EXHIBIT 4.1
BEAR XXXXXXX MORTGAGE CAPITAL CORPORATION,
a Delaware corporation,
Purchaser
and
[Seller],
a _______________________,
Seller and Servicer
---------------------------------------------
SALE AND SERVICING AGREEMENT
Dated as of ____ __, ____
---------------------------------------------
Shared Appreciation Mortgage Loans
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.......... .........................................2
ARTICLE II
THE XXXX PROGRAM... ..........................................13
Section 2.1 Publicity and Marketing....................13
Section 2.2 Education Program..........................13
Section 2.3 Origination Fee............................13
ARTICLE III
SALE OF XXXX; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF
DOCUMENTS......................................................14
Section 3.1 Sale of XXXx; Possession of Mortgage Files;
Maintenance of Servicing Files.............14
Section 3.2 Books and Records; Transfers of XXXx.......15
Section 3.3 Custodial Agreement........................16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
REMEDIES AND BREACH............................................17
Section 4.1 Representations and Warranties.............17
Section 4.2 Representations and Warranties Regarding
Individual XXXx............................19
Section 4.3 Remedies for Breach of Representations
and Warranties.............................27
Section 4.4 Review of XXXx.............................29
Section 4.5 XXX Defaults...............................30
ARTICLE V
ADMINISTRATION AND SERVICING OF XXXX...........................30
Section 5.1 The Servicer to Act as Servicer............30
Section 5.2 Liquidation of XXXx........................33
Section 5.3 Collection of XXX Payments.................34
Section 5.4 Establishment of, and Deposits to,
Collection Account.........................34
Section 5.5 Permitted Withdrawals From
Collection Account.........................36
Section 5.6 Establishment of, and Deposits to,
Escrow Account.............................37
Section 5.7 Permitted Withdrawals From Escrow Account..38
Section 5.8 Payment of Taxes, Insurance
and Other Charges..........................39
Section 5.9 Protection of Accounts.....................40
Section 5.10 Maintenance of Hazard Insurance............40
Section 5.11 Maintenance of Mortgage
Impairment Insurance.......................42
Section 5.12 Maintenance of Fidelity Bond and Errors
and Omissions Insurance....................42
Section 5.13 Inspections................................43
Section 5.14 Restoration of Mortgaged Property..........43
Section 5.15 Maintenance of Primary Mortgage
Insurance Policy; Claims...................43
Section 5.16 Title, Management and Disposition of
REO Property...............................44
Section 5.17 Real Estate Owned Reports..................47
Section 5.18 Liquidation Reports........................47
Section 5.19 Reports of Foreclosures and Abandonments
of Mortgaged Property......................47
Section 5.20 Appraisals: Qualified Major
Home Improvements..........................47
Section 5.21 Fees That The Servicer Will Collect........47
Section 5.22 Certificate of Occupancy...................48
ARTICLE VI
PAYMENTS TO PURCHASER..........................................48
Section 6.1 Remittances................................48
Section 6.2 Statements to Purchaser....................49
Section 6.3 Monthly Advances by Servicer...............50
ARTICLE VII
GENERAL SERVICING PROCEDURES...................................50
Section 7.1 Transfers of Mortgaged Property............50
Section 7.2 Satisfaction of Mortgages and
Release of Mortgage Files..................52
Section 7.3 Servicing Compensation.....................53
Section 7.4 Annual Statement as to Compliance..........53
Section 7.5 Annual Independent Public Accountants'
Servicing Report...........................53
Section 7.6 Right to Examine Servicer Records..........54
Section 7.7 Removal of XXXx from Inclusion under this
Agreement upon a Whole Loan Transfer or
Pass-Through Transfer......................54
Section 7.8 Compliance with REMIC Provisions...........56
ARTICLE VIII
SERVICER TO COOPERATE..........................................56
Section 8.1 Provision of Information...................56
ARTICLE IX
THE SERVICER...................................................57
Section 9.1 Liability of the Servicer..................57
Section 9.2 Merger or Consolidation of the Servicer....57
Section 9.3 Limitation on Liability of Servicer
and Others.................................58
Section 9.4 Limitation on Resignation and Assignment
by the Servicer............................58
ARTICLE X
DEFAULT........................................................59
Section 10.1 Servicer Events of Default.................59
Section 10.2 Waiver of Defaults.........................61
ARTICLE XI
TERMINATION....................................................61
Section 11.1 Termination................................61
Section 11.2 Termination Without Cause..................61
ARTICLE XII
MISCELLANEOUS PROVISIONS.......................................62
Section 12.1 Successor to Servicer......................62
Section 12.2 Amendment..................................63
Section 12.3 Governing Law..............................63
Section 12.4 Duration of Agreement......................63
Section 12.5 Notices....................................63
Section 12.6 Severability of Provisions.................64
Section 12.7 Relationship of Parties....................64
Section 12.8 Execution; Successors and Assigns..........64
Section 12.9 Recordation of Assignments of Mortgage.....65
Section 12.10 Assignment by Purchaser....................65
EXHIBITS
EXHIBIT A FORM OF XXX SCHEDULE
EXHIBIT B CONTENTS OF EACH SERVICING FILE
EXHIBIT C CONTENTS OF EACH MORTGAGE FILE
EXHIBIT D-1 FORM OF CUSTODIAL AGREEMENT WITH EXHIBITS
EXHIBIT D-2 INITIAL CERTIFICATION
EXHIBIT D-3 FINAL CERTIFICATION
EXHIBIT D-4 REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT EXHIBIT E-1
FORM OF COLLECTION ACCOUNT CERTIFICATION EXHIBIT E-2 FORM OF
COLLECTION ACCOUNT LETTER AGREEMENT EXHIBIT F-1 FORM OF ESCROW
ACCOUNT CERTIFICATION EXHIBIT F-2 FORM OF ESCROW ACCOUNT LETTER
AGREEMENT EXHIBIT G FORM OF MONTHLY REMITTANCE ADVICE EXHIBIT H FORM
OF TRANSFER SUPPLEMENT
SCHEDULE I LIST OF APPROVED APPRAISERS
SCHEDULE II MORTGAGE TERMINATION EVENTS
SCHEDULE IIIQUALIFIED MAJOR HOME IMPROVEMENTS
SCHEDULE IV MORTGAGE NOTE
SCHEDULE V MORTGAGE
This is a Sale and Servicing Agreement for Shared
Appreciation Mortgage Loans, dated and effective as of _________ __, ____,
and is executed between BEAR XXXXXXX MORTGAGE CAPITAL CORPORATION, a
Delaware corporation, as Purchaser (the "Purchaser"), and [Seller], a
____________________, as Seller and Servicer (in its capacity as Seller
hereunder, the "Seller," and in its capacity as Servicer hereunder, the
"Servicer").
W I T N E S S E T H
WHEREAS, the Purchaser and the Seller have simultaneously
herewith entered into a commitment letter regarding the origination and
sale of XXXx (hereinafter, the "XXXx Program") pursuant to which, among
other things, the Purchaser has agreed to purchase from time to time from
the Seller and the Seller has agreed to sell to such affiliate Portfolios
of XXXx; the Purchaser and the Seller are entering into this Agreement in
order to bind each other with respect to matters agreed to in such letter
of intent and to reach agreement about various other matter of concern to
each; and
WHEREAS, the Purchaser and ____________ (the "Parties")
wish to agree to the terms of such Purchase occurring pursuant to the
Commitment; and
WHEREAS, each of the XXXx to be sold hereunder conforms
with the requirements of the XXXx Program and has been originated in a
manner contemplated by the Parties and this Agreement; and
WHEREAS, the Purchaser and ______________, as Seller and
Servicer, wish to prescribe the manner of purchase of the XXXx and the
management, servicing and control of the XXXx;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and
_______________, as Seller and Servicer, hereby agree as follows:
ARTICLE I - DEFINITIONS
Accepted Servicing Practices: With respect to any XXX,
each XXX shall be serviced in accordance with the servicing practices and
collection procedures that are in accordance with the Xxxxxx Mae Guide or
Xxxxxxx Mac Guide.
Additional Interest: With respect to any XXX, the amount
of, or manner in which, as the context requires, Additional Interest in
calculated in the applicable Mortgage Note.
Advances: All Monthly Payments and Servicing Advances
made by the Servicer with respect to any XXX.
Agreement: This Sale and Servicing Agreement and all
amendments hereof and supplements hereto, including as the context
requires, any Transfer Supplement.
Applicable Credit Rating: [A credit rating of "AAA", in
the case of S&P or a rating of AAA, in the case of Fitch, for any long-term
deposit or security or a rating of "A-1+", in the case of S&P, or "F-1"+,
in the case of Fitch, for any short-term deposit or security.]
Appraised Value: Means the Initial Appraised Value of a
XXX or the appraised value of any appraisal required pursuant to any XXX.
Appreciation Share: With respect to any Mortgage Note,
the percentage of appreciation in the value of the Mortgaged Property from
the date of origination of such XXX to the earlier of (i) the date on which
any Mortgage Termination Event occurs and (ii) the maturity date thereof
with respect to the related XXX that the Mortgagor must pay to the
Mortgagee.
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 XXX to the Purchaser.
BIF: The Bank Insurance Fund or any successor thereto.
Business Day: Any day other than (i) a Saturday or
Sunday, or (ii) a day on which national banking associations and
federally-chartered savings and loan institutions in the States of New York
or the principal place of business of the Servicer are authorized or
obligated by law or executive order to be closed.
Closing Date: The Closing Date specified in any Transfer
Supplement, which is the date as to which the sale of any Portfolio is
designated to occur.
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.
Collection Account: As to any XXX, any separate account
or accounts created and maintained pursuant to Section 5.4 of this
Agreement for the collection of all payments made on the XXXx.
Condemnation Proceeds: As to any XXX, 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 documents in the Mortgage File.
[Conforming XXX: A XXX that is eligible for purchase under
-------------------.]
Custodial Agreement: The agreement governing the
retention of the originals of each Mortgage Note, Mortgage, Assignment of
Mortgage and other documents in the Mortgage File, a form of which is
annexed hereto as Exhibit D-1.
Custodian: The Custodian, as designated in the Transfer
Supplement, or its successor in interest or assigns or any successor to the
Custodian.
Cut-off Date: The Cut-off Date specified in any Transfer
Supplement, which is the date as to which all of the specified
representations and warranties regarding any Portfolio sold by the Seller
to the Purchaser hereunder and such Transfer Supplement relate back unless
otherwise stated in such representations and warranties.
Deleted XXX: A XXX which is repurchased by the Seller in
accordance with the terms of this Agreement or which is, in the case of a
substitution pursuant to Section 4.3, replaced or to be replaced with a
Qualified Substitute XXX.
Determination Date: As to any XXX, the __th day (or if
such __th day is not a Business Day, the Business Day immediately preceding
such __th day) of the month of the related Distribution Date.
Disqualified Organization: An organization defined as
such in Section 860E(e) of the Code.
Distribution Date: The __nd day (or if such __nd day is
not a Business Day, the immediately succeeding Business Day) of any month.
Due Date: The 1st day of the month in which the related
Monthly Payment is due on a XXX, exclusive of any days of grace.
Due Period: With respect to each Distribution Date, the
period commencing on the second day of the month preceding the month of the
Distribution Date and ending in the first day of the month of the
Distribution Date.
Errors and Omissions Insurance Policy: An errors and
omissions insurance policy or policies to be maintained by the Servicer
pursuant to Section 5.12.
Escrow Account: As to any XXX, any separate account or
accounts created and maintained pursuant to Section 5.6.
Escrow Payments: With respect to any XXX, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, and any other payments required to be escrowed by the Mortgagor
with the Mortgagee pursuant to the Mortgage or any other related document.
Event of Default: Any one of the conditions or
circumstances enumerated in Section 11.1.
Xxxxxx Xxx: The Federal National Mortgage Association or
any successor thereto.
Xxxxxx Mae Guide: The Xxxxxx Xxx Selling Guide and the
Xxxxxx Mae Servicing Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Fidelity Bond: A fidelity bond to be maintained by the
Servicer pursuant to Section 5.12
Fitch: Fitch IBCA, Inc. or any successor thereto.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation
or any successor thereto.
Xxxxxxx Mac Guide: The Xxxxxxx Mac Selling Guide and the
Xxxxxxx Mac Servicing Guide and all amendments or additions thereto.
Implied Market Rate: With respect to any XXX, a typical
market interest rate for a comparable single-family mortgage product having
the same principal terms (e.g., the same maturity and same LTV) but not
having a shared appreciation mortgage feature.
Indexed Appreciation Payment: With respect to any
Portfolio, [to come].
Initial Appraised Value: The amount set forth in an
appraisal made in connection with the origination of the related XXX as the
value of the Mortgaged Property.
Insurance Proceeds: With respect to any XXX, proceeds of
insurance policies insuring the XXX or the related Mortgaged Property.
[Jumbo XXX: A XXX that is not a Conforming XXX.]
Lien: A security interest, lien, charge, pledge, equity,
or encumbrance of any kind other than tax liens, mechanics' liens, and any
liens that attach to the applicable XXX by operation of law.
Liquidation Proceeds: All amounts (other than Insurance
Proceeds) received and retained in connection with the liquidation of
defaulted XXXx, by foreclosure or otherwise, together with any net proceeds
received on a monthly basis with respect to any Mortgaged Properties
acquired on behalf of the Purchaser by foreclosure or deed in lieu of
foreclosure.
LTV: With respect to any XXX, the ratio of the original
principal balance of the XXX as of the date of origination (unless
otherwise indicated) to the lesser of (a) the Appraised Value of the
Mortgaged Property and (b) if the XXX was made to finance the acquisition
of the related Mortgaged Property, the purchase price of the Mortgaged
Property, expressed as a percentage.
Monthly Advance: The portion of the Monthly Payment
delinquent with respect to each XXX at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to
Section 6.3 on the Business Day immediately preceding the Distribution Date
of the month of the related Due Date for such Monthly Payment.
Monthly Payment: The scheduled monthly payment of
principal and interest on a XXX.
Monthly Remittance Advice: The statement delivered to the
Purchaser, a form of which is attached hereto as Exhibit X.
Xxxxx'x: Xxxxx'x Investors Service, Inc., any successors
thereto.
Mortgage: The mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a Lien on an estate in fee simple
in real property securing the Mortgage Note.
Mortgage File: With respect to any XXX, the items
pertaining to a particular XXX referred to in Exhibit C annexed hereto and
any additional documents required to be added to the Mortgage File pursuant
to this Agreement.
Mortgage Note: The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
Mortgage Termination Event: With respect to any XXX, the
events specified in the related Mortgage Note (which shall substantially
conform with the events shown on Schedule II hereto as provided herein) as
to which the Mortgagor is required to fully repay its liability thereunder.
Mortgagee: The lender on a Mortgage Note.
Mortgaged Property: The real property securing repayment
of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Insurance Proceeds: All Insurance Proceeds (net of
unreimbursed Advances), to the extent such proceeds are not applied to the
restoration of the Mortgaged Property or released to the Mortgagor in
accordance with the Servicer's normal servicing procedures.
Net Liquidation Proceeds: Liquidation Proceeds (net of
unreimbursed Advances) and any net proceeds received on a monthly basis
with respect to any Mortgaged Properties acquired by the Purchaser by
foreclosure or deed in lieu of foreclosure.
Officer's Certificate: A certificate signed by the
Chairman of the Board and Chief Executive Officer, the President, any
Executive Vice President, any Senior Vice President, any First Vice
President, any Vice President or any Assistant Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Seller or the Servicer, as applicable, and delivered to
the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may
be an employee of the Seller or the Servicer, as applicable, acceptable to
the Purchaser.
OTS: Office of Thrift Supervision or any successor thereto.
Pass-Through Transfer: The sale or transfer of some or
all of the XXXx to a trust as part of a publicly issued or privately
placed, rated or unrated, mortgage pass-through transaction.
Permitted Investments: Any one or more of the obligations
and securities listed below which investment provides for a date of
maturity not later than the Business Day immediately preceding the
Distribution Date in each month:
(i) direct obligations of, and obligations the timely
payment of which are fully guaranteed by the United States of America or
any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America;
(ii) (a) demand or time deposits, federal funds or
bankers' acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including a Servicer acting in its commercial banking capacity)
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or the short-term debt
rating and/or the long-term unsecured debt obligations of such depository
institution or trust company at the time of such investment or contractual
commitment providing for such investment have the Applicable Credit Rating
or better from each Rating Agency and (b) any other demand or time deposit
or certificate if deposit that is fully insured by the Federal Deposit
Insurance Corporation;
(iii) repurchase obligations with respect to (a) any
security described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
the obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above where the trustee holds the security therefor;
(iv) [securities bearing interest or sold at a discount
issued by any corporation (including a Servicer incorporated under the laws
of the United States of America or any state thereof] that have the
Applicable Credit Rating or better from each Rating Agency 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 one year after the date of issuance
thereof) having the Applicable Credit Rating or better from each Rating
Agency at the time of such investment;
(vi) any other demand, money market or time deposit,
obligation, security or investment as may be acceptable to the Purchaser;
and
(vii) any money market or common trust fund having the
Applicable Credit Rating or better from each Rating Agency, including any
such fund for which a Servicer or any affiliate of a Servicer acts as a
manager or an advisor;
provided, however, that no instruments or security shall be a
Permitted Investment if such instrument or security evidences a right to
receive only interest payments with respect to the obligations underlying
such instrument or if such security provides for payment of both principal
and interest with a yield to maturity in excess of 120% of the yield to
maturity at par or if such instrument or security is purchased at a price
greater than par.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Portfolio: A XXX or group of XXXx sold to the Purchaser
pursuant to the terms hereof and a related Transfer Supplement.
