers of
the Servicer evidencing such determination.
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements
(a) The Servicer will use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold,
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note, provided that in
accordance with the terms of the Mortgage Note, the Servicer may permit an
assumption if but only if the Owner approves the creditworthiness of the
assuming party. 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 Applicable Requirements from doing so
or if the exercise of such rights would impair or threaten to impair any
recovery under the related Primary Mortgage Insurance Policy, if any. If the
Servicer reasonably believes it is unable under Applicable Requirements to
enforce such "due-on-sale" clause, the Servicer will request the written
permission of the Primary Mortgage Insurer, if required to cause the coverage
under the Primary Mortgage Insurance Policy to remain in full force and effect,
and the Owner prior to entering into an assumption and modification agreement
with the person to whom such property has been conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
Applicable Requirements, the Mortgagor remains liable thereon. In connection
with any such assumption, the related Mortgage Interest Rate, the Unpaid
Principal Balance, and the term of the Mortgage Loan may not be changed. If an
assumption is allowed pursuant to this Section 5.1(a), the Servicer, with the
prior consent of the Primary Mortgage Insurer, if any, is authorized to enter
into a substitution of liability agreement with the purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from liability and
the purchaser of the Mortgaged Property is substituted as Mortgagor and becomes
liable under the Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
(b) The Servicer shall follow Acceptable Servicing Procedures (including
underwriting standards) with respect to any such assumption or substitution of
liability. The Servicer shall notify the Owner that any such substitution of
liability or assumption agreement has been completed by forwarding to the Owner
or its designee the original of any such substitution of liability or assumption
agreement, which document shall be added to the related Collateral File and
shall, for all purposes, be considered a part of such Collateral File to the
same extent as all other documents and instruments constituting a part thereof.
(c) For purposes of this Section 5.1, the term "assumption" is deemed to
also include a sale of the Mortgaged Property subject to the Mortgage that is
not accompanied by an assumption or substitution of liability agreement.
Section 5.2 Satisfaction of Mortgages and Release of Collateral Files
(a) 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 (i) shall prepare the appropriate
documents and instruments required to satisfy or release the lien of the
Mortgage in accordance with applicable state law requirements, (ii) shall
promptly and within the time periods appropriate to process the satisfaction or
release within the applicable legal deadlines notify the Owner of such event and
(iii) shall request that the Owner deliver the required portion of the
Collateral File to the Servicer. The Owner shall, within five (5) Business Days
following its receipt of any such certification and request, send to the
Servicer the requested portion of the Collateral File. Upon receipt of such
package, the Servicer shall prepare and execute the documents and instruments
necessary to satisfy or release the lien of the Mortgage and shall process such
satisfaction or release in accordance with applicable state law requirements. In
addition, if, with respect to any Mortgage Loan that has been paid in full, the
Owner has recorded or caused to be recorded in the appropriate public recording
office of the jurisdiction in which the related Mortgaged Property is located
the related Assignment of Mortgage which designates the Owner as the holder of
record of the Mortgage, the Servicer shall prepare and deliver to the Owner,
together with a request for execution, the documents and instruments necessary
to satisfy or release the lien of the Mortgage. The Owner shall, within five (5)
Business Days following its receipt of any such request, send to the Servicer
the fully-executed documents that were prepared and requested by the Servicer.
Upon receipt of such package, the Servicer shall process such satisfaction or
release in accordance with applicable state law requirements. In the event that
applicable state law requires that a satisfaction or release be recorded within
a shorter time period than the processes set forth above permits, the Servicer
shall advise the Owner accordingly and shall use reasonable efforts to ensure
that the lien of the Mortgage is released or satisfied in accordance with
applicable state law requirements. The Owner shall assist therewith by returning
to the Servicer the required portion of the Collateral File (and, if applicable,
the executed satisfaction and release documents and instruments) within the time
periods specified by the Servicer. The Servicer shall not be liable for and the
Owner shall indemnify the Servicer against any third party liability for failure
to release the lien of a Mortgage as required under applicable law to the extent
that such failure was caused by the Owner's breach of its obligations under this
Section 5.2.
(b) If the Servicer satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Servicer otherwise prejudice any rights the Owner may have under the
mortgage instruments, upon written demand of the Owner, the Servicer shall remit
to the Owner the then unpaid principal balance of the related Mortgage Loan. The
Servicer shall maintain the fidelity bond and errors and omissions insurance
policy as provided for in Section 3.12 insuring the Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 5.3 Servicing Compensation
As compensation for its services hereunder, the Servicer shall be entitled
to pay itself the Servicing Fee with respect to each Mortgage Loan from the
gross amount of interest payments on such Mortgage Loan which are actually
received by the Servicer with respect thereto. Additional servicing compensation
in the form of all Ancillary Income which are actually received by the Servicer
may be retained by the Servicer to the extent not required to be deposited into
the Custodial Account pursuant to the terms of this Agreement. 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 in this Agreement.
Section 5.4 Statements as to Compliance
The Servicer will deliver to the Owner, by March 15th of each year,
beginning in 2004, an Officer's Certificate, stating that (i) a review of the
activities of the Servicer during the preceding fiscal year and of performance
under this Agreement has been made under such officer's supervision, (ii) based
on such review, the Servicer has fulfilled all of its obligations under this
Agreement throughout such fiscal year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the actions being taken by the
Servicer to cure such default, and (iii) all reports and information provided to
the Owner by the Servicer, pursuant to the Servicer's reporting requirements
under the Agreement, are accurate and complete in all material respects. Copies
of such statement may be provided by the Owner to any Person identified as a
prospective purchaser of the Mortgage Loans.
Section 5.5 Annual Independent Public Accountants' Servicing Report
The Servicer shall, on or before March 15th of each year, beginning in
2004, cause, at its sole cost and expense, a firm of independent public
accountants, which is a member of the American Institute of Certified Public
Accountants, to furnish a statement to the Owner to the effect that such firm
has examined certain documents and records and performed certain other
procedures relating to the servicing of the Mortgage Loans during the
immediately preceding fiscal year of the Servicer and that such firm is of the
opinion that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance therewith, except for such
exceptions as shall be set forth in such statement.
Section 5.6 Annual Xxxxxxxx-Xxxxx Act Certification
(a) For so long as a Person is required by Section 302 of the
Xxxxxxxx-Xxxxx Act of 2002 (the "Act") to provide an annual certification, by
March 15th of each year, beginning in 2004, an officer of the Servicer shall
execute and deliver an Officer's Certificate to such Person (hereafter, the
"Beneficiary") for the benefit of the Beneficiary and its officers, directors
and affiliates, pursuant to which such officer shall certify to those matters
substantially as set forth in Exhibit D.
(b) The Servicer shall indemnify and hold harmless the Beneficiary and its
officers, directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 5.6.
Section 5.7 Owner's Right to Examine Servicer Records, etc.
The Owner shall have the right, at the Owner's expense, except for
immaterial items in the ordinary course of business, to examine and audit the
Servicer's books of account, records, reports, and other papers relating to (i)
the performance by the Servicer of its obligations and duties under this
Agreement, or (ii) the Mortgage Loans, to make copies and extracts therefrom,
and to discuss the affairs, finances, and accounts of such Servicer relating to
such performance with its officers and employees, all at such reasonable times
and places and as often as may be reasonably requested.
Section 5.8 Consents and Approvals
The Owner shall timely obtain, at its sole cost and expense, the consents
and approvals required by law or pursuant to contract to consummate the
transactions contemplated hereby. All such consents will be obtained without any
cost or expense to the Servicer and will be obtained without any adverse
modification in the terms of any of the agreements relating to the Mortgage
Loans or the imposition of any burdensome provisions or conditions on the
Servicer.
Section 5.9 Removal of Mortgage Loans from Inclusion Under this Agreement Upon a
Whole Loan Transfer or a Pass-Through Transfer on One or More Reconstitution
Dates
(a) The Servicer and the Owner agree that with respect to some or all of the
Mortgage Loans, the Owner may effect one or more Whole Loan Transfers and/or one
or more Pass-Through Transfers, retaining the Servicer as servicer thereof or
subservicer if a master servicer is employed; provided, however, the Owner
agrees to use commercially reasonable efforts not to effect a Whole Loan
Transfer or a Pass Through Transfer if the aggregate outstanding principal
balance of the Mortgage Loans subject to such Whole Loan Transfer or Pass
Through Transfer is less that $10,000,000. In connection with a Whole Loan
Transfer, the related Reconstitution Agreement shall provide that no more than
four (4) Persons shall have the status of "Owner" thereunder.
(b) With respect to each Whole Loan Transfer or Pass-Through Transfer, as
the case may be, entered into by Owner, Servicer agrees:
(i) negotiate in good faith and execute a servicer agreement
reasonably required to effectuate the Pass-Through Transfer,
provided such agreement creates no greater obligation or cost on the
part of the Servicer than otherwise set forth in this Agreement, and
provided further that the Servicer shall be entitled to a servicing
fee under that agreement at a rate per annum no less than the
Servicing Fee Rate;
(ii) to cooperate fully with the Owner and any prospective the
Owner with respect to all reasonable requests that are necessary to
effect a Pass-Through Transfer or Whole Loan Transfer;
(iii) provide as applicable:
(A) information pertaining to the Servicer of the type
and scope customarily included in offering documents for
residential mortgage-backed securities transactions involving
multiple loan originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer
as are reasonably believed necessary by the trustee, any
rating agency or the Owner, as the case may be, in connection
with such Pass-Through Transfer. The Owner shall pay all third
party costs associated with the preparation of the information
described in clause (ii)(A) above and the delivery of any
opinions, letters or certificates described in this clause
(ii)(B). The Servicer shall not be required to execute any
servicer agreement unless a draft of the agreement is provided
to the Servicer at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for
the Servicer and its counsel to review and comment on the
agreement;
(c) In connection with any Pass-Through Transfer, the Servicer, upon
request, will bring down the representations and warranties made in Section 2.1
in to a date no later than the related Reconstitution Date;
(d) In connection with any Pass-Through Transfer, the Servicer shall
indemnify, defend and hold harmless the Owner from and against any and all
losses, claims, expenses, damages or liabilities to which the Owner may be
subject to as a result of any untrue statement of any material fact contained in
any information (such information, the "Servicer Information") prepared and
furnished to the Owner by the Servicer for inclusion in any related offering
document or prospectus (collectively, "Offering Materials"), or arise out of, or
are based upon, any omission in the Servicer Information necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and will reimburse the Owner for damages or expenses reasonably
incurred by it; provided, however, that the Servicer shall be liable only
insofar as such untrue statement or omission relates solely to the Servicer
Information in the Offering Materials furnished to the Owner by the Servicer
specifically for inclusion in the Prospectus Supplement. The Owner shall
indemnify, defend and hold harmless the Servicer from and against any and all
losses, claims, expenses, damages or liabilities to which the Servicer may be
subject to as a result of any untrue statement of any material fact contained in
any Offering Materials, or arise out of, or are based upon, any omission in any
information included in the Offering Materials necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse the Servicer for damages or expenses reasonably
incurred by it; provided, however, that Owner shall be liable only insofar as
such untrue statement or omission does not relate to the Servicer Information in
the Offering Materials furnished to the Owner by the Servicer specifically for
inclusion in the Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to Pass-Through
Transfers 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 5.10 Compliance with REMIC Provisions
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Servicer shall not take
any action, cause the REMIC to take any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could (i) endanger the status of the REMIC as a REMIC or
(ii) result in the imposition of a tax upon the REMIC (including but not limited
to the tax on "prohibited transactions" as defined Section 860G(a)(2) of the
Code and the tax on "contributions" to a REMIC set forth in Section 860(D) of
the Code) unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims
Subject to Section 6.3, the Servicer agrees to indemnify and hold harmless
the Owner against any and all Losses that the Owner may sustain in any way
related to the failure of such Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, however, the Servicer
shall not be liable hereunder (a) to the extent such Losses directly result from
the Custodian's negligent action, negligent failure to act, bad faith, willful
misconduct or breach under the Custodial Agreement, dated as of November 1,
2003, among the Owner, the Servicer and the Custodian,(b) with respect to any
action or inaction in accordance with the direction or consent of the Owner or
(c) resulting from the Owner's failure to respond to a request by the Servicer
for direction or consent in accordance with Section 3.1(c) hereof. The Servicer
shall immediately notify the Owner if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans. The Servicer shall assume (with
the written consent of the Owner) the defense of any such claim and pay all
reasonable expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Servicer or the Owner in respect of such claim. The Servicer shall
follow any written instructions received from the Owner in connection with any
such claim and the Owner shall promptly reimburse the Servicer for all amounts
reasonably advanced by it pursuant to the preceding sentence, except when the
claim (a) is related to the Servicer's obligations to indemnify the Owner
pursuant hereto, (b) results from the failure of the Servicer to service the
Mortgage Loans in compliance with the terms of this Agreement or (c) results
from the Servicer's willful misconduct, bad faith or negligence in performing
its duties under this Agreement.
The Owner shall indemnify and hold harmless the Servicer against any and
all Losses that the Servicer may sustain as a result of (a) any act or omission
on the part of the Owner or (b) a breach of any of the Owner's representations,
warranties or covenants or obligations contained herein.
With respect to any Mortgage Loan, in the event that the Owner records or
causes to be recorded in the appropriate public recording office of the
jurisdiction in which the related Mortgaged Property is located the related
Assignment of Mortgage which designates the Owner as the holder of record of the
Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding
the execution and delivery of release and reconveyance documents, and shall
immediately complete, sign and return to the Servicer any additional documents
that may be required of the holder of record of the Mortgage and may be
reasonably requested by the Servicer in order to permit the Servicer to comply
with the Servicer's servicing obligations, and, in its capacity as the holder of
record, shall take such other action as may be reasonably requested by the
Servicer. In addition, if, as a result of the recording of the related
Assignment of Mortgage, the Owner, in its capacity as the holder of record,
receives written notice of any action with respect to the related Mortgage or
the related Mortgaged Property, the Owner shall send a copy of such notice to
the Servicer immediately in accordance with the provisions of Section 9.8 of
this Agreement.
The Owner agrees that the Servicer shall have no liability to the Owner
for the Owner's failure to comply with the provisions set forth in this
paragraph.
Section 6.2 Servicer Covenants; Merger or Consolidation of the Servicer
(a) The Servicer covenants that it will keep in full force and effect its
existence, rights and franchises as a limited partnership, and its status as a
Xxxxxx Xxx or Xxxxxxx Mac approved servicer in good standing and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement.
(b) Any Person into which the Servicer may be merged or consolidated, or
any business organization resulting from any merger, conversion or consolidation
to which the Servicer shall be a party, or any Person succeeding to all or
substantially all of the business or assets of the Servicer (whether or not
related to loan servicing), shall be the successor of the Servicer 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 Servicer shall not, without the prior written
approval of the Owner, be a party to any such merger, consolidation or
conversion, or sell or otherwise dispose of all or substantially all of its
business or assets unless the successor or surviving person shall be an
institution that is a Xxxxxx Mae or Xxxxxxx Mac approved servicer in good
standing.
Section 6.3 Limitation on Liability of the Servicer and Others
The Servicer and the directors, officers, employees or agents of the
Servicer shall not be under any liability to the Owner for (a) any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, (b) errors in judgment, or (c) any action or inaction in accordance
with the direction or consent of the Owner; provided, however, this provision
shall not protect the Servicer against any breach of warranties or
representations made herein, any failure to perform its obligations in
accordance with any standard of care set forth in this Agreement (unless in
accordance with the direction or consent of the Owner), or any liability which
would otherwise be imposed by reason of willful misconduct, bad faith or gross
negligence in the performance of its duties or by reason of any breach of the
terms and conditions of the Agreement. The Servicer and any officer, employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Subject to Section 6.1, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties under this Agreement and which may involve it in any
expense or liability; provided, however, that the Servicer may, with the consent
of the Owner, undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights, duties and the interests of the
parties hereto. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be reimbursed to the Servicer in
accordance with Section 6.1.
Section 6.4 Servicer Not to Resign
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that the Servicer's duties hereunder are no longer permissible
under Applicable Requirements and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner. No such resignation shall become effective until a successor which
satisfies the requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
Section 6.5 No Transfer of Servicing
The Servicer acknowledges that the Owner has entered into this Agreement
with the Servicer in reliance upon the adequacy of the Servicer's 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, the Servicer shall not either assign this
Agreement or the servicing hereunder without the prior written approval of the
Owner in its sole discretion.
Section 6.6 [Reserved]
Section 6.7 Representations and Warranties of the Owner
With respect to the Mortgage Loans, the Owner hereby makes to the Servicer
as of the Cut-off Date each of the representations and warranties set forth
below:
(a) The Owner has all requisite corporate or organizational power,
authority and capacity, to carry on its business as it is now being conducted,
to execute and deliver this Agreement, and to perform all of its obligations
hereunder. The Owner does not believe, nor does it have any cause or reason to
believe, that it cannot perform each and every covenant contained in this
Agreement.
(b) The execution, delivery and performance of this Agreement by the Owner
and the consummation of the transactions contemplated thereby have been duly and
validly authorized by all necessary corporate, shareholder or other action; this
Agreement has been duly and validly executed and delivered by the Owner, and is
a valid and legally binding agreement of the Owner enforceable against the Owner
in accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting generally the enforcement of creditor's rights and the discretion of a
court to grant specific performance of contracts. Any requisite consents or
approvals of third parties (including Investors and any other applicable
regulatory authorities) to the execution and delivery of this Agreement or the
performance of the transactions contemplated hereby by the Owner have been
obtained or will be obtained prior to the Cut-off Date or such other date as
expressly provided herein.
ARTICLE VII
DEFAULT
Section 7.1 Events of Default
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when due any
payment required to be made under the terms of this Agreement, which
failure continues unremedied for a period of three (3) days after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Owner; the Owner
shall use reasonable efforts to notify the Servicer that it has not
received the payment due, but the Owner's notice shall not be a condition
of the Event of Default; or
(ii) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the
Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Owner; or
(iii)a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling 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 thirty (30) days; or
(iv) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or relating to all or substantially all of the Servicer's
property; or
(v) 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
obligation or ceases its normal business operations for three (3) Business
Days; or
(vi) failure by the Servicer to maintain its license to do business
in any jurisdiction where a Mortgaged Property is located if such license
is required and such failure continues unremedied for a period of thirty
(30) days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of this Agreement, including Section 6.5; or
(vii) the Servicer shall cease to be an approved servicer for Xxxxxx
Xxx or Xxxxxxx Mac.
(viii) the Servicer shall cease to have a minimum net worth of
$25,000,000 as determined in accordance with the Financial Accounting
Standards Board's generally accepted accounting principles;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Owner, by notice in writing to the Servicer (in each
such instance, the "Defaulted Servicer"), may, in addition to whatever rights
the Owner may have at law or equity to damages, including injunctive relief and
specific performance, commence termination of all of the rights and obligations
of the Defaulted Servicer under this Agreement and may exercise any and all
other remedies available at law or at equity. Upon receipt by the Defaulted
Servicer of such written notice from the Owner stating the intent to terminate
the Defaulted Servicer as servicer under this Agreement as a result of such
Event of Default, all authority and power of the Defaulted 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 Section 9.1. Upon
written request from the Owner, the Defaulted Servicer shall, at its sole
expense, prepare, execute, and deliver to a successor any and all documents and
other instruments, place in such successor's possession all Collateral Files and
Servicing 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, all of
which shall be undertaken immediately and shall be completed as soon as possible
and in all events by not later than thirty (30) Business Days following the
Owner's request therefor. The Defaulted Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Defaulted
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Defaulted Servicer to the Custodial
Account, the Escrow Account or the REO Account and all other amounts which may
thereafter be received with respect to the Mortgage Loans and to which the
Defaulted Servicer is not entitled pursuant to the terms of this Agreement.
Section 7.2 Waiver of Defaults
The Owner may waive any default by the Defaulted 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 7.3 Survival of Certain Obligations and Liabilities of the Defaulted
Servicer
The representations, warranties, covenants, indemnities and agreements of
the parties provided in this Agreement and the parties' obligations hereunder
shall survive the execution and delivery and the termination or expiration of
this Agreement. Notwithstanding any termination of the rights and obligations of
the Defaulted Servicer pursuant to this Section 7, the Defaulted Servicer shall
remain liable for any actions of the Defaulted Servicer prior to the effective
time of such termination.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement
This Agreement shall terminate upon any of: (i) the later of the
distribution to the Owner of final payment or liquidation with respect to the
last Mortgage Loan and each REO Property, or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder, (ii) the
mutual consent of the parties in writing, or (iii) the termination of the
Servicer pursuant to Section 8.2.
Section 8.2 Termination of the Servicer due to an Event of Default
(a) Upon 30 days' written notice, the Owner may, at its sole option, upon
the occurrence of an Event of Default and in accordance with Section 7.1,
terminate any rights the Servicer may have hereunder. Any such notice of
termination shall be in writing and delivered to the terminated Servicer (in
such instance, the "Terminated Servicer") by registered mail as provided in
Section 9.8 of this Agreement. If the Owner so terminates the rights of a
Terminated Servicer, the Owner with full cooperation of the Terminated Servicer
shall arrange for the transfer of servicing to, at the Owner's option, the Owner
or a third party, and the Terminated Servicer shall continue servicing, for the
Servicing Fee provided herein, the Mortgage Loans under this Agreement until the
Owner gives the Terminated Servicer notice of the transfer and such transfer has
been completed.
(b) The Terminated Servicer agrees to cooperate with the Owner and such
successor in effecting the termination of the Terminated Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Terminated Servicer to the Custodial
Account, the Escrow Account or the REO Account, or thereafter be received with
respect to the Mortgage Loans and to which the Terminated Servicer is not
entitled pursuant to the terms of this Agreement.
Section 8.3 Termination Without Cause
Upon at least 30 days prior notice, the Owner may terminate, at its sole
option the Servicer without cause. Any such notice of termination shall be in
writing and delivered to the Servicer and any Rating Agency by registered mail
as provided in Section 9.7. In the event the Owner so chooses to terminate the
Servicer, the Servicer shall be entitled to receive, as liquidated damages, upon
its termination as Servicer hereunder without cause pursuant to this Section
8.3, an amount equal to two percent (2%) of the aggregate outstanding principal
amount of each Mortgage Loan as of the termination date paid by the Owner to the
Servicer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer
(a) Prior to termination of the Servicer's responsibilities and duties
under this Agreement pursuant to Section 6.4, 7.1, 8.1 or 8.2, the Owner shall
either (i) succeed to and assume all of the Servicer's responsibilities, rights,
duties, and obligations under this Agreement from and after the date of such
succession or (ii) appoint a successor to the Servicer that shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement pursuant to
Section 8.2 above. In the event that the Servicer's duties, responsibilities,
and liabilities under this Agreement shall be terminated pursuant to the
foregoing Sections, the Servicer shall discharge such duties and
responsibilities, and be compensated therefor as provided in this Agreement,
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
foregoing Sections shall not become effective until a successor shall have been
appointed pursuant to this Section and shall in no event relieve the Servicer of
its non-servicing duties, obligations, covenants, representations and
warranties, it being understood and agreed that the provisions of Sections 5.10,
6.1, Article 7 and Article 8 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer or the termination of this
Agreement.
(b) The Servicer shall promptly deliver to the successor (i) the funds in
the Custodial Account and the Escrow Account to which the Owner is entitled
pursuant to the terms of this Agreement, (ii) all other funds to which the Owner
is entitled pursuant to the terms of this Agreement, (iii) all other amounts
which may thereafter be received with respect to the Mortgage Loans and to which
the Servicer is not entitled pursuant to the terms of this Agreement and (iv)
all Collateral Files and Servicing Files and related documents and statements
held by it hereunder. The Servicer shall account for all funds and shall execute
and deliver such instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such, the Owner shall
notify the Servicer of such appointment.
Section 9.2 Amendment
This Agreement may be amended from time to time by the parties by written
agreement signed by both of the parties.
Section 9.3 Duration of Agreement
This Agreement shall continue in existence and effect until terminated as
herein provided.
Section 9.4 Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without reference to the choice of law
doctrine of such state.
Section 9.5 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii)references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs, and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 9.6 Reproduction of Documents
This Agreement and all documents relating hereto, including without
limitation (i) consents, waivers, and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 9.7 Notices
All demands, notices, consents, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered or delivered by facsimile, overnight courier, or registered mail,
postage prepaid, or delivered by telefacsimile, to:
(i) in the case of the Servicer, at the address set forth below or such
other address as may hereafter be furnished to the Owner in writing by the
Servicer:
Countrywide Homes Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Attention: Investor Accounting
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
(ii) in the case of the Owner, at the address set forth below, or such
other address as may hereafter be furnished to the Servicer by the Owner:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Mortgage Company
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and in the case of any subsequent Owner, as set forth in written notice supplied
to the Servicer by such subsequent Owner. All reports that are due to the Owner
from the Servicer pursuant to Section 4.2 shall be deemed to have been duly
given if delivered to the internet address from time to time provided by the
Owner to the Servicer.
Section 9.8 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or the rights of the Owner
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 9.9 Disclosure of Relationship
Each party (including the respective affiliates) shall have the right upon
obtaining prior written consent from the other party, from time to time, to
publish, distribute, advertise or otherwise disclose the relationship and the
general services created and performed under this Agreement; provided, however,
such disclosure shall not identify the amount or nature of fees earned or to be
paid hereunder. No disclosure permitted by this Section 9.10 shall include any
Mortgagor information.
Section 9.10 Exhibits and Schedules
The following exhibits and schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement:
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
Section 9.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 6.4, 6.5, 7.1 and
8.1, this Agreement shall inure to the benefit of and be binding upon the
Servicer, the Owner and their respective successors and assigns.
Section 9.12 Effect of Headings
The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
Section 9.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings relating
to the subject matter hereof.
[signatures start on next page]
IN WITNESS WHEREOF, the Servicer and the Owner have caused their names to
be signed to this Servicing Agreement by their respective officers thereunto
duly authorized as of the day and year first above written.
COUNTRYWIDE HOME LOANS SERVICING LP,
the Servicer
By:
---------------------------------------
Name:
Title:
XXXXXXX SACHS MORTGAGE COMPANY,
the Owner
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By:
---------------------------------------
Name:
Title
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
LIST OF CREDIT DOCUMENTS
Copy of Note
Copy of Mortgage or Deed of Trust, including all riders
Copy of all riders to Note and Mortgage or Deed of Trust
Settlement statement (HUD 1)
Copy of PMI Certificate (if applicable)
Appraisal
Flood determination certificate
Hazard Insurance declaration page
Loan application
EXHIBIT C
LIST OF DOCUMENTS IN COLLATERAL FILE
With respect to each Mortgage Loan, the Collateral File shall include each
of the following items, which shall be available for inspection by the Owner and
any prospective Owner, and which shall be retained by Countrywide in the
Servicing File or delivered to the Custodian):
1. The original Mortgage Note bearing all intervening endorsements, endorsed
"Pay to the order of ______________, without recourse" and signed in the
name of Countrywide by an authorized officer (in the event that the
Mortgage Loan was acquired by Countrywide in a merger, the signature must
be in the following form: "[Countrywide], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by Countrywide while doing business under another name, the
signature must be in the following form: "[Countrywide], formerly know as
[previous name]").
2. The original of any personal endorsement, surety and/or guaranty agreement
executed in connection with the Mortgage Note, if any.
3. Except as set forth below, the original Mortgage, with evidence of
recording thereon or a certified true and correct copy of the Mortgage
sent for recordation. If in connection with any Mortgage Loan, Countrywide
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, Countrywide 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
Countrywide 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 Countrywide; 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 or by the title
insurance company that issued the title policy to be a true and complete
copy of the original recorded Mortgage.
4. The originals or certified true copies of all assumption, modification,
consolidation or extension agreements, with evidence of recording noted
thereon if recordation is required to maintain the lien of the mortgage or
is otherwise required, or, if recordation is not so required, an original
or copy of any such assumption, modification, consolidation or extension
agreements.
5. The original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording, from Countrywide to "______________"
or as otherwise directed by the Owner. If the Mortgage Loan was acquired
by Countrywide in a merger, the Assignment of Mortgage must be made by
"[Countrywide], successor by merger to [name of predecessor]." If the
Mortgage Loan was acquired or originated by Countrywide while doing
business under another name, the Assignment of Mortgage must be by
"[Countrywide], formerly know as [previous name]." Subject to the
foregoing and where permitted under the Applicable Laws of the
jurisdiction wherein the Mortgaged property is located, such Assignments
of Mortgage may be made by blanket assignments for Mortgage Loans secured
by the Mortgaged Properties located in the same county.
6. Originals or certified true copies of all intervening assignments of the
Mortgage necessary to show a complete chain of title from the original
mortgagee to the Seller, 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, Countrywide 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 Officer's Certificate of Countrywide
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 or by the title insurance company that issued the title
policy 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 Countrywide; 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.
7. The original mortgage policy of title insurance or evidence of title, if
available.
8. Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
With respect to each Mortgage Loan, the Mortgage File shall include each
of the following items to the extent in the possession of Countrywide or in the
possession of Countrywide's agent(s):
1. The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with Section 4.10 of the Agreement.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income, as required by the respective loan
program.
5. Verification of acceptable evidence of source and amount of down payment,
as required by the respective loan program.
6. Credit report on the Mortgagor, if available.
7. Residential appraisal report, as required by the respective loan program.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property, if required by the title company or
Applicable Law.
10. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.
map or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
11. All required disclosure statements.
12. If available, termite report, structural engineer's report, water
potability and septic certification.
13. Sales contract, if applicable.
14. Amortization schedule, if available.
15. Original power of attorney, if applicable.
EXHIBIT D
FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of
Countrywide Home Loans Servicing LP (the "Servicer"), hereby certify, pursuant
to Section 5.6 of that certain Servicing Agreement (the "Agreement"), dated as
of [DATE] between the Servicer and Xxxxxxx Xxxxx Mortgage Company (the "Owner"),
to [ENTITY NAME] (the "Beneficiary") with respect to the calendar year
immediately preceding the date of this Certificate, as follows:
1. I have reviewed the annual statement of compliance ("Annual
Statement of Compliance") prepared by Servicer, and the annual
independent public accountant's servicing report made in accordance
with the Uniform Single Attestation Program for Mortgage Bankers
("Annual Independent Public Accountant's Servicing Report"), which
have been furnished to the Beneficiary pursuant to the Agreement and
any subsequent servicing agreement related thereto or to the
Mortgage Loans (collectively, the "Servicing Agreement");
2. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing
Report and all final servicing reports prepared by Servicer and
delivered to the Beneficiary pursuant to the Servicing Agreement
relating to the servicing of the Mortgage Loans, taken as a whole,
does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by such
statements or reports;
3. Based on my knowledge, the servicing information required to be
provided to the Beneficiary by the Servicer under the Servicing
Agreement has been provided to the Beneficiary;
4. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon the review
required by the Servicing Agreement, and except as disclosed in the
Annual Statement of Compliance and the Annual Independent Public
Accountant's Servicing Report submitted to the Beneficiary, the
Servicer has, as of the last day of the period covered by the Annual
Statement of Compliance, fulfilled its obligations under the
Servicing Agreement; and
5. I have disclosed to the Beneficiary's certified public accountants
all significant deficiencies relating to the Servicer's compliance
with the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program
for Mortgage Bankers or similar standard as set forth in the
Servicing Agreement.
EXHIBIT S
SERVICING AGREEMENT,
DATED AS OF NOVEMBER 1, 2003, BETWEEN COUNTRYWIDE HOME
LOANS, INC. AND XXXXXXX SACHS MORTGAGE COMPANY
================================================================================
SERVICING AGREEMENT
between
COUNTRYWIDE HOME LOANS SERVICING LP
(Servicer)
and
XXXXXXX XXXXX MORTGAGE COMPANY
(Owner)
Dated as of November 1, 2003
Fixed & Adjustable-Rate First Lien Residential Mortgage Loans
================================================================================
DESCRIPTION OF ATTACHMENTS
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of November 1, 2003,
is by and between COUNTRYWIDE HOME LOANS SERVICING LP, in its capacity as
servicer (the "Servicer"), and XXXXXXX XXXXX MORTGAGE COMPANY, and its
successors and assigns, as owner (the "Owner").
PRELIMINARY STATEMENT
WHEREAS, the Owner and Countrywide Home Loans, Inc. ("Countrywide") have
entered into that certain Master Mortgage Loan Purchase Agreement dated as of
November 1, 2003 between the Owner, as purchaser and Countrywide, as seller,
pursuant to which the Owner will purchase and Countrywide will sell from time to
time, certain fixed and adjustable-rate first lien residential mortgage loans
(the "Master Mortgage Loans Purchase Agreement");
WHEREAS, the Servicer is in the business of providing primary servicing of
mortgage loans and owns the right to service the Mortgage Loans (as hereinafter
defined) listed on the Mortgage Loan Schedule (as hereinafter defined);
WHEREAS, the Owner has requested the Servicer to service the Mortgage
Loans and Servicer has agreed to service, as an independent contractor, such
mortgage loans for the Owner on the terms and conditions set forth herein; and
WHEREAS, the Servicer and the Owner desire to prescribe the terms and
conditions regarding the management, servicing, and control of such mortgage
loans.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Servicer and the Owner agree
as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including prudent
collection and loan administration procedures, and standard of care employed by
prudent mortgage servicers. Such standard of care (i) shall not be lower than
that the Servicer customarily employs and exercises in servicing and
administering similar mortgage loans for its own account, (ii) shall be in
accordance with the requirements of the Servicer's policies and procedures,
(iii) shall be, at a minimum, at least as prudent as the requirements of Xxxxxx
Mae as set forth from time to time in the Xxxxxx Xxx Selling and Servicing
Guide, as amended from time to time, and (iv) shall be in full compliance with
all federal, state and local laws, ordinances, rules and regulations.
Agreement: This Servicing Agreement, including all exhibits and schedules
hereto, and all amendments hereof and supplements hereto.
Ancillary Income: All income if any, derived from any Mortgage Loan,
including but not limited to late charges, fees received with respect to checks
or bank drafts returned by the related bank for non-sufficient funds, assumption
fees, speed pay fees, Prepayment Charges, reconveyance and demand statement
fees, loan modification fees and reamortization fees.
Applicable Requirements: The (i) terms of the Mortgage and Mortgage Note
related to each Mortgage Loan, (ii) the federal, state, local and foreign laws,
statutes, rules, regulations, ordinances, standards, requirements,
administrative rulings, orders and processes pertaining to Mortgage Loans,
including but not limited to those pertaining to the processing, origination and
servicing of the Mortgage Loans and the servicer's policies and procedures,
(iii) the requirements of a Primary Mortgage Insurer (if any) with respect to
the processing, origination, insuring, servicing or filing of claims in
connection with the Mortgage Loans, (iv) the requirements of the Owner as set
forth in this Agreement, and (v) the reasonable and customary mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note provides
that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of transfer, or
equivalent instrument, in recordable form, sufficient under and complying with
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect of record the sale of the Mortgage Loan to the assignee named
therein.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which banking or savings and loan institutions in the States of New York,
California or Texas are authorized or obligated by law or executive order to be
closed.
Closing Date: The date on which the sale and purchase of a Mortgage Loan
Package is consummated between the owner and Countrywide pursuant to the terms
of the Mortgage Loan Purchase Agreement.
Code: The Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the mortgage loan
documents pertaining to such Mortgage Loan which are specified in Exhibit B
hereto and any additional mortgage documents pertaining to such Mortgage Loan
required to be added to the related Collateral File pursuant to the terms of
this Agreement.
Collateral File: With respect to any Mortgage Loan, the file pertaining to
such Mortgage Loan that contains each of the related Collateral Documents.
Condemnation Proceeds: All awards or settlements in respect of a taking of
all or part of a Mortgaged Property by exercise of the power of eminent domain
or condemnation.
Consents: shall mean the unconditional written consent or approval, as
necessary, of an Investor and any applicable Insurer to the Servicer's servicing
of the Mortgage Loans hereunder.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Countrywide: Countrywide Home Loans, Inc., or any successor or assign to
Countrywide under this Agreement as provided herein.
Credit File: With respect to any Mortgage Loan, a file pertaining to such
Mortgage Loan and containing copies of the mortgage loan documents described on
Exhibit C attached hereto, the credit documentation relating to the origination
of such Mortgage Loan and copies of the Collateral Documents. Each Credit File
shall be maintained by the Servicer (either on paper or on microfilm or any
other comparable medium), and shall be delivered to the Owner as soon as
practicable upon request.
Custodial Account: The account or accounts created and maintained pursuant
to Section 3.4 of this Agreement which account(s) shall be an Eligible Account.
Custodial Agreement: Any agreement with respect to the Mortgage Loans
governing the retention of the originals of each Mortgage Note, Mortgage,
Assignment of Mortgage and other Mortgage Loan Documents, entered into among
Countrywide, the Servicer and JPMorgan.
Custodian: With respect to any Mortgage Loan and the related Collateral
File, JPMorgan Chase Bank and any successor custodian under any custodial
agreement which may be entered into between the Servicer, the Owner or any
subsequent Owner and the custodian named therein regarding the warehousing and
safekeeping of such Collateral File.
Cut-off Date: With respect to a Mortgage Loan Package, the first day of
the month in which the related Cutoff Date occurs or such other date as may be
mutually agreed to by the parties.
Default: Any condition or circumstance that is, or with notice or the
lapse of time or both, would become, an Event of Default.
Determination Date: The Business Day immediately preceding the related
Remittance Date.
Due Date: With respect to any Mortgage Loan, the first day of the month on
which Monthly Payments on such Mortgage Loan are due, exclusive of any days of
grace.
Due Period: With respect to each Remittance Date, the period beginning on
the second day of the month immediately preceding the month of such Remittance
Date and ending on the first day of the month of such Remittance Date.
Eligible Account: An account or accounts maintained with a Qualified
Depository.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 3.6.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, if any, fire and hazard
insurance premiums, and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances enumerated in
Section 7.1.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
Xxxxxx Xxx: Xxxxxx Xxx, formerly known as the Federal National Mortgage
Association, or any successor thereto.
Fidelity Bond: A fidelity bond to be obtained by the Servicer pursuant to
Section 3.12.
Xxxxxxx Mac: Xxxxxxx Mac, formerly known as the Federal Home Loan Mortgage
Corporation or any successor thereto.
Gross Margin: With respect to each ARM Loan, the fixed percentage amount
set forth in the related Mortgage Note as shown in the Mortgage Loan Schedule,
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.
Index: With respect to any ARM Loan, the index set forth in the applicable
Mortgage Note which is added to the Gross Margin to determine the Mortgage
Interest Rate on each Interest Rate Adjustment Date. In the event the Index
becomes unavailable for any reason, the Servicer shall select an alternative
index, in accordance with the terms of the Mortgage Note, and such alternative
index shall thereafter be the Index for such Mortgage Loan.
Insurance Proceeds: Proceeds of any Primary Mortgage Insurance Policy, any
title policy, any hazard insurance policy or any other insurance policy covering
a Mortgage Loan or the related Mortgaged Property, including any amounts
required to be deposited in the Custodial Account pursuant to Section 3.10, to
the extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with Acceptable
Servicing Procedures and Section 3.14.
Interest Rate Adjustment Date: As to any ARM Loan, the date specified in a
Mortgage Note on which the Mortgage Interest Rate for the related Mortgage Loan
is subject to adjustment.
Investor: With respect to any Mortgage Loan, a Person who has a beneficial
interest in, or is a record owner of, such Mortgage Loan or any trustee acting
on behalf of any such Person.
Late Collections: With respect to any Mortgage Loan, all amounts (other
than Monthly Advances) received during any Due Period, whether as late payments
of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds, Condemnation
Proceeds or otherwise, which represent late payments or collections of Monthly
Payments due but delinquent for a previous Due Period and not previously
recovered.
Liquidation Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment of the
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or in connection
with the sale of the Mortgaged Property if the Mortgaged Property is a REO
Property.
LPMI Fee: The portion of the Mortgage Interest Rate relating to a LPMI
Loan, which is set forth on the related Mortgage Loan Schedule, to be retained
by the Servicer to pay the premium due on a Primary Mortgage Insurance Policy
with respect to a LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the Servicer is
responsible for paying the premium due on the related Primary Mortgage Insurance
Policy with the proceeds generated by the LPMI Fee relating to such Mortgage
Loan, as set forth on the related Mortgage Loan Schedule.
Losses: Any claims, penalties, fines, forfeitures, damages, liabilities,
losses and expenses, including reasonable attorneys' fees.
Maturity Date: With respect to any Mortgage Loan, the maturity date of the
related Mortgage Note and Mortgage as specified therein.
MERS: Mortgage Electronic Registration, Inc. a corporation organized and
existing under the laws of the State of Delaware, or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: Commencing with each Monthly Payment due on or after the
related Cutoff Date, the portion of each Monthly Payment that is delinquent with
respect to each Mortgage Loan at the close of business on the Determination Date
required to be advanced by the Servicer pursuant to Section 4.3 on the Business
Day immediately preceding the Remittance Date of the related month.
Monthly Payment: The scheduled monthly payment of principal and interest
on a Mortgage Loan which is payable by a Mortgagor from time to time under the
related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust or other instrument
creating a first lien on or first priority ownership interest on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor, as the case may be, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgage Interest Rate: As to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan and, with respect to an ARM Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this Agreement,
as evidenced by such mortgage loan's inclusion on the related Mortgage Loan
Schedule, which mortgage loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds (if applicable) and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan,
excluding the servicing rights relating thereto. Unless the context requires
otherwise, any reference to the Mortgage Loans in this Agreement shall refer to
the Mortgage Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: Pools of Mortgage Loans sold to the Owner pursuant
the Master Mortgage Loan Purchase Agreement.
Mortgage Loan Remittance Rate: with respect to each Mortgage Loan, the
interest rate payable to the Owner on each Remittance Date which shall equal the
Mortgage Interest Rate less the Servicing Fee and any LPMI Fees, if applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto as
Exhibit A, such schedule setting forth the following information with respect to
each Mortgage Loan: (1) Countrywide's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Cooperative Loan, of the related cooperative apartment building); (3) a code
indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence, planned
unit development or cooperative stock in a cooperative housing corporation; (4)
the purpose of the Mortgage Loan; (5) the current Mortgage Interest Rate; (6)
whether the Mortgage Loan has Monthly Payments that are interest only for a
period of time; (7) the Servicing Fee Rate; (8) the current Monthly Payment; (9)
the original term to maturity; (10) the remaining term to maturity; (11) the
principal balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (12) the LTV at origination; (13) the due date of the Mortgage Loan;
(14) whether the Mortgage Loan is insured by a Primary Mortgage Insurance
Policy; (15) the type of appraisal; (16) a code indicating whether the Mortgage
Loan is a MERS Mortgage Loan; (17) a code indicating whether the Mortgage Loan
is subject to a prepay penalty; (18) documentation type; (19) first payment
date; and (20) FICO score. With respect to any Adjustable Rate Mortgage, in
addition to (1) through (17) above: (a) the Gross Margin; (b) the Periodic Rate
Cap; (c) the Lifetime Rate Cap; (d) the first Interest Rate Adjustment Date and
the Interest Rate Adjustment Date frequency; (e) the minimum Mortgage Interest
Rate; (f) the first Interest Rate Adjustment Date immediately following the
Cut-off Date; and (g) the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagor: The obligor on a Mortgage Note and their successors in title to
the Mortgage Property.
Nonrecoverable Advance: Any portion of any of a Monthly Advance or
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer hereunder which, in the good faith judgment of the
Servicer, will not be ultimately recoverable from Late Collections.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President, the Servicer,
and delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee
of the Servicer or an affiliate thereof, reasonably acceptable to the Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company or any permitted successor owner of
any of the Mortgage Loans.
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage
Loans to a REMIC or other trust to be formed as part of a publicly or privately
traded pass-through transaction retaining the Servicer as "servicer" thereunder.
Periodic Rate Cap: With respect to each ARM 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,
equal to the rate set forth on the Mortgage Loan Schedule per adjustment.
Permitted Instruments: Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security described
in clause (i) above, provided that the unsecured long-term obligations of
the party agreeing to repurchase such obligations are at the time rated by
Standard & Poor's Corporation in one of its three highest rating
categories;
(iii) federal funds, certificates of deposit, time deposits, and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state, provided that the long-term debt
obligations of such bank or trust company (or, in the case of the
principal bank in a bank holding company system, the long-term debt
obligations of the bank holding company) at the date of acquisition
thereof have been rated by Standard & Poor's Corporation in one of its
three highest rating categories;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has been rated by Standard & Poor's Corporation in its highest short-term
rating category; and
(v) any other obligation or security acceptable to Standard & Poor's
Corporation in respect of mortgage pass-through certificates rated in one
of its three highest rating categories, as evidenced by a letter from
Standard & Poor's Corporation to such effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment Charge: With respect to any Mortgage Loan, the prepayment
premium or charge, if any, required under the terms of the related Mortgage Note
to be paid in connection with a Principal Prepayment, to the extent permitted by
applicable law.
Prepayment Period: With respect to a Remittance Date, the prior calendar
month.
Prepayment Interest Shortfall Amount: With respect to any Remittance Date
and Mortgage Loan that was subject to a Principal Prepayment in full or in part
during the related Principal Prepayment Period, which Principal Prepayment was
applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Primary Mortgage Insurance Policy: With respect to any Mortgage Loan, the
policy of primary mortgage guaranty insurance (including all endorsements
thereto), if any, issued by a Qualified Insurer with respect to such Mortgage
Loan, or any replacement policy.