Prepayment Interest Shortfall: The sum of the differences
between interest actually received in a Due Period as a result of a
Principal Prepayment or other unscheduled receipt of principal (including
as a result of a liquidation) on each XXX as to which such a payment is
received and the interest portion of the Monthly Payment of such XXX
scheduled to be due at the applicable Remittance Rate.
Primary Mortgage Insurance Policy: A policy of primary
mortgage guaranty insurance issued by a Qualified Insurer, as required by
this Agreement with respect to certain XXXx.
Prime Rate: The prime rate announced to be in effect from
time to time, as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any full or partial payment or
other recovery of principal made on a XXX which is received in advance of
its scheduled Due Date, including any prepayment penalty or premium
thereon, which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchaser: Bear Xxxxxxx Mortgage Capital Corporation, a
Delaware corporation or its successor in interest or any successor to the
Purchaser under this Agreement as herein provided.
Qualified Depository: As to any XXX, (a) ___________ or
(b) any depository the accounts of which are insured by the FDIC through the
BIF or the SAIF and the debt obligations of which are rated "A2," "Aa" and
"A-" or better by Xxxxx'x, S&P and Fitch, respectively or such depository as
shall be acceptable to Xxxxx'x, S&P and Fitch, as applicable.
Qualified Insurer: A mortgage guaranty insurance company
duly authorized and licensed where required by law to transact mortgage
guaranty insurance business and approved as an insurer by Xxxxxxx Mac or
Xxxxxx Mae.
Qualified Substitute XXX: A XXX eligible to be
substituted by the Seller for a Deleted XXX which must, on the date of such
substitution, [(i) have a Stated Interest Rate within 25 basis points of
the Stated Interest Rate of the Deleted XXX; (ii) an Appreciation Share
equal to the Deleted XXX; (iii) an LTV within 10 basis points of the
Deleted XXX; (iv) have a remaining term to maturity not greater than and
not more than one year less than that of the Deleted XXX; and (v) comply
with each representation and warranty set forth in Sections 4.1 and 4.2].
Rating Agency: Any of S&P, Moody's or Fitch.
Record Date: The close of business on the last Business
Day of the month preceding the month of the related Distribution Date.
REMIC: A real estate mortgage investment conduit as
defined in Section 860D of the Code.
Remittance Rate: With respect to each XXX, the annual
rate of interest remitted to the Purchaser, equal to the Stated Interest
Rate minus the sum of (i) the Servicing Fee Rate and (ii) any Retained
Yield.
REO Disposition: The final sale by the Servicer of any
REO Property.
REO Disposition Proceeds: All amounts received with
respect to an REO Disposition pursuant to Section 5.16.
REO Property: A Mortgaged Property acquired by the
Servicer on behalf of the Purchaser through foreclosure or by deed in lieu
of foreclosure, as described in Section 5.16.
Repurchase Price: With respect to any XXX, a price equal
to (i) the Scheduled Principal Balance of the XXX, plus (ii) interest on
such Scheduled Principal Balance at the Remittance Rate from the date on
which interest has last been paid up to, and not including, the date of
repurchase, less amounts received from or on behalf of the Mortgagor in
respect of such repurchased XXX which are being held in the Collection
Account for distribution in the month of repurchase, plus (iii) the greater
of (a) the Indexed Appreciation Payment or (b) the Implied Market Rate
times the Principal Prepayment, plus (iv) expenses reasonably incurred or
to be incurred by the Purchaser in respect of the breach or defect giving
rise to the repurchase obligation, including any expenses arising out of
the repurchase obligation and any negative cost of carrying the XXX
incurred by the Purchaser during the period prior to it being repurchased
by the Seller.
Retained Yield: Any additional fees or payments made by a
Mortgagor that a Servicer is entitled to and is not part of the Servicing
Fee.
SAIF: The Savings Association Insurance Fund, or any
successor thereto.
XXX: An individual shared appreciation mortgage loan
which is the subject of this Agreement, each XXX originally sold and
subject to this Agreement being identified on the XXX Schedule, which XXX
includes without limitation the Mortgage File, the Monthly Payments,
Principal Prepayments, REO Disposition Proceeds, Condemnation Proceeds,
Insurance Proceeds, Liquidation Proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such XXX.
XXX Discount: The excess of the Implied Market Rate for a
XXX over the Stated Interest Rate on such XXX.
XXX Schedule: A schedule of XXXx delivered in electronic
format to the Purchaser on the related Closing Date in the form of Schedule
A.
Scheduled Principal Balance: With respect to any XXX, as
of any Determination Date the original principal balance thereof, reduced by
(i) the principal portion of all Monthly Payments then due on or before such
Determination Date, whether or not received, and (ii) all amounts allocable
to unscheduled principal payments received on or before the last day of the
Due Period preceding such date of determination.
Securities Act of 1933 or the 1933 Act: The Securities Act
of 1933, as amended.
Seller: ______________________, a
____________________________, or its successor in interest and assigns.
Servicer: _____________________, a
__________________________, or its successors in interest and assigns, or
any successor servicer as provided herein.
Servicing Advances: All customary, reasonable and
necessary "out of pocket" costs and expenses other than Monthly Advances
(including reasonable attorneys' fees and disbursements) incurred in the
performance by the Servicer in connection with a default or other
unanticipated occurrence with respect to a XXX (and not including the
performance of its ordinary and customary activities as Servicer),
including, but not limited to, the cost of (a) the preservation, restoration
and protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any REO Property and (d) any advances of taxes and insurance premiums made
pursuant to Section 5.8 as a consequence of the default by the Mortgagor on
its obligation to pay such amounts.
Servicing Fee: With respect to any XXX, the annual fee
which shall, for a period of one full month, be equal to one-twelfth of the
product of (a) the Servicing Fee Rate and (b) the Scheduled Principal
Balance of such XXX. Such fee shall be payable monthly, computed on the
basis of the same Scheduled Principal Balance and period respecting which
any related interest payment on a XXX is computed. Such fee shall be paid
from collections on such XXX only and limited to the interest portion of
the Monthly Payment collection by Servicer.
Servicing Fee Rate: __________% per annum.
Servicing File: With respect to each XXX, the file
retained by the Servicer consisting of originals of all documents listed in
Exhibit B hereto which are not delivered to the Custodian and copies of the
Mortgage File.
Servicing Officer: Any officer of the Servicer involved
in, or responsible for, the administration and servicing of the XXXx whose
name appears on a list of servicing officers furnished by the Servicer to
the Purchaser and the Custodian upon request, as such list may from time to
time be amended.
S&P: Standard & Poor's Ratings Services, A Division of The
XxXxxx-Xxxx Companies, Inc. or any successor thereto.
Stated Interest Rate: The annualized regular rate of
interest borne on a Mortgage Note.
Transfer Supplement: The document pursuant to which a XXX
or Portfolio of XXXx is sold by the Seller to the Buyer (which may be
transmitted in electronic form by the Seller to the Purchaser) in the form
attached thereto as Exhibit H.
Whole Loan Transfer: The sale or transfer of some or all
of the ownership interest in the XXXx by the Purchaser to one or more third
parties in whole loan or participation format, which third party may be
Xxxxxx Mae or Xxxxxxx Mac.
ARTICLE II - THE XXXX PROGRAM
Section 1. Publicity and Marketing.
The Purchaser and the Seller shall cooperate with each
other to develop a public relations program for the XXXx Program. The
Purchaser shall have the right to approve all print, television and radio
advertisements, all press releases and other advertising material or public
statements regarding the XXXx used by the Seller in connection with such
XXXx Program during the term of this Agreement. In addition, the Seller
shall not use the name Bear, Xxxxxxx & Co. Inc., BSMCC or any form thereof,
in any form of marketing without approval by the Purchaser. The Seller
agrees to indemnify the Purchaser and hold it harmless from and against any
and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, fees and expenses that
the Purchaser may sustain in any way related to the use by the Seller of
such print, television and radio advertisements, all press releases and
other advertising material or public statements regarding the XXXx used by
the Seller in connection with such XXXx Program. The Seller shall bear the
cost of any advertising or marketing incurred by it with regard to the XXXx
Program.
Section 2. Education Program.
The Seller shall develop and present to the Purchaser a
program for educating its correspondents and originators and the homeowners
regarding XXXx that is reasonably satisfactory to the Purchaser. The
Purchaser and the Seller agree that the XXX consumer handbook or a similar
document shall be a part of this education program.
Section 3. Origination Fee.
The Purchaser shall be paid a fee of [$ ] (to be netted
from settlement figures) for each XXX closed by the Seller and purchased by
the Purchaser hereunder, payable upon purchase of such XXX by the Seller.
ARTICLE III - SALE OF XXXX; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 1. Sale of XXXx; Possession of Mortgage Files;
Maintenance of Servicing Files.
From time to time, subject to the terms and conditions
hereof and pursuant to a Transfer Supplement, the Seller may sell,
transfer, assign, set over and convey to the Purchaser, without recourse,
all the right, title and interest of the Seller in and to a Portfolio of
XXXx sold to the Purchaser pursuant to the terms hereof and a related
Transfer Supplement. On the closing date for each sale of any Portfolio
hereunder, the Seller shall execute a Transfer Supplement to convey the
XXXx sold to the Purchaser. Each Transfer Supplement shall be executed by
the Seller and Purchaser and shall be in the form of Exhibit H. Pursuant to
Section 3.3, on or before the date of such sale, the Seller shall deliver
the documents of the related Mortgage File to the Custodian.
The contents of each Mortgage File not delivered to the
Custodian are and shall be held in trust by the Servicer for the benefit of
the Purchaser. The Servicer shall maintain a Servicing File consisting of a
copy of the contents of each Mortgage File and the originals of the
documents in each Mortgage File not delivered to the Custodian. The
possession of each Servicing File by the Servicer is at the will of the
Purchaser for the sole purpose of servicing the related XXX and such
retention and possession by the Servicer is in a custodial capacity only.
Upon the sale of the XXXx, the ownership of each Mortgage Note, the related
Mortgage and the related Mortgage File and Servicing File shall vest
immediately in the Purchaser, and the ownership of all records and
documents with respect to the related XXX prepared by or which come into
the possession of the Servicer shall vest immediately in the Purchaser and
shall be retained and maintained by the Servicer, in trust, at the will of
the Purchaser and only in such custodial capacity. Each Servicing File and
the Servicer's books and records shall each be marked appropriately to
reflect clearly the sale of the related XXXx to the Purchaser. The Servicer
shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Custodian, unless such
release is required as incidental to the Servicer's servicing of the XXXx
or is in connection with a repurchase of any XXX pursuant to Section 4.3,
4.4 or 7.2.
It is the intention of the parties to this Agreement and
each Transfer Supplement that each conveyance of the Seller's right, title
and interest in and to the XXXx pursuant to this Agreement shall constitute
a purchase and sale and not a loan. If each conveyance of the XXXx from the
Seller to the Purchaser is characterized as a pledge and not a sale, then
the Seller shall be deemed to have transferred to the Purchaser, all of the
Seller's right, title and interest in, to and under the obligation deemed
to be secured by said pledge; and it is the intention of this Agreement
that the Seller shall also be deemed to have granted to the Purchaser a
first priority perfected security interest in all of the Seller's right,
title, and interest in, to, and under the obligation deemed to be secured
by said pledge and that the Custodian shall be deemed to be an independent
custodian for purposes of perfection of such security interest. If each
conveyance of the XXXx from the Seller to the Purchaser
is characterized as a pledge, it is the intention of this Agreement that
this Agreement shall constitute a security agreement under applicable law,
and that the Seller shall be deemed to have granted to the Purchaser a
first priority perfected security interest in all of Seller's right, title
and interest in, to and under the XXXx, all payments of principal of or
interest on such XXXx, including additional interest and all other rights
relating to and payments made in respect of the XXXx.
Section 2. Books and Records; Transfers of XXXx.
From and after each related Cut-off Date, all rights
arising with respect to the Portfolio of XXXx sold pursuant to any Transfer
Supplement including but not limited to all funds received on or in
connection with the XXXx, shall be received and held by the Servicer in
trust for the benefit of the Purchaser and the Servicer shall effectuate a
transfer of record title to the related Mortgages to the Purchaser.
Pursuant to the Custodial Agreement, the Custodian shall hold all of the
Mortgage Notes and other portions of the Mortgage File as described in such
Custodial Agreement.
The sale of each XXX shall be reflected on the Seller's
balance sheet and other financial statements of the Seller as a sale of
such XXXx by the Seller. The Servicer shall be responsible for maintaining,
and shall maintain, a complete set of books and records for each XXX which
shall be marked clearly to reflect the ownership of each XXX by the
Purchaser. In particular, the Servicer shall maintain in its possession,
available for inspection by the Purchaser, or its designee, evidence of
compliance with applicable laws, rules and regulations, 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 Xxxxxx Xxx and periodic inspection reports as required by Section 5.13.
To the extent that original documents are not required for purposes of
realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Servicer 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 the Servicer complies
with the requirements of the Xxxxxx Mae Guide, as amended from time to
time.
The Seller intends to treat the transfer of any XXXx to
the Purchaser pursuant to this Agreement as a sale for accounting and tax
purposes with respect to the Seller on a non- consolidated basis.
The Servicer shall maintain with respect to each XXX and
shall make available for inspection, upon reasonable notice, at the offices
of the Servicer during normal business hours, by the Purchaser or its
designees the related Servicing File during the time the Purchaser retains
ownership of a XXX and thereafter in accordance with applicable laws and
regulations.
Section 3. Custodial Agreement.
Pursuant to the Custodial Agreement delivered to the
Purchaser contemporaneously with the delivery of this Agreement and with
respect to the sale of each Portfolio to the Purchaser hereunder and each
Transfer Supplement, the Seller will deliver and release to the Custodian
the documents in the Mortgage File as are required by this Agreement.
The Seller shall deliver all documents in the Mortgage
File for each XXX sold to the Purchaser to the Custodian as described
herein and the Custodian shall certify its receipt of all of such documents
required to be delivered pursuant to the Custodial Agreement, as evidenced
by an Initial Certification with respect to such Portfolio, of the
Custodian in the form annexed to the Custodial Agreement. The Servicer
shall be responsible for maintaining the Custodial Agreement for the
benefit of the Purchaser and shall pay all fees and expenses of the
Custodian.
As proposed in the Custodial Agreement, in the event that
an Officer's Certificate of the Seller is required to be delivered to the
Custodian because of a delay caused by the public recording office in
returning any recorded document to the Seller, the Seller shall deliver to
the Custodian, within 180 days of the Closing Date, 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 caused 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 that
the applicable recorded document will be delivered to the Custodian. The
Seller shall be required to deliver to the Custodian the applicable
recorded document by the date specified in clause (iv) above. An extension
of the date specified in clause (iv) above may be requested from the
Purchaser. If delivery is not completed within 180 days, the Seller shall
repurchase the related XXX at the repurchase price in accordance with
Section 4.3 hereof.
The Servicer shall forward to the Custodian original
documents evidencing an assumption, modification, consolidation or
extension of any XXX entered into in accordance with Section 5.1 or 7.1
within one week of their execution; provided, however, that the Servicer
shall provide the Custodian with a certified true copy of any such document
submitted for recordation within one week of its execution and shall
provide the original of any document submitted for recordation or a copy of
such document certified by the appropriate public recording office to be a
true and complete copy of the original within 180 days of its submission
for recordation.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES;
REMEDIES AND BREACH
Section 1. Representations and Warranties.