Primary Mortgage Insurer: The named insurer under any Primary Mortgage
Insurance Policy.
Prime: As of any date of determination, the annual interest rate, adjusted
daily, published from time to time in The Wall Street Journal (Western Edition)
as the "PRIME RATE" in the "MONEY RATES" section.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan (other than Condemnation Proceeds, Insurance Proceeds, and
Liquidation Proceeds) which is received in advance of its scheduled Due Date
(not including any Prepayment Charge) and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Qualified Depository: (i) A depository, the long-term unsecured debt
obligations of which are rated by a nationally recognized statistical rating
agency in one of its two highest rating categories at the time of any deposit
therein, or (ii) a depository, the deposits of which are fully insured to the
maximum extent permitted by the FDIC or (iii) the corporate trust department of
a national bank; provided that they maintain a rating by a nationally recognized
statistical rating agency in the highest rating categories for short term debt
obligations.
Qualified Insurer: An insurance company duly qualified as such under the
laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Reconstitution Agreements: The agreement or agreements entered into by the
Servicer and the Owner and/or certain third parties on the Reconstitution Date
or Dates with respect to any or all of the Mortgage Loans serviced hereunder, in
connection with a Whole Loan Transfer or a Pass-Through Transfer. Such agreement
or agreements shall prescribe the rights and obligations of the Servicer in
servicing the related Mortgage Loans.
Reconstitution Date: The date or dates on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Whole Loan Transfer or Pass-Through Transfer pursuant
to Section 5.9 hereof. On such date, the Mortgage Loans transferred shall cease
to be covered by this Agreement and the Servicer shall cease to service those
Mortgage Loans under this Agreement in accordance with the termination
provisions set forth in Section 5.9 hereof.
Remittance Advice Date: The 10th day of each month or, if such 10th day is
not a Business Day, the first Business Day immediately following such day.
Remittance Date: With respect to each Mortgage Loan: the eighteenth (18th)
day of any month, beginning with the eighteenth (18th) day of the month next
following the month in which the related Cut-off Date occurs, or if such
eighteenth (18th) day is not a Business Day, the first Business Day immediately
following such day.
REO Property: A Mortgaged Property acquired in foreclosure or by deed in
lieu of foreclosure, as described in Section 3.13.
Security Agreement: With respect to any Cooperative Loan, the agreement
between the owner of the related Coop Shares and the originator of the related
Mortgage Note that defines the terms of the security interest in such Coop
Shares and the related Proprietary Lease.
Servicer: Countrywide Home Loans Servicing LP, a Texas limited partnership
or its permitted successor in interest or any successor to the Servicer as
permitted under this Agreement.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) that are incurred by the Servicer in the performance of its
servicing obligations hereunder, including, but not limited to, the cost of (i)
the preservation, restoration, and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) compliance with the
obligations of this Agreement, including without limitation under Sections 3.8
and 3.10.
Servicing Fee: With respect to each Mortgage Loan being serviced and
administered pursuant to this Agreement, the amount of the annual fee payable to
the Servicer as compensation for servicing and administering such Mortgage Loan
and for managing and disposing of REO Property in accordance with the terms of
this Agreement. For each Mortgage Loan, such fee shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate,
multiplied by (ii) the outstanding Unpaid Principal Balance of such Mortgage
Loan as of the first day of such month, and shall be payable in accordance with
Section 5.3. With respect to any REO Property that is being managed by the
Servicer in accordance with Section 3.13 of this Agreement, such fee shall be
payable through and until the disposition of such REO Property or the transfer
of the REO Property to the Owner for management by the Owner, and the amount of
such fee shall be based upon the Unpaid Principal Balance of the related
Mortgage Loan at the time of the related foreclosure.
Servicing Fee Rate: As to (i) each Mortgage Loan that is an ARM Loan, .25%
per annum with respect to each Due Period occurring before the initial Interest
Rate Adjustment Date, and with respect to 5/1, 7/1 and 10/1 Loans, .375% per
annum thereafter, and (ii) each Mortgage Loan that is not an ARM Loan, .25% per
annum.
Servicing File: As to each Mortgage Loan, the copies of the Collateral
Documents, as well as the credit and closing packages, disclosures, copies of
the all other files, books, records and documents necessary to (a) establish the
eligibility of the Mortgage Loan for insurance by a Qualified Insurer, if any;
and/or (b) service the Mortgage Loan in accordance with Acceptable Servicing
Procedures, including the documents listed on Exhibit B hereto, some of which
maybe held by the Custodian.
Unpaid Principal Balance: With respect to each Mortgage Loan as of any
date of determination: (i) the unpaid principal balance of the Mortgage Loan at
the 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 Owner with respect to the related Mortgage Loan representing
payments or recoveries of principal or advances in lieu thereof.
Whole Loan Transfer: The sale or transfer by the Owner of some or all of
the Mortgage Loans in a whole loan or participation certificate format pursuant
to a Reconstitution Agreement retaining the Servicer as "servicer" thereunder.
3/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 36 months.
5/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 60 months.
7/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 84 months.
10/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for the
first 120 months.
Any capitalized term used herein and not otherwise defined, shall have the
meaning assigned to such term in the Master Mortgage Loan Purchase Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer
With respect to a Mortgage Loan Package, the Servicer represents, warrants
and covenants to the Owner that, as of the related Closing Date:
(a) The Servicer is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is organized and is qualified and
licensed to transact business in and is in good standing under the laws of each
state where each Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and the servicing of the Mortgage Loan
in accordance with the terms of this Agreement. The execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Servicer and the consummation of
the transactions contemplated hereby have been duly and validly authorized. This
Agreement evidences the valid, binding and enforceable obligation of the
Servicer; and all requisite action has been taken by the Servicer to make this
Agreement valid and binding upon the Servicer in accordance with its term;
(b) The Servicer has the full power and authority to (i) perform and enter
into and consummate all transactions contemplated by this Agreement and (ii) to
service each Mortgage Loan;
(c) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Servicer, which is in the business
of servicing loans;
(d) Neither 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 Servicer's certificate of limited partnership or
partnership agreement or result in a material breach of any legal restriction or
any material agreement or instrument to which the Servicer is now a party or by
which it is bound, or constitute a material default or result in an acceleration
under any of the foregoing, or result in the violation of any material law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject;
(e) The Servicer is an approved servicer for Xxxxxx Xxx and Xxxxxxx Mac in
good standing. No event has occurred, including a change in insurance coverage,
which would make the Servicer unable to comply with Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements;
(f) There is no action, suit, proceeding, investigation or litigation
pending or, to the Servicer's knowledge, threatened, which either in any one
instance or in the aggregate, if determined adversely to the Servicer would
materially and adversely affect the Servicer's ability to service the Mortgage
Loans hereunder in accordance with the terms hereof, or the Servicer's ability
to perform its obligations under this Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, of or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) The Servicer 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 Servicer, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement;
(i) The Servicer 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;
(j) The Servicer is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in connection with
the servicing of the Mortgage Loans registered with MERS;
(k) The Servicer has serviced, and shall at all times service, the
Mortgage Loans in accordance with the Acceptable Servicing Procedures, the
Mortgage Note and applicable federal, state and local laws and regulations,
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws, and the Servicer shall maintain in its possession, available for the
Owner's inspection and shall deliver to the Owner upon demand, evidence of
compliance with all such requirements. 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;
(l) The Servicer has fully furnished (or caused to be 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, or any their successors and assigns (three of the credit repositories),
on a monthly basis; and
(m) No statement, report or other document prepared and furnished by the
Servicer or to be prepared and furnished by the Servicer pursuant to this
Agreement in connection with the transactions contemplated hereby contain or
will contain any untrue statement of fact or omit to state a fact necessary to
make the statements contained therein not misleading.
Section 2.2 Remedies for Breaches of Representations or Warranties.
The Servicer shall indemnify the Owner and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses resulting from a
breach of the Servicer's representations and warranties contained in Section 2.1
that materially and adversely affects the value of one or more of the Mortgage
Loans. The obligations of the Servicer set forth in this Section 2.2 to
indemnify the Owner as provided in this Section 2.2 constitute the sole remedies
of the Owner with respect to a breach of the foregoing representations and
warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as Servicer
(a) The Servicer, as independent servicer, shall commence servicing and
administering each Mortgage Loan on behalf of the Owner from and after the
Cut-off Date in accordance with the terms and conditions of this Agreement and
Acceptable Servicing Procedures. Except as otherwise expressly provided in this
Agreement, the Servicer shall have full power and authority, acting alone, to do
any and all things reasonably consistent with the terms of this Agreement,
including but not limited to the following: (i) to execute and deliver, on
behalf of the Owner, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and other
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan; provided
that the Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Owner under this Agreement. The Servicer further
is authorized and empowered by the Owner, in its own name when the Servicer,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Owner, any
and all instruments of assignment and other comparable instruments with respect
to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. The Servicer shall at
all times act in the best interests of the Owner in performing its obligations
under this Agreement.
(b) The documents comprising the Collateral File relating to each Mortgage
Loan serviced hereunder and that are retained by the Servicer pursuant to the
terms hereof, together with all other documents with respect to each such
Mortgage Loan which are prepared by or which come into the possession of the
Servicer, shall immediately vest in the Owner and shall be held and maintained
in trust by the Servicer at the will of the Owner and in a custodial capacity
only. The documents comprising each Collateral File and all related documents
which come into the possession of the Servicer and are so held by the Servicer
shall be segregated from the other books and records of the Servicer and shall
be appropriately marked to clearly reflect the ownership interest of the Owner
in such Collateral File and related documents. The Servicer shall release its
custody of any such documents only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans.
The Servicer shall maintain with respect to each Mortgage Loan and shall
make available for inspection by the Owner or its designee the related Servicing
File during the time the Owner retains ownership of a Mortgage Loan and
thereafter in accordance with Applicable Law. The Servicer shall keep at its
servicing office books and records in which, subject to such reasonable
regulations as it may prescribe, the Servicer shall note transfers of Mortgage
Loans. No transfer of a Mortgage Loan may be made unless such transfer is in
compliance with the terms hereof. For the purposes of this Agreement, the
Servicer shall be under no obligation to deal with any person with respect to
this Agreement or the Mortgage Loans unless the books and records show such
person as the owner of the Mortgage Loan. The Owner may, subject to the terms of
this Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that in no event shall there be more than four Persons at any given
time having the status of "Owner" hereunder. The Owner also shall advise the
Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. If the
Servicer receives written notification of a transfer less than five (5) Business
Days before the monthly Determination Date, the Servicer's duties to remit and
report to the new purchaser(s) as required by Section 5.9 hereof shall begin
with the first Determination Date after the Reconstitution Date.
(c) 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 if, in the Servicer's reasonable and prudent determination, such
waiver, modification, variation, postponement or indulgence is in the best
interests of and is not materially adverse to the Owner and will not result in
the impairment of coverage under any Primary Mortgage Insurance Policy;
provided, however, that the Servicer may not, without the prior written consent
of the Owner, (i) waive any Prepayment Charge in full or in part, (ii) permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate (other than by adjustments required by the terms of the
related Mortgage Note), (iii) forgive the payment of any principal or interest,
(iv) reduce the outstanding principal amount (except to reflect actual payments
of principal), (v) except other than pursuant to the terms of the Mortgage Loan,
make any advances of additional principal, or (vi) extend the final maturity
date on such Mortgage Loan. Without limiting the generality of the foregoing,
the Servicer is hereby authorized and empowered to execute and deliver on behalf
of itself and the Owner in connection with any Mortgage Loan all instruments of
satisfaction, cancellation or full release upon receipt by the Servicer of
payment in full of the Unpaid Principal Balance or, with the prior written
consent of the Owner, partial release or discharge, and all other comparable
instruments with respect to the Mortgage Loans and the Mortgaged Properties. The
Servicer shall prepare and deliver to the Owner such documents requiring
execution and delivery as are necessary or appropriate to enable the Servicer to
service and administer the Mortgage Loans to the extent that the Servicer is not
permitted to execute and deliver such documents pursuant to the preceding
sentence. Upon receipt of such documents, the Owner shall execute such documents
and deliver them to the Servicer. If reasonably required by the Servicer, the
Owner shall furnish the Servicer with any powers of attorney and other documents
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, in strict
compliance with (i) the terms of the Mortgage and Mortgage Note, (ii) all
applicable law, and (iii) Acceptable Servicing Procedures.
Section 3.2 Liquidation of Mortgage Loans
In the event that any payment due under any Mortgage Loan is not paid when
the same becomes due and payable, or in the event the Mortgagor fails to perform
or observe any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer will proceed
diligently to collect all payments due and shall take such action as it shall
reasonably deem to be in the best interest of the Owner.
Section 3.3 Collection of Mortgage Loan Payments
Continuously from the date hereof until the principal and interest on all
Mortgage Loans being serviced hereunder are paid in full or this Agreement is
otherwise terminated, the Servicer will proceed diligently to collect all
payments due under each of such Mortgage Loans when the same shall become due
and payable. With respect to those Mortgage Loans, if any, as to which the
Servicer collects Escrow Payments, the Servicer will ascertain or estimate, as
the case may be, annual ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums, mortgage insurance premiums and all other charges
that, as provided in any Mortgage, will become due and payable so that the
Escrow Payments payable by the Mortgagors will be sufficient to pay such charges
as and when they become due and payable. The Servicer shall not be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note, Primary Mortgage Insurance Policy or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if in its reasonable judgment it believes that it will
be unable to enforce the provision of the Mortgage or other instrument pursuant
to which payment is required.
Section 3.4 Establishment of Custodial Account; Deposits in Custodial Account
(a) The Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts
(collectively, with respect to the accounts maintained by any one Servicer, its
"Custodial Account"), in the form of time deposit or demand accounts, which may
be interest bearing, titled, with respect to the Servicer, "Countrywide Home
Loans Servicing LP, in trust for Xxxxxxx Xxxxx Mortgage Company as Owner, and
any successor Owner.
(b) With respect to each Mortgage Loan, the Servicer shall not later than
the end of the second Business Day following receipt thereof, deposit in the
Custodial Account and retain therein the following payments and collections
received by the Servicer subsequent to the Cut-off Date:
(i) all payments on account of principal, including Principal
Prepayments, actually collected by the Servicer on the Mortgage Loans;
(ii) all payments on account of interest actually collected by the
Servicer on the Mortgage Loans less the Servicing Fee;
(iii)all Liquidation Proceeds;
(iv) all Insurance Proceeds, other than Insurance Proceeds to be
held in the Escrow Account and applied to the restoration and repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures;
(v) all Condemnation Proceeds which are not released to the
Mortgagor in accordance with the Owner's written consent and Acceptable
Servicing Procedures and Section 3.14;
(vi) any amounts with respect to Monthly Advances required to be
deposited in the Custodial Account pursuant to Section 4.3;
(vii)any amount required to be deposited in the Custodial Account
pursuant to Sections 3.1(c), 3.1(d), 3.4(c), 3.10(a) or (b), 3.11(b),
3.13(c), (d) and (f), and 4.1(b) of this Agreement; and
(vii)the Prepayment Interest Shortfall Amount, if any, for the month
of distribution (such deposit shall be made from the Servicer's own funds,
without reimbursement therefor up to a maximum amount per month equal to
the lesser of one half of (a) one-twelfth of the product of (i) the
Servicing Fee Rate and (ii) the Unpaid Principal Balance of such Mortgage
Loans, or (b) the aggregate Servicing Fee actually received for such month
for the Mortgage Loans)
(c) The Servicer may cause the funds on deposit from time to time in the
Custodial Account to be invested in Permitted Instruments, which investments
shall mature not later than the Business Day immediately preceding the
applicable Remittance Date next following the date of such investment. All such
investments shall be made in the name of the Servicer or its nominee. All income
and gain realized from any such investment shall be for the benefit of the
Servicer and shall be subject to its withdrawal or order from time to time. The
Servicer shall indemnify the Owner for any and all losses incurred in respect of
any such investment by the Servicer, and the amount of any losses incurred in
respect of any such investment shall be deposited in the Custodial Account by
the Servicer out if its own funds immediately, without reimbursement therefor.
(d) It is understood and agreed that payments in the nature of Ancillary
Income need not be deposited by the Servicer in the Custodial Account.
Section 3.5 Permitted Withdrawals from the Custodial Account
(a) The Servicer may, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to make payments and distributions to the Owner in the amounts
and in the manner provided for in Section 4.1;
(ii) to reimburse itself for Monthly Advances made by the Servicer
from its own funds pursuant to Section 4.3, the Servicer's right to
reimburse itself pursuant to this subclause (ii) being limited to amounts
received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such Monthly Advance was
made and such other amounts as are collected by the Servicer from the
related Mortgagor or otherwise relating to the Mortgage Loan; (or to
amounts received on the Mortgage Loans as a whole in the event that such
Monthly Advance is made to pay a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Soldiers' and Sailors' Civil Relief
Act of 1940). Notwithstanding the foregoing, the Servicer may reimburse
itself for Monthly Advances from any funds in the Custodial Account if it
has determined that such funds are Nonrecoverable Advances (or if all
funds, with respect to the related Mortgage Loan, have previously been
remitted to the Owner);
(iii) to reimburse itself for unreimbursed Servicing Advances and
any unpaid Servicing Fees, Servicer's right to reimburse itself pursuant
to this subclause (ii) with respect to any Mortgage Loan being limited to
related proceeds from Liquidation Proceeds, Condemnation Proceeds, Primary
Mortgage Insurance Proceeds and Other Insurance Proceeds; provided that
the Servicer may reimburse itself from any funds in the Custodial Account
for Servicing Advances and Servicing Fees if all funds with respect to the
related Mortgage Loan have previously been remitted to Owner; provided,
however, that the Servicer may reimburse itself for Servicing Advances
which it has determined are Nonrecoverable Advances.
(iv) to pay itself any Servicing Fee and other servicing
compensation not paid to the Servicer pursuant to Section 5.3;
(v) to pay to itself any interest earned on funds deposited in the
Custodial Account;
(vi) if there shall be amounts deposited in the Custodial Account in
error, including the Servicing Fee and other servicing compensation not
required to be deposited therein, to withdraw such amounts; and
(vii)to clear and terminate the Custodial Account upon the
termination of this Agreement in accordance with Article 8.
Section 3.6 Establishment of Escrow Account; Deposits in Escrow Account; Escrow
Analysis
(a) The Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts (collectively, with respect to the accounts
maintained by any one Servicer, its "Escrow Account"), in the form of time
deposit or demand accounts, which may be interest bearing, titled, with respect
to the Servicer, "Countrywide Home Loans Servicing LP, in trust for Xxxxxxx
Xxxxx Mortgage Company, as Owner, and any successor Owner, and certain
Mortgagors." The Escrow Account shall be an Eligible Account.
(b) The Servicer shall not later than the end of the second Business Day
following receipt thereof (or sooner if required by applicable law) deposit in
the Escrow Account maintained by the Servicer and retain therein: (i) all Escrow
Payments collected on account of the Mortgage Loans for the purpose of effecting
timely payment of any such items as required under the terms of this Agreement,
and (ii) all amounts representing proceeds of any hazard insurance policy which
are to be applied to the restoration or repair of any Mortgaged Property. The
Servicer shall make withdrawals from the Escrow Account maintained by the
Servicer only in accordance with Section 3.7. The Servicer shall be entitled to
retain any interest earned on funds deposited in the Escrow Account maintained
by the Servicer other than interest on escrowed funds required by law to be paid
to the Mortgagor and, to the extent required by law, the Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account maintained by the Servicer may not bear interest or that the interest
earned on such escrowed funds is insufficient for such purpose.
Section 3.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the Servicer may be made
by the Servicer only (a) to effect timely payments of taxes, assessments, water
rates, insurance premiums, fire and hazard insurance premiums or other items
constituting Escrow Payments for the related Mortgage; (b) to reimburse the
Servicer for any Servicing Advance made by the Servicer pursuant to Sections
3.8, 3.10 and 3.11 with respect to a related Mortgage Loan, the Servicer's right
to reimburse itself pursuant to this clause (b) being limited to the amounts as
may be collected by the Servicer from the related Mortgagor or from the related
insurer; (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 in accordance with the terms of this Agreement; (e) for
application to restoration or repair of the related Mortgaged Property in
accordance with the provisions of Section 3.14, (f) to pay to a Mortgagor, to
the extent required by Applicable Requirements, interest 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 related
Mortgagor), (h) to remove funds inadvertently placed in the Escrow Account by
the Servicer; or (i) to clear and terminate the Escrow Account upon the
termination of this Agreement, in accordance with Article 8.
Section 3.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of property taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
Primary Mortgage Insurance Policy premiums, if any, and fire and hazard
insurance coverage and flood insurance, all as required hereunder. If a Mortgage
Loan requires Escrow Payments, the Servicer shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date in a
manner consistent with Acceptable Servicing Procedures, employing for such
purpose Mortgagor deposits in the Escrow Account. The Servicer shall, with
respect to each Mortgage Loan for which Escrow Payments are maintained, conduct
an escrow analysis in accordance with industry standard procedures. If a
Mortgage Loan does not require Escrow Payments, or if there are insufficient
funds in the related Escrow Account, the Servicer shall cause all such bills to
be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to make timely payment of all such bills. The Servicer shall
monitor the payment status of such charges (including renewal premiums) by the
related Mortgagor, and shall effect payment thereof in a manner consistent with
Acceptable Servicing Procedures, and in all events prior to the foreclosure of
any lien against the Mortgaged Property resulting from non-payment of such
property taxes, assessments and other charges and prior to the termination of
any such insurance coverage.
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts
The Servicer may from time to time transfer the Custodial Account or the
Escrow Account maintained by it to a different depository institution, provided
that each such account shall be and remain an Eligible Account.
Section 3.10 Maintenance of Hazard Insurance
The Servicer shall cause to be maintained, with a Qualified Insurer for
each Mortgage Loan serviced by it, fire and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located pursuant
to insurance policies conforming to the requirements of Xxxxxx Mae and Xxxxxxx
Mac, in an amount which is at least equal to the lesser of (i) 100% of the
maximum insurable value of the improvements securing the Mortgage Loan or (ii)
the Unpaid Principal Balance of the Mortgage Loan. If the Mortgaged Property is
in an area then identified on a flood hazard boundary map or flood insurance
rate map issued by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance is available), the Servicer will cause
to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx Mac. Such flood
insurance shall be in an amount representing coverage not less than the least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the full
insurable value of the improvements securing such Mortgage Loan or (iii) the
maximum amount of insurance available under the National Flood Insurance Act of
1968 and the Flood Disaster Protection Act of 1973, each as amended. The
Servicer shall also maintain on each REO Property with an insurer acceptable to
Xxxxxx Mae or Xxxxxxx Mac (x) fire and hazard insurance with extended coverage
in an amount that is at least equal to the maximum insurable value of the
improvements securing the Mortgage Loan that are a part of such property, (y)
liability insurance and (z) to the extent required and available under the
National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973,
each as amended, or other applicable federal law, flood insurance in an amount
as provided above. Any costs incurred by the Servicer maintaining insurance
under this Section 3.10 shall be recoverable as Servicing Advances. Any amounts
collected by the Servicer under any such policies shall be paid over or applied
by the Servicer in accordance with Acceptable Servicing Procedures for the
restoration or repair of the Mortgaged Property subject to the related Mortgage,
for release to the Mortgagor in accordance with Acceptable Servicing Procedures,
or for application in reduction of the Mortgage Loan. Any such amounts shall be
deposited in the Custodial Account and subject to withdrawal pursuant to Section
3.5. It is understood and agreed that no earthquake or other additional
insurance is required to be maintained by the Servicer hereunder in connection
with any Mortgage Loan or Mortgaged Property, other than pursuant to applicable
laws and regulations that are at any time in force and require such additional
insurance. All policies required hereunder shall be endorsed with standard
mortgagee clauses with loss payable to the Servicer, and shall provide for at
least 30 days prior written notice to the Servicer of any cancellation,
reduction in amount, or material change in coverage. The Servicer shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent upon any policy renewal; provided, however, upon any
such policy renewal, the Servicer shall not accept any such insurance policies,
unless the insurers are acceptable to Xxxxxx Mae or Xxxxxxx Mac and are licensed
to do business in the jurisdiction in which the Mortgaged Property is located.
In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable to Xxxxxx
Mae and Xxxxxxx Mac, the Servicer shall notify the Owner and the related
Mortgagor, and shall use its best efforts, as permitted by applicable law, to
obtain from another Qualified Insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time.
If a Mortgage is secured by a unit in a condominium project, the Servicer
shall verify that the coverage required of the owner's association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current requirements of Xxxxxx Mae, Xxxxxxx Mac, and secure
from the owner's association its agreement to notify the Servicer promptly of
any change in the insurance coverage or of any condemnation or casualty loss
that may have a material effect on the value of the Mortgaged Property as
security.
Notwithstanding anything set forth in the preceding paragraphs, the
Servicer agrees to indemnify the Owner for any claims, losses, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses that the Owner may sustain in any way related to
the failure of the Mortgagor (or the Servicer) to maintain hazard insurance or
flood insurance with respect to the related Mortgaged Property which complies
with the requirements of this section.
Section 3.11 Maintenance of Primary Mortgage Insurance Policies; Collections
Thereunder
(a) The parties acknowledge that not all Mortgage Loans will be covered by
Primary Mortgage Insurance. In the event that any Mortgage Loans are or become
covered by Primary Mortgage Insurance, the provisions set forth below shall
apply.
(b) If a Mortgage Loan is covered by a Primary Mortgage Insurance Policy
as of the Cut-off Date, or if a Mortgage Loan becomes covered by a Primary
Mortgage Insurance Policy pursuant to subsection 3.11(c) below, the Servicer
shall cause the premium for each such Primary Mortgage Insurance Policy,
beginning with the premium due after the Cut-off Date in the case of any
Mortgage Loan covered by a Primary Insurance Policy prior to the Cut-off Date,
to be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to pay the premium on a timely basis. The Servicer will not
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is
required to be kept in force under any Mortgage and pursuant to this subsection,
or pursuant to subsection 3.11(c) below, unless a replacement Primary Mortgage
Insurance Policy for such canceled or non renewed policy is obtained from and
maintained with an insurer that satisfies the standards set forth in this
subsection. The Servicer shall not take any action or fail to take any action
that would result in non-coverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Servicer, would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 4.1, the
Servicer shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such Primary Mortgage Insurance Policy. If such Primary Mortgage Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
(c) As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Owner,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section 3.4,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.5, and remitted to the Owner on the appropriate Remittance
Date.
Section 3.12 Fidelity Bond; Errors and Omissions Insurance
The Servicer shall maintain, at its own expense, with responsible
companies that meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
on all officers, employees, agents and other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans (collectively, the "Servicer Employees"). Any such fidelity
bond and errors and omissions insurance shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions, failure to
maintain any insurance policies required pursuant to this Agreement, and
negligent acts of such Servicer Employees. Such 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 Section 3.12 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
terms of any such fidelity bond and errors and omissions insurance policy shall
be at least equal to the corresponding amounts required by Xxxxxx Mae in the
Xxxxxx Xxx Selling and Servicing Guide, or by Xxxxxxx Mac in the Xxxxxxx Mac
Seller's and Servicer's Guide. Upon the request of the Owner, the Servicer shall
cause to be delivered to the Owner a certified true copy of such fidelity bond
and errors and omissions insurance policy and a statement from the surety and
the insurer that such fidelity bond and errors and omissions insurance policy
shall in no event be terminated or materially modified without 30 days prior
written notice to the Owner.
Section 3.13 Title, Management and Disposition of Real Estate Owned
(a) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure ("REO Property"), the deed or
certificate of sale shall be taken in the name of the Servicer for the benefit
of the Owner or, in the event the Owner 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 from any attorney duly licensed to practice law in the
state where the REO Property is located. The Person or Persons holding such
title other than the Owner shall acknowledge in writing that such title is being
held as nominee for the Owner.
(b) The Servicer shall manage, conserve, protect, and operate each REO
Property solely for the purpose of its prompt disposition and sale. The Servicer
shall either itself or through an agent selected by the Servicer, manage,
conserve, protect, and operate the REO Property in accordance with Acceptable
Servicing Procedures. The Servicer shall attempt to sell the same (and may
temporarily rent the same for a period not greater than one year) on such terms
and conditions as the Servicer deems to be in the best interest of the Owner. In
the event that the Owner elects to manage an REO Property, the Owner shall,
prior to assuming such management, reimburse the Servicer for all unreimbursed
Servicing Advances, Nonrecoverable Advances and Servicing Fees related to such
REO Property.
The Servicer shall use its best efforts to dispose of the REO Property as
soon as possible and shall sell such REO Property in any event within three
years after title has been taken to such REO Property, not later than the end of
the third taxable year after the year of its acquisition unless (i) (A) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Servicer determines,
and gives an appropriate notice to the Owner to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than three years is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Servicer shall report monthly to the
Owner as to the progress being made in selling such REO Property and (ii) if,
with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
Notwithstanding anything to the contrary contained in this Section 3.13,
in connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in the event the Servicer has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, or if the
Owner otherwise requests, an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector shall be arranged by
the Servicer. Upon completion of the inspection, the Servicer shall provide the
Owner with a written report of such environmental inspection. In the event that
the environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Servicer shall not
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In the
event that the environmental inspection report is inconclusive as to the whether
or not the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the Servicer shall not, without the prior approval of the Owner,
proceed with foreclosure or acceptance of a deed in lieu of foreclosure. In the
event the Owner or its designee directs the Servicer not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all customary, reasonable, and necessary "out of pocket" costs
and expenses that are incurred by the Servicer with respect to the related
Mortgaged Property from the Custodial Account, as though such costs were
Servicing Advances, pursuant to Section 3.4 hereof.
(c) The Servicer shall hold all funds collected and received in connection
with the operation of REO Property separate and apart from its own funds or
general assets, in the Custodial Account.
(d) The Servicer shall deposit, or cause to be deposited not later than
the end of the second Business Day following receipt thereof in the Custodial
Account maintained by it all revenues received with respect to the conservation
and disposition of any REO Property for distribution to the Owner pursuant to
the provisions of Section 4.1.
(e) The Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage, liability insurance, and flood insurance in
accordance with the provisions of Sections 3.8 and 3.10 hereof.
(f) The Servicer shall undertake to sell the REO Property at such price
and upon such terms and conditions as the Owner shall approve that shall
maximize the proceeds from the disposition of the REO Property. The proceeds of
sale of the REO Property shall be promptly deposited in the Custodial Account
and the Servicer shall xxxx the Owner in accordance with Section 3.5(b) for such
expenses and for any related unreimbursed Servicing Advances, unreimbursed
Nonrecoverable Advances, unpaid Servicing Fees, unpaid property management fees.
Section 3.14 Application of Proceeds of Insurance to Repair or Restoration
The Servicer shall collect the proceeds from all policies of insurance
required to be maintained pursuant to Section 3.10 with respect to all losses
that may occur. The Servicer may remit such proceeds to the Mortgagor toward the
restoration or repair of the related property in a manner, and shall otherwise
take such actions in connection with such restoration and repair, as shall be
consistent with Acceptable Servicing Procedures.
The Servicer need not obtain the approval of the Owner prior to releasing
any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. For claims greater than the lesser
of $15,000, at a minimum the Servicer shall comply with the following conditions
in connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
(1) The Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of
any required approvals with respect thereto;
(2) the Servicer shall take all steps necessary to preserve
the priority of the lien of the Mortgage, including, but
not limited to requiring waivers with respect to
mechanics' and materialmen's liens;
(3) the Servicer shall verify that the Mortgage Loan is not
in default; and
(4) pending repairs or restoration, the Servicer shall place
the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Owner.
Section 3.15 Inspections
The Servicer or its authorized representative shall conduct inspections of
Mortgaged Properties at such times and in a manner consistent with Acceptable
Servicing Procedures. For any Mortgage Loan that is not insured by a Primary
Mortgage Insurance Policy, in the event such Mortgage Loan becomes 45 days
delinquent, (a) the Servicer shall inspect the related Mortgage Property as
promptly as practicable after the 45th day of delinquency, (b) the Servicer may
perform an inspection at such other times and at such intervals as the Servicer
deems appropriate and (c) the Servicer shall immediately perform an inspection
upon any abandonment of the related Mortgaged Property. For any Mortgage Loan
that is insured by a Primary Mortgage Insurance Policy, the Servicer shall
inspect the related Mortgaged Property as directed by the related Primary
Insurer; provided, however, that, at a minimum, in the event the Mortgage Loan
becomes 60 days delinquent, the Servicer shall inspect the related Mortgaged
Property prior to the 90th day of delinquency. The Servicer shall keep a written
report of each such inspection.
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions
(a) On each Remittance Date the Servicer shall remit to the Owner (a) all
amounts credited to the Custodial Account as of the close of business on the
preceding Determination Date, net of charges or withdrawals from the Custodial
Account pursuant to Section 3.5, plus (b) all Monthly Advances, if any, that the
Servicer is obligated to distribute pursuant to Section 4.3; minus (c) any
amounts attributable to Principal Prepayments received after the related
Principal Prepayment Period; minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that by operation of Section 3.4, the
remittance on the first Remittance Date with respect to a Mortgage Loan Package
is to include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance Rate,
collected through such Determination Date exclusive of any portion thereof
allocable to the period of time prior to the Cut-off Date, with the adjustments
specified in (b), (c) and (d) above. Each such remittance shall be made by wire
or other electronic funds transfer of immediately available funds to the account
of the Owner according to the written wire instructions provided by the Owner to
the Servicer from time to time.
(b) With respect to any remittance to the Owner made by the Servicer after
the second Business Day following the Business Day on which such remittance was
due, the Servicer shall pay to the Owner interest on such late remittance at an
annual rate equal to Prime plus two percent (2.0%), but in no event greater than
the maximum amount permitted by applicable law. Such interest shall be deposited
in the Custodial Account by the Servicer on the date such late remittance is
made and shall cover the period commencing with the date on which such
remittance was due and ending with the Business Day on which such late
remittance is made, both inclusive. Such interest shall be remitted along with
such late remittance. 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.
Section 4.2 Reports
(a) Not later than each Remittance Advice Date, the Servicer shall furnish
to the Owner via any electronic medium a monthly report in a form reasonable
acceptable to institutional buyers of mortgage loans, which report shall
include, without limitation, with respect to each Mortgage Loan the following
loan-level information: (i) the balance due as of the last day of the related
Due Period, (ii) all Principal Prepayments applied to the Mortgagor's account
during the related Prepayment Period, and (iii) the delinquency and bankruptcy
status of the Mortgage Loan, if applicable.
(b) With respect to any REO Property, and upon the request of the Owner,
the Servicer shall furnish to the Owner a statement describing the Servicer's
efforts during the previous month in connection with the sale of such REO
Property, including any rental of such REO Property incidental to the sale
thereof and an operating statement. The Servicer shall also provide the Owner
with such information concerning the Mortgage Loans as is necessary for Owner to
prepare its federal income tax return and as the Owner may reasonably request
from time to time. The Owner agrees to pay for all reasonable out-of-pocket
expenses incurred by the Servicer in connection with complying with any request
made by the Owner hereunder if such information is not customarily provided by
the Servicer in the ordinary course of servicing mortgage loans similar to the
Mortgage Loans.
Section 4.3 Monthly Advances by Servicer
On the Determination Date, the Servicer shall deposit in the Custodial
Account from its own funds or from amounts held for future distribution an
amount equal to all Monthly Payments to the extent not allocable to the period
prior to the Cut-off Date (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 as of the close of business on the Business Day
prior to the related Determination Date or which were deferred pursuant to
Section 3.1(c). 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 Owner required to be made on such Remittance
Date. The Servicer's obligation to make such Monthly Advances as to any Mortgage
Loan will continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or through the earlier of: (i) the last Remittance
Date prior to the Remittance Date for the distribution of all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds and
Condemnation Proceeds) with respect to the Mortgage Loan; and (ii) the
Remittance Date prior to the date the Mortgage Loan is converted to REO
Property, provided however, that if requested by a Rating Agency in connection
with Pass-Through Transfer, the Servicer shall be obligated to make such
advances through the Remittance Date prior to the date on which cash is received
in connection with the liquidation of REO Property; provided, however, that such
obligation shall cease if the Servicer determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable by
the Servicer from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, or otherwise with respect to a particular Mortgage Loan. In the event
that the Servicer determines that any such advances are non-recoverable, the
Servicer shall provide the Owner with a certificate signed by two officers of
the Servicer evidencing such determination.
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements
(a) The Servicer will use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold,
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note, provided that in
accordance with the terms of the Mortgage Note, the Servicer may permit an
assumption if but only if the Owner approves the creditworthiness of the
assuming party. 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 Applicable Requirements from doing so
or if the exercise of such rights would impair or threaten to impair any
recovery under the related Primary Mortgage Insurance Policy, if any. If the
Servicer reasonably believes it is unable under Applicable Requirements to
enforce such "due-on-sale" clause, the Servicer will request the written
permission of the Primary Mortgage Insurer, if required to cause the coverage
under the Primary Mortgage Insurance Policy to remain in full force and effect,
and the Owner prior to entering into an assumption and modification agreement
with the person to whom such property has been conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
Applicable Requirements, the Mortgagor remains liable thereon. In connection
with any such assumption, the related Mortgage Interest Rate, the Unpaid
Principal Balance, and the term of the Mortgage Loan may not be changed. If an
assumption is allowed pursuant to this Section 5.1(a), the Servicer, with the
prior consent of the Primary Mortgage Insurer, if any, is authorized to enter
into a substitution of liability agreement with the purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from liability and
the purchaser of the Mortgaged Property is substituted as Mortgagor and becomes
liable under the Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
(b) The Servicer shall follow Acceptable Servicing Procedures (including
underwriting standards) with respect to any such assumption or substitution of
liability. The Servicer shall notify the Owner that any such substitution of
liability or assumption agreement has been completed by forwarding to the Owner
or its designee the original of any such substitution of liability or assumption
agreement, which document shall be added to the related Collateral File and
shall, for all purposes, be considered a part of such Collateral File to the
same extent as all other documents and instruments constituting a part thereof.
(c) For purposes of this Section 5.1, the term "assumption" is deemed to
also include a sale of the Mortgaged Property subject to the Mortgage that is
not accompanied by an assumption or substitution of liability agreement.
Section 5.2 Satisfaction of Mortgages and Release of Collateral Files
(a) 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 (i) shall prepare the appropriate
documents and instruments required to satisfy or release the lien of the
Mortgage in accordance with applicable state law requirements, (ii) shall
promptly and within the time periods appropriate to process the satisfaction or
release within the applicable legal deadlines notify the Owner of such event and
(iii) shall request that the Owner deliver the required portion of the
Collateral File to the Servicer. The Owner shall, within five (5) Business Days
following its receipt of any such certification and request, send to the
Servicer the requested portion of the Collateral File. Upon receipt of such
package, the Servicer shall prepare and execute the documents and instruments
necessary to satisfy or release the lien of the Mortgage and shall process such
satisfaction or release in accordance with applicable state law requirements. In
addition, if, with respect to any Mortgage Loan that has been paid in full, the
Owner has recorded or caused to be recorded in the appropriate public recording
office of the jurisdiction in which the related Mortgaged Property is located
the related Assignment of Mortgage which designates the Owner as the holder of
record of the Mortgage, the Servicer shall prepare and deliver to the Owner,
together with a request for execution, the documents and instruments necessary
to satisfy or release the lien of the Mortgage. The Owner shall, within five (5)
Business Days following its receipt of any such request, send to the Servicer
the fully-executed documents that were prepared and requested by the Servicer.
Upon receipt of such package, the Servicer shall process such satisfaction or
release in accordance with applicable state law requirements. In the event that
applicable state law requires that a satisfaction or release be recorded within
a shorter time period than the processes set forth above permits, the Servicer
shall advise the Owner accordingly and shall use reasonable efforts to ensure
that the lien of the Mortgage is released or satisfied in accordance with
applicable state law requirements. The Owner shall assist therewith by returning
to the Servicer the required portion of the Collateral File (and, if applicable,
the executed satisfaction and release documents and instruments) within the time
periods specified by the Servicer. The Servicer shall not be liable for and the
Owner shall indemnify the Servicer against any third party liability for failure
to release the lien of a Mortgage as required under applicable law to the extent
that such failure was caused by the Owner's breach of its obligations under this
Section 5.2.
(b) If the Servicer satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Servicer otherwise prejudice any rights the Owner may have under the
mortgage instruments, upon written demand of the Owner, the Servicer shall remit
to the Owner the then unpaid principal balance of the related Mortgage Loan. The
Servicer shall maintain the fidelity bond and errors and omissions insurance
policy as provided for in Section 3.12 insuring the Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 5.3 Servicing Compensation
As compensation for its services hereunder, the Servicer shall be entitled
to pay itself the Servicing Fee with respect to each Mortgage Loan from the
gross amount of interest payments on such Mortgage Loan which are actually
received by the Servicer with respect thereto. Additional servicing compensation
in the form of all Ancillary Income which are actually received by the Servicer
may be retained by the Servicer to the extent not required to be deposited into
the Custodial Account pursuant to the terms of this Agreement. 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 in this Agreement.
Section 5.4 Statements as to Compliance
The Servicer will deliver to the Owner, by March 15th of each year,
beginning in 2004, an Officer's Certificate, stating that (i) a review of the
activities of the Servicer during the preceding fiscal year and of performance
under this Agreement has been made under such officer's supervision, (ii) based
on such review, the Servicer has fulfilled all of its obligations under this
Agreement throughout such fiscal year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the actions being taken by the
Servicer to cure such default, and (iii) all reports and information provided to
the Owner by the Servicer, pursuant to the Servicer's reporting requirements
under the Agreement, are accurate and complete in all material respects. Copies
of such statement may be provided by the Owner to any Person identified as a
prospective purchaser of the Mortgage Loans.
Section 5.5 Annual Independent Public Accountants' Servicing Report
The Servicer shall, on or before March 15th of each year, beginning in
2004, cause, at its sole cost and expense, a firm of independent public
accountants, which is a member of the American Institute of Certified Public
Accountants, to furnish a statement to the Owner to the effect that such firm
has examined certain documents and records and performed certain other
procedures relating to the servicing of the Mortgage Loans during the
immediately preceding fiscal year of the Servicer and that such firm is of the
opinion that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance therewith, except for such
exceptions as shall be set forth in such statement.
Section 5.6 Annual Xxxxxxxx-Xxxxx Act Certification
(a) For so long as a Person is required by Section 302 of the
Xxxxxxxx-Xxxxx Act of 2002 (the "Act") to provide an annual certification, by
March 15th of each year, beginning in 2004, an officer of the Servicer shall
execute and deliver an Officer's Certificate to such Person (hereafter, the
"Beneficiary") for the benefit of the Beneficiary and its officers, directors
and affiliates, pursuant to which such officer shall certify to those matters
substantially as set forth in Exhibit D.
(b) The Servicer shall indemnify and hold harmless the Beneficiary and its
officers, directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 5.6.
Section 5.7 Owner's Right to Examine Servicer Records, etc.
The Owner shall have the right, at the Owner's expense, except for
immaterial items in the ordinary course of business, to examine and audit the
Servicer's books of account, records, reports, and other papers relating to (i)
the performance by the Servicer of its obligations and duties under this
Agreement, or (ii) the Mortgage Loans, to make copies and extracts therefrom,
and to discuss the affairs, finances, and accounts of such Servicer relating to
such performance with its officers and employees, all at such reasonable times
and places and as often as may be reasonably requested.
Section 5.8 Consents and Approvals
The Owner shall timely obtain, at its sole cost and expense, the consents
and approvals required by law or pursuant to contract to consummate the
transactions contemplated hereby. All such consents will be obtained without any
cost or expense to the Servicer and will be obtained without any adverse
modification in the terms of any of the agreements relating to the Mortgage
Loans or the imposition of any burdensome provisions or conditions on the
Servicer.
Section 5.9 Removal of Mortgage Loans from Inclusion Under this Agreement Upon a
Whole Loan Transfer or a Pass-Through Transfer on One or More Reconstitution
Dates
(a) The Servicer and the Owner agree that with respect to some or all of
the Mortgage Loans, the Owner may effect one or more Whole Loan Transfers and/or
one or more Pass-Through Transfers; provided, however, the Owner agrees to use
commercially reasonable efforts not to effect a Whole Loan Transfer or a Pass
Through Transfer if the aggregate outstanding principal balance of the Mortgage
Loans subject to such Whole Loan Transfer or Pass Through Transfer is less that
$10,000,000. In connection with a Whole Loan Transfer, the related
Reconstitution Agreement shall provide that no more than four (4) Persons shall
have the status of "Owner" thereunder.