As of the date hereof, and as of any Closing Date, the
Seller, as seller, and, if so stated in such representation or warranty, as
Servicer, makes the following representations and warranties:
(a) Due Organization and Authority. The Seller, is
duly organized, validly existing and in good standing under the laws of its
formation and has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if required to conduct business
of the type conducted by the Seller, and in any event the Seller is in
compliance with the laws of any such state to the extent necessary to ensure
the enforceability of any XXX sold hereunder and the servicing of any such
XXX in accordance with the terms of this Agreement and any Transfer
Supplement; the Seller has the full power and authority to execute and
deliver this Agreement and any Transfer Supplement and to perform in
accordance herewith and therewith; the execution, delivery and performance
of this Agreement and any Transfer Supplement (including all instruments of
transfer to be delivered pursuant to this Agreement and any Transfer
Supplement) by the Seller and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Seller; this Agreement and any Transfer Supplement each evidences the valid,
binding and enforceable obligation of the Seller, except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally
and (ii) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought;
and all requisite corporate action has been taken by the Seller to make this
Agreement and any Transfer Supplement valid and binding upon the Seller in
accordance with its terms;
(b) Ordinary Course of Business. The consummation of
the transactions contemplated by this Agreement are in the ordinary course
of business of the Seller, and the transfer, assignment and conveyance of
the Mortgage Notes and the Mortgages by the Seller pursuant to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery
of this Agreement or any Transfer Supplement, the acquisition of XXXx by the
Seller, the sale of XXXx to the Purchaser or the transactions contemplated
hereby or thereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement or any Transfer Supplement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Seller's charter or by-laws or any material agreement or instrument to which
the Seller is now a party or by which it is bound, or constitute a default
or result in an acceleration under any of the foregoing, or result in the
violation of any applicable law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or impair the ability of the
Purchaser to realize on the XXXx, in any material respect, or impair the
value of the XXXx in any material respect;
(d) Ability to Service. The Seller, as Servicer
hereunder, is an approved seller/servicer of residential XXXx for Xxxxxx Xxx
or Xxxxxxx Mac with such facilities, procedures and has the personnel
necessary for the sound servicing of such XXXx. The Seller is in good
standing to sell XXXx to and service XXXx for Xxxxxx Xxx or Xxxxxxx Mac and
no event has occurred which would make the Seller unable to comply with
eligibility requirements or which would require notification to either
Xxxxxx Mae or Xxxxxxx Mac;
(e) Reasonable Servicing Fee. The Seller, as
Servicer hereunder, acknowledges and agrees that the Servicing Fee, as
calculated at the Servicing Fee Rate, represents reasonable compensation for
performing such services as compensation for the servicing and
administration of the XXXx pursuant to this Agreement;
(f) Ability to Perform. The Seller does not believe,
nor does it have any reason or cause to believe, that it cannot perform each
and every covenant to be performed by the Seller contained in this Agreement
and any Transfer Supplement;
(g) No Litigation Pending. There is no action, suit,
proceeding or investigation pending or threatened against the Seller which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or assets of the Seller, or in any material impairment of the right or
ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or any Transfer
Supplement or the XXXx or of any action taken or to be taken in connection
with the obligations of the Seller contemplated herein, or which would be
likely to impair materially the ability of the Seller to perform under the
terms of this Agreement or any Transfer Supplement;
(h) 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 Seller of or
compliance by the Seller with this Agreement or any Transfer Supplement or
the sale of the XXXx as evidenced by the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been
obtained prior to the Closing Date;
(i) No Untrue Information. Neither this Agreement,
any Transfer Supplement nor any statement, report or other document
furnished by the Seller or to be furnished pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact relating to the Seller or the XXXx;
(j) Financial Statements. The Seller has delivered
to the Purchaser consolidated financial statements of [its parent company]
as to its last three complete fiscal years and any later quarter ended more
than 60 days prior to the execution of this Agreement. All such financial
statements fairly present the pertinent results of operations and changes in
financial position at the end of each such period of the parent company and
its subsidiaries and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto. [In addition, the Seller
has delivered information as to its mortgage loan loss experience for the
immediately preceding three-year period, in each case with respect to XXXx
owned by it and such XXXx serviced for others during such period, and all
such information so delivered, to the best of Seller's information and
belief, is true and correct in all material respects.] There has been no
change in the business, operations, financial condition, properties or
assets of the Seller since the date of the parent company's most recently
provided financial statements that would have a material adverse effect on
its ability to perform its obligations under this Agreement;
(k) No Brokers' Fees. The Seller has not dealt with
any broker, investment banker, agent or other person that may be entitled to
any commission or compensation in connection with the sale of any Portfolio
of XXXx to the Purchaser;
(l) Fair Consideration. The consideration received
by the Seller upon the sale of the XXXx under this Agreement constitutes
fair consideration and reasonably equivalent value for the XXXx; and
(m) Year 2000 Compliance. The Seller's (and
Servicer's) computer and other systems used in booking and servicing the
XXXx will be modified and maintained to operate in a manner such that at all
times, including on and after January 1, 2000, (i) the Servicer can service
the XXXx in accordance with the terms of this Agreement and (ii) the Seller
and Servicer can operate its business in the same manner as it is operating
on the date hereof.
Section 2. Representations and Warranties Regarding Individual XXXx.
The Seller makes the following representations and
warranties with respect to each individual XXX sold to the Purchaser on the
related Closing Date:
(a) XXXx as Described. The information set forth in
the XXX Schedule attached to the applicable Transfer Supplement is complete,
true and correct in all material respects;
(b) Payments Current. As of the Closing Date, all
payments due with respect to the XXX prior to the related Cut-Off Date have
been made. Each XXX has not been delinquent 30 days or more at any time
prior to the Cut-Off Date. The Seller has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than
the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the XXX;
(c) No Outstanding Charges. There are no defaults in
complying with the terms of the Mortgages, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
leasehold payments or ground rents which previously became due and owing
have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has
been assessed but is not yet due and payable;
(d) Original Terms Unmodified. The terms of the
Mortgage Note and Mortgage have not been impaired, waived, altered or
modified in any respect, except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser and which
has been delivered to the Custodian. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related
Primary Mortgage Insurance Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the related XXX
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer of any
related Primary Mortgage Insurance Policy and the title insurer, to the
extent required by the policy, and which assumption agreement is part of the
Mortgage File delivered to the Custodian and the terms of which are
reflected in the related XXX Schedule;
(e) No Defenses. The XXX is not subject to any right
of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms
of the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render either the Mortgage Note or the Mortgage unenforceable,
in whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto, and no Mortgagor was a debtor in any state or
federal bankruptcy or insolvency proceeding at the time that the XXX was
originated and, as of the Closing Date, no Mortgagor is insolvent or in
bankruptcy;
(f) Hazard Insurance. Pursuant to the terms of the
Mortgage, all buildings or other improvements upon the Mortgaged Property
are insured by a generally acceptable insurer against loss by fire and
extended coverage and coverage for such other hazards as are customary in
the area where the Mortgaged Property is located pursuant to insurance
policies conforming to the requirements of Section 5.10. If upon origination
of the XXX, the Mortgaged Property was 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 meeting the requirements of the current guidelines of the Flood
Insurance Administration is in effect which policy conforms to the
requirements of Section 5.10. All individual insurance policies contain a
standard mortgagee clause naming the Seller and its successors and assigns
as mortgagee, and all premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain the hazard insurance policy
at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or regulation, the
Mortgagor has been given an opportunity to choose the carrier of the
required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common facilities of a
planned unit development. The hazard insurance policy is the valid and
binding obligation of the insurer and is in full force and effect. The
Seller has not engaged in, and has no knowledge of the Mortgagor's having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity
and binding effect of either;
(g) Compliance with Applicable Laws. Any applicable
requirements of federal, state or local law including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable to the
XXX have been complied with, and the Seller shall maintain in its possession
copies of all of its current licenses regarding the origination of the XXXx,
available for the Purchaser's inspection;
(h) No Satisfaction of Mortgage. The Mortgage has
not been satisfied, cancelled, subordinated or rescinded, in whole or in
part, and the Mortgaged Property has not been released from the lien of the
Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
The Seller has not waived the performance by the Mortgagor of any action, if
the Mortgagor's failure to perform such action would cause the XXX to be in
default, nor has the Seller waived any default resulting from any action or
inaction by the Mortgagor;
(i) Valid Lien. The Mortgage is a valid first or
second priority perfected Lien on the Mortgaged Property. The Mortgaged
Property is free and clear of all prior Liens and encumbrances and no rights
or condition may exist that could give rise to such Liens, except for (1)
the lien of non-delinquent current real property taxes and assessments not
yet due and payable, (2) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording which are acceptable to mortgage lending institutions generally
and either (A) which are referred to or otherwise considered in the
appraisal made for the originator of the XXX, (B) which do not adversely
affect the Initial Appraised Value of the Mortgaged Property as set forth in
such appraisal, and (3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. The Mortgage is a legal,
valid and binding obligation of the related Mortgagor, enforceable according
to its terms and conditions, and free from any right of setoff, counterclaim
or other claim or defense. No part of the Mortgaged Property has been
released from the Mortgage. The terms of the Mortgage has not in any
material manner been modified, amended or in any way waived or changed,
except as stated in a written modification agreement that is acceptable to
and delivered to the Seller and Servicer;
(j) Validity of Mortgage Documents. The Mortgage
Note and the Mortgage are genuine, and each is the legal, valid and binding
obligation of the maker thereof enforceable in accordance with its terms
except that (i) enforceability thereof may be subject to bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance and
injunctive relief and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which a
proceeding thereof may be brought. All parties to the Mortgage Note and the
Mortgage and any other related agreement had legal capacity to enter into
the XXX and to execute and deliver the Mortgage Note and the Mortgage and
any other related agreement, and the Mortgage Note and the Mortgage have
been duly and properly executed by such parties. The Seller has taken all
necessary action to transfer title to each Mortgaged Property to the
Purchaser. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material
fact. No fraud was committed by any party in connection with the origination
or servicing of the XXX;
(k) Full Disbursement of Proceeds. Each XXX has been
closed and its proceeds 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 XXX and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) Ownership. The Seller is the sole owner of
record and holder of the XXX; the XXX is not assigned or pledged to any
other person, and the Seller has good and marketable title thereto, and has
full right to transfer and sell the XXX therein to the Purchaser free and
clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, other than any such encumbrance, equity,
Lien, pledge, claim or security interest permitted pursuant to clause (j)
above, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each XXX pursuant to the related Transfer Supplement;
(m) Doing Business. All parties which have had any
interest in the XXX, whether as mortgagee, assignee, pledgee or otherwise,
are (or, during the period in which they held and disposed of such interest,
were) (1) in compliance with any applicable licensing requirements of the
laws of the state wherein the Mortgaged Property is located, and (2)(a)
organized under the laws of such state, or (b) qualified to do business in
such state, or [(c) federally-chartered savings and loan associations or
national banks having principal offices in such state,] or (d) not required
to qualify to do business in such state;
(n) LTV, Primary Mortgage Insurance Policy. No XXX
has a LTV equal to or greater than 95%. The original LTV of the XXX either
was not more than 80% or the excess over 80% is and will be insured as to
payment defaults by a Primary Mortgage Insurance Policy until the LTV of
such XXX is reduced to 80%. All provisions of such Primary Mortgage
Insurance Policy have been and are being complied with, such policy is in
full force and effect, and all premiums due thereunder have been paid. No
action, inaction, or event has occurred and no state of facts exists that
has, or will result in the exclusion from, denial of, or defense to
coverage. Any XXX subject to a Primary Mortgage Insurance Policy obligates
the Mortgagor thereunder to maintain the Primary Mortgage Insurance Policy
and to pay all premiums and charges in connection therewith. The Stated
Interest Rate for the XXX as set forth on the XXX Schedule is net of any
such insurance premium. No action, inaction or event has occurred and no
state of facts exists or has existed that has resulted or would result in
the exclusion from, denial of, or defense to coverage under any applicable
Primary Mortgage Insurance 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 the Seller or any designee of the Seller or any corporation in
which the Seller or any officer, director or employee had a financial
interest at the time of placement of such insurance;
(o) Title Insurance. The XXX is covered by a
lender's title insurance policy or other generally acceptable form of policy
of insurance acceptable to Purchaser, issued by a title insurer acceptable
to the Purchaser and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the XXX, and against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of
the Mortgage providing also for the shared appreciation feature of the XXX,
[and endorsed for XXX coverage in the form attached hereto as Exhibit __]
subject only to the exceptions contained in clauses (1) and (2) of paragraph
(i) of this Section 4.2. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. The Seller 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 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 Mortgage, including the Seller, has done, by act or
omission, anything which would impair in any material respect the coverage
of such lender's title insurance policy;
(p) No Defaults. 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 the Seller has not waived
any default, breach, violation or event of acceleration;
(q) 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 the law could give rise to such
Liens) affecting the related Mortgaged Property which are or may be Liens
prior to, or equal or coordinate with, the Lien of the related Mortgage;
(r) Location of Improvements; No Encroachments. All
improvements which were considered in determining the Initial 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;
(s) Origination; Payment Terms. At the time that the
XXX was originated, the Originator and Seller was a Mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203 and
211 of the National Housing Act, as amended, or a savings and loan
association, a savings bank, a commercial bank, a licensed mortgage banker
or similar banking or lending institution which is supervised and examined
by a federal or state authority. The Stated Interest Rate as determined
pursuant to the XXX is a fixed interest rate [adjustable rate] and the XXX
provides for an Appreciation Share of not less than 30% and not greater than
60%. [other federal income tax requirements] The Mortgage Note is payable on
the first day of each month in monthly installments of principal and
interest, sufficient to amortize the principal amount of the XXX fully by
the stated maturity date, over an original term of not more than forty years
from commencement of amortization, with a principal balance at origination
of no more than $650,000 [and a Stated Principal Balance of at least
$25,000]. [There is no negative amortization other than appreciation rights
on the XXXx];
(t) Customary Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a XXX and foreclosure on, or trustee's sale of, the Mortgaged
Property pursuant to the proper procedures, the holder of the XXX will be
able to deliver good and marketable title to the Mortgaged Property. There
is no homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale
or the right to foreclose the Mortgage;
(u) Conformance with XXX Program Standards. The XXX
was underwritten in accordance with the (i) Purchaser's underwriting
standards applicable at origination which have been amended from time to
time, the most current of which are attached hereto as Exhibit __ and (ii)
the Xxxxxx Mae Guide or Xxxxxxx Mac Guide without regard to the conforming
mortgage loan limits of the Xxxxxx Mae Guide or Xxxxxxx Mac Guide. The XXX
is in conformity with the standards of the Purchaser's XXX origination
Program and the Mortgage Note and Mortgage are on forms attached hereto as
Exhibit [ ] under the XXXx Program;
(v) Occupancy of the Mortgaged Property. As of the
Closing Date, the Mortgaged Property is lawfully occupied by the Mortgagor
under applicable law. All inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate authorities.
All of the Mortgagors represented at the time of origination of the related
XXX that the Mortgagor would occupy the Mortgaged Property as the
Mortgagor's primary residence;
(w) No Additional Collateral. The Mortgage Note is
not and has not been secured by any collateral except the Lien of the
corresponding Mortgage and the security interest of any applicable security
agreement or chattel mortgage referred to in clause (i) above;
(x) Deeds of Trust. In the event that 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;
(y) Acceptable Investment. The Seller has no
knowledge of any circumstances or conditions with respect to the Mortgage,
the Mortgaged Property, the Mortgagor or the Mortgagor's creditstanding not
reflected in the representations set forth herein, or in the documents
delivered to the Custodian or in the Mortgage File, that in its opinion
could reasonably be expected to cause private institutional investors to
regard the XXX as an unacceptable investment or cause the XXX to become
delinquent;
(z) Delivery of Mortgage Documents. The Mortgage
Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered for the XXX by the Seller under the Custodial
Agreement attached as Exhibit D-1 hereto have been delivered to the
Custodian;
(aa) Transfer of XXXx. 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;
(bb) Mortgage Termination Event; Due on Sale. The
XXX contains Mortgage Termination Events substantially as shown on Schedule
II hereto. The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the XXX in
the event that the Mortgaged Property is sold or transferred without the
prior written consent of the Mortgagee thereunder and the XXX was originated
on forms substantially equivalent to the Mortgage Note (Schedule IV) and the
Mortgage (Schedule V);
(cc) No Buydown Provisions; No Graduated Payments or
Contingent Interests. The XXX does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor or anyone on
behalf of the Mortgagor, or paid by any source other than the Mortgagor nor
does it contain any other similar provisions currently in effect which may
constitute a "buydown" provision. The XXX is not a graduated payment XXX;
(dd) Absence of Future Advances. The XXX does not
provide for future advances;
(ee) Mortgaged Property Undamaged. There is no
proceeding pending or threatened for the total or partial condemnation of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty;
(ff) Collection Practices; Escrow Payments. The
origination, servicing and collection practices used with respect to the XXX
have been in accordance with Accepted Servicing Practices, and have been in
compliance with applicable laws and regulations. With respect to escrow
deposits and Escrow Payments, all such payments are in the possession of the
Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made or for which
repayment is not provided for in the Mortgage. All Escrow Payments have been
collected in compliance with applicable state and federal law. An escrow of
funds is not prohibited by applicable law and has been established in an
amount sufficient to pay for each applicable item which remains unpaid and
which has been assessed but is not yet due and payable. No escrow deposits
or Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. Any interest required
to be paid pursuant to applicable state and local law has been properly paid
and credited. As modified by the terms hereof, the XXX will be serviced in
accordance with the Xxxxxx Xxx Guide or Xxxxxxx Mac Guide without regard to
the conforming mortgage loan limits of the Xxxxxx Xxx Guide or Xxxxxxx Mac
Guide;
(gg) Appraisal. The Mortgage File contains an
appraisal of the related Mortgaged Property signed prior to the approval of
the XXX application by a qualified appraiser chosen from Schedule I hereto
and whose compensation is not affected by the approval or
disapproval of the XXX, and the appraisal and such appraiser both satisfy
the requirements of Title XI of the Federal Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all
as in effect on the date that the XXX was originated. Such appraisal was
performed in accordance with the Statement regarding Policies and
Methodologies for performing Appraisals attached as Schedule A to each
Mortgage Note;
(hh) Soldiers' and Sailors' Relief Act. The
Mortgagor has not notified the Seller, and the Seller has no knowledge of
any relief requested by the Mortgagor under the Soldiers' and Sailors' Civil
Relief Act of 1940;
(ii) Environmental Matters. The Mortgaged Property
is free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or
regulation;
(jj) No Construction Loans. No XXX (i) was made in
connection with the construction or rehabilitation of a Mortgaged Property
which has not been completed or (ii) provides for future advances of funds
by the Seller which have not yet been advanced; and
(kk) Each of the Mortgaged Properties consists of a
single parcel of real property with a detached single-family residence
erected thereon, or a two- to four-family dwelling, or a townhouse, or an
individual condominium unit in a condominium project or an individual unit
in a planned unit development. No Mortgaged Property consists of a single
parcel of real property with a cooperative housing development erected
thereon. Any condominium unit or planned unit development either conforms
with applicable Xxxxxxx Mac or Xxxxxx Xxx requirements regarding such
dwelling or is covered by a waiver confirming that such condominium unit or
planned unit development is acceptable to Xxxxxxx Mac or Xxxxxx Xxx or is
otherwise "warrantable" with respect thereto. No such residence is a mobile
home or manufactured dwelling. None of the Mortgaged Properties are investor
owned properties.