(b) With respect to each Whole Loan Transfer or Pass-Through Transfer, as
the case may be, entered into by Owner, Servicer agrees:
(i) negotiate in good faith and execute a servicer agreement
reasonably required to effectuate the Pass-Through Transfer, provided such
agreement creates no greater obligation or cost on the part of the
Servicer than otherwise set forth in this Agreement, and provided further
that the Servicer shall be entitled to a servicing fee under that
agreement at a rate per annum no less than the Servicing Fee Rate;
(ii) to cooperate fully with the Owner and any prospective the Owner
with respect to all reasonable requests that are necessary to effect a
Pass-Through Transfer or Whole Loan Transfer;
(iii) provide as applicable:
(A) information pertaining to the Servicer of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer as are
reasonably believed necessary by the trustee, any rating agency or
the Owner, as the case may be, in connection with such Pass-Through
Transfer. The Owner shall pay all third party costs associated with
the preparation of the information described in clause (ii)(A) above
and the delivery of any opinions, letters or certificates described
in this clause (ii)(B). The Servicer shall not be required to
execute any servicer agreement unless a draft of the agreement is
provided to the Servicer at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for the
Servicer and its counsel to review and comment on the agreement;
(c) In connection with any Pass-Through Transfer, the Servicer, upon
request, will bring down the representations and warranties made in Section 2.1
in to a date no later than the related Reconstitution Date;
(d) In connection with any Pass-Through Transfer, the Servicer shall
indemnify, defend and hold harmless the Owner from and against any and all
losses, claims, expenses, damages or liabilities to which the Owner may be
subject to as a result of any untrue statement of any material fact contained in
any information (such information, the "Countrywide Information") prepared and
furnished to the Owner by the Servicer for inclusion in any related offering
document or prospectus (collectively, "Offering Materials"), or arise out of, or
are based upon, any omission in the Countrywide Information necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse the Owner for damages or expenses
reasonably incurred by it; provided, however, that Countrywide shall be liable
only insofar as such untrue statement or omission relates solely to the
Countrywide Information in the Offering Materials furnished to the Owner by the
Servicer specifically for inclusion in the Prospectus Supplement. The Owner
shall indemnify, defend and hold harmless the Servicer from and against any and
all losses, claims, expenses, damages or liabilities to which the Servicer may
be subject to as a result of any untrue statement of any material fact contained
in any Offering Materials, or arise out of, or are based upon, any omission in
any information included in the Offering Materials necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and will reimburse the Servicer for damages or expenses
reasonably incurred by it; provided, however, that Owner shall be liable only
insofar as such untrue statement or omission does not relate to the Countrywide
Information in the Offering Materials furnished to the Owner by the Servicer
specifically for inclusion in the Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to Pass-Through
Transfers 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.
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims
Subject to Section 6.3, the Servicer agrees to indemnify and hold harmless
the Owner against any and all Losses that the Owner may sustain in any way
related to the failure of such Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, however, the Servicer
shall not be liable hereunder (a) to the extent such Losses directly result from
the Custodian's negligent action, negligent failure to act, bad faith, willful
misconduct or breach under the Custodial Agreement, dated as of November 1,
2003, among the Owner, Countrywide and the Custodian,(b) with respect to any
action or inaction in accordance with the direction or consent of the Owner or
(c) resulting from the Owner's failure to respond to a request by the Servicer
for direction or consent in accordance with Section 3.1(c) hereof. The Servicer
shall immediately notify the Owner if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans. The Servicer shall assume (with
the written consent of the Owner) the defense of any such claim and pay all
reasonable expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Servicer or the Owner in respect of such claim. The Servicer shall
follow any written instructions received from the Owner in connection with any
such claim and the Owner shall promptly reimburse the Servicer for all amounts
reasonably advanced by it pursuant to the preceding sentence, except when the
claim (a) is related to the Servicer's obligations to indemnify the Owner
pursuant hereto, (b) results from the failure of the Servicer to service the
Mortgage Loans in compliance with the terms of this Agreement or (c) results
from the Servicer's willful misconduct, bad faith or negligence in performing
its duties under this Agreement.
The Owner shall indemnify and hold harmless the Servicer against any and
all Losses that the Servicer may sustain as a result of (a) any act or omission
on the part of the Owner or (b) a breach of any of the Owner's representations,
warranties or covenants or obligations contained herein.
With respect to any Mortgage Loan, in the event that the Owner records or
causes to be recorded in the appropriate public recording office of the
jurisdiction in which the related Mortgaged Property is located the related
Assignment of Mortgage which designates the Owner as the holder of record of the
Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding
the execution and delivery of release and reconveyance documents, and shall
immediately complete, sign and return to the Servicer any additional documents
that may be required of the holder of record of the Mortgage and may be
reasonably requested by the Servicer in order to permit the Servicer to comply
with the Servicer's servicing obligations, and, in its capacity as the holder of
record, shall take such other action as may be reasonably requested by the
Servicer. In addition, if, as a result of the recording of the related
Assignment of Mortgage, the Owner, in its capacity as the holder of record,
receives written notice of any action with respect to the related Mortgage or
the related Mortgaged Property, the Owner shall send a copy of such notice to
the Servicer immediately in accordance with the provisions of Section 9.8 of
this Agreement.
The Owner agrees that the Servicer shall have no liability to the Owner
for the Owner's failure to comply with the provisions set forth in this
paragraph.
Section 6.2 Servicer Covenants; Merger or Consolidation of the Servicer
(a) The Servicer covenants that it will keep in full force and effect its
existence, rights and franchises as a limited partnership, and its status as a
Xxxxxx Xxx or Xxxxxxx Mac approved servicer in good standing and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement.
(b) Any Person into which the Servicer may be merged or consolidated, or
any business organization resulting from any merger, conversion or consolidation
to which the Servicer shall be a party, or any Person succeeding to all or
substantially all of the business or assets of the Servicer (whether or not
related to loan servicing), shall be the successor of the Servicer 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 Servicer shall not, without the prior written
approval of the Owner, be a party to any such merger, consolidation or
conversion, or sell or otherwise dispose of all or substantially all of its
business or assets unless the successor or surviving person shall be an
institution that is a Xxxxxx Mae or Xxxxxxx Mac approved servicer in good
standing.
Section 6.3 Limitation on Liability of the Servicer and Others
The Servicer and the directors, officers, employees or agents of the
Servicer shall not be under any liability to the Owner for (a) any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, (b) errors in judgment, or (c) any action or inaction in accordance
with the direction or consent of the Owner; provided, however, this provision
shall not protect the Servicer against any breach of warranties or
representations made herein, any failure to perform its obligations in
accordance with any standard of care set forth in this Agreement (unless in
accordance with the direction or consent of the Owner), or any liability which
would otherwise be imposed by reason of willful misconduct, bad faith or gross
negligence in the performance of its duties or by reason of any breach of the
terms and conditions of the Agreement. The Servicer and any officer, employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Subject to Section 6.1, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties under this Agreement and which may involve it in any
expense or liability; provided, however, that the Servicer may, with the consent
of the Owner, undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights, duties and the interests of the
parties hereto. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be reimbursed to the Servicer in
accordance with Section 6.1.
Section 6.4 Servicer Not to Resign
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that the Servicer's duties hereunder are no longer permissible
under Applicable Requirements and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner. No such resignation shall become effective until a successor which
satisfies the requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
Section 6.5 No Transfer of Servicing
The Servicer acknowledges that the Owner has entered into this Agreement
with the Servicer in reliance upon the adequacy of the Servicer's 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, the Servicer shall not either assign this
Agreement or the servicing hereunder without the prior written approval of the
Owner in its sole discretion.
Section 6.6 [Reserved]
Section 6.7 Representations and Warranties of the Owner
With respect to the Mortgage Loans, the Owner hereby makes to the Servicer
as of the Cut-off Date each of the representations and warranties set forth
below:
(a) The Owner has all requisite corporate or organizational power,
authority and capacity, to carry on its business as it is now being conducted,
to execute and deliver this Agreement, and to perform all of its obligations
hereunder. The Owner does not believe, nor does it have any cause or reason to
believe, that it cannot perform each and every covenant contained in this
Agreement.
(b) The execution, delivery and performance of this Agreement by the Owner
and the consummation of the transactions contemplated thereby have been duly and
validly authorized by all necessary corporate, shareholder or other action; this
Agreement has been duly and validly executed and delivered by the Owner, and is
a valid and legally binding agreement of the Owner enforceable against the Owner
in accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting generally the enforcement of creditor's rights and the discretion of a
court to grant specific performance of contracts. Any requisite consents or
approvals of third parties (including Investors and any other applicable
regulatory authorities) to the execution and delivery of this Agreement or the
performance of the transactions contemplated hereby by the Owner have been
obtained or will be obtained prior to the Cut-off Date or such other date as
expressly provided herein.
ARTICLE VII
DEFAULT
Section 7.1 Events of Default
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when due any
payment required to be made under the terms of this Agreement, which
failure continues unremedied for a period of three (3) days after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Owner; the Owner
shall use reasonable efforts to notify the Servicer that it has not
received the payment due, but the Owner's notice shall not be a condition
of the Event of Default; or
(ii) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the
Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Owner; or
(iii)a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling 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 thirty (30) days; or
(iv) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or relating to all or substantially all of the Servicer's
property; or
(v) 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
obligation or ceases its normal business operations for three (3) Business
Days; or
(vi) failure by the Servicer to maintain its license to do business
in any jurisdiction where a Mortgaged Property is located if such license
is required and such failure continues unremedied for a period of thirty
(30) days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of this Agreement, including Section 6.5; or
(vii) the Servicer shall cease to be an approved servicer for Xxxxxx
Xxx or Xxxxxxx Mac.
(viii) the Servicer shall cease to have a minimum net worth of
$25,000,000 as determined in accordance with the Financial Accounting
Standards Board's generally accepted accounting principles;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Owner, by notice in writing to the Servicer (in each
such instance, the "Defaulted Servicer"), may, in addition to whatever rights
the Owner may have at law or equity to damages, including injunctive relief and
specific performance, commence termination of all of the rights and obligations
of the Defaulted Servicer under this Agreement and may exercise any and all
other remedies available at law or at equity. Upon receipt by the Defaulted
Servicer of such written notice from the Owner stating the intent to terminate
the Defaulted Servicer as servicer under this Agreement as a result of such
Event of Default, all authority and power of the Defaulted 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 Section 9.1. Upon
written request from the Owner, the Defaulted Servicer shall, at its sole
expense, prepare, execute, and deliver to a successor any and all documents and
other instruments, place in such successor's possession all Collateral Files and
Servicing 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, all of
which shall be undertaken immediately and shall be completed as soon as possible
and in all events by not later than thirty (30) Business Days following the
Owner's request therefor. The Defaulted Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Defaulted
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Defaulted Servicer to the Custodial
Account, the Escrow Account or the REO Account and all other amounts which may
thereafter be received with respect to the Mortgage Loans and to which the
Defaulted Servicer is not entitled pursuant to the terms of this Agreement.
Section 7.2 Waiver of Defaults
The Owner may waive any default by the Defaulted 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 7.3 Survival of Certain Obligations and Liabilities of the Defaulted
Servicer
The representations, warranties, covenants, indemnities and agreements of
the parties provided in this Agreement and the parties' obligations hereunder
shall survive the execution and delivery and the termination or expiration of
this Agreement. Notwithstanding any termination of the rights and obligations of
the Defaulted Servicer pursuant to this Section 7, the Defaulted Servicer shall
remain liable for any actions of the Defaulted Servicer prior to the effective
time of such termination.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement
This Agreement shall terminate upon any of: (i) the later of the
distribution to the Owner of final payment or liquidation with respect to the
last Mortgage Loan and each REO Property, or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder, (ii) the
mutual consent of the parties in writing, or (iii) the termination of the
Servicer pursuant to Section 8.2.
Section 8.2 Termination of the Servicer due to an Event of Default
(a) Upon 30 days' written notice, the Owner may, at its sole option, upon
the occurrence of an Event of Default and in accordance with Section 7.1,
terminate any rights the Servicer may have hereunder. Any such notice of
termination shall be in writing and delivered to the terminated Servicer (in
such instance, the "Terminated Servicer") by registered mail as provided in
Section 9.8 of this Agreement. If the Owner so terminates the rights of a
Terminated Servicer, the Owner with full cooperation of the Terminated Servicer
shall arrange for the transfer of servicing to, at the Owner's option, the Owner
or a third party, and the Terminated Servicer shall continue servicing, for the
Servicing Fee provided herein, the Mortgage Loans under this Agreement until the
Owner gives the Terminated Servicer notice of the transfer and such transfer has
been completed.
(b) The Terminated Servicer agrees to cooperate with the Owner and such
successor in effecting the termination of the Terminated Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Terminated Servicer to the Custodial
Account, the Escrow Account or the REO Account, or thereafter be received with
respect to the Mortgage Loans and to which the Terminated Servicer is not
entitled pursuant to the terms of this Agreement.
Section 8.3 Termination Without Cause
Upon at least 30 days prior notice, the Owner may terminate, at its sole
option the Servicer without cause. Any such notice of termination shall be in
writing and delivered to the Servicer and any Rating Agency by registered mail
as provided in Section 9.7. In the event the Owner so chooses to terminate the
Servicer, the Servicer shall be entitled to receive, as liquidated damages, upon
its termination as Servicer hereunder without cause pursuant to this Section
8.3, an amount equal to two percent (2%) of the aggregate outstanding principal
amount of each Mortgage Loan as of the termination date paid by the Owner to the
Servicer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer
(a) Prior to termination of the Servicer's responsibilities and duties
under this Agreement pursuant to Section 6.4, 7.1, 8.1 or 8.2, the Owner shall
either (i) succeed to and assume all of the Servicer's responsibilities, rights,
duties, and obligations under this Agreement from and after the date of such
succession or (ii) appoint a successor to the Servicer that shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement pursuant to
Section 8.2 above. In the event that the Servicer's duties, responsibilities,
and liabilities under this Agreement shall be terminated pursuant to the
foregoing Sections, the Servicer shall discharge such duties and
responsibilities, and be compensated therefor as provided in this Agreement,
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
foregoing Sections shall not become effective until a successor shall have been
appointed pursuant to this Section and shall in no event relieve the Servicer of
its non-servicing duties, obligations, covenants, representations and
warranties, it being understood and agreed that the provisions of Sections 5.10,
6.1, Article 7 and Article 8 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer or the termination of this
Agreement.
(b) The Servicer shall promptly deliver to the successor (i) the funds in
the Custodial Account and the Escrow Account to which the Owner is entitled
pursuant to the terms of this Agreement, (ii) all other funds to which the Owner
is entitled pursuant to the terms of this Agreement, (iii) all other amounts
which may thereafter be received with respect to the Mortgage Loans and to which
the Servicer is not entitled pursuant to the terms of this Agreement and (iv)
all Collateral Files and Servicing Files and related documents and statements
held by it hereunder. The Servicer shall account for all funds and shall execute
and deliver such instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such, the Owner shall
notify the Servicer of such appointment.
Section 9.2 Amendment
This Agreement may be amended from time to time by the parties by written
agreement signed by both of the parties.
Section 9.3 Duration of Agreement
This Agreement shall continue in existence and effect until terminated as
herein provided.
Section 9.4 Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of California, without reference to the choice of law
doctrine of such state.
Section 9.5 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii)references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs, and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 9.6 Reproduction of Documents
This Agreement and all documents relating hereto, including without
limitation (i) consents, waivers, and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 9.7 Notices
All demands, notices, consents, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered or delivered by facsimile, overnight courier, or registered mail,
postage prepaid, or delivered by telefacsimile, to:
(i) in the case of the Servicer, at the address set forth below or such
other address as may hereafter be furnished to the Owner in writing by the
Servicer:
Countrywide Homes Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Attention: Investor Accounting
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
(ii) in the case of the Owner, at the address set forth below, or such
other address as may hereafter be furnished to the Servicer by the Owner:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Mortgage Company
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and in the case of any subsequent Owner, as set forth in written notice supplied
to the Servicer by such subsequent Owner. All reports that are due to the Owner
from the Servicer pursuant to Section 4.2 shall be deemed to have been duly
given if delivered to the internet address from time to time provided by the
Owner to the Servicer.
Section 9.8 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or the rights of the Owner
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 9.9 Disclosure of Relationship
Each party (including the respective affiliates) shall have the right upon
obtaining prior written consent from the other party, from time to time, to
publish, distribute, advertise or otherwise disclose the relationship and the
general services created and performed under this Agreement; provided, however,
such disclosure shall not identify the amount or nature of fees earned or to be
paid hereunder. No disclosure permitted by this Section 9.10 shall include any
Mortgagor information.
Section 9.10 Exhibits and Schedules
The following exhibits and schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement:
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
Section 9.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 6.4, 6.5, 7.1 and
8.1, this Agreement shall inure to the benefit of and be binding upon the
Servicer, the Owner and their respective successors and assigns.
Section 9.12 Effect of Headings
The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
Section 9.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings relating
to the subject matter hereof.
[signatures start on next page]
IN WITNESS WHEREOF, the Servicer and the Owner have caused their names to
be signed to this Servicing Agreement by their respective officers thereunto
duly authorized as of the day and year first above written.
SERVICER:
COUNTRYWIDE HOME LOANS SERVICING LP
By:
--------------------------------
Name:
Title:
OWNER:
XXXXXXX SACHS MORTGAGE COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT B
LIST OF CREDIT DOCUMENTS
Copy of Note
Copy of Mortgage or Deed of Trust, including all riders
Copy of all riders to Note and Mortgage or Deed of Trust
Settlement statement (HUD 1)
Copy of PMI Certificate (if applicable)
Appraisal
Flood determination certificate
Hazard Insurance declaration page
Loan application
EXHIBIT C
LIST OF DOCUMENTS IN COLLATERAL FILE
Original Note
Original Mortgage
Assignment(s) of Mortgage (if applicable)
EXHIBIT D
FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of
Countrywide Home Loans Servicing LP (the "Servicer"), hereby certify, pursuant
to Section 5.6 of that certain Servicing Agreement (the "Agreement"), dated as
of [DATE] between the Servicer and Xxxxxxx Sachs Mortgage Company (the "Owner"),
to [ENTITY NAME] (the "Beneficiary") with respect to the calendar year
immediately preceding the date of this Certificate, as follows:
1. I have reviewed the annual statement of compliance ("Annual
Statement of Compliance") prepared by Servicer, and the annual
independent public accountant's servicing report made in accordance
with the Uniform Single Attestation Program for Mortgage Bankers
("Annual Independent Public Accountant's Servicing Report"), which
have been furnished to the Beneficiary pursuant to the Agreement and
any subsequent servicing agreement related thereto or to the
Mortgage Loans (collectively, the "Servicing Agreement");
2. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing
Report and all final servicing reports prepared by Servicer and
delivered to the Beneficiary pursuant to the Servicing Agreement
relating to the servicing of the Mortgage Loans, taken as a whole,
does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by such
statements or reports;
3. Based on my knowledge, the servicing information required to be
provided to the Beneficiary by the Servicer under the Servicing
Agreement has been provided to the Beneficiary;
4. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon the review
required by the Servicing Agreement, and except as disclosed in the
Annual Statement of Compliance and the Annual Independent Public
Accountant's Servicing Report submitted to the Beneficiary, the
Servicer has, as of the last day of the period covered by the Annual
Statement of Compliance, fulfilled its obligations under the
Servicing Agreement; and
5. I have disclosed to the Beneficiary's certified public accountants
all significant deficiencies relating to the Servicer's compliance
with the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program
for Mortgage Bankers or similar standard as set forth in the
Servicing Agreement.
EXHIBIT T-1
Authorized Representatives of Countrywide Home Loans Servicing LP
[Countrywide Home Loans Logo]
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX
Page 1 of 2
Date: October 1, 2002
_______________
CERTIFICATE DESIGNATING
AUTHORIZED REPRESENTATIVES
This is to certify that until further notice the individual named below, with
specimen signature included, are desginated as Authorized Corporation
Representatives:
Authorized Corporation Representative:
Xxxxx Xxxxxx, Executive Vice President /s/ Xxxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxxxxx, Executive Vice President /s/ Xxxx Xxxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxx, Senior Vice President /s/ Xxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Xxxxx, Senior Vice President /s/ Xxxxxxx Xxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxx, Senior Vice President /s/ Xxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxx, Senior Vice President /s/ Xxxx Xxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxxxxx, First Vice President /s/ Xxxx Xxxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxx Xxxxxxxxxx, First Vice President /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxx, First Vice President /s/ Xxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Xxxxxxxx, First Vice President /s/ Xxxxxxx Xxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxxxx Xxxxxxx, First Vice President /s/ Xxxxxxxxx Xxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxx Xxxx, First Vice President /s/ Xxx Xxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxx Xxxxxxx, First Vice President /s/ Xxxxxx Xxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxxx, First Vice President /s/ Xxxx Xxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Xxxxxxxxxx, First Vice President /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Scrumbato, First Vice President /s/ Xxxxxxx Scrumbato
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Tone, First Vice President /s/ Xxxx Tone
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
[Countrywide Home Loans
Servicing LP Logo]
0000 Xxxxxxxxx Xxxxx
Xxxxx, XX 00000
Page 2 of 2
CERTIFICATE DESIGNATING
AUTHORIZED REPRESENTATIVES
This is to certify that until further notice the individual named below, with
specimen signature included, are desginated as Authorized Corporation
Representatives:
Authorized Corporation Representative:
Xxxxx Xxxxxxxx, Vice President /s/ Xxxxx Xxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxx Xxxxxxx, Vice President /s/ Xxxxx Xxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxxx Xxxxxx, Vice President /s/ Xxxxxxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxx Xxxxxx, Vice President /s/ Xxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Xxxxxxx, Vice President /s/ Xxxxxxx Xxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Prey, Vice President /s/ Xxxxxxx Prey
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxx Xxxxxxx, Vice President /s/ Xxxxxx Xxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxxxx Xxxxxx, Vice President /s/ Xxxxxxx Xxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxx Xxxxx, Vice President /s/ Xxxxx Xxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxx X. Xxxx, Assistant Vice President /s/ Xxxxx X. Xxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxx Xxxxxxxx, Assistant Vice President /s/ Xxxxx Xxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxx Xxxxxxxxx, Assistant Vice President /s/ Xxxxx Xxxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
Xxxxx Xxxxxxxxx, Assistant Vice President /s/ Xxxxx Xxxxxxxxx
----------------------------------------- --------------------------------------
Name and Title Specimen Signature
EXHIBIT T-2
Authorized Representatives of GreenPoint Mortgage Funding, Inc.
GSAA 2005-4: March 30, 2005
Xxxxx Xxxxxx, SVP /s/ Xxxxx Xxxxxx
-------------------------------------------------------------------
Xxxxxxx Xxxxxx, SVP /s/ Xxxxxxx Xxxxxx
-------------------------------------------------------------------
Xxxxx Xxxxxx, VP /s/ Xxxxx Xxxxxx
-------------------------------------------------------------------
Xxxxx Xxxxx, VP /s/ Xxxxx Xxxxx
-------------------------------------------------------------------
EXHIBIT T-3
Authorized Representatives of IndyMac Bank, F.S.B.