Section 3. Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and
warranties set forth in Sections 4.1 and 4.2 shall survive the sale of the
XXXx to the Purchaser and the delivery of the documents in the Mortgage
File to the Custodian and shall inure, as to each XXX, 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 Mortgage File. Upon discovery by either the Seller or the
Purchaser of a breach of any of the foregoing representations and
warranties which materially and adversely affects the value of the XXXx or
the interest of the Purchaser (or which materially and adversely affects
the interests of the Purchaser in the related XXX in the case
of a representation and warranty relating to a particular XXX), the party
discovering such breach shall give prompt written notice to the other
parties.
Within 60 days of the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of any XXXx, the Seller shall
use its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Seller shall, at the Purchaser's
option, repurchase such XXX at the Repurchase Price. In the event of a
breach of any representation or warranty set forth in Section 4.1 which
materially and adversely affects the value of any XXXx, and such breach
cannot be cured within 60 days of the earlier of either discovery by or
notice to the Seller of such breach, all of the XXXx shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth
in Section 4.2 and the Seller discovers or receives notice of any such
breach within two years of the Closing Date, the Seller shall, at the
Purchaser's option and provided that the Seller has a Qualified Substitute
XXX, rather than repurchase the XXX as provided above, remove such XXX (a
"Deleted XXX") and substitute in its place a Qualified Substitute XXX or
XXXx. If the Seller has no Qualified Substitute XXX, it shall repurchase
the deficient XXX. The Seller shall be obligated to repurchase any XXX for
which an event or condition has occurred which would constitute a breach of
representation and warranty set forth in Sections 4.1 and 4.2. Any
repurchase of a XXX or XXXx pursuant to the foregoing provisions of this
Section 4.3 shall be accomplished by deposit in the Collection Account of
the amount of the Repurchase Price.
At the time of repurchase or substitution, the Purchaser
and the Seller shall arrange for the reassignment of the Deleted XXX to the
Seller and the delivery to the Seller of any documents held by the
Custodian relating to the Deleted XXX. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has
taken place, amend the XXX Schedule to reflect the withdrawal of the
Deleted XXX from this Agreement, and, in the case of substitution, identify
a Qualified Substitute XXX and amend the XXX Schedule to reflect the
addition of such Qualified Substitute XXX to this Agreement. In connection
with any such substitution, the Seller shall be deemed to have made as to
such Qualified Substitute XXX the representations and warranties set forth
in this Agreement except that all such representations and warranties set
forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to
the Custodian for such Qualified Substitute XXX the documents required by
Section 3.3, with the Mortgage Note endorsed as required by Section 3.3. No
substitution will be made in any calendar month after the Determination
Date for such month. The Seller shall deposit in the Collection Account the
Monthly Payment due on such Qualified Substitute XXX or XXXx in the month
following the date of such substitution. Monthly Payments due with respect
to Qualified Substitute XXXx in the month of substitution shall be retained
by the Seller.
For any month in which the Seller substitutes a Qualified
Substitute XXX for a Deleted XXX, the Seller shall determine the amount (if
any) by which the aggregate principal balance of all Qualified Substitute
XXXx as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted XXXx (after application of Scheduled
Monthly Payments of principal due in the month of substitution). The amount
of such shortfall shall be distributed by the Seller in the month of
substitution pursuant to Section 6.1. Accordingly, on the date of such
substitution, the Seller shall deposit from its own funds into the
Collection Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution
obligation, the Seller shall indemnify the Purchaser 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 representations and
warranties contained in this Agreement which causes the sale of the XXXx to
any subsequent purchaser (other than or the Purchaser). It is understood
and agreed that the obligations of the Seller set forth in this Section 4.3
to cure, substitute for or repurchase a defective XXX and to indemnify the
Purchaser as provided in this Section 4.3 constitute the sole remedies of
the Purchaser respecting a breach of the foregoing representations and
warranties.
Any cause of action against the Seller relating to or
arising out of the breach of any representations and warranties made in
Sections 4.1 and 4.2 shall accrue as to any XXX upon (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser or
the certificateholders, (ii) failures by the Seller to cure such breach or
repurchase such XXX as specified above, and (iii) demand upon the Seller by
the Purchaser or the certificateholders for compliance with this Agreement.
Section 4. Review of XXXx. From the Closing Date until 60 days after
the Closing Date, the Purchaser shall have the right to review each
Mortgage File, to conduct property inspections, obtain appraisal
recertifications and otherwise to underwrite the XXXx and to reject any XXX
which in the Purchaser's reasonable discretion, based upon whether or not
such Mortgage Loan is "investment grade," as determined in accordance with
the Purchaser's underwriting criteria is an unacceptable investment. In the
event that the Purchaser so rejects any XXX, the Seller shall, no later
than the 60th day following the Closing Date, repurchase the rejected XXX
in the manner prescribed in Section 4.3 at the Repurchase Price. Any
rejected XXX shall be removed from the terms of this Agreement.
Section 5. XXX Defaults. In the event there is a default in the
payment of principal and/or interest with respect to any XXX purchased
pursuant to this Agreement which occurs within 180 days of the Closing
Date, the Purchaser shall have the right to cause the Seller (i) to
repurchase the XXX at the Repurchase Price or (ii) to substitute a
conforming XXX as provided in Section 4.3 hereof.
ARTICLE V - ADMINISTRATION AND SERVICING OF XXXX
Section 1. The Servicer to Act as Servicer.
The Servicer, as an independent contractor, shall service
and administer the XXXx and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices and shall exercise the same care that it customarily employs for
its own account. Except as set forth in this Agreement, the Servicer shall
service the XXXx, except to the extent modified herein, in strict
compliance with Accepted Servicing Practices, which include, but are not
limited to, provisions regarding the liquidation of XXXx, the collection of
XXX payments, the payment of taxes, insurance and other charges, the
maintenance of hazard insurance with a Qualified Insurer, the maintenance
of fidelity bond and errors and omissions insurance, inspections, the
restoration of Mortgaged Property, the maintenance of Primary Mortgage
Insurance Policies, insurance claims, and title insurance, management of
REO Property, permitted withdrawals with respect to the payment of expenses
for REO Property, liquidation reports, and reports of foreclosures and
abandonments of Mortgaged Property, the transfer of Mortgaged Property, the
release of Mortgage Files, annual statements, and examination of records
and facilities. In the event of any conflict, inconsistency or discrepancy
between any of the servicing provisions of this Agreement and any of the
servicing provisions of the Xxxxxx Mae Guide, the provisions of this
Agreement shall control and be binding upon the Purchaser and the Servicer.
The Purchaser may, at its option, deliver powers-of-attorney to the
Servicer sufficient to allow the Servicer as servicer to execute all
documentation requiring execution on behalf of Purchaser with respect to
the servicing of the XXXx, including satisfactions, partial releases,
modifications and foreclosure documentation or, in the alternative, shall
as promptly as reasonably possible, execute and return such documentation
to the Servicer.
Consistent with the terms of this Agreement, the Servicer
may waive, modify or vary any term of any XXX or consent to the postponement
of 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 Purchaser; provided, that the Servicer shall not make any future
advances with respect to a XXX and that unless the Servicer has obtained the
proper written consent of the Purchaser, the Servicer shall not permit any
modification with respect to any XXX that would change the Stated Interest
Rate or the manner in which Additional Interest is calculated, defer or
forgive the payment of principal or interest or Additional Interest, reduce
or increase the outstanding principal balance (except for actual payments of
principal) release any collateral from the XXX or change the final maturity
date on such XXX. In the event of any such modification which permits the
deferral of Stated Interest, Additional Interest or principal payments on
any XXX, the Servicer shall, on the Business Day immediately preceding the
Distribution Date in any month in which any such principal or interest
payment has been deferred, advance from its own funds, in accordance with
Section 6.3, the difference between (a) the sum of such month's principal
and one month's interest at the Remittance Rate on the unpaid principal
balance of such XXX 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 6.3. 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
Purchaser, all instruments of satisfaction or cancellation, or of partial or
full release, discharge and all other comparable instruments, with respect
to the XXXx and with respect to the Mortgaged Properties.
[Insert Partial Releases from Mortgage Note]
In servicing and administering the XXXx, the Servicer
shall employ procedures (including collection procedures) and exercise the
same care that it customarily employs and exercises in servicing and
administering XXXx for its own account, giving due consideration to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement.
The Servicer shall perform all of its servicing
responsibilities hereunder or may, with the Purchaser's prior written
approval, which approval can be withheld for any or no reason, cause a
subservicer to perform any such servicing responsibilities on its behalf,
but the use by the Servicer of a subservicer shall not release the Servicer
from any of its obligations hereunder and the Servicer shall remain
responsible hereunder for all acts and omissions of each sub servicer as
fully as if such acts and omissions were those of the Servicer. [Any such
sub servicer that the Purchaser shall be requested to consent to must be a
Xxxxxxx Mac approved seller/servicer or a Xxxxxx Xxx seller/servicer in
good standing and no event shall have occurred, including but not limited
to, a change in insurance coverage, which would make it unable to comply
with the eligibility requirements for lenders imposed by Xxxxxxx Mac or for
seller/servicers by Xxxxxx Xxx, or which would require notification to
Xxxxxxx Mac or Xxxxxx Xxx.] The Servicer shall pay all fees and expenses of
each sub servicer from its own funds, and a sub servicer's fee shall not
exceed the Servicing Fee.
At the cost and expense of the Servicer, without any
right of reimbursement from the Collection Account, the Servicer shall be
entitled to terminate the rights and responsibilities of a sub servicer and
arrange, with the Purchaser's prior written approval, which approval can be
withheld for any or no reason, for any servicing responsibilities to be
performed by a successor sub servicer meeting the requirements in the
preceding paragraph, provided, however, that nothing contained herein shall
be deemed to prevent or prohibit the Servicer, at the Servicer's option,
from electing to service the related XXXx itself. In the event that the
Servicer's responsibilities and duties under this Agreement are terminated
pursuant to Section 11.1 or 12.1, and if requested to do so by the
Purchaser, the Servicer shall at its own cost and expense terminate the
rights and responsibilities of each sub servicer effective as of the date
of termination of the Servicer. The Servicer shall pay all fees, expenses
or penalties necessary in order to terminate the rights and
responsibilities of each sub servicer from the Servicer's own funds without
reimbursement from the Purchaser.
Notwithstanding any of the provisions of this Agreement
relating to agreements or arrangements between the Servicer and a sub
servicer or any reference herein to actions taken through a sub servicer or
otherwise, the Servicer shall not be relieved of its obligations to the
Purchaser and shall be obligated to the same extent and under the same
terms and conditions as if it alone were servicing and administering the
XXXx. The Servicer shall be entitled to enter into an agreement with a sub
servicer for indemnification of the Servicer by the sub servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any subservicing agreement and any other transactions or
services relating to the XXXx involving a sub servicer shall be deemed to
be between such sub servicer and the Servicer alone, and the Purchaser
shall have no obligations, duties or liabilities with respect to such sub
servicer including no obligation, duty or liability of Purchaser to pay
such sub servicer's fees and expenses. For purposes of distributions and
advances by the Servicer pursuant to this Agreement, the Servicer shall be
deemed to have received a payment on a Mortgage Loan when a sub servicer
has received such payment.
Notwithstanding the foregoing, if XXXx are sold by the
Purchaser to Xxxxxx Xxx or Xxxxxxx Mac pursuant to a Whole Loan Transfer,
the Servicer, at the direction of Purchaser, shall service such XXXx for
Xxxxxx Xxx or Xxxxxxx Mac, as the case may be, in accordance with such
entity's guidelines; and shall make distributions of principal and interest
as either Xxxxxx Mae or Xxxxxxx Mac shall require. The Servicer shall make
to such respective entity such entity's required servicing representations
and warranties as of the date of sale of the XXXx by the Purchaser to
Xxxxxx Xxx or Xxxxxxx Mac, as applicable.
Section 2. Liquidation of XXXx.
The Servicer shall use its reasonable efforts, consistent
with the procedures that the Servicer would use in servicing loans for its
own account and the requirements of the Xxxxxx Xxx Guide or Xxxxxxx Mac
Guide, to foreclose upon or otherwise comparably convert the ownership of
properties securing such of the XXXx as come into and continue in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 5.1. The Servicer shall use its
reasonable efforts to realize upon defaulted XXXx in such manner as will
maximize the receipt of principal and interest by the Purchaser, taking into
account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, the Servicer shall not be required to
expend its own funds toward the restoration of such property unless it shall
determine in its discretion (i) that such restoration will increase the
proceeds of liquidation of the related XXX to the Purchaser after
reimbursement to itself for such expenses, and (ii) that such expenses will
be recoverable by the Servicer through Insurance Proceeds or Liquidation
Proceeds from the related Mortgaged Property, as contemplated in Section
5.5. The Servicer shall notify the Purchaser in writing of the commencement
of foreclosure proceedings. The Servicer shall be responsible for all costs
and expenses incurred by it in any such proceedings or functions as
Servicing Advances; provided, however, that it shall be entitled to
reimbursement therefor from the related Mortgaged Property, as contemplated
in Section 5.5.
Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that
a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Purchaser otherwise requests an environmental inspection
or review of such Mortgaged Property to be conducted by a qualified
inspector, the Servicer shall promptly provide the Purchaser with a written
report of the environmental inspection upon completion of such inspection.
After reviewing the environmental inspection report, the
Purchaser shall determine how the Servicer shall proceed with respect to
the Mortgaged Property. In the event (a) the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous
or toxic substances or wastes and (b) the Purchaser directs the Servicer to
proceed with foreclosure or acceptance of a deed in lieu of foreclosure,
the Servicer shall be reimbursed for all reasonable costs associated with
such foreclosure or acceptance of a deed in lieu of foreclosure and any
related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to
reimburse fully the Servicer, the Servicer shall be entitled to be
reimbursed from amounts in the Collection Account pursuant to Section 5.5
hereof.
Section 3. Collection of XXX Payments.
Continuously from the date hereof until the principal and
interest on all XXXx are paid in full, the Servicer shall proceed in
accordance with Accepted Servicing Practices to collect all payments due
under each of the XXXx when the same shall become due and payable and shall
ascertain and estimate in accordance with Accepted Servicing Practices
Escrow Payments and all other charges that will become due and payable with
respect to the XXX and the Mortgaged Property, to the end that the
installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Section 4. Establishment of, and Deposits to, Collection Account.
The Servicer shall segregate and hold all funds collected
and received pursuant to a XXX separate and apart from any of its own funds
and general assets and shall establish and maintain one or more collection
accounts, in the form of time deposit or demand accounts, titled
"Collection Account, in trust for the Purchaser, pursuant to that certain
Sale and Servicing Agreement dated as of ______ [2000], by and between Bear
Xxxxxxx Mortgage Capital Corporation and ________." The Collection Account
shall be established with a Qualified Depository acceptable to the
Purchaser. Any funds deposited in a Collection Account shall at all times
be fully insured to the full extent permitted under applicable law or must
be invested in Permitted Investments for the benefit
of the Purchaser. Funds deposited in the Collection Account may be drawn on
by the Servicer in accordance with Section 5.5. The creation of any
Collection Account shall be evidenced by a certification in the form of
Exhibit E-1 hereto and a letter agreement in the form of Exhibit E-2 hereto
shall be executed in connection herewith by such Depository, in the case of
an account held by a depository other than ____. A copy of such
certification or letter agreement shall be furnished to the Purchaser as
pledgee of the Collateral.
The Servicer shall deposit in the Collection Account on a
daily basis, and retain therein, the following collections received by the
Servicer and payments made by the Servicer after the Cut-off Date, other
than payments of amounts due on or before the Cut-off Date, or received by
the Servicer prior to the Cut-off Date but allocable to a period subsequent
thereto:
(1) all payments on account
of principal on the XXXx;
(2) all payments on account of
Stated Interest and Additional Interest on the XXXx, in the case
of Stated Interest, adjusted to the Remittance Rate;
(3) all Liquidation Proceeds;
(4) all Insurance Proceeds
including amounts required to be deposited pursuant to Section
5.10 (other than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property
or released to the Mortgagor in accordance with Section 5.14),
Section 5.11 and Section 5.15;
(5) all Condemnation
Proceeds which are not applied to the restoration or repair of
the Mortgaged Property or released to the Mortgagor in
accordance with Section 5.14;
(6) any amount required to be
deposited in the Collection Account pursuant to Section 5.1,
5.9, 6.3, 7.1 or 7.2;
(7) the Repurchase Price and any
other amounts payable in connection with the repurchase of any
XXX pursuant to Section 4.3 or 4.4 and all amounts required to
be deposited by the Servicer in connection with a shortfall in
principal amount of any Qualified Substitute XXX pursuant to
Section 4.3;
(8) any amounts required to be
deposited by the Servicer pursuant to Section 5.11 in connection
with the deductible clause in any blanket hazard insurance
policy;
(9) any amounts received with
respect to or related to any REO Property and all REO Distribution
Proceeds pursuant to Section 5.16; and
(10) Prepayment Interest
Shortfall in an amount not to exceed the Servicing Fee due to
the Servicer.
The foregoing requirements for deposit into the
Collection Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
late payment charges need not be deposited by the Servicer into the
Collection Account. Any interest paid on funds deposited in the Collection
Account by the depository institution holding such Accounts or on Permitted
Investments into which such amounts are invested shall accrue to the
benefit of the Servicer and the Servicer shall be entitled to retain and
withdraw such interest from the Collection Account pursuant to Section 5.5.
Section 5. Permitted Withdrawals From Collection Account.
The Servicer shall, from time to time, withdraw funds
from any Collection Account for the following purposes:
(1) to pay the Purchaser in the
amounts and in the manner provided for in Section 6.1;
(2) to reimburse itself for
Monthly Advances of the Servicer's funds made pursuant to
Section 6.3, the Servicer's right to reimburse itself pursuant
to this subclause (ii) being taken first from amounts received
on the related XXX which represent late payments of principal
and/or interest respecting which any such advance was made, it
being understood that, in the case of any such reimbursement,
the Servicer's right thereto shall be prior to the rights of the
Purchaser, except that, where the Servicer is required to
repurchase a XXX pursuant to Section 4.3, 4.4 or 7.2, the
Servicer's right to such reimbursement shall be subsequent to
the payment to the Purchaser of the Repurchase Price pursuant to
such sections and all other amounts required to be paid to the
Purchaser with respect to such XXX and it being further
understood that upon liquidation of the related XXX, the
Servicer shall have the right to reimburse itself for Monthly
Advances from payments of principal and/or interest on the
remainder of the XXXx;
(3) to reimburse itself for
unreimbursed Servicing Advances and for any unpaid Servicing
Fees, the Servicer's right to reimburse itself pursuant to this
subclause (iii) with respect to any XXX 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 related to the XXX, it
being understood that, in the case of any such reimbursement,
the Servicer's right thereto shall be prior to the rights of
the Purchaser, except where the Servicer is required to
repurchase a XXX pursuant to Section 4.3, 4.4 or 7.2, in which
case the Servicer's right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required
to be paid to the Purchaser with respect to such XXX and it
being further understood that upon the liquidation of the
related XXX, the Servicer shall have the right to reimburse
itself for unreimbursed Servicing Advances and unpaid Servicing
Fees from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected
by the Servicer on the remainder of the XXXx;
(4) to pay itself interest on
funds deposited in the Collection Account and itself the
Servicing Fee from that portion of any payment or recovery
which represents interest with respect to a particular XXX;
(5) to reimburse itself for
expenses incurred and reimbursable to it pursuant to Section [ ];
(6) to pay any amount required to
be paid pursuant to Section 5.16 related to any REO Property, it
being understood that in the case of any such expenditure or
withdrawal related to a particular REO Property, the amount of
such expenditure or withdrawal from the Collection Account shall
be limited to amounts on deposit in the Collection Account with
respect to the related REO Property;
(7) to transfer money to the
account created pursuant to a securitization in the amounts and
in the manner specified in the agreements pursuant to which the
Purchaser intends to effect a Pass-Through Transfer or Whole
Loan Transfer, if applicable; and
(8) to clear and terminate the
Collection Account upon the termination of this Agreement.
On each Distribution Date, the Servicer shall withdraw
all funds from such Collection Account. The Servicer may use such withdrawn
funds only for the purposes described in this Section 5.5.
Section 6. Establishment of, and Deposits to, Escrow Account.
The Servicer shall segregate and hold all funds collected
and received pursuant to a XXX constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled, "Escrow Account, in trust for the Purchaser, pursuant to
that certain Sale and Servicing Agreement dated as of ______ [2000], by and
between Bear Xxxxxxx Mortgage Capital Corporation and ________." The Escrow
Accounts shall be established with a Qualified Depository, in a manner
which shall provide maximum available insurance thereunder. Any funds
deposited in an Escrow Account shall at all times be fully insured to the
full extent permitted under applicable law or must be invested in Permitted
Investments for the benefit of the Purchaser. Funds deposited in any Escrow
Account may be drawn on by the Servicer in accordance with Section 5.7. The
creation of any Escrow Account shall be evidenced by a certification in the
form of Exhibit F-1 hereto and a letter agreement in the form of Exhibit
F-2 hereto shall be executed in connection therewith with said Depository.
The Servicer shall deposit in such Escrow Account on a daily
basis and retain therein:
(1) all Escrow Payments
collected on account of the XXXx, for the purpose of effecting
timely payment of any such items as required under the terms of
this Agreement;
(2) all amounts representing
Insurance Proceeds or Condemnation Proceeds which are to be
applied to the restoration or repair of any Mortgaged Property;
and
(3) Servicing Advances for XXXx
and the Escrow Payments with respect to which are insufficient
to cover escrow disbursements.
The Servicer shall make withdrawals from any Escrow
Account only to effect such payments as are required under this Agreement,
as set forth in Section 5.7. The Servicer shall be entitled to retain any
interest paid on funds deposited in such Escrow Account by the depository
institution, other than interest on escrowed funds required by law to be
paid to the Mortgagor. To the extent required by law, the Servicer shall
pay interest on escrowed funds to the Mortgagor notwithstanding that such
Escrow Account may be non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section 7. Permitted Withdrawals From Escrow Account.
Withdrawals from any Escrow Account may be made by the
Servicer only:
(1) to effect timely payments of
ground rents, taxes, assessments, water rates, mortgage
insurance premiums, fire and hazard insurance premiums or other
items constituting Escrow Payments for the related Mortgage
permitted by the Mortgage;
(2) to reimburse the Servicer for
any Servicing Advances made by the Servicer pursuant to Section
5.8 with respect to a related XXX, but only from amounts
received on the related XXX which represent late collections of
Escrow Payments thereunder;
(3) to refund to any Mortgagor any
funds found to be in excess of the amounts required under the
terms of the related XXX;
(4) for transfer to the Collection
Account and application to reduce the principal balance of the
XXX in accordance with the terms of the related Mortgage and
Mortgage Note;
(5) for application to restoration
or repair of the Mortgaged Property in accordance with the
procedures outlined in Section 5.14;
(6) to pay to the Servicer or any
Mortgagor to the extent required by law, any interest paid on
the funds deposited in the Escrow Account;
(7) for transfer to the
Collection Account in connection with the acquisition of REO
Property; and
(8) to clear and terminate the
Escrow Account on the termination of this Agreement.
Section 8. Payment of Taxes, Insurance and Other Charges.
With respect to each XXX, the Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, 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 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, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. To the extent that a Mortgage does
not provide for Escrow Payments, the Servicer shall determine that any such
payments are made by the Mortgagor at the time that they first become due.
The Servicer assumes full responsibility for the timely payment of all such
bills and shall effect timely payment of all such charges irrespective of
each Mortgagor's faithful performance in the payment of same or the making
of the Escrow Payments, and the Servicer shall make Advances from its own
funds to effect such payments.
Section 9. Protection of Accounts.
The Servicer may transfer any Collection Account or any
Escrow Account to a different Qualified Depository from time to time with
the prior approval of the Purchaser. Amounts on deposit in any Collection
Account and any Escrow Account may at the option of the Servicer be invested
in Eligible Investments; provided that in the event that amounts on deposit
in any Collection Account or any Escrow Account (which shall be properly
titled to insure the funds in such account on a loan-by-loan basis) exceed
the amount fully insured by the FDIC (the "Insured Amount") the Servicer
shall be obligated to invest the excess amount over the Insured Amount in
Eligible Investments on the next Business Day as such excess amount becomes
present in any Collection Account or any Escrow Account. Any such Eligible
Investment shall mature no later than the Determination Date next following
the date of such Eligible Investment; provided, however, that if such
Eligible Investment is an obligation of a Qualified Depository (other than
the Servicer) that maintains any Collection Account or any Escrow Account,
then such Eligible Investment may mature on such Distribution Date. Any such
Eligible Investment shall be made in the name of the Servicer in trust for
the benefit of the Purchaser. All income on or gain realized from any such
Eligible Investment shall be for the benefit of the Servicer and may be
withdrawn at any time by the Servicer. Any losses incurred in respect of any
such investment shall be deposited in any Collection Account or any Escrow
Account, by the Servicer out of its own funds immediately as realized.
Section 10. Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for, to the
extent permitted in each XXX, hazard insurance such that all buildings upon
the Mortgaged Property are insured against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where
the Mortgaged Property is located, in an amount which is at least equal to
the full replacement value of the improvements securing such XXX (where
permitted) by companies that currently reflect a General Policy Rating in
Best's Key Rating Guide ("Best's") currently acceptable to Xxxxxx Xxx and
are licensed to do business in the state wherein its property subject to
the policy is located (a "Best's Approved Insurer").
If upon origination of the XXX, the related Mortgaged
Property was located in an area identified in the Federal Register by the
Flood Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance policy meeting
the requirements of the current guidelines of the Flood Insurance
Administration is in effect with a Best's Approved Insurer in an amount
representing coverage equal to the lesser of (i) the outstanding principal
balance of the XXX, (ii) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement cost basis
(or the unpaid balance of the mortgage if replacement cost coverage is not
available for the type of building insured) and (iii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of
1973, as amended. If at any time during the term of the XXX, the Servicer
determines in accordance with applicable law and pursuant to the Xxxxxx Xxx
Guides and Xxxxxxx Mac Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is
covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Servicer shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage, and
if said Mortgagor fails to obtain the required flood insurance coverage
within forty-five (45) days after such notification, the Servicer shall
immediately force place the required flood insurance on the Mortgagor's
behalf.
It is understood and agreed that no other additional
insurance need be required by the Servicer or the Mortgagor or maintained
on property acquired in respect of the XXXx, other than pursuant to the
Xxxxxx Mae Guide or Xxxxxxx Mac Guide or such applicable state or federal
laws and regulations as shall at any time be in force and as shall require
such additional insurance. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to the Servicer and its
successors and/or assigns and shall provide for at least thirty days prior
written notice of any cancellation, reduction in the amount or material
change in coverage to the Servicer. The Servicer shall not interfere with
the Mortgagor's freedom of choice in selecting either his insurance carrier
or agent, provided, however, that the Servicer shall not accept any such
insurance policies from insurance companies unless such companies are a
Best's Approved Insurer. The Servicer shall determine that such policies
provide sufficient risk coverage and amounts, that they insure the property
owner and that they properly describe the property address.
[The Servicer shall cause to be maintained on each
Mortgaged Property earthquake or such other or additional insurance as may
be required pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance, or
pursuant to the requirements of any private mortgage guaranty insurer, or
as may be required to conform with Accepted Servicing Practices.]
In the event that the Purchaser or the Servicer shall
determine that the Mortgaged Property should be insured against loss or
damage by hazards and risks not covered by the insurance required to be
maintained by the Mortgagor pursuant to the terms of the Mortgage, the
Servicer shall communicate and consult with the Mortgagor with respect to
the need for such insurance and bring to the Mortgagor's attention the
desirability of protection of the Mortgaged Property.
Pursuant to Section 5.4, any amounts collected by the
Servicer under any such policies (other than amounts to be deposited in any
Escrow Account and applied to the restoration or repair of the related
Mortgaged Property, or property acquired in liquidation of the XXX, or to
be released to the Mortgagor, in accordance with the Servicer's normal
servicing procedures as specified in Section 5.14) shall be deposited in
any Collection Account subject to withdrawal pursuant to Section 5.5.
Section 11. Maintenance of Fidelity Bond and Errors and
Omissions Insurance.
The Servicer shall maintain with responsible companies,
at its own expense, a blanket Fidelity Bond and an Errors and Omissions
Insurance Policy, with broad coverage on all officers, employees or other
persons acting in any capacity requiring such persons to handle funds,
money, documents or papers relating to the XXXx ("Company Employees"). Any
such Fidelity Bond and Errors and Omissions Insurance Policy 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 and negligent acts of such Company Employees.
Such Fidelity Bond and Errors and Omissions Insurance Policy also shall
protect and insure the Servicer against losses in connection with the
release or satisfaction of a XXX without having obtained payment in full of
the indebtedness secured thereby. No provision of this Section 5.12
requiring such Fidelity Bond and Errors and Omissions Insurance Policy
shall diminish or relieve the Servicer from its duties and obligations as
set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the corresponding amounts
required by Xxxxxx Xxx in the Xxxxxx Mae Guide or Xxxxxxx Mac in the
Xxxxxxx Mac Guide. Upon the request of the Purchaser, the Servicer shall
cause to be delivered to the holder of such fidelity bond and insurance
policy a certified true copy of such fidelity bond and insurance policy.
The Servicer shall notify the Purchaser within five Business Days of
receipt of notice that such Fidelity Bond or Errors and Omission Policy
will be, or has been, materially modified or terminated. The Purchaser and
its successors or assigns as their interests may appear must be named as
loss payees on the Fidelity Bond and as additional insured on the Errors
and Omission Policy.
Section 12. Inspections.
The Servicer shall inspect the Mortgaged Property as
often as deemed necessary by the Servicer to assure itself that the value
of the Mortgaged Property is being preserved. In addition, if any XXX is
more than [60 days] delinquent, the Servicer shall inspect the Mortgaged
Property unless the Servicer deems such inspection unnecessary in
accordance with Accepted Servicing Practices and shall conduct subsequent
inspections in accordance with Accepted Servicing Practices or as may be
required by the primary mortgage guaranty insurer. The Servicer shall keep
a written report or electronic record of each such inspection.
Section 13. Restoration of Mortgaged Property.
The Servicer need not obtain the approval of the
Purchaser 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. 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 XXX is not in default; and
(4) pending repairs or
restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in any Escrow Account.
Section 14. Maintenance of Primary Mortgage Insurance Policy; Claims.
With respect to each XXX with a LTV in excess of 80%, the
Servicer shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a Primary Mortgage Insurance
Policy insuring that portion of the XXX in excess of 80% of value, and
shall pay or shall cause the Mortgagor to pay the premium thereon on a
timely basis, until the LTV of such XXX is reduced to 80% or less. In the
event that such Primary Mortgage Insurance Policy shall be terminated, the
Servicer shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage
of such terminated Primary Mortgage Insurance Policy. If the insurer shall
cease to be a Qualified Insurer, the Servicer shall determine whether
recoveries under the Primary Mortgage Insurance Policy are jeopardized for
reasons related to the financial condition of such insurer, it being
understood that the Servicer shall in no event have any responsibility or
liability for any failure to recover under the Primary Mortgage Insurance
Policy for such reason. If the Servicer determines that recoveries are so
jeopardized, it shall notify the Purchaser and the Mortgagor, if required,
and obtain from another Qualified Insurer a replacement insurance policy.
The Servicer shall not take any action which would result in noncoverage
under any applicable Primary Mortgage Insurance Policy of any loss which,
but for the actions of the Servicer would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to
be entered into pursuant to Section 7.1, 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 Primary Mortgage Insurance 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.
In connection with its activities as servicer, the
Servicer agrees to prepare and present claims to the insurer under any
Primary Mortgage Insurance Policy in a timely fashion in accordance with
the terms of such Primary Mortgage Insurance Policy and, in this regard, to
take such action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policy respecting a defaulted XXX. Pursuant to Section
5.4, any amounts collected by the Servicer under any Primary Mortgage
Insurance Policy shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 5.5.
Section 15. Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be taken in the name of the Purchaser or its
designee. The Person or Persons holding such title other than the Purchaser
shall acknowledge in writing that such title is being held as nominee for
the Purchaser.
The Servicer shall manage, conserve, protect and operate
each REO Property for the Purchaser solely for the purpose of its prompt
disposition and sale. The Servicer, either itself or through an agent
selected by the Servicer shall manage, conserve, protect and operate the
REO Property in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same
manner that similar property in the same locality as the REO Property is
managed. Each REO Disposition shall be carried out by the Servicer at such
price and upon such terms and conditions as the Servicer deems to be in the
best interest of the Purchaser. The REO Disposition Proceeds from the sale
of the REO Property shall be promptly deposited in the Collection Account.