Authorized Officers
Xxxxxxx Xxxxx, Senior Vice President /s/ Xxxxxxx Xxxxx
------------------------------------ --------------------
Name/Title Signature
Xxxxxx Xxxxxxxx, Vice President /s/ Xxxxxx Xxxxxxxx
------------------------------------ --------------------
Name/Title Signature
Xxx Xxxxxxxx, Manager/Servicing /s/ Xxx Xxxxxxxx
------------------------------------ --------------------
Name/Title Signature
Xxx Xxxxxx, Manager/Master Serv. /s/ Xxx Xxxxxx
------------------------------------ --------------------
Name/Title Signature
EXHIBIT U
FORM OF REQUEST FOR RELEASE
(for Trustee)
In connection with the administration of the Mortgage Loans held by
you as the Trustee on behalf of the Certificateholders, we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
------------------------------------
Mortgage Loan Number:
--------------------
Send Custodial File to:
----------------------
Reason for Requesting Documents (check one)
-------------------------------------------
_______ 1. Mortgage Loan Paid in Full. (The Company hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account as provided in the Trust
Agreement.)
_______ 2. Mortgage Loan Repurchase Pursuant to Section 2.05 of the
Trust Agreement, the applicable Servicing Agreement or the
Assignment Agreements. (The Company hereby certifies that the
Repurchase Price has been credited to the Collection Account
as provided in the Trust Agreement.)
_______ 3. Mortgage Loan Liquidated by _________________. (The Company
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to the Collection Account pursuant to the Pooling
and Servicing Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Trustee, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:
-------------------------------------
Name:
Title:
EXHIBIT V-1
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT,
DATED AS OF MARCH 30, 2005, BETWEEN THE PURCHASER,
GREENPOINT MORTGAGE FUNDING, INC. AND THE DEPOSITOR
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
as Assignee
and
GREENPOINT MORTGAGE FUNDING, INC.
as Servicer
Dated as of
March 1, 2005
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day
of March, 2005 (this "Assignment Agreement"), among GreenPoint Mortgage Funding,
Inc., a corporation (the "Servicer"), Deutsche Bank National Trust Company, not
in its individual capacity, but solely as trustee on behalf of GSAA Home Equity
Trust 2005-4 (the "Assignee"), and GS Mortgage Securities Corp., a Delaware
corporation (the "Assignor" or "Depositor").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the Servicer
have entered into (i) the Servicing Agreement, dated as of April 1, 2004, as
amended by Amendment No. 1, dated July 1, 2004 and as further amended by
Amendment No. 2, dated January 1, 2005 (the "Servicing Agreement"), and (ii) the
Master Mortgage Loan Purchase Agreement, dated as of April 1, 2004, as amended
by Amendment No. 1, dated July 1, 2004, and as further amended by Amendment No.
2, dated January 1, 2005 (the "Sale Agreement"), pursuant to which the Servicer
sold certain mortgage loans listed on the mortgage loan schedule attached to the
related Purchase Confirmation (as defined in the Sale Agreement);
WHEREAS, GSMC, the Assignor and the Servicer have entered into that
certain Assignment, Assumption and Recognition Agreement, dated as of March 1,
2005 (the "GSMC Assignment Agreement"), pursuant to which GSMC assigned its
right, title and interest in and to the Mortgage Loans (defined below), the
Interest Rate Corridor Agreement (as defined in the GSMC Assignment Agreement),
the Sale Agreement and the Servicing Agreement (other than the rights of GSMC
(and if applicable its affiliates, officers, directors and agents) to
indemnification under Section 6.07(d) of the Sale Agreement and Sections 5.4(c)
and 5.8(d) of the Servicing Agreement) to the Assignor;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain mortgage loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement (the "Mortgage Loans"), which are
subject to the provisions of the Servicing Agreement and the Sale Agreement and
are listed on the mortgage loan schedule attached as Exhibit 1 hereto (the
"Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Trust Agreement, dated as of March 1, 2005
(the "Trust Agreement"), between the Depositor and Deutsche Bank National Trust
Company, as trustee (the "Trustee"), the Assignor will transfer the Mortgage
Loans and the Interest Rate Corridor Agreement to the Assignee, together with
the Assignor's rights under the Servicing Agreement and the Sale Agreement, to
the extent relating to the Mortgage Loans (other than the rights of GSMC (and if
applicable its affiliates, officers, directors and agents) to indemnification
under Section 6.07(d) of the Sale Agreement and Sections 5.4(c) and 5.8(d) of
the Servicing Agreement).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and to
the Mortgage Loans, the Interest Rate Corridor Agreement and the GSMC Assignment
Agreement (including, without limitation, the rights of GSMC under the Servicing
Agreement and the Sale Agreement, to the extent assigned to the Assignor under
the GSMC Assignment Agreement) from and after the date hereof, and the Assignee
hereby assumes all of the Assignor's obligations under the Servicing Agreement
and Sale Agreement, to the extent relating to the Mortgage Loans from and after
the date hereof, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any obligations
under the Servicing Agreement, the Sale Agreement and the GSMC Assignment
Agreement from and after the date hereof, to the extent relating to the Mortgage
Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the dates of the
Servicing Agreement and Sale Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement or Sale Agreement without the
joinder of the Assignee with respect to mortgage loans not conveyed to the
Assignee hereunder; provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement. The Servicer and the Assignor
represent and warrant to the Assignee that (i) attached as Exhibit 2 to the GSMC
Assignment Agreement is a true, accurate and complete copy of the Servicing
Agreement, (ii) attached as Exhibit 3 to the GSMC Assignment Agreement is a
true, accurate and complete copy of the Sale Agreement, (iii) each of the
Servicing Agreement and Sale Agreement is in full force and effect as of the
date hereof, (iv) except as provided under the GSMC Assignment Agreement neither
the Servicing Agreement nor Sale Agreement has been amended or modified in any
respect, and (v) no notice of termination has been given to the Servicer under
the Servicing Agreement or Sale Agreement. The Servicer, in its capacity as
seller and/or servicer under the Servicing Agreement and the Sale Agreement,
further represents and warrants that the representations and warranties
contained in Section 2.1 of the Servicing Agreement are true and correct as of
March 30, 2005 (the "Securitization Closing Date"), the representations and
warranties contained in Section 3.01 of the Sale Agreement are true and correct
as of the Securitization Closing Date, and the representations and warranties
regarding the Mortgage Loans contained in Section 3.02 of the Sale Agreement
were true and correct as of the Closing Date (as such term is defined in the
Sale Agreement).
3. Recognition of Assignee. From and after the date hereof, the
Servicer shall note the transfer of the Mortgage Loans to the Assignee in its
books and records, shall recognize the Assignee as the owner of the Mortgage
Loans and, notwithstanding anything herein or in the Servicing Agreement to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the Servicing Agreement the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Sale Agreement and the Servicing Agreement shall be binding upon and
inure to the benefit of the Servicer and the Assignee and their successors and
assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Servicer
other than those contained in the Servicing Agreement, Sale Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreement and Sale
Agreement.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement, the Sale Agreement
and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) Releases. The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the respective mortgage
loan documents to the Assignee or designee and shall inure to the benefit of the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 6 to repurchase or
substitute a Mortgage Loan constitute the sole remedies available to the
Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase or Substitution of Mortgage Loans. Upon discovery or
notice of any breach by the Assignor of any representation, warranty or covenant
under this Assignment Agreement that materially and adversely affects the value
of any Mortgage Loan or the interest of the Assignee therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such breach
and, if the Assignor does not cure such breach in all material respects within
60 days from the date on which it is notified of the breach, the Assignee may
enforce the Assignor's obligation hereunder to purchase such Mortgage Loan from
the Assignee at the Repurchase Price as defined in the Sale Agreement or, if
such breach is within 2 years of the Closing Date (as defined in the Trust
Agreement), the Assignor may substitute such Mortgage Loan with a Qualified
Mortgage Loan (as defined in the Trust Agreement). Notwithstanding the
foregoing, however, if such breach is a Qualification Defect as defined in the
Sale Agreement, any such repurchase or substitution must take place within 60
days of discovery of such Qualification Defect. Any such substitution of a
Mortgage Loan pursuant to this Section shall be conducted in the same manner as
set forth in the Sale Agreements.
In the event of a repurchase or substitution of any Mortgage Loan by
the Assignor, the Trustee shall promptly deliver to the Assignor or its designee
the related Mortgage File and shall assign to the Assignor all of the Assignee's
rights under the Servicing Agreement, but only insofar as such Servicing
Agreement and Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in accordance
with their respective terms.
8. Governing Law. THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
9. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or Sale Agreement shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
(a) in the case of the Servicer,
GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
or such other address as may hereafter be furnished by the
Servicer;
(b) in the case of the Trustee or Assignee,
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS0504
or such other address as may hereafter be furnished by the
Assignee; and
(c) (iv) in the case of the Assignor,
GS Mortgage Securities Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Assignor.
10. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
11. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
12. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
Deutsche Bank National Trust Company, not individually or personally but solely
on behalf of GSAA Home Equity Trust 2005-4, as the Assignee, in the exercise of
the powers and authority conferred and vested in it, as Trustee, pursuant to the
Trust Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of the Assignee is made and intended not as personal
representations, undertakings and agreements by Deutsche Bank National Trust
Company but is made and intended for the purpose of binding only the GSAA Home
Equity Trust 2005-4, (iii) nothing herein contained shall be construed as
creating any liability for Deutsche Bank National Trust Company, individually or
personally, to perform any covenant (either express or implied) contained
herein, and all such liability, if any, is hereby expressly waived by the
parties hereto, and such waiver shall bind any third party making a claim by or
through one of the parties hereto, (iv) under no circumstances shall Deutsche
Bank National Trust Company be personally liable for the payment of any
indebtedness or expenses of the GSAA Home Equity Trust 2005-4, or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the GSAA Home Equity Trust 2005-4 under this Assignment
Agreement, the Trust Agreement or any other related document or documents, and
(v) all recourse for any payment, liability or other obligation of the Assignee
shall be had solely to the assets of GSAA Home Equity Trust 2005-4.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
ASSIGNOR:
GS MORTGAGE SECURITIES CORP.
By:
--------------------------------------
Name:
Title:
ASSIGNEE:
DEUTSCHE BANK NATIONAL TRUST COMPANY not
in its individual capacity but solely
as Trustee for GSAA Home Equity Trust
2005-4
By:
--------------------------------------
Name:
Title:
SERVICER:
GREENPOINT MORTGAGE FUNDING, INC.
By:
--------------------------------------
Name:
Title:
EXHIBIT 1
(Delivered to the Trustee on Closing Date)
EXHIBIT V-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT,
DATED AS OF MARCH 30, 2005, AMONG THE DEPOSITOR,
THE TRUSTEE AND GREENPOINT MORTGAGE FUNDING, INC
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
as Assignee
and
GREENPOINT MORTGAGE FUNDING, INC.
as Servicer
Dated as of
March 1, 2005
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day
of March, 2005 (this "Assignment Agreement"), among GreenPoint Mortgage Funding,
Inc., a corporation (the "Servicer"), Deutsche Bank National Trust Company, not
in its individual capacity, but solely as trustee on behalf of GSAA Home Equity
Trust 2005-4 (the "Assignee"), and GS Mortgage Securities Corp., a Delaware
corporation (the "Assignor" or "Depositor").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the Servicer
have entered into (i) the Servicing Agreement, dated as of April 1, 2004, as
amended by Amendment No. 1, dated July 1, 2004 and as further amended by
Amendment No. 2, dated January 1, 2005 (the "Servicing Agreement"), and (ii) the
Master Mortgage Loan Purchase Agreement, dated as of April 1, 2004, as amended
by Amendment No. 1, dated July 1, 2004, and as further amended by Amendment No.
2, dated January 1, 2005 (the "Sale Agreement"), pursuant to which the Servicer
sold certain mortgage loans listed on the mortgage loan schedule attached to the
related Purchase Confirmation (as defined in the Sale Agreement);
WHEREAS, GSMC, the Assignor and the Servicer have entered into that
certain Assignment, Assumption and Recognition Agreement, dated as of March 1,
2005 (the "GSMC Assignment Agreement"), pursuant to which GSMC assigned its
right, title and interest in and to the Mortgage Loans (defined below), the
Interest Rate Corridor Agreement (as defined in the GSMC Assignment Agreement),
the Sale Agreement and the Servicing Agreement (other than the rights of GSMC
(and if applicable its affiliates, officers, directors and agents) to
indemnification under Section 6.07(d) of the Sale Agreement and Sections 5.4(c)
and 5.8(d) of the Servicing Agreement) to the Assignor;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain mortgage loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement (the "Mortgage Loans"), which are
subject to the provisions of the Servicing Agreement and the Sale Agreement and
are listed on the mortgage loan schedule attached as Exhibit 1 hereto (the
"Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Trust Agreement, dated as of March 1, 2005
(the "Trust Agreement"), between the Depositor and Deutsche Bank National Trust
Company, as trustee (the "Trustee"), the Assignor will transfer the Mortgage
Loans and the Interest Rate Corridor Agreement to the Assignee, together with
the Assignor's rights under the Servicing Agreement and the Sale Agreement, to
the extent relating to the Mortgage Loans (other than the rights of GSMC (and if
applicable its affiliates, officers, directors and agents) to indemnification
under Section 6.07(d) of the Sale Agreement and Sections 5.4(c) and 5.8(d) of
the Servicing Agreement).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and to
the Mortgage Loans, the Interest Rate Corridor Agreement and the GSMC Assignment
Agreement (including, without limitation, the rights of GSMC under the Servicing
Agreement and the Sale Agreement, to the extent assigned to the Assignor under
the GSMC Assignment Agreement) from and after the date hereof, and the Assignee
hereby assumes all of the Assignor's obligations under the Servicing Agreement
and Sale Agreement, to the extent relating to the Mortgage Loans from and after
the date hereof, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any obligations
under the Servicing Agreement, the Sale Agreement and the GSMC Assignment
Agreement from and after the date hereof, to the extent relating to the Mortgage
Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the dates of the
Servicing Agreement and Sale Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement or Sale Agreement without the
joinder of the Assignee with respect to mortgage loans not conveyed to the
Assignee hereunder; provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement. The Servicer and the Assignor
represent and warrant to the Assignee that (i) attached as Exhibit 2 to the GSMC
Assignment Agreement is a true, accurate and complete copy of the Servicing
Agreement, (ii) attached as Exhibit 3 to the GSMC Assignment Agreement is a
true, accurate and complete copy of the Sale Agreement, (iii) each of the
Servicing Agreement and Sale Agreement is in full force and effect as of the
date hereof, (iv) except as provided under the GSMC Assignment Agreement neither
the Servicing Agreement nor Sale Agreement has been amended or modified in any
respect, and (v) no notice of termination has been given to the Servicer under
the Servicing Agreement or Sale Agreement. The Servicer, in its capacity as
seller and/or servicer under the Servicing Agreement and the Sale Agreement,
further represents and warrants that the representations and warranties
contained in Section 2.1 of the Servicing Agreement are true and correct as of
March 30, 2005 (the "Securitization Closing Date"), the representations and
warranties contained in Section 3.01 of the Sale Agreement are true and correct
as of the Securitization Closing Date, and the representations and warranties
regarding the Mortgage Loans contained in Section 3.02 of the Sale Agreement
were true and correct as of the Closing Date (as such term is defined in the
Sale Agreement).
3. Recognition of Assignee. From and after the date hereof, the
Servicer shall note the transfer of the Mortgage Loans to the Assignee in its
books and records, shall recognize the Assignee as the owner of the Mortgage
Loans and, notwithstanding anything herein or in the Servicing Agreement to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the Servicing Agreement the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Sale Agreement and the Servicing Agreement shall be binding upon and
inure to the benefit of the Servicer and the Assignee and their successors and
assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Servicer
other than those contained in the Servicing Agreement, Sale Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreement and Sale
Agreement.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement, the Sale Agreement
and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) Releases. The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the respective mortgage
loan documents to the Assignee or designee and shall inure to the benefit of the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 6 to repurchase or
substitute a Mortgage Loan constitute the sole remedies available to the
Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase or Substitution of Mortgage Loans. Upon discovery or
notice of any breach by the Assignor of any representation, warranty or covenant
under this Assignment Agreement that materially and adversely affects the value
of any Mortgage Loan or the interest of the Assignee therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such breach
and, if the Assignor does not cure such breach in all material respects within
60 days from the date on which it is notified of the breach, the Assignee may
enforce the Assignor's obligation hereunder to purchase such Mortgage Loan from
the Assignee at the Repurchase Price as defined in the Sale Agreement or, if
such breach is within 2 years of the Closing Date (as defined in the Trust
Agreement), the Assignor may substitute such Mortgage Loan with a Qualified
Mortgage Loan (as defined in the Trust Agreement). Notwithstanding the
foregoing, however, if such breach is a Qualification Defect as defined in the
Sale Agreement, any such repurchase or substitution must take place within 60
days of discovery of such Qualification Defect. Any such substitution of a
Mortgage Loan pursuant to this Section shall be conducted in the same manner as
set forth in the Sale Agreements.
In the event of a repurchase or substitution of any Mortgage Loan by
the Assignor, the Trustee shall promptly deliver to the Assignor or its designee
the related Mortgage File and shall assign to the Assignor all of the Assignee's
rights under the Servicing Agreement, but only insofar as such Servicing
Agreement and Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in accordance
with their respective terms.
8. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
9. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or Sale Agreement shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
(a) in the case of the Servicer,
GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
or such other address as may hereafter be furnished by the
Servicer;
(b) in the case of the Trustee or Assignee,
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS0504
or such other address as may hereafter be furnished by the
Assignee; and
(c) (iv) in the case of the Assignor,
GS Mortgage Securities Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Assignor.
10. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
11. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
12. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
Deutsche Bank National Trust Company, not individually or personally but solely
on behalf of GSAA Home Equity Trust 2005-4, as the Assignee, in the exercise of
the powers and authority conferred and vested in it, as Trustee, pursuant to the
Trust Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of the Assignee is made and intended not as personal
representations, undertakings and agreements by Deutsche Bank National Trust
Company but is made and intended for the purpose of binding only the GSAA Home
Equity Trust 2005-4, (iii) nothing herein contained shall be construed as
creating any liability for Deutsche Bank National Trust Company, individually or
personally, to perform any covenant (either express or implied) contained
herein, and all such liability, if any, is hereby expressly waived by the
parties hereto, and such waiver shall bind any third party making a claim by or
through one of the parties hereto, (iv) under no circumstances shall Deutsche
Bank National Trust Company be personally liable for the payment of any
indebtedness or expenses of the GSAA Home Equity Trust 2005-4, or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the GSAA Home Equity Trust 2005-4 under this Assignment
Agreement, the Trust Agreement or any other related document or documents, and
(v) all recourse for any payment, liability or other obligation of the Assignee
shall be had solely to the assets of GSAA Home Equity Trust 2005-4.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
ASSIGNOR:
GS MORTGAGE SECURITIES CORP.
By:
--------------------------------------
Name:
Title:
ASSIGNEE:
DEUTSCHE BANK NATIONAL TRUST COMPANY not
in its individual capacity but solely
as Trustee for GSAA Home Equity Trust
2005-4
By:
--------------------------------------
Name:
Title:
SERVICER:
GREENPOINT MORTGAGE FUNDING, INC.
By:
--------------------------------------
Name:
Title:
EXHIBIT 1
Mortgage Loan Schedule
(Delivered to the Trustee on Closing Date)
EXHIBIT V-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT,
DATED AS OF MARCH 30, 2005, BETWEEN THE PURCHASER,
INDYMAC BANK, F.S.B AND THE DEPOSITOR
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
INDYMAC BANK, F.S.B.
as Servicer
Dated as of
March 1, 2005
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 1st day of March, 2005, among IndyMac Bank, F.S.B., (the
"Servicer"), GS Mortgage Securities Corp., as assignee (the "Assignee") and
Xxxxxxx Sachs Mortgage Company, as assignor (the "Assignor").
WHEREAS, the Assignor and the Servicer have entered into (i) the
Servicing Agreement, dated as of February 1, 2004 as amended by Amendment No. 1
thereto dated June 1, 2004, (the "Servicing Agreement") and (ii) the Master
Mortgage Loan Purchase Agreement, dated as of February 1, 2004, as amended by
Amendment No. 1 thereto dated December 1, 2004 (the "Sale Agreement") pursuant
to which the Servicer sold to the Assignor certain mortgage loans listed on the
mortgage loan schedule attached to the related Purchase Confirmation (as defined
in the Sale Agreement);
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain of the mortgage loans (the "Mortgage Loans"),
which are subject to the provisions of the Servicing Agreement and Sale
Agreement and are listed on the mortgage loan schedule attached as Exhibit 1
hereto (the "Mortgage Loan Schedule") as well as an interest rate corridor
agreement, dated March 25, 2005 (the "Interest Rate Corridor Agreement") between
the Assignor and The Xxxxxxx Xxxxx Group, Inc. for the benefit of the principal
certificates to be issued pursuant to the Trust Agreement (defined below); and
WHEREAS, pursuant to a Trust Agreement, dated as of March 1, 2005
(the "Trust Agreement"), between GS Mortgage Securities Corp., as depositor and
Deutsche Bank National Trust Company, as trustee (the "Trustee"), the Assignee
will transfer the Mortgage Loans and the Interest Rate Corridor Agreement to the
Trustee, together with the Assignee's rights under the Servicing Agreement and
the Sale Agreement, to the extent relating to the Mortgage Loans (other than the
rights of the Assignor (and if applicable its affiliates, officers, directors
and agents) to indemnification under Section 6.07(d) of the Sale Agreement and
Sections 5.4(c) and 5.8(d) of the Servicing Agreement).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee all of its right, title and interest in and to the Mortgage Loans, the
Interest Rate Corridor Agreement, the Servicing Agreement and the Sale
Agreement, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor (and if applicable its affiliates, officers, directors and
agents) to indemnification under Section 6.07(d) of the Sale Agreement and
Sections 5.4(c) and 5.8(d) of the Servicing Agreement) from and after the date
hereof, and the Assignee hereby assumes all of the Assignor's obligations under
the Servicing Agreement and the Sale Agreement, to the extent relating to the
Mortgage Loans, from and after the date hereof, and the Servicer hereby
acknowledges such assignment and assumption and hereby agrees to the release of
the Assignor from any obligations under the Servicing Agreement and the Sale
Agreement from and after the date hereof, to the extent relating to the Mortgage
Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the respective dates
of the Servicing Agreement and the Sale Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement without the joinder of the Assignee
with respect to mortgage loans not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee.
2. Modification of the Servicing Agreement. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend the
Servicing Agreement as follows:
(a) a new defined term "Annual Independent Public Accountant's
Servicing Report" will be added to Article I after the term "Ancillary Income"
as follows:
"Annual Independent Public Accountant's Servicing Report: The
statement provided by a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to the effect that
such firm has examined certain documents and records relating to the servicing
of the mortgage loans similar in nature and that such firm is of the opinion
that the provisions of this or similar agreements have been complied with, and
that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers, nothing has
come to their attention which would indicate that such servicing has not been
conducted in compliance therewith, except for (i) such exceptions as such firm
shall believe to be immaterial, and (ii) such other exceptions as shall be set
forth in such statement."
(b) a new defined term "Annual Statement of Compliance" will be
added to Article I after the term "Annual Independent Public Accountant's
Servicing Report" as follows:
"Annual Statement of Compliance: A report prepared by a responsible
officer of the Servicer detailing any exceptions to the Servicer's fulfillment
of its obligations under this Agreement."
(c) The second paragraph of Section 3.13(c) shall be deleted in its
entirety and replaced with:
"The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition unless
(i) (A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the Servicer
determines, and gives an appropriate notice to the Owner to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Servicer shall report monthly to
the Owner as to the progress being made in selling such REO Property, (ii) the
Servicer shall obtain an extension from the Internal Revenue Service and (iii)
if, with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage."
(d) Section 7.1 shall be amended as follows:
(i) Subsection (ii) of Section 7.1 shall be deleted in its entirety
and replaced with the following:
"failure by the Servicer duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Servicer set forth
in this Agreement (other than those listed in subsection (i) and subsection (x)
of this Section 7.1) which continues unremedied for a period of 30 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Owner or by the
Custodian; or"; and
(ii) A new subsection (x) shall be added immediately following
subsection (ix) which shall be as follows:
"failure by the Servicer duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Servicer set forth
in Section 5.4 and 5.5 of this Agreement which continues unremedied for a period
of 10 days after the date on which written notice of such failure, requiring the
same to be remedied shall have been given to the Servicer."
(e) Exhibit D shall be deleted in its entirety and be replaced with
a new "Exhibit D" which shall be as set forth in Exhibit 4 attached to this
Assignment, Assumption and Recognition Agreement.
3. Modification of the Sale Agreement. Only in so far as it relates
to the Mortgage Loans, the Servicer and the Assignor hereby amend the Sale
Agreement as follows:
(a) the last sentence of the second paragraph of Section 3.03(c)
shall be deleted and replaced in its entirety with:
"Notwithstanding the above, in no event shall IndyMac substitute a
loan that has been placed in a trust with respect to a securitization unless
such substitution occurs within 2 years of the closing date of the
securitization."
4. Governing Agreements. Each of the parties hereby agrees that each
of the Mortgage Loans shall be governed by the Servicing Agreement as amended by
Amendment No. 1 (as set forth in the recitals) and the Sale Agreement, as
amended by Amendment No. 1 (as set forth in the recitals) whether or not such
amendments were in effect at the time of the purchase of any of the Mortgage
Loans.
5. Accuracy of Servicing Agreement. The Servicer and the Assignor
represent and warrant to the Assignee that (i) attached hereto as Exhibit 2 is a
true, accurate and complete copy of the Servicing Agreement, (ii) attached
hereto as Exhibit 3 is a true, accurate and complete copy of the Sale Agreement,
(iii) each of the Servicing Agreement and Sale Agreement is in full force and
effect as of the date hereof, (iv) except as provided in Sections 2 and 3 above,
each of the Servicing Agreement and Sale Agreement has not been amended or
modified in any respect and (v) no notice of termination has been given to the
Servicer under the Servicing Agreement or Sale Agreement. The Servicer, in its
capacity as seller and/or servicer under the Servicing Agreement, further
represents and warrants that the representations and warranties contained in
Section 2.1 of the Servicing Agreement are true and correct as of March 30, 2005
(the "Securitization Closing Date"), the representations and warranties
contained in Section 3.01 of the Sale Agreement are true and correct as of the
Securitization Closing Date, and the representations and warranties regarding
the Mortgage Loans contained in Section 3.02 of the Sale Agreement were true and
correct as of the Closing Date (as such term is defined in the Sale Agreement).
6. Recognition of Assignee. From and after the date hereof, the
Servicer shall note the transfer of the Mortgage Loans to the Assignee in its
books and records, shall recognize the Assignee as the owner of the Mortgage
Loans and, notwithstanding anything herein or in the Servicing Agreement to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the Servicing Agreement the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Servicing Agreement shall be binding upon and inure to the benefit of
the Servicer and the Assignee and their successors and assigns.
7. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor and the Servicer as follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Servicer
other than those contained in the Servicing Agreement, Sale Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreement and Sale
Agreement.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
8. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee and the Servicer as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a limited partnership in good standing under the laws of the
State of New York with full power and authority (corporate and other) to enter
into and perform its obligations under the Servicing Agreement , the Sale
Agreement and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) Releases. The Assignor has not satisfied, canceled or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(h) 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,
equal credit opportunity, predatory and abusive lending or disclosure laws
applicable to the Mortgage Loans have been complied with. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Properties 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.
(i) HOEPA. No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act. 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 local law:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, which is now Version 5.6b, Revised Appendix E, as may be in effect
from time to time.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," (excluding New Jersey "Covered Home Loans" as
that term was defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002 that were originated between November
23, 2003 and July 6, 2004), "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.
(j) Bring Down. With respect to the Sale Agreement, nothing has
occurred or failed to occur from and after the applicable Closing Date (as
defined in the Sale Agreement) to the Securitization Closing Date that would
cause any of the representations and warranties relating to the applicable
Mortgage Loans set forth in Section 3.02 of the Sale Agreement to be incorrect
in any material respects as of the Securitization Closing Date as if made on the
Securitization Closing Date.
It is understood and agreed that the representations and warranties
set forth in this Section 8 shall survive delivery of the respective mortgage
loan documents to the Assignee or its designee and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 9 to repurchase or
substitute a Mortgage Loan constitute the sole remedies available to the
Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 8. It is further
understood and agreed that, except as specifically set forth in this Section 8,
the Assignor shall be deemed not to have made the representations and warranties
in this Section 8(j) with respect to, and to the extent of, representations and
warranties made, as to the matters covered in this Section 8(j), by the Servicer
in the Sale Agreement (or any officer's certificate delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 8, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
9. Repurchase or Substitution of Mortgage Loans. Upon discovery or
notice of any breach by the Assignor of any representation, warranty or covenant
under this Assignment Agreement that materially and adversely affects the value
of any Mortgage Loan or the interest of the Assignee therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such breach
and, if the Assignor does not cure such breach in all material respects within
60 days from the date on which it is notified of the breach, the Assignee may
enforce the Assignor's obligation hereunder to purchase such Mortgage Loan from
the Assignee at the Repurchase Price as defined in the Sale Agreement or, if
such breach is within 2 years of the Closing Date (as defined in the Trust
Agreement), the Assignor may substitute such Mortgage Loan with a Qualified
Mortgage Loan (as defined in the Trust Agreement). Notwithstanding the
foregoing, however, if such breach is a Qualification Defect as defined in the
Sale Agreement, any such repurchase or substitution must take place within 60
days of discovery of such Qualification Defect. Any such substitution of a
Mortgage Loan pursuant to this Section shall be conducted in the same manner as
set forth in the Sale Agreements.
In the event the Servicer has breached a representation or warranty
under the Sale Agreement that is substantially identical to, or covers the same
matters as, a representation or warranty breached by the Assignor hereunder, the
Assignee shall first proceed against the Servicer. If the Servicer does not
within 60 days after notification of the breach, take steps to cure such breach
or purchase, or substitute for the Mortgage Loan, the Trustee shall be entitled
to enforce the obligations of the Assignor hereunder to cure such breach or to
purchase the Mortgage Loan from the Trust or substitute such Mortgage Loan with
a Qualified Mortgage Loan (as defined in the Trust Agreement). In such event,
the Assignor shall succeed to the rights of the Assignee to enforce the
obligations of the Servicer to cure such breach or repurchase such Mortgage Loan
under the terms of the Sale Agreement with respect to such Mortgage Loan. In the
event of a repurchase or substitution of any Mortgage Loan by the Assignor, the
Assignee shall promptly deliver to the Assignor or its designee the related
Mortgage File and shall assign to the Assignor all of the Assignee's rights
under the Servicing Agreement and Sale Agreement, but only insofar as such
Servicing Agreement and Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof or to take notice of any breach or default thereof.
10. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in accordance
with their respective terms.
11. Governing Law. THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
12. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or Sale Agreement shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
(a) in the case of the Servicer,
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of the Assignee,
GS Mortgage Securities Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(c) in the case of the Assignor,
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
13. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
14. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
15. Third-Party Beneficiary. The parties agree that the Trustee is
intended to be, and shall have the rights of, a third-party beneficiary of this
Assignment Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
ASSIGNOR:
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Sachs Real Estate Funding
Corp., its General Partner
By:____________________________________
Name:
Title:
ASSIGNEE:
GS MORTGAGE SECURITIES CORP.
By:____________________________________
Name:
Title:
SERVICER:
INDYMAC BANK, F.S.B.
By:____________________________________
Name:
Title:
EXHIBIT 1
Mortgage Loan Schedule
(Delivered to the Trustee on Closing Date)
EXHIBIT 2
Servicing Agreement
(Available upon request to the Trustee)
EXHIBIT 3
Sale Agreement
(Available upon request to the Trustee)
EXHIBIT 4
Exhibit D to the Servicing Agreement
------------------------------------
EXHIBIT D
Form of Annual Certification
I, ______________________, Vice President of IndyMac Bank, F.S.B. (the
"Servicer"), certify to __________________, and its officers, directors, agents
and affiliates (in its role as ____________, the "____________"), and with the
knowledge and intent that they will rely upon this certification, that:
(i) Based on my knowledge, the information relating to the Mortgage Loans and
the servicing thereof submitted by the Servicer to the ___________ which is used
in connection with preparation of the reports on Form 8-K and the annual report
on Form 10-K filed with the Securities and Exchange Commission with respect to
each transaction listed on the attached Exhibit 1, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading as of the date of this certification;
(ii) The servicing information required to be provided to the _____________ by
the Servicer under the Servicing Agreement, between the Servicer and Xxxxxxx
Xxxxx Mortgage Company, dated as of February 1, 2004, as amended by Amendment
No. 1, dated as of June 1, 2004 (the "Servicing Agreement") has been provided to
the ______________;
(iii) I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required by the relevant
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the ___________, the Servicer has,
as of the date of this certification fulfilled its obligations under the
Servicing Agreement; and
(iv) I have disclosed to the ___________ all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the relevant
Servicing Agreement.
(v) The Servicer shall indemnify and hold harmless the ___________ and its
officers, directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Certification or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
___________, then the Servicer agrees that it shall contribute to the amount
paid or payable by the ___________ as a result of the losses, claims, damages or
liabilities of the ___________ in such proportion as is appropriate to reflect
the relative fault of the ___________ on the one hand and the Servicer on the
other in connection with a breach of the Servicer's obligations under this
Certification or the Servicer's negligence, bad faith or willful misconduct in
connection therewith.
Any capitalized terms used but not defined herein have the meanings
assigned to such terms in the Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
the seal of the Servicer.
Dated:
By:____________________________________
Name:
Title:
EXHIBIT V-4
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT,
DATED AS OF MARCH 30, 2005, AMONG THE DEPOSITOR,
THE TRUSTEE AND INDYMAC BANK, F.S.B AND THE DEPOSITOR
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
as Assignee
and
INDYMAC BANK, F.S.B.
as Servicer
Dated as of
March 1, 2005
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day
of March, 2005 (this "Assignment Agreement"), among IndyMac Bank, F.S.B., a
federal savings bank (the "Servicer"), Deutsche Bank National Trust Company, not
in its individual capacity, but solely as trustee on behalf of GSAA Home Equity
Trust 2005-4 (the "Assignee"), and GS Mortgage Securities Corp., a Delaware
corporation (the "Assignor" or "Depositor").
WHEREAS, Xxxxxxx Sachs Mortgage Company ("GSMC") and the Servicer
have entered into (i) the Servicing Agreement, dated as of February 1, 2004, as
amended by Amendment No. 1, dated June 1, 2004 (the "Servicing Agreement") and
(ii) the Master Mortgage Loan Purchase Agreement, dated as of February 1, 2004,
as amended by Amendment No. 1, dated December 1, 2004 (the "Sale Agreement"),
pursuant to which the Servicer sold certain mortgage loans listed on the
mortgage loan schedule to the related Purchase Confirmation (as defined in the
Sale Agreement);
WHEREAS, GSMC, the Assignor and the Servicer have entered into that
certain Assignment, Assumption and Recognition Agreement, dated as of March 30,
2005 (the "GSMC Assignment Agreement"), pursuant to which GSMC assigned its
right, title and interest in and to the Mortgage Loans (defined below), the
Interest Rate Corridor Agreement (as defined in the GSMC Assignment Agreement),
the Sale Agreement and the Servicing Agreement (other than the rights of GSMC
(and if applicable its affiliates, officers, directors and agents) to
indemnification under Section 6.07(d) of the Sale Agreement and Sections 5.4(c)
and 5.8(d) of the Servicing Agreement) to the Assignor;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain mortgage loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement (the "Mortgage Loans"), which are
subject to the provisions of the Servicing Agreement and the Sale Agreement and
are listed on the mortgage loan schedule attached as Exhibit 1 hereto (the
"Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Trust Agreement, dated as of March 1, 2005
(the "Trust Agreement"), between the Depositor and Deutsche Bank National Trust
Company, as trustee (the "Trustee"), the Assignor will transfer the Mortgage
Loans and the Interest Rate Corridor Agreement to the Assignee, together with
the Assignor's rights under the Servicing Agreement and Sale Agreement, to the
extent relating to the Mortgage Loans (other than the rights of GSMC (and if
applicable its affiliates, officers, directors and agents) to indemnification
under Section 6.07(d) of the Sale Agreement and Sections 5.4(c) and 5.8(d) of
the Servicing Agreement).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and to
the Mortgage Loans, the Interest Rate Corridor Agreement and the GSMC Assignment
Agreement (including, without limitation, the rights of GSMC under the Servicing
Agreement and the Sale Agreement, to the extent assigned to the Assignor under
the GSMC Assignment Agreement) from and after the date hereof, and the Assignee
hereby assumes all of the Assignor's obligations under the Servicing Agreement
and Sale Agreement, to the extent relating to the Mortgage Loans from and after
the date hereof, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any obligations
under the Servicing Agreement, Sale Agreement and the GSMC Assignment Agreement
from and after the date hereof, to the extent relating to the Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the respective dates
of the Servicing Agreement and Sale Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement or Sale Agreement without the
joinder of the Assignee with respect to mortgage loans not conveyed to the
Assignee hereunder; provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement. The Servicer and the Assignor
represent and warrant to the Assignee that (i) attached as Exhibit 2 to the GSMC
Assignment Agreement is a true, accurate and complete copy of the Servicing
Agreement, (ii) attached as Exhibit 3 to the GSMC Assignment Agreement is a
true, accurate and complete copy of the Sale Agreement, (iii) each of the
Servicing Agreement and Sale Agreement is in full force and effect as of the
date hereof, (iv) except as provided under the GSMC Assignment Agreement,
neither the Servicing Agreement nor Sale Agreement has been amended or modified
in any respect and (v) no notice of termination has been given to the Servicer
under the Servicing Agreement or Sale Agreement. The Servicer, in its capacity
as seller and/or servicer under the Servicing Agreement and the Sale Agreement,
further represents and warrants that the representations and warranties
contained in Section 2.1 of the Servicing Agreement are true and correct as of
March 30, 2005 (the "Securitization Closing Date"), the representations and
warranties contained in Section 3.01 of the Sale Agreement are true and correct
as of the Securitization Closing Date , and the representations and warranties
regarding the Mortgage Loans contained in Section 3.02 of the Sale Agreement
were true and correct as of the Closing Date (as such term is defined in the
Sale Agreement).
3. Recognition of Assignee. From and after the date hereof, the
Servicer shall note the transfer of the Mortgage Loans to the Assignee in its
books and records, shall recognize the Assignee as the owner of the Mortgage
Loans and, notwithstanding anything herein or in the Servicing Agreement to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the Servicing Agreement the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Sale Agreement and the Servicing Agreement shall be binding upon and
inure to the benefit of the Servicer and the Assignee and their successors and
assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Servicer
other than those contained in the Servicing Agreement, Sale Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreement and Sale
Agreement.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement, the Sale Agreement
and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) Releases. The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the respective mortgage
loan documents to the Assignee or its designee and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 6 to repurchase or
substitute a Mortgage Loan constitute the sole remedies available to the
Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase or Substitution of Mortgage Loans. Upon discovery or
notice of any breach by the Assignor of any representation, warranty or covenant
under this Assignment Agreement that materially and adversely affects the value
of any Mortgage Loan or the interest of the Assignee therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such breach
and, if the Assignor does not cure such breach in all material respects within
60 days from the date on which it is notified of the breach, the Assignee may
enforce the Assignor's obligation hereunder to purchase such Mortgage Loan from
the Assignee at the Repurchase Price as defined in the Sale Agreement or, if
such breach is within 2 years of the Closing Date (as defined in the Trust
Agreement), the Assignor may substitute such Mortgage Loan with a Qualified
Mortgage Loan (as defined in the Trust Agreement). Notwithstanding the
foregoing, however, if such breach is a Qualification Defect as defined in the
Sale Agreement, any such repurchase or substitution must take place within 60
days of discovery of such Qualification Defect. Any such substitution of a
Mortgage Loan pursuant to this Section shall be conducted in the same manner as
set forth in the Sale Agreements.
If such breach is with in 2 years of the Closing Date (as defined in
the Trust Agreement) the Assignor has the option to substitute such Mortgage
Loan with a Qualified Mortgage Loan (as defined in the Trust Agreement). Any
such substitution shall be conducted in the same manner as set forth in the Sale
Agreement.
In the event of a repurchase or substitution of any Mortgage Loan by
the Assignor, the Trustee shall promptly deliver to the Assignor or its designee
the related Mortgage File and shall assign to the Assignor all of the Assignee's
rights under the Servicing Agreement, but only insofar as such Servicing
Agreement and Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in accordance
with their respective terms.
8. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
9. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or Sale Agreement shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
(a) in the case of the Servicer,
IndyMac Bank, F.S.B.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
or such other address as may hereafter be furnished by the
Servicer;
(b) in the case of the Trustee or the Assignee,
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS0504
or such other address as may hereafter be furnished by the
Assignee; and
(c) (iv) in the case of the Assignor,
GS Mortgage Securities Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Assignor.
10. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
11. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
12. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
Deutsche Bank National Trust Company, not individually or personally but solely
on behalf of GSAA Home Equity Trust 2005-4, as the Assignee, in the exercise of
the powers and authority conferred and vested in it, as Trustee, pursuant to the
Trust Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of Assignee is made and intended not as personal
representations, undertakings and agreements by Deutsche Bank National Trust
Company but is made and intended for the purpose of binding only the GSAA Home
Equity Trust 2005-4, (iii) nothing herein contained shall be construed as
creating any liability for Deutsche Bank National Trust Company, individually or
personally, to perform any covenant (either express or implied) contained
herein, and all such liability, if any, is hereby expressly waived by the
parties hereto, and such waiver shall bind any third party making a claim by or
through one of the parties hereto, and (iv) under no circumstances shall
Deutsche Bank National Trust Company be personally liable for the payment of any
indebtedness or expenses of the GSAA Home Equity Trust 2005-4, or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the GSAA Home Equity Trust 2005-4 under this Assignment
Agreement, the Trust Agreement or any other related document or documents, and
(v) all recourse for any payment, liability or other obligation of the Assignee
shall be had solely to the assets of GSAA Home Equity Trust 2005-4.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
ASSIGNOR:
GS MORTGAGE SECURITIES CORP.
By:
--------------------------------------
Name:
Title:
ASSIGNEE:
DEUTSCHE BANK NATIONAL TRUST COMPANY not
in its individual capacity but solely
as Trustee for GSAA Home Equity Trust
2005-4
By:
--------------------------------------
Name:
Title:
SERVICER:
INDYMAC BANK, F.S.B.
By:
--------------------------------------
Name:
Title:
EXHIBIT 1
Mortgage Loan Schedule
----------------------
(Delivered to the Trustee on Closing Date)
EXHIBIT V-5
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT,
DATED AS OF MARCH 30, 2005, BETWEEN THE PURCHASER,
COUNTRYWIDE HOME LOANS, INC., COUNTRYWIDE HOME
LOANS SERVICING LP AND THE DEPOSITOR
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
Dated as of
March 1, 2005
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 1st day of March, 2005, among Countrywide Home Loans
Servicing LP, (the "Servicer"), Countrywide Home Loans, Inc. ("Countrywide"), GS
Mortgage Securities Corp., as assignee (the "Assignee") and Xxxxxxx Sachs
Mortgage Company, as assignor (the "Assignor").
WHEREAS, the Assignor and the Servicer have entered into (i) the
Servicing Agreement, dated as of November 1, 2003 (the "November Servicing
Agreement") and (ii) the Servicing Agreement, dated as of July 1, 2004 (the
"July Servicing Agreement" and, together with the November Servicing Agreement,
the "Servicing Agreements");
WHEREAS, the Assignor and Countrywide have entered into (i) the
Master Mortgage Loan Purchase Agreement, dated as of November 1, 2003 (the
"November Sale Agreement") and (ii) the Master Mortgage Loan Purchase Agreement,
dated as of July 1, 2004 (the "July Sale Agreement" and, together with the
November Sale Agreement, the "Sale Agreements") pursuant to which Countrywide
sold to the Assignor certain mortgage loans listed on the mortgage loan schedule
attached to the related Purchase Confirmation (as defined in the Sale
Agreements);
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain of the mortgage loans (the "Mortgage Loans"),
which are subject to the provisions of the Servicing Agreements and Sale
Agreements and are listed on the mortgage loan schedule attached as Exhibit 1
hereto (the "Mortgage Loan Schedule"), as well as an interest rate corridor
agreement, dated March 25, 2005 (the "Interest Rate Corridor Agreement"),
between the Assignor and The Xxxxxxx Xxxxx Group, Inc. for the benefit of the
principal certificates to be issued pursuant to the Trust Agreement (as defined
below); and
WHEREAS, pursuant to a Trust Agreement, dated as of March 1, 2005
(the "Trust Agreement"), between GS Mortgage Securities Corp., as depositor, and
Deutsche Bank National Trust Company, as trustee (the "Trustee"), the Assignee
will transfer the Interest Rate Corridor Agreement and the Mortgage Loans to the
Trustee, together with the Assignee's rights under the Servicing Agreements and
Sale Agreements, to the extent relating to the Mortgage Loans (other than the
rights of the Assignor (and if applicable its affiliates, officers, directors
and agents) to indemnification under Section 6.07(d) of the Sale Agreements and
Sections 5.6(b) and 5.9(d) of the Servicing Agreements).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee all of its right, title and interest in and to the Mortgage Loans, the
Interest Rate Corridor Agreement, the Servicing Agreements and the Sale
Agreements, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor (and if applicable its affiliates, officers, directors and
agents) to indemnification under Section 6.07(d) of the Sale Agreements and
Sections 5.6(b) and 5.9(d) of the Servicing Agreements) from and after the date
hereof, and the Assignee hereby assumes all of the Assignor's obligations under
the Servicing Agreements and the Sale Agreements, to the extent relating to the
Mortgage Loans, from and after the date hereof, and the Servicer hereby
acknowledges such assignment and assumption and hereby agrees to the release of
the Assignor from any obligations under the Servicing Agreements from and after
the date hereof, to the extent relating to the Mortgage Loans and Countrywide
hereby acknowledges such assignment and assumption and hereby agrees to the
release of the Assignor from any obligations under the Sale Agreements from and
after the date hereof, to the extent relating to the Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the respective dates
of the Servicing Agreements and Sale Agreements.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreements without the joinder of the Assignee
with respect to mortgage loans not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee.