As soon as practical thereafter, the expenses of such sale shall be paid
and the Servicer shall reimburse itself for any related unreimbursed
Servicing Advances, unpaid Servicing Fees or unreimbursed Monthly Advances
made pursuant to Section 6.3, in accordance with Section 5.5. The net cash
proceeds of such sale remaining in any Collection Account shall be
distributed as set forth in Section 6.1 hereof
The Servicer shall also maintain on each REO Property
fire and hazard insurance with extended coverage in amount which is at
least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended,
flood insurance in the amount required above.
The Servicer shall withdraw from any Collection Account
as set forth in Section 5.5 herein funds necessary for the proper
operation, management and maintenance of the REO Property, including the
cost of maintaining any hazard insurance pursuant to Section 5.10 and the
fees of any managing agent of the Servicer or the Servicer itself. The REO
management fee shall be an amount that is reasonable and customary in the
area where the Mortgaged Property is located. The Servicer shall make
monthly distributions on each Distribution Date to the Purchaser of the net
cash flow from the REO Property (which shall equal the revenues from such
REO Property net of the expenses described in this Section 5.16 and of any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
The Servicer shall notify the Purchaser in accordance
with the Xxxxxx Mae Guide or Xxxxxxx Mac Guide of each acquisition of REO
Property upon such acquisition, and thereafter assume the responsibility
for marketing such REO Property in accordance with Accepted Servicing
Practices. Thereafter, the Servicer shall continue to provide certain
administrative services to the Purchaser relating to such REO Property as
set forth in this Section 5.16. The REO Property must be sold within three
years following the end of the calendar year of the date of acquisition,
unless a REMIC election has been made with respect to the arrangement under
which the XXXx and REO Property are held and (i) the Purchaser shall have
obtained an Opinion of Counsel to the effect that the holding by the
related trust of such Mortgaged Property subsequent to such three-year
period (and specifying the period beyond such three-year period for which
the Mortgaged Property may be held will not result in the imposition of
taxes on "prohibited transactions" of the related trust as defined in
Section 860F of the Code, or cause the related REMIC to fail to qualify as
a REMIC, in which case the related trust may continue to hold such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel), or (ii) the Purchaser (at the Servicer's expense) or the Servicer
shall have applied for, prior to the expiration of such three-year period,
an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable period. 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 Purchaser as to
progress being made in selling such REO Property and (ii) if, with the
written consent of the Purchaser, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the
Servicer as mortgagee, and such purchase money mortgage shall not be held
pursuant to this Agreement, but instead a separate participation agreement
between the Servicer and Purchaser shall be entered into with respect to
such purchase money mortgage.
Notwithstanding any other provision of this Agreement, if
a REMIC election has been made, no Mortgaged Property held by a REMIC shall
be rented (or allowed to continue to be rented) or otherwise use for the
production of income by or on behalf of the related trust or sold in such a
manner or pursuant to any terms that would (i) cause such Mortgaged
Property to fail to qualify at any time as "foreclosure property" within a
meaning of Section 860G(a)(8) of the Code, (ii) subject the related trust
to the imposition of any federal or state income taxes on "net income from
foreclosure property" with respect to such Mortgaged Property within the
meaning of Section 860G(c) of the Code, or (iii) cause the sale of such
Mortgaged Property to result in the receipt by the related trust of any
income from non-permitted assets as described in Section 860F(a)(2)(B) of
the Code, unless the Servicer has agreed to indemnify and hold harmless the
related trust with respect to the imposition of any such taxes.
The Servicer shall cause each REO Property to be
inspected promptly upon the acquisition of title thereto and shall cause
each REO Property to be inspected at least monthly thereafter or more
frequently as may be required by the circumstances. The Servicer shall make
or cause the inspector to make a written report of each such inspection.
Such reports shall be retained in the Mortgage File and copies thereof
shall be forwarded by the Servicer to the Purchaser.
Section 16. Real Estate Owned Reports.
Together with the statement furnished pursuant to Section
6.2, the Servicer shall furnish to the Purchaser on or before the
Distribution Date each month a statement with respect to any REO Property
covering the operation of such REO Property for the previous month and the
Servicer's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information as the
Purchaser shall reasonably request.
Section 17. Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or
the acquisition thereof by the Purchaser pursuant to a deed in lieu of
foreclosure, the Servicer shall submit to the Purchaser a liquidation
report with respect to such Mortgaged Property.
Section 18. Reports of Foreclosures and Abandonments
of Mortgaged Property.
Following the foreclosure sale or abandonment of any
Mortgaged Property, the Servicer shall report such foreclosure or
abandonment as required pursuant to Section 6050J of the Code.
Section 19. Appraisals: Qualified Major Home Improvements. As
required by each Mortgage Note, the Servicer shall cause the Mortgagors to
conduct appraisals to determine the value of the Mortgaged Property in the
context of Qualified Major Home Improvements (as such term is defined in
the related Mortgage Note) and on the earlier of the maturity date of the
related XXX and the occurrence of a Mortgage Termination Event. The
Servicer shall adjust the Adjusted Value of the Mortgaged Property and the
Settlement Value of each such XXX as provided in such Mortgage Note as a
result of such appraisals and calculate any amount due to the Mortgagor
upon the maturity of the related XXX or the occurrence of a Mortgage
Termination Event. Multiple appraisals shall be conducted as provided in
such Mortgage Note. The appraiser conducting any such appraisal, and the
initial appraisal, shall be chosen from a schedule of appraisers attached
hereto as Schedule I. Such schedule may be amended from time to time by the
Purchaser in its able discretion. A Qualified Major Home Improvement shall
include any improvement items shown on Schedule III. Such schedule may be
amended from time to time by the Purchaser in its sole discretion for any
XXXx to be originated by the Seller.
Section 20. Fees That The Servicer Will Collect. As provided in such
Mortgage Note, the Servicer will charge and collect from each Mortgagor:
(i) at the maturity date for the XXX or upon the Mortgagor's knowledge of
the occurrence of a Mortgage Termination Event, a fee for the costs
associated with the payoff in full of the Mortgage Note; and (ii) in
connection with each Qualified Major Home Improvement (as such term is
defined in the related Mortgage Note), a fee for the costs
associated with adjusting the Mortgaged Property's Adjusted Value resulting
from the Qualified Major Home Improvement (as such term is defined the
related Mortgage Note) and otherwise complying with such Mortgage Note. The
amount of all fees collected pursuant to this Section shall be specified in
the Mortgage Note.
Section 21. Certificate of Occupancy. In accordance with the Mortgage
Note, the Servicer will cause each Mortgagor to sign an occupancy
certificate provided by the Seller from time to time, certifying that the
Mortgaged Property is occupied.
ARTICLE VI - PAYMENTS TO PURCHASER
Section 1. Remittances.
On each Distribution Date, the Servicer shall remit to
the Purchaser (i) all amounts credited to the Collection Account as of the
close of business on the related preceding Determination Date, except
Principal Prepayments received on or after the first day of the calendar
month in which the Distribution Date occurs shall be remitted to the
Purchaser on the next following Distribution Date, net of charges against
or withdrawals from the Collection Account pursuant to Section 5.5, plus,
to the extent not already deposited in the Collection Account, the sum of
(ii) all Monthly Advances, if any, which the Servicer is obligated to
distribute pursuant to Section 6.3 and (iii) all Prepayment Interest
Shortfalls that the Servicer is required to make up pursuant to Section 5.5
minus (iv) any amounts attributable to Monthly Payments collected but due
on a Due Date or Dates subsequent to the related preceding Determination
Date, which amounts shall be remitted on the related Distribution Date next
succeeding the Due Period for such amounts. It is understood that with
respect to each Closing Date, by operation of Section 5.4, the remittance
on the first Distribution Date with respect to XXXx purchased pursuant to
the related Transfer Supplement is to include principal collected after the
related Cut-off Date through the related preceding Determination Date plus
interest, adjusted to the related Remittance Rate collected through such
Determination Date exclusive of any portion thereof allocable to the period
prior to the related Cut-off Date, with the adjustments specified in
clauses (ii), (iii) and (iv) above.
With respect to any remittance received by the Purchaser
after the Business Day on which such payment was due hereunder, the
Servicer shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each
change, plus two percentage points, but in no event greater than the
maximum amount permitted by applicable law. Such interest shall be
deposited in the Collection Account by the Servicer on the date such late
payment is made and shall cover the period commencing with the day
following such Business Day and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along with
the distribution payable on the next succeeding related Distribution Date.
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 2. Statements to Purchaser.
The Servicer shall furnish to the Purchaser an individual
XXX accounting report (a "Report"), as of the last Business Day of each
month, in the Servicer's assigned loan number order to document XXX payment
activity on an individual XXX basis. With respect to each month, such
Report shall be received by the Purchaser no later than the fifth Business
Day of the following month of the related Distribution Date on a disk or
tape or other computer-readable format, in such format as may be mutually
agreed upon by both the Purchaser and the Servicer, and in hard copy, which
Report shall contain the following:
(1) with respect to each Monthly Payment (on
both an actual and scheduled basis with respect to XXX balances
and on an actual basis with respect to paid-through dates), the
amount of such remittance allocable to principal (including a
separate breakdown of any Principal Prepayment, including the
date of such prepayment, and any prepayment penalties or
premiums, along with a detailed report of interest (including
any Prepayment Interest Shortfall) on Principal Prepayment
amounts remitted in accordance with Section 6.1);
(2) with respect to each Monthly Payment, the
amount of such remittance allocable to principal, Stated
Interest and Additional Interest;
(3) the amount of servicing compensation
received by the Servicer during the prior distribution period;
(4) the aggregate Stated Principal Balance of
the XXXx;
(5) the amount of Monthly Advances made by
the Servicer pursuant to Section 6.3;
(6) the aggregate of any expenses reimbursed
to the Servicer during the prior distribution period pursuant
to Section 5.5;
(7) the number and aggregate outstanding
principal balances of XXXX (a) delinquent (1) 30 to 59 days,
(2) 60 to 89 days, (3) 90 days or more; (b) as to which
foreclosure has commenced; and (c) as to which REO Property has
been acquired; and
(8) such other reports as may reasonably be
required by the Purchaser.
The Servicer shall also provide a trial balance, sorted
in the Purchaser's assigned loan number order, in such form as the Servicer
and the Purchaser shall agree, with each such Report.
The Servicer shall prepare and file any and all
information statements or other filings required to be delivered to any
governmental taxing authority or to the Purchaser pursuant to any
applicable law with respect to the XXXx and the transactions contemplated
hereby. In addition, the Servicer shall provide the Purchaser with such
information concerning the XXXx as is necessary for the Purchaser to
prepare its federal income tax return as the Purchaser may reasonably
request from time to time.
In addition, not more than 60 days after the end of each
calendar year, the Servicer shall furnish to the Purchaser an annual
statement in accordance with the requirements of applicable federal income
tax law as to the aggregate of remittances of principal and interest,
including Additional Interest, for the applicable portion of such year.
Section 3. Monthly Advances by Servicer.
On the Business Day immediately preceding each
Distribution Date, the Servicer shall deposit in the Collection Account
from its own funds an amount equal to all Monthly Payments (with interest
adjusted to the Remittance Rate) which were due on the XXXx during the
applicable Due Period and which were delinquent at the close of business on
the immediately preceding Determination Date or which were deferred
pursuant to Section 5.1. The Servicer's obligation to make such Monthly
Advances as to any XXX will continue through the last Monthly Payment due
prior to the payment in full of the XXX, or through the last Distribution
Date prior to the Distribution Date for the distribution of all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds and
Condemnation Proceeds) with respect to the XXX unless the Servicer provides
an Officer's Certificate based on the Servicer's reasonable determination
stating that such Monthly Advance would not be recoverable. [The Servicer
shall obtain an appraisal to support its conclusion that such Advance is
not recoverable.]
ARTICLE VII - GENERAL SERVICING PROCEDURES
Section 1. Transfers of Mortgaged Property.
The Servicer shall enforce the Mortgage Termination Event
provision of the Mortgage Note and Mortgage in accordance with Accepted
Servicing Practices and applicable law 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. When the Mortgaged Property
has been conveyed by the Mortgagor, the Servicer shall, to the extent it
has knowledge of such conveyance, exercise its rights to accelerate the
maturity of such XXX under the Mortgage Termination Event clause; provided,
however, that the Servicer shall not exercise such rights if prohibited by
law or the related Mortgage Note from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related
Primary Mortgage Insurance Policy, if any.
If the Servicer reasonably believes it is unable under
applicable law to enforce such Mortgage Termination Event clause, the
Servicer shall with the Purchaser's prior written approval enter into (i)
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 the original Mortgagor remains liable thereon
or (ii) in the event that the Servicer is unable under applicable law to
require that the original Mortgagor remain liable under the Mortgage Note
and the Servicer has the prior consent of the primary mortgage guaranty
insurer, 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. If an assumption
fee is collected by the Servicer for entering into an assumption agreement,
such fee will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, neither the Stated
Interest Rate borne by the related Mortgage Note, the Appreciation Share,
any Mortgage Termination Events, the term of the XXX, nor the outstanding
principal amount of the XXX shall be changed.
In connection with any such assumption or substitution of
liability, the Servicer shall follow the underwriting practices and
procedures of the Xxxxxx Mae Guide or Xxxxxxx Mac Guide. The Servicer shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser the original of
any such substitution of liability or assumption agreement, which document
shall be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. All fees collected
by the Servicer for entering into an assumption or substitution of
liability agreement shall belong to the Servicer.
Notwithstanding the foregoing paragraphs of this Section
or any other provision of this Agreement, the Servicer shall not be deemed
to be in default, breach or any other violation of its obligations
hereunder by reason of any assumption of a XXX by operation of law or any
assumption which the Servicer may be restricted by law from preventing, for
any reason whatsoever. For purposes of this Section 7.1, 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 2. Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any XXX, 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 shall notify the Purchaser
in the Monthly Remittance Advice as provided in Section 6.2 and may request
the release of any documents in the Mortgage File. Upon receipt of such
certification and request, the Purchaser shall promptly release or cause
the Custodian to promptly release the related documents in the Mortgage
File to the Servicer and the Servicer shall prepare and deliver for
execution by the Purchaser or at the Purchaser's option execute under the
authority of a power of attorney delivered to the Servicer by the Purchaser
any satisfaction or release. No expense incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to
the Collection Account.
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
Purchaser may have under the mortgage instruments, upon written demand of
the Purchaser, the Servicer shall repurchase the related XXX at the
Repurchase Price by deposit thereof in the Collection Account within two
Business Days of receipt of such demand by the Purchaser. The Servicer
shall maintain the Fidelity Bond and Errors and Omissions Insurance Policy
as provided for in Section 5.12 insuring the Servicer against any loss it
may sustain with respect to any XXX not satisfied in accordance with the
procedures set forth herein.
From time to time and as appropriate for the servicing or
foreclosure of the XXX including for the purpose of collection under any
Primary Mortgage Insurance Policy, upon request of the Servicer and
delivery to the Custodian of a servicing receipt signed by a Servicing
Officer, the Custodian shall release the portion of the Mortgage File held
by the Custodian to the Servicer. Such servicing receipt shall obligate the
Servicer to return promptly the related documents in the Mortgage File to
the Custodian, when the need therefor by the Servicer no longer exists,
unless the XXX has been liquidated and the Liquidation Proceeds relating to
the XXX have been deposited in the Collection Account or the Mortgage File
or such document has been delivered to an attorney, or to a public trustee
or other pubic official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Servicer
has promptly delivered to the Purchaser or the Custodian a certificate of a
Servicing Officer certifying as to the name and address of the Person to
which such Mortgage File or such document was delivered and the purpose or
purposes of such delivery. Upon receipt of a certificate of a Servicing
Officer stating that such XXX was liquidated, the servicing receipt shall
be released by the Purchaser or the Custodian, as applicable, to the
Servicer.
Section 3. Servicing Compensation.
As compensation for its services hereunder, the Servicer
shall be entitled to retain from interest payments on each XXX, the amount
of its Servicing Fee with respect thereto. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the same unpaid
principal balance and for the period respecting which any related interest
payment on a XXX is computed. The Servicing Fee shall be payable only at
the time of and with respect to those XXXx for which payment is in fact
made of the entire amount of the Monthly Payment. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and payable solely from,
the interest portion of such Monthly Payments collected by the Servicer.
Additional servicing compensation includes late charges
and other ancillary income. 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 thereof except as
specifically provided for herein.
Section 4. Annual Statement as to Compliance.
The Servicer shall deliver to the Purchaser, on or before
December 31 each year beginning December 31, 199_, an Officer's
Certificate, stating that (i) a review of the activities of the Servicer
during the preceding [fiscal] year ended and of performance under this
Agreement has been made under such officer's supervision, (ii) the Servicer
has complied with the provisions of Article III and Article V, and (iii) to
the best of such officer's knowledge, based on such review, the Servicer
has fulfilled its obligations in all material respects under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof and the action being taken by the Servicer to
cure such default.
Section 5. Annual Independent Public Accountants' Servicing Report.
On or before December 31, of each year, beginning with
the first December 31 that occurs at least six months after the date of
execution of this Agreement, the Servicer, at its expense, shall cause a
firm of independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Purchaser to the effect that such firm has examined certain documents and
records relating to the servicing of XXXx and that, on the basis of an
examination conducted substantially in compliance with the Uniform Single
Audit Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for Xxxxxx Mae or Xxxxxxx Mac, such servicing has been conducted
in compliance with such agreements except for such significant exceptions
or errors in records that, in the opinion of such firm, the Uniform Single
Audit Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for Xxxxxx Mae or Xxxxxxx Mac requires it to report. In rendering
such statement, such firm may rely, as to matters relating to direct
servicing of XXXx by the Servicer, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single
Audit Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for Xxxxxx Xxx or Xxxxxxx Mac (rendered within one year of such
statement) of independent public accountants with respect to the Servicer.
The Servicer shall forward a copy of each such report to the Rating Agency.
Section 6. Right to Examine Servicer Records.
The Purchaser shall have the right to reasonable access
to the books, records, or other information of the Servicer, whether held
by the Servicer or by another on its behalf, with respect to or concerning
this Agreement or the XXXx, during regular business hours or at such other
times as may be reasonable under applicable circumstances, upon reasonable
advance notice.
The Servicer shall provide to the Purchaser and any
supervisory agents or examiners representing a state or federal
governmental agency having jurisdiction over the Purchaser, including but
not limited to OTS, Xxxxxx Xxx, Xxxxxxx Mac and other similar entities,
access to any documentation regarding XXXx in the possession of the
Servicer which may be required by any applicable regulations. Such access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Servicer, and in accordance with
the applicable federal government agency, Xxxxxx Xxx, OTS, or any other
similar regulations.
Section 7. Removal of XXXx from Inclusion under this Agreement upon a
Whole Loan Transfer or Pass-Through Transfer.
(a) The Servicer acknowledges that with respect to
some or all of the XXXx, the Purchaser intends to effect one or more Whole
Loan Transfers and/or one or more Pass-Through Transfers. With respect to
each Whole Loan Transfer or Pass-Through Transfer, as the case may be,
entered into by the Purchaser, the Servicer agrees:
(i) to cooperate fully with the Purchaser,
any prospective purchaser, any rating agency or any party to any agreement
executed in connection with such Whole Loan Transfer or Pass-Through
Transfer, with respect to all reasonable requests and due diligence
procedures and to use its best efforts to facilitate such Whole Loan
Transfer or Pass-Through Transfer, as the case may be, and
(ii) to execute all agreements executed in
connection with such Whole Loan Transfer or Pass-Through Transfer that
govern the servicing and administration of the XXXx (and any agreements and
other documents incidental thereto) as the Purchaser shall request, which
governing documents, in the case of a Pass-Through Transfer, shall contain
provisions customarily included in publicly issued or privately placed
rated secondary mortgage market transactions and, in the case of a Whole
Loan Transfer, shall contain servicing provisions in accordance with the
Xxxxxx Mae or Xxxxxxx Mac Guide, at the Servicer's option, plus all
provisions herein which are unique to the servicing of XXXx; and
(iii) as of the closing date of the Whole
Loan Transfer or Pass-Through Transfer, as the case may be, (a) to restate,
for the benefit of the owners of the XXXx, the representations and
warranties contained in Sections 4.1 and 4.2, (b) to make, for the benefit
of the owners of the XXXx, the same representations and warranties that the
Purchaser is giving with respect to the Whole Loan Transfer or Pass-Through
Transfer, as the case may be, and (c) to make those certain servicing
representations and warranties required by Xxxxxx Xxx or Xxxxxxx Mac, as
the case may be, with respect to such Whole Loan Transfer, to such entity,
as applicable; and
(iv) with respect to a Pass-Through Transfer
only, at the Purchaser's request, (a) to execute an agreement, as servicer,
with a certificateholder of the related subordinate securities issued in
connection with such Pass-Through Transfer, in the form of Investor
Agreement attached hereto as [Exhibit ,] which shall govern the treatment
of delinquent XXXx and (b) to deliver to the Purchaser, for inclusion in
the offering document for the related securities, origination and servicing
disclosure as may be necessary and as may be mutually agreed upon by the
Servicer and the Purchaser, and in connection with the delivery of such
disclosure, an agreed-upon procedures letter concerning such disclosure,
which letter shall be issued by an accounting firm selected by the Servicer
and acceptable to the Purchaser.
(b) Subject to the first sentence of this Section
7.7(b), in connection with any Whole Loan Transfer or Pass-Through
Transfer, the Servicer may be required to do the following, including but
not limited to:
(i) deliver an Opinion of Counsel or
Opinions of Counsel required by any Rating Agency or any
underwriter for the Whole Loan Transfer or Pass-Through Transfer;
(ii) permit any Rating Agency,
insurer or underwriter to perform due diligence on the Servicer;
(iii) submit to the Purchaser disclosure
regarding the business of the Servicer which is intended for
use in the prospectus or offering circular related to the Whole
Loan Transfer or Pass-Through Transfer; or
(iv) enter into any supplemental
agreements or amendment to this Agreement required by the
Rating Agencies in order to permit the Servicer to serve as the
servicer in the Whole Loan Transfer or Pass-Through Transfer or
reasonably required by the Purchaser.
If any of the Rating Agencies rating any securities
issued pursuant to a Pass- Through Transfer or if the Master Servicer do
not approve of the Servicer servicing any such XXXx in a Pass-Through
Transfer or Whole Loan Transfer then the Servicer shall transfer servicing
to the servicer of the trust created as a result of such Pass-Through
Transfer in the manner specified in Section 13.1. The Servicer shall serve
as servicer for any trust created as a result of such Pass- Through
Transfer under this Agreement if the Servicer otherwise qualifies as a
servicer as provided herein, if the Servicer sells the Portfolio to the
Purchaser on a servicing-retained basis as provided in the applicable
Transfer Supplement and the applicable Rating Agencies approve. If such
sale is made on a servicing-released basis, the Servicer shall be required
to transfer its obligations to a successor Servicer for the Pass-Through or
Whole Loan Transfer.
All XXXx not sold or transferred pursuant to a Whole Loan
Transfer or Pass- Through Transfer shall continue to be serviced in
accordance with the terms of this Agreement.
Section 8. Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the
arrangement under which the XXXx 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 in Section 860F(a)(2) of the Code and the tax on
"contribution" to a REMIC set forth in Section 860G(d) of the Code unless
the Servicer has received an Opinion of Counsel (at the expense of the
party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of
any such tax.
ARTICLE VIII - SERVICER TO COOPERATE
Section 1. Provision of Information.
During the term of this Agreement, the Servicer shall
furnish to the Purchaser such periodic, special, or other reports or
information and copies or originals of any documents contained in the
Servicing File for each XXX, whether or not provided for herein, as shall
be necessary, reasonable, or appropriate with respect to the Purchaser. All
such reports, documents or information shall be provided by and in
accordance with all reasonable instructions and directions which the
Purchaser may give.
The Servicer shall execute and deliver all such
instruments and take all such action as the Purchaser may reasonably
request from time to time, in order to effectuate the purposes and to carry
out the terms of this Agreement.
ARTICLE IX - THE SERVICER
Section 1. Liability of the Servicer.
The Servicer agrees to indemnify the Purchaser and hold
it harmless from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any other costs, fees and expenses that the Purchaser may sustain in any
way related to the failure of the Servicer to perform its duties hereunder
and service the XXXx in strict compliance with the terms of this Agreement
and for breach of any representation or warranty of the Servicer contained
herein. The Purchaser shall immediately notify the Servicer if a claim is
made by a third party with respect to this Agreement or the XXXx. The
Servicer shall assume (with the consent of the Purchaser and with counsel
reasonably satisfactory to the Purchaser) the defense of any such claim and
pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or the Purchaser in respect of such claim but failure to
so notify the Servicer shall not limit its obligations hereunder. The
Servicer agrees that it will not enter into any settlement of any such
claim without the consent of the Purchaser unless such settlement includes
an unconditional release of the Purchaser from all liability that is the
subject matter of such claim. The provisions of this Section 9.1 shall
survive termination of this Agreement.
Section 2. Merger or Consolidation of the Servicer.
Except as otherwise expressly provided in this Agreement,
the Servicer shall keep in full effect its existence, rights and franchises
as a corporation, and shall 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 XXXx and to perform its
duties under this Agreement.
Any person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person
succeeding to the business of the Servicer, 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 successor or
surviving Person shall be an institution (i) having a net worth of not less
than $25,000,000, (ii) if a depository institution, whose deposits are
insured by the FDIC through the BIF or the SAIF, and (iii) [which is a
Xxxxxx Mae or Xxxxxxx Mac approved lender in good standing].
Section 3. Limitation on Liability of Servicer and Others.
Neither the Servicer nor any of the directors, officers,
employees or agents of the Servicer shall be under any liability to the
Purchaser for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer or
any such person against any breach of warranties or representations made
herein, or 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 negligence or any breach of the terms and
conditions of this Agreement. The Servicer and any director, 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. The Servicer 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 XXXx in accordance with this
Agreement and which in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may, with the consent of
the Purchaser undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto. In such event, the Servicer shall be entitled to
reimbursement from the Purchaser of the reasonable legal expenses and costs
of such action.
Section 4. Limitation on Resignation and Assignment by the Servicer.
With respect to the retention of the Servicer to service
the XXXx hereunder, the Servicer acknowledges that the Purchaser has acted
in reliance upon the Servicer's independent status, the adequacy of its
servicing facilities, plan, personnel, records and procedures, its
integrity, reputation and financial standing and the continuance thereof.
Without in any way limiting the generality of this Section, the Servicer
shall not either assign this Agreement or the servicing hereunder or
delegate its rights or duties hereunder or any portion thereof, or sell or
otherwise dispose of all or substantially all of its property or assets,
without the prior written approval of the Purchaser, which consent shall be
granted or withheld in the Purchaser's sole discretion; provided that the
Servicer may assign the Agreement and the servicing hereunder without the
consent of Purchaser to an affiliate of the Servicer to which all servicing
of the Servicer is assigned so long as (i) such affiliate is a Xxxxxx Mae
or Xxxxxxx Mac approved servicer and (ii) if it is intended that such
affiliate be spun off to the shareholders of the Servicer, such affiliate
have a GAAP net worth of at least $10,000,000 and (iii) such affiliate
shall deliver to the Purchaser a certification pursuant to which such
affiliate shall agree to be bound by the terms and conditions of this
Agreement and shall certify that such affiliate is a Xxxxxx Mae or Xxxxxxx
Mac approved servicer in good standing.
The Servicer shall not resign from the obligations and
duties hereby imposed on it as to any XXX except by mutual consent of the
Servicer and the Purchaser or upon the determination that its duties
hereunder are no longer permissible under applicable law and such
incapacity cannot reasonably 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 Purchaser which
Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a successor
shall have assumed the Servicer's responsibilities and obligations
hereunder in the manner provided in Section 12.1.
Subject to the terms hereof (including release by the
Seller of such rights in the context of a sale by the Seller of a Portfolio
to the Purchaser pursuant to a Transfer Supplement and the transfer of such
rights by the Servicer in the context of a Pass-Through Transfer or Whole
Loan Transfer), the Servicer shall be prohibited from selling it servicing
rights, or transferring its servicing obligations, hereunder the life of
any XXX sold hereunder. The terms of any servicing agreement shall be
approved by the Purchaser, in its sole discretion.
ARTICLE X - DEFAULT
Section 1. Servicer Events of Default.
Each of the following shall constitute an Event of
Default on the part of the Servicer:
(1) any failure by the Servicer
to remit to any Collection Account, any payment required to be
made under the terms of this Agreement which failure continues
unremedied for one Business Day; or
(2) any failure by the Servicer
duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Servicer set
forth in this Agreement, any Transfer Supplement or in the
Custodial Agreement 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 Purchaser or by the Custodian; or
(3) any failure by the Servicer
to maintain any required licenses to do business in any jurisdiction
where the Mortgaged Property is located; or
(4) jurisdiction for the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, including bankruptcy, marshalling
of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of
60 days; or
(5) the Servicer shall consent
to the appointment of a conservator or receiver or liquidator
in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its
property; or
(6) the Servicer shall admit
in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations or cease its normal business
operations for [six] Business Days; or
(7) the Servicer or its parent
enters into a consent agreement or otherwise agrees in writing
with any federal or state regulatory agency or authority to
restrict its activities, if the default of such agreement by
the Servicer or its parent entitles such applicable federal or
state agency to place the Servicer in receivership or
conservatorship; or
(8) the Servicer's total capital
falls below fifty percent (50%) of any regulatory capital
requirement imposed by its principal supervisory regulatory
authority or its successor; or
(9) the Servicer ceases to be
approved by either Xxxxxx Mae or Xxxxxxx Mac as a mortgage loan
seller and servicer for more than thirty days; or
(10) the Servicer attempts to
assign its right to servicing compensation hereunder or the
Servicer attempts, without the consent of the Purchaser, to
sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder
or any portion thereof except as otherwise permitted herein.
In each and every such case, so long as an Event of
Default shall not have been remedied, in addition to whatsoever rights the
Purchaser may have at law or equity to damages, including injunctive relief
and specific performance, the Purchaser, by notice in writing to the
Servicer, may terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the XXXx and the proceeds thereof other
than its rights to receive unpaid but accrued Servicing Fees.
Upon receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with
respect to the XXXx or otherwise, shall pass to and be vested in the
successor appointed pursuant to Section 12.1. Upon written request from the
Purchaser, the Servicer shall prepare, execute and deliver to the successor
entity designated by the Purchaser any and all documents and other
instruments, place in such successor's possession all Mortgage Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not
limited to the transfer and endorsement or assignment of the XXXx and
related documents, at the Servicer's sole expense.
Section 2. Waiver of Defaults.
By a written notice, the Purchaser may waive any default
by the Servicer in the performance of its obligations hereunder and its
consequences. Upon any waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE XI - TERMINATION
Section 1. Termination.
This Agreement shall terminate upon (a) the exercise by
the Purchaser of its rights required by Section 11.2 and (b) the final
payment or other liquidation (or any advance with respect thereto) (other
than the Commitment which shall terminate as provided in Article II hereof)
of the last XXX sold hereunder or the disposition of any REO Property with
respect to such XXX and the remittance of all funds due hereunder.
Section 2. Termination Without Cause.
The Purchaser may, at its sole option, terminate any
rights the Servicer may have hereunder, with or without cause, upon 30 days
written notice. Any such notice of termination shall be in writing and
delivered to the Servicer by registered mail as provided in Section 12.5 of
this Agreement. If the Purchaser so terminates the rights of the Servicer
without cause, the Purchaser shall pay the Servicer a termination fee equal
to the fair market value of the rights of the Servicer under this Agreement
at the time of termination, as mutually agreed upon between the Servicer
and the Purchaser. If the Servicer and the Purchaser are unable to so agree
within thirty days after receipt by the Servicer of the termination notice,
such fair market value shall be determined within thirty days thereafter by
an investment banking firm of national standing with principal offices in
New York City, which determination shall be final and binding upon the
Servicer and the Purchaser. Upon the termination of the Servicer's rights
under this Agreement, the Purchaser shall have the right to cause the
Servicer to enter into a servicing agreement or pooling and servicing
agreement the terms of which are substantially similar to the terms of this
Agreement.
ARTICLE XII - MISCELLANEOUS PROVISIONS
Section 1. Successor to Servicer.
Prior to termination of the Servicer's responsibilities
and duties under this Agreement pursuant to Section 10.4, 11.1 or 12.2, the
Purchaser shall succeed to such obligations or appoint a successor having
the characteristics set forth in clauses (i) through (iii) of Section 10.2
and which 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 Servicer's responsibilities, duties
and liabilities under this Agreement. In connection with such appointment
and assumption, the Purchaser may make such arrangements for the
compensation of such successor out of payments on XXXx as it and such
successor shall agree. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise
under this Agreement and shall take no action whatsoever that might impair
or prejudice the rights or financial condition of its successor. The
resignation or removal of the Servicer pursuant to the aforementioned
sections shall not become effective until a successor shall be appointed
pursuant to this Section 12.1 and shall in no event relieve the Servicer of
the representations and warranties made pursuant to Sections 4.1 and 4.2
and the remedies available to the Purchaser under Sections 4.3 and 4.4, it
being understood and agreed that the provisions of such Sections 4.1, 4.2,
4.3 and 4.4 shall be applicable to the Servicer notwithstanding any such
sale, assignment, resignation or termination of the Servicer, or the
termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and the Purchaser an instrument
accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 4.1, except for
subsections [(i), (l) and (m)] thereof, whereupon such successor shall
become fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer, with like effect as if
originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Section 10.4, 11.1 or 12.2 shall not affect any claims that the Purchaser
may have against the Servicer arising out of the Servicer's actions or
failure to act prior to any such termination or resignation.
The Servicer shall deliver promptly to the successor
servicer the funds in any Collection Account and Escrow Account and all
Mortgage Files and related documents and statements held by it hereunder
and 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.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Purchaser by mail of such appointment in
accordance with the procedures set forth in Section 13.5.
Section 2. Amendment.