(d) Countrywide and the Assignor shall have the right to amend,
modify or terminate the Sale Agreements without the joinder of the Assignee with
respect to mortgage loans not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee.
2. Modification of the Servicing Agreements. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend each
Servicing Agreement (unless otherwise specified) as follows:
(a) a new defined term "Annual Independent Public Accountant's
Servicing Report" will be added to Article I after the term "Ancillary Income"
as follows:
"Annual Independent Public Accountant's Servicing Report: The
statement provided by a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants made substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers."
(b) a new defined term "Annual Statement of Compliance" will be
added to Article I after the term "Annual Independent Public Accountant's
Servicing Report" as follows:
"Annual Statement of Compliance: A report prepared by a responsible
officer of the Servicer detailing any exceptions to the Servicer's fulfillment
of its obligations under this Agreement."
(c) the defined term "Servicing Fee Rate" will be deleted in its
entirety and replaced with the following:
"Servicing Fee Rate: As to each Mortgage Loan that is an ARM Loan,
..25% per annum; with respect to 7/1 Loans, .75% per annum, decreasing to .375%
per annum after the initial Interest Rate Adjustment Date; provided, however,
any 7/1 Mortgage Loans purchased on November 23, 2004 shall have a servicing fee
of .50% per annum, decreasing to .375% per annum after the initial Interest Rate
Adjustment Date)."
(d) With respect to the November Servicing Agreement only, Section
3.1(c) shall be amended by deleting clause (i) thereof in its entirety and
renumbering the remaining clauses accordingly.
(e) With respect to the July Servicing Agreement only, Section 3.2
shall be amended by deleting the second and third sentences of the first
paragraph thereof and replacing them with the following:
"In the event that any payment due under any Mortgage
Loan remains delinquent for a period of 90 days or
any other default continues for a period of 30 days
beyond the expiration of any grace or cure period,
the Servicer shall commence foreclosure proceedings."
(f) Section 3.13(b) shall be amended by deleting the second
paragraph thereof and replacing it with the following:
The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition unless
(i) (A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, (ii) the Servicer
obtains an extension from the Internal Revenue Service and (iii) the Servicer
determines, and gives an appropriate notice to the Owner to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Servicer shall report monthly to
the Owner as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
(g) With respect to the November Servicing Agreement only, a new
Section 5.10 shall be added as follows:
"Compliance with REMIC Provisions:
If a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO
Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to
take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of the
REMIC as a REMIC or (ii) result in the imposition of
a tax upon the REMIC (including but not limited to
the tax on "prohibited transactions" as defined
Section 860G(a)(2) of the Code and the tax on
"contributions" to a REMIC set forth in Section
860(D) of the Code) unless the Servicer has received
an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the
contemplated action will not endanger such REMIC
status or result in the imposition of any such tax."
(h) Section 7.1 shall be amended as follows:
(i) Subsection (ii) of Section 7.1 shall be deleted in its entirety
and replaced with the following:
"failure by the Servicer duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Servicer set forth
in this Agreement (other than those listed in subsection (i) and subsection (ix)
of this Section 7.1) which continues unremedied for a period of 30 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer; or"
(ii) Subsection (vii) of Section 7.1 shall be amended by deleting
the "." at the end of subsection (vii) and replacing it with "; or"
(iii) Subsection (viii) of Section 7.1 shall be amended by deleting
the "." at the end of subsection (viii) and replacing it with "; or"
(iv) A new subsection (ix) shall be added immediately following
subsection (viii) which shall be as follows:
"failure by the Servicer duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Servicer set forth
in Sections 5.4, 5.5 and 5.6 of this Agreement which continues unremedied for a
period of 10 days after the date on which written notice of such failure,
requiring the same to be remedied shall have been given to the Servicer."
3. Modification of the Sale Agreements. Only in so far as it relates
to the Mortgage Loans, Countrywide and the Assignor hereby amend each Sale
Agreement as follows:
(a) the last sentence of the second paragraph of Section 3.03(c)
shall be deleted and replaced in its entirety with:
"Notwithstanding the above, in no event shall
Countrywide substitute a loan that has been placed in
a trust with respect to a securitization unless such
substitution occurs within 2 years of the closing
date of the securitization."
4. Accuracy of Servicing Agreement. (a) The Servicer and the
Assignor represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 are true, accurate and complete copies of the Servicing Agreements,
(ii) the Servicing Agreements are in full force and effect as of the date
hereof, (iii) except as provided in Sections 2 and 3 above, the Servicing
Agreements have not been amended or modified in any respect and (iv) no notice
of termination has been given to the Servicer under the Servicing Agreements.
The Servicer, in its capacity as servicer under the Servicing Agreements,
further represents and warrants that the representations and warranties
contained in Section 2.1 of the Servicing Agreements are true and correct as of
the date hereof.
(b) Countrywide and the Assignor represent and warrant to the
Assignee that (i) attached hereto as Exhibit 3 are true, accurate and complete
copies of the Sale Agreements, (ii) the Sale Agreements are in full force and
effect as of the date hereof, (iii) except as provided in Section 3 above, the
Sale Agreements have not been amended or modified in any respect and (iv) no
notice of termination has been given to Countrywide under the Sale Agreements.
Countrywide, in its capacity as seller under the Sale Agreements, further
represents, warrants that the representations and warranties contained in
Section 3.01 of the Sale Agreements are true and correct as of March 30, 2005
(the "Securitization Closing Date"), and the representations and warranties
regarding the Mortgage Loans contained in Section 3.02 of the Sale Agreements
were true and correct as of each Closing Date (as such term is defined in the
Sale Agreements).
5. Recognition of Assignee. From and after the date hereof, the
Servicer shall note the transfer of the Mortgage Loans to the Assignee in its
books and records, shall recognize the Assignee as the owner of the Mortgage
Loans and, notwithstanding anything herein or in the Servicing Agreements to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the applicable Servicing Agreement the terms of which are
incorporated herein by reference. It is the intention of the Assignor,
Countrywide, the Servicer and Assignee that the Servicing Agreements and the
Sale Agreements shall be binding upon and inure to the benefit of Countrywide,
the Servicer and the Assignee and their successors and assigns.
6. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor, Countrywide and the Servicer as
follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor, Countrywide or
the Servicer other than those contained in the Sale Agreement, the Servicing
Agreements or this Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreements and the
Sale Agreements.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
7. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee, Countrywide, and the Servicer as
follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a limited partnership in good standing under the laws of the
State of New York with full power and authority (corporate and other) to enter
into and perform its obligations under the Servicing Agreements, the Sale
Agreements and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) Releases. The Assignor has not satisfied, canceled or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(h) 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,
equal credit opportunity, predatory and abusive lending or disclosure laws
applicable to the Mortgage Loans have been complied with. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Properties 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.
(i) HOEPA. No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act. 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;
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, which is now Version 5.6b, Revised Appendix E, as may be in effect
from time to time.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," (excluding New Jersey "Covered Home Loans" as
that term was defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002 that were originated between November
23, 2003 and July 6, 2004), "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.
(j) Bring Down. With respect to the Sale Agreements, nothing has
occurred or failed to occur from and after the applicable Closing Date (as
defined in the Sale Agreements) to the Securitization Closing Date that would
cause any of the representations and warranties relating to the applicable
Mortgage Loans set forth in Section 3.02 of the Sale Agreements to be incorrect
in any material respects as of the Securitization Closing Date as if made on the
Securitization Closing Date.
It is understood and agreed that the representations and warranties
set forth in this Section 7 shall survive delivery of the respective mortgage
loan documents to the Assignee or its designee and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 8 to repurchase or
substitute a Mortgage Loan constitute the sole remedies available to the
Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 7. It is further
understood and agreed that, except as specifically set forth in this Section 7,
the Assignor shall be deemed not to have made the representations and warranties
in this Section 7(j) with respect to, and to the extent of, representations and
warranties made, as to the matters covered in this Section 7(j), by Countrywide
in the Sale Agreements (or any officer's certificate delivered pursuant thereto,
if any).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 8, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
8. Repurchase or Substitution of Mortgage Loans. Upon discovery or
notice of any breach by the Assignor of any representation, warranty or covenant
under this Assignment Agreement that materially and adversely affects the value
of any Mortgage Loan or the interest of the Assignee therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such breach
and, if the Assignor does not cure such breach in all material respects within
90 days from the date on which it is notified of the breach, the Assignee may
enforce the Assignor's obligation hereunder to repurchase such Mortgage Loan
from the Assignee at the Repurchase Price as defined in the Sale Agreements or,
if such breach is within 2 years of the Closing Date (as defined in the Trust
Agreement), the Assignor may substitute such Mortgage Loan with a Qualified
Mortgage Loan (as defined in the Trust Agreement). Notwithstanding the
foregoing, however, if such breach is a Qualification Defect as defined in the
Sale Agreements, any such repurchase or substitution must take place within 90
days of discovery of such Qualification Defect. Any such substitution of a
Mortgage Loan pursuant to this Section shall be conducted in the same manner as
set forth in the Sale Agreements.
In the event Countrywide has breached a representation or warranty
under the Sale Agreements that is substantially identical to, or covers the same
matters as, a representation or warranty breached by the Assignor hereunder, the
Assignee shall first proceed against Countrywide. If Countrywide does not within
90 days after notification of the breach, take steps to cure such breach or
purchase, or substitute for the Mortgage Loan, the Trustee shall be entitled to
enforce the obligations of the Assignor hereunder to cure such breach or to
purchase the Mortgage Loan from the Trust or Substitute such Mortgage Loan with
a Qualified Mortgage Loan (as defined in the Trust Agreement). In such event,
the Assignor shall succeed to the rights of the Assignee to enforce the
obligations of Countrywide to cure such breach or repurchase such Mortgage Loan
under the terms of the Sale Agreements with respect to such Mortgage Loan. In
the event of a repurchase or substitution of any Mortgage Loan by the Assignor,
the Assignee shall promptly deliver to the Assignor or its designee the related
Mortgage File and shall assign to the Assignor all of the Assignee's rights
under the Servicing Agreements and Sale Agreements, but only insofar as such
Servicing Agreements and Sale Agreements relate to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof or to take notice of any breach or default thereof.
9. Continuing Effect. Except as contemplated hereby, the Servicing
Agreements and Sale Agreements shall remain in full force and effect in
accordance with their respective terms.
10. Governing Law. THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
11. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreements or Sale Agreements shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
(a) in the case of the Servicer,
Countrywide Home Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Attention: Investor Accounting
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of Countrywide
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Executive Vice President
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by Countrywide.
(c) in the case of the Assignee,
GS Mortgage Securities Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(d) in the case of the Assignor,
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
12. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
13. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreements.
14. Third-Party Beneficiary. The parties agree that the Trustee is
intended to be, and shall have the rights of, a third-party beneficiary of this
Assignment Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
ASSIGNOR:
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By:
--------------------------------------
Name:
Title:
ASSIGNEE:
GS MORTGAGE SECURITIES CORP.
By:
--------------------------------------
Name:
Title:
SERVICER:
COUNTRYWIDE HOME LOANS SERVICING LP
BY: COUNTRYWIDE GP, INC., ITS
GENERAL PARTNER
By:
--------------------------------------
Name:
Title:
COUNTRYWIDE:
COUNTRYWIDE HOME LOANS, INC.
By:
--------------------------------------
Name:
Title:
EXHIBIT 1
Mortgage Loan Schedule
(Delivered to the Trustee on Closing Date)
EXHIBIT 2
Servicing Agreements
(Available upon request to the Trustee)
EXHIBIT 3
Sale Agreements
(Available upon request to the Trustee)
EXHIBIT V-6
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT,
DATED AS OF MARCH 30, 2005, AMONG THE DEPOSITOR,
THE TRUSTEE AND COUNTRYWIDE HOME LOANS, INC.,
COUNTRYWIDE HOME LOANS SERVICING LP
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
as Assignee
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
Dated as of
March 1, 2005
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day
of March, 2005 (this "Assignment Agreement"), among Countrywide Home Loans
Servicing LP, (the "Servicer"), Countrywide Home Loans, Inc. ("Countrywide"),
Deutsche Bank National Trust Company, not in its individual capacity, but solely
as trustee on behalf of GSAA Home Equity Trust 2005-4 (the "Assignee"), and GS
Mortgage Securities Corp., a Delaware corporation (the "Assignor" or
"Depositor").
WHEREAS, Xxxxxxx Sachs Mortgage Company ("GSMC") and the Servicer
have entered into (i) the Servicing Agreement, dated as of November 1, 2003 (the
"November Servicing Agreement") and (ii) the Servicing Agreement, dated as of
July 1, 2004 (the "July Servicing Agreement" and, together with the November
Servicing Agreement, the "Servicing Agreements");
WHEREAS, the GSMC and Countrywide have entered into (i) the Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2003 (the "November
Sale Agreement") and (ii) the Master Mortgage Loan Purchase Agreement, dated as
of July 1, 2004 (the "July Sale Agreement" and, together with the November Sale
Agreement, the "Sale Agreements") pursuant to which Countrywide sold to the GSMC
certain mortgage loans listed on the mortgage loan schedule attached to the
related Purchase Confirmation (as defined in the Sale Agreements);
WHEREAS, GSMC, the Assignor, Countrywide and the Servicer have
entered into that certain Assignment, Assumption and Recognition Agreement,
dated as of March 1, 2005 (the "GSMC Assignment Agreement"), pursuant to which
GSMC assigned its right, title and interest in and to the Mortgage Loans
(defined below), the Interest Rate Corridor Agreement (as defined in the GSMC
Assignment Agreement), the Sale Agreements and the Servicing Agreements (other
than the rights of GSMC (and if applicable its affiliates, officers, directors
and agents) to indemnification under Section 6.07(d) of the Sale Agreements and
Sections 5.6(b) and 5.9(d) of the Servicing Agreements) to the Assignor;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain mortgage loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement (the "Mortgage Loans"), which are
subject to the provisions of the Servicing Agreements and the Sale Agreements
and are listed on the mortgage loan schedule attached as Exhibit 1 hereto (the
"Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Trust Agreement, dated as of March 1, 2005
(the "Trust Agreement"), between the Depositor and Deutsche Bank National Trust
Company, as trustee (the "Trustee"), the Assignor will transfer the Mortgage
Loans and the Interest Rate Corridor Agreement to the Assignee, together with
the Assignor's rights under the Servicing Agreements and the Sale Agreements, to
the extent relating to the Mortgage Loans (other than the rights of GSMC (and if
applicable its affiliates, officers, directors and agents) to indemnification
under Section 6.07(d) of the Sale Agreements and Sections 5.6(b) and 5.9(d) of
the Servicing Agreements).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and to
the Mortgage Loans, the Interest Rate Corridor Agreement and the GSMC Assignment
Agreement (including, without limitation, the rights of GSMC under the Servicing
Agreements and the Sale Agreements, to the extent assigned to the Assignor under
the GSMC Assignment Agreement) from and after the date hereof, and the Assignee
hereby assumes all of the Assignor's obligations under the Servicing Agreements
and Sale Agreements, to the extent relating to the Mortgage Loans from and after
the date hereof, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any obligations
under the Servicing Agreements and the GSMC Assignment Agreement from and after
the date hereof, to the extent relating to the Mortgage Loans and Countrywide
hereby acknowledges such assignment and assumption and hereby agrees to the
release of the Assignor from any obligations under the Sale Agreements and the
GSMC Assignment Agreement from and after the date hereof, to the extent relating
to the Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the dates of the
Servicing Agreements and Sale Agreements.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreements without the joinder of the Assignee
with respect to mortgage loans not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee.
(d) Countrywide and the Assignor shall have the right to amend,
modify or terminate the Sale Agreements without the joinder of the Assignee with
respect to mortgage loans not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee
2. Accuracy of Servicing Agreement. (a) The Servicer and the
Assignor represent and warrant to the Assignee that (i) attached as Exhibit 2 to
the GSMC Assignment Agreement are true, accurate and complete copies of the
Servicing Agreements, (ii) the Servicing Agreements are in full force and effect
as of the date hereof, (iii) except as provided under the GSMC Assignment
Agreement, the Servicing Agreements have not been amended or modified in any
respect and (iv) no notice of termination has been given to the Servicer under
the Servicing Agreements. The Servicer, in its capacity as servicer under the
Servicing Agreements, further represents and warrants that the representations
and warranties contained in Section 2.1 of the Servicing Agreements are correct
as of March 30, 2005 (the "Securitization Closing Date").
(b) Countrywide and the Assignor represent and warrant to the
Assignee that (i) attached as Exhibit 3 to the GSMC Assignment Agreement is a
true, accurate and complete copy of the Sale Agreements, (ii) the Sale
Agreements are in full force and effect as of the date hereof, (iii) except as
provided under the GSMC Assignment Agreement, the Sale Agreements have not been
amended or modified in any respect and (iv) no notice of termination has been
given to Countrywide under the Sale Agreements. Countrywide, in its capacity as
seller under the Sale Agreements, further represents and warrants that the
representations and warranties contained in Section 3.01 of the Sale Agreements
are true and correct as of the date hereof, and the representations and
warranties regarding the Mortgage Loans contained in Section 3.02 of the Sale
Agreements were true and correct as of the Closing Date (as such term is defined
in the Sale Agreements).
3. Recognition of Assignee. From and after the date hereof, the
Servicer shall note the transfer of the Mortgage Loans to the Assignee in its
books and records, shall recognize the Assignee as the owner of the Mortgage
Loans and, notwithstanding anything herein or in the Servicing Agreements to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the applicable Servicing Agreement the terms of which are
incorporated herein by reference. It is the intention of the Assignor,
Countrywide, the Servicer and Assignee that the Sale Agreements and the
Servicing Agreements shall be binding upon and inure to the benefit of
Countrywide, the Servicer and the Assignee and their successors and assigns,
respectively.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor, the Servicer
or Countrywide other than those contained in the Servicing Agreement, the Sale
Agreements or this Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreements and Sale
Agreements.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreements, the Sale Agreements
and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) Releases. The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the respective mortgage
loan documents to the Assignee or its designee and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 6 to repurchase a Mortgage
Loan constitute the sole remedies available to the Assignee and its assigns on
their behalf respecting a breach of the representations and warranties contained
in this Section 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase or Substitution of Mortgage Loans. Upon discovery or
notice of any breach by the Assignor of any representation, warranty or covenant
under this Assignment Agreement that materially and adversely affects the value
of any Mortgage Loan or the interest of the Assignee therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Assignee therein if the Assignee incurs a loss as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such breach
and, if the Assignor does not cure such breach in all material respects within
90 days from the date on which it is notified of the breach, the Assignee may
enforce the Assignor's obligation hereunder to repurchase such Mortgage Loan
from the Assignee at the Repurchase Price as defined in the Sale Agreements or,
if such breach is within 2 years of the Closing Date (as defined in the Trust
Agreement), the Assignor may substitute such Mortgage Loan with a Qualified
Mortgage Loan (as defined in the Trust Agreement). Notwithstanding the
foregoing, however, if such breach is a Qualification Defect as defined in the
Sale Agreements, any such repurchase or substitution must take place within 90
days of discovery of such Qualification Defect. Any such substitution of a
Mortgage Loan pursuant to this Section shall be conducted in the same manner as
set forth in the Sale Agreements.
In the event of a repurchase or substitution of any Mortgage Loan by
the Assignor, the Trustee shall promptly deliver to the Assignor or its designee
the related Mortgage File and shall assign to the Assignor all of the Assignee's
rights under the Servicing Agreements, but only insofar as such Servicing
Agreements and Sale Agreements relate to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect. Except as contemplated hereby, the Servicing
Agreements and Sale Agreements shall remain in full force and effect in
accordance with their respective terms.
8. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
9. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreements or Sale Agreements shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
(a) in the case of the Servicer,
Countrywide Home Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Attention: Investor Accounting
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of Countrywide
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Executive Vice President
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by
Countrywide.
(c) in the case of the Trustee or the Assignee,
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS0504
or such other address as may hereafter be furnished by the
Assignee; and
(d) in the case of the Assignor,
GS Mortgage Securities Corp.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Assignor.
10. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
11. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreements.
12. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
Deutsche Bank National Trust Company, not individually or personally but solely
on behalf of GSAA Home Equity Trust 2005-4, as the Assignee, in the exercise of
the powers and authority conferred and vested in it, as Trustee, pursuant to the
Trust Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of the Assignee is made and intended not as personal
representations, undertakings and agreements by Deutsche Bank National Trust
Company but is made and intended for the purpose of binding only the GSAA Home
Equity Trust 2005-4, (iii) nothing herein contained shall be construed as
creating any liability for Deutsche Bank National Trust Company, individually or
personally, to perform any covenant (either express or implied) contained
herein, and all such liability, if any, is hereby expressly waived by the
parties hereto, and such waiver shall bind any third party making a claim by or
through one of the parties hereto, (iv) under no circumstances shall Deutsche
Bank National Trust Company be personally liable for the payment of any
indebtedness or expenses of the GSAA Home Equity Trust 2005-4, or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the GSAA Home Equity Trust 2005-4 under this Assignment
Agreement, the Trust Agreement or any other related document or documents, and
(v) all recourse for any payment, liability or other obligation of the Assignee
shall be had solely to the assets of GSAA Home Equity Trust 2005-4.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
ASSIGNOR:
GS MORTGAGE SECURITIES CORP.
By:
--------------------------------------
Name:
Title:
ASSIGNEE:
DEUTSCHE BANK NATIONAL TRUST COMPANY not
in its individual capacity but solely
as Trustee for GSAA Home Equity Trust
2005-4
By:
--------------------------------------
Name:
Title:
SERVICER:
COUNTRYWIDE HOME LOANS SERVICING LP
BY: COUNTRYWIDE GP, INC., ITS
GENERAL PARTNER
By:
--------------------------------------
Name:
Title:
COUNTRYWIDE:
COUNTRYWIDE HOME LOANS, INC.
By:
--------------------------------------
Name:
Title:
EXHIBIT 1
Mortgage Loan Schedule
(Delivered to the Trustee on Closing Date)