With respect to any XXX, this Agreement may only be
amended with the written consent of the Purchaser, and the Servicer in its
capacity as Seller and Servicer hereunder.
The costs and expenses associated with any such amendment
shall be borne by the party requesting the amendment.
Section 3. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS. THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 4. Duration of Agreement.
This Agreement shall continue in existence and effect
until terminated as herein provided. This Agreement shall continue
notwithstanding the Whole Loan Transfer or Pass-Through Transfer by the
Purchaser.
Section 5. Notices.
All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
(i) if to ____:
Attention:
or such other address as may hereafter be furnished to the Purchaser
in writing by ____;
(ii) if to Purchaser:
Attention:
Section 6. 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 provisions of this Agreement.
Section 7. 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 the Servicer shall be rendered as an independent contractor and
not as agent for the Purchaser.
Section 8. Execution; Successors and Assigns.
This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed to be an original; such
counterparts, together, shall constitute one and the same agreement. This
Agreement shall inure to the benefit of and be binding upon the Servicer
and the Purchaser and their respective successors and assigns.
Section 9. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the
Assignments of Mortgage is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated,
and in any other appropriate public recording office or elsewhere, such
recordation to be effected at the Seller's expense.
Section 10. Assignment by Purchaser.
Subject to the last sentence of this Section 13.10, the
Purchaser shall have the right, without the consent of the Seller, to
assign its interest under this Agreement with respect to a single XXX,
Portfolio of XXXx or all XXXx serviced hereunder to another Person. Upon
such assignment of rights and assumption of obligations, the assignee shall
accede to the rights and obligations hereunder of the Purchaser with
respect to such XXXx and the Purchaser as assignor shall be released from
all obligations hereunder with respect to such XXXx from and after the date
of such assignment and assumption. All references to the Purchaser in this
Agreement shall be deemed to include its assignee. Notwithstanding anything
contained in this Agreement to the contrary, the rights of the Purchaser to
indemnity from the Seller pursuant to Section 4.3, are not assignable and
shall inure only to the benefit of the Purchaser and to no other Person.
Section 11. Solicitation of Mortgagors.
The Seller and Servicer shall not knowingly conduct any
solicitations exclusively targeted to the Mortgagors for the purpose of
inducing or encouraging the early prepayment or refinancing of the related
Mortgage Loans. It is understood and agreed that promotions undertaken by
the Seller or the Servicer or any agent or affiliate of the Seller or the
Servicer which are directed to the general public at large or any Mortgagor
whose mortgage loan is serviced by the Seller or the Servicer, including,
without limitation, mass mailings based on commercially acquired mailing
lists, newspaper, radio and television advertisements shall not constitute
solicitation under this Section 12.11.
IN WITNESS WHEREOF, the Seller and the Purchaser have
caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
BEAR XXXXXXX MORTGAGE
CAPITAL CORPORATION,
as Purchaser
By:_______________________________
Name:
Title:
[Seller/Servicer]
By:______________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of ________, 199_ before me, a Notary
Public in and for said State, personally appeared ________, known to me to
be ______________ of __________________, the __________ that executed the
within instrument and also known to me to be the person who executed it on
behalf of said __________, and acknowledged to me that such __________
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed
my office seal the day and year in this certificate first above written.
---------------------------
Notary Public
My Commission expires ________
STATE OF )
) ss.:
COUNTY OF )
On the __ day of _______, 199_ before me, a Notary Public
in and for said State, personally appeared __________, known to me to be
______________ of __________________, the __________ that executed the
within instrument and also known to me to be the person who executed it on
behalf of said __________, and acknowledged to me that such __________
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed
my office seal the day and year in this certificate first above written.
---------------------------
Notary Public
My Commission expires ________
EXHIBIT A
FORM OF XXX SCHEDULE
With respect to individual XXXx:
Loan Number Borrower SSN
Seller ID Number Co-Borrower SSN
Servicer ID Number Borrower Age
Borrower Name Co-Borrower Age
Co-Borrower Name Number of Borrowers
Street Address of Mortgaged Property First Time Homebuyer (Y/N)
City Borrower Gender
State Co-Borrower Gender
Zip Code Borrower Race
Property Type Co-Borrower Race
Number of Units Borrower Income
Original Term Co-Borrower Income
Original LTV Monthly Housing Expense
Orig Appraisal Value Monthly Total Debt
Date of Orig Appraisal Housing Ratio
Sales Price (if applicable) Debt Ratio
State Interest Rate (Note Rate) Automated Market Value
Market Rate Condo Class
Appreciation Share Condo Project Name
Note Date Condo Project Code
First Pay Date GSE Data for 2-4 Family
Stated Maturity Date Eligible Rents Unit 1
Monthly Payment No. of Bedrooms Unit 1
Original Balance Eligible Rents Unit 2
Interest Paid to Date as of Cut-Off No. of Bedrooms Unit 2
Actual UPB as of Cut-off Eligible Rents Unit 3
Scheduled UPB as of Cut-off No. of Bedrooms Unit 3
Servicing Fee Eligible Rents Xxxx 0
Xxx Xxxx Xx. xx Xxxxxxxx Xxxx 0
PMI Certificate Number Delinquency
PMI Insurer Delinquency Counter
Mort Loss Percent Last Distribution Date on which
a payment is applied to the
outstanding principal balance
of the XXX
Remittance Rate as of Cut-off
Loan Purpose Number of Borrowers
Documentation Type (Full/Alt Only Implied Market Rate for the XXX
Occupancy (Primary Res Only) FICO Score
Prepayment Year Built
With respect to any Portfolio of XXXx:
Number of XXXx Current outstanding principal
balance of the XXXx
Weighted average Appreciation Share Weighted average Stated Interest
Rate of the XXXx
Weighted average maturity of the XXXx
EXHIBIT B
CONTENTS OF EACH SERVICING FILE
With respect to each XXX, the Servicing File shall include each
of the following items, which shall be available for inspection by the
Purchaser, and which shall be retained by the Servicer in the Servicing
File or delivered to the Custodian pursuant to Sections 3.1 and 3.3 of the
Sale and Servicing Agreement to which this Exhibit is attached (the
"Agreement"):
(a) A copy of the Mortgage File
(b) The original of any power of attorney.
(c) A copy of the original hazard insurance policy
and, if required by law, flood insurance policy, in accordance with
Section 5.10 of the Agreement.
(d) Residential loan application.
(e) XXX closing statement.
(f) Verification of employment and income.
(g) Verification of acceptable evidence of source
and amount of downpayment.
(h) Credit report on the Mortgagor.
(i) Residential appraisal report.
(j) Photograph of the Mortgaged Property.
(k) Survey of the Mortgaged Property.
(l) A 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.
(m) All required disclosure statements.
(n) If available, termite report, structural
engineer's report, water potability and septic certification.
(o) Sales contract.
(p) Tax receipts, insurance premium receipts,
ledger sheets, payment history from date of origination, 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 XXX file and which are required to document the XXX or to
service the XXX.
In the event an Officer's Certificate of the Seller is
delivered to the Custodian because of a delay caused by the public
recording office in returning any recorded document, the Seller shall
deliver to the Custodian, within 180 days of the Closing Date, 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 caused 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 Seller
shall be required to deliver to the Custodian the applicable recorded
document 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.
EXHIBIT C
CONTENTS OF EACH MORTGAGE FILE
The Mortgage File for each XXX shall include each of the
following items, which shall be delivered to the Custodian pursuant to
Section 3.1 of the Sale and Servicing Agreement to which this Exhibit is
annexed (the "Agreement"):
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of ___________, without recourse"
and signed in the name of the Seller by an authorized officer. If the XXX
was acquired by the Servicer in a merger, the endorsement must be by
"_______________, successor by merger to [name of predecessor]." If the XXX
was acquired or originated by the Servicer while doing business under
another name, the endorsement must be by "_______________ formerly known as
[previous name]." To the extent that there is no space on the face of the
Mortgage Note for endorsements, the endorsement may be contained on an
allonge, if state law so allows;
(b) The original of any guarantee executed in
connection with the Mortgage Note, if any;
(c) The original Mortgage with evidence of
recording thereon, and the original recorded power of attorney, if the
Mortgage was executed pursuant to a power of attorney, with evidence of
recording thereon. If in connection with any XXX, the Seller cannot deliver
or cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Seller shall
deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller stating that such
Mortgage has been dispatched to the appropriate public recording office for
recordation and that the original recorded Mortgage or a copy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of
a Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such public
recording office to be true and complete copy of the original recorded
Mortgage;
(d) The originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon;
(e) Any rider executed in connection with the
related Mortgage Note or Mortgage;
(f) The original Assignment of Mortgage from the
Seller, either in blank or in such form as directed by the Purchaser, which
assignment shall be in form and substance acceptable for recording
certified by an authorized officer of the Seller to be a true and correct
copy thereof; the originals, with evidence of recording thereon or in the
case where a public recording office retains the original Assignment of
Mortgage, a copy certified by such public recording office to be a true and
complete copy of the original recorded Assignment of Mortgage shall be
delivered promptly upon receipt thereof by the Seller;
(g) The originals of all intervening assignments
of mortgage with evidence of recording thereon, including warehousing
assignments, if any, or if any such intervening assignment has not been
returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of
mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such intervening assignment, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller 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 the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy
of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening
assignment;
(h) The Primary Mortgage Insurance Policy or
certificate of insurance where required pursuant to the Agreement;
(i) XXX closing statement (Form HUD-1) and any other
truth-in- lending or real estate settlement procedure forms required by
law;
(j) The original mortgagee title insurance policy
[or attorney's opinion of title and abstract of title];
(k) The original of any security agreement, chattel
mortgage or equivalent executed in connection with the Mortgage; and
(l) Such other documents as the Purchaser may
require.
EXHIBIT D-1
BEAR XXXXXXX MORTGAGE CAPITAL CORPORATION,
Purchaser
and
[Seller],
Seller
and
[Custodian],
Custodian
-------------------------
CUSTODIAL AGREEMENT
______ 1, 199_
-------------------------
Shared Appreciation Mortgage Loans
TABLE OF CONTENTS
Section 1 Definitions.......................................
Section 2 Delivery of Custodial Files.......................
Section 3 Initial Certification of the Custodian............
Section 4 Obligations of the Custodian......................
Section 5 Final Certification...............................
Section 6 Future Defects....................................
Section 7 Release for Servicing.............................
Section 8 Release for Payment...............................
Section 9 Fees of Custodian.................................
Section 10 Removal of Custodian..............................
Section 11 Transfer of Custodial Files upon Termination......
Section 12 Examination of Custodial Files....................
Section 13 Insurance of Custodian............................
Section 14 Counterparts......................................
Section 15 Periodic Statements...............................
Section 16 Governing Law.....................................
Section 17 Copies of Mortgage Documents......................
Section 18 No Adverse Interest of Custodian..................
Section 19 Termination by Custodian..........................
Section 20 Term of Agreement.................................
Section 21 Notices...........................................
Section 22 Successor and Assigns.............................
Section 23 Indemnification of Custodian......................
THIS AGREEMENT, dated as of _____1, by and among Bear
Xxxxxxx Mortgage Capital Corporation, a Delaware corporation having an
address at ________________________________ (the "Purchaser") and
____________________, a _______________ having an address at
________________________ (the "Seller"), and _________________, a
_____________ having an address at _______________________________ (the
"Custodian");
W I T N E S S E T H
WHEREAS, the Purchaser has agreed to purchase certain XXXx
(each, a "XXX") from the Seller as whole loans, pursuant to the terms and
conditions of a Sale and Servicing Agreement of even date herewith, between
the Purchaser and the Seller named therein (the "Sale and Servicing
Agreement");
WHEREAS, ____ is to service the XXXx pursuant to the terms and
conditions of the Sale and Servicing Agreement; and
WHEREAS, the Custodian is a ___________________________
regulated by _______________________________, and is otherwise authorized
to act as Custodian pursuant to this Agreement. The Purchaser desires to
have the Custodian take possession of the Mortgages and Mortgage Notes,
along with certain other documents specified herein, as the bailee of the
Purchaser and any future purchaser, including any applicable Trustee, in
accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual undertakings
herein expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
-----------
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Sale and Servicing Agreement.
Agreement: This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
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, which
assignment, notice of transfer or equivalent instrument may be in the form
of one or more blanket assignments covering the XXXx secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
Custodian: _________________________or any successor in
interest or assigns, or any successor to the Custodian under this Agreement
as herein provided.
Final Certification: A final certification as to each XXX or
Portfolio of XXXx, which Final Certification is delivered to the Purchaser
by the Custodian in the form annexed hereto as Exhibit D-3.
Initial Certification: An initial certification as to each
XXX or Portfolio of XXXx, which Initial Certification is delivered to the
Purchaser by the Custodian in the form annexed hereto as Exhibit D-2.
Mortgage: The mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first lien on a first priority
ownership interest in an unsubordinated estate in fee simple in real
property securing the Mortgage Note.
Mortgage Note: The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
Mortgage File: As to each XXX, documents which are part of
the Mortgage File which are delivered to the Custodian or which at any time
come into the possession of the Custodian.
Mortgaged Property: The real property securing repayment of
the debt evidenced by a Mortgage Note.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Primary Mortgage Insurance Policy: A policy of primary
mortgage guaranty insurance issued by a Qualified Insurer, as required by
the Sale and Servicing Agreement with respect to certain XXXx.
Purchaser: Bear Xxxxxxx Mortgage Capital Corporation, or its
successor in interest or assigns.
Qualified Insurer: A mortgage guaranty insurance company
duly authorized and licensed where required by law to transact mortgage
guaranty insurance business and approved as an insurer by Xxxxxx Xxx.
XXX Schedule: A schedule of XXXx delivered in electronic
format to the Purchaser on the related Closing Date, such schedule setting
forth the following information with respect to each XXX: (1) the
identifying number for the XXX; (2) the Mortgagor's name; (3) the street
address of the Mortgaged Property including the state code; (4) a code
indicating whether the Mortgaged Property is a single family residence or a
2-4 family residence; (5) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the original
amortization schedule, and if different, the maturity expressed in the same
manner but based on the actual amortization schedule; (6) the LTV at
origination; (7) the Stated Interest Rate as of __________; (8) the
Appreciation Share; (9) the date on which the XXX was originated; (10) the
stated maturity date; (11) the amount of the Monthly Payment; (12) the last
Distribution Date on which a payment was actually applied to the
outstanding principal balance of the XXX; (13) the original principal
balance of the XXX; (14) the principal balance of the XXX as of the close
of business on the Cut-off Date, after deduction of payments of principal
due on or before the Cut-off Date, whether or not collected; (15) the
Remittance Rate as of the Cut-off Date; (16) the Primary Mortgage Insurance
Policy certificate number, if any; (17) the Primary Mortgage Insurance
Policy, if any, (18) the year the residence was originally built, (19) the
age, gender and social security number of the Mortgagor and any
co-Mortgagors, (20) a code indicating whether the Mortgagor is a first time
home buyer, (21) the total number of Mortgagors for any one Mortgaged
Property and (22) the Implied Market Rate for the XXX. With respect to any
Portfolio in the aggregate, the XXX Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of XXXx; (2)
the current aggregate outstanding principal balance of the XXXx; (3) the
weighted average Stated Interest Rate of the XXXx; (4) the weighted average
Appreciation Share; and (5) the weighted average maturity of the XXXx.
Seller: __________________________ or its successor in
interest or assigns, or any successor to the Seller under the Sale and
Servicing Agreement as therein provided.
Servicer: ___________________________ or its successor in
interest or assigns, or any successor to the Servicer under the Sale and
Servicing Agreement as therein provided.
Section 2. Delivery of Mortgage Files.
--------------------------
The Seller has delivered and released to the Custodian the
following original documents pertaining to each of the XXXx identified in
the Mortgage File and XXX Schedule annexed to the Sale and Servicing
Agreement, a copy of which Mortgage File and XXX Schedule is annexed to the
Custodian's counterpart of this Agreement:
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of , without recourse" and signed
in the name of the Seller by an authorized officer. If the XXX was acquired
by the Servicer in a merger, the endorsement must be by "_______________,
successor by merger to [name of predecessor]". If the XXX was acquired or
originated by the Servicer while doing business under another name, the
endorsement must be by "_______________ formerly known as [previous name]".
To the extent that there is no space on the face of the Mortgage Note for
endorsements, the endorsement may be contained on an allonge, if state law
so allows;
(b) the original of any guarantee executed in connection
with the Mortgage Note, if any;
(c) the original Mortgage with evidence of recording
thereon, and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording
thereon. If in connection with any XXX, the Seller cannot deliver or cause
to be delivered the original Mortgage with evidence of recording thereon on
or prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public recording office
retains the original recorded Mortgage, the Seller shall deliver or cause
to be delivered to the Custodian, a photocopy of such Mortgage, together
with (i) in the case of a delay caused by the public recording office, an
Officer's Certificate of the Seller stating that such Mortgage has been
dispatched to the appropriate public recording office for recordation and
that the original recorded Mortgage or a copy of such Mortgage certified by
such public recording office to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Custodian upon receipt
thereof by the Seller; or (ii) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, a
copy of such Mortgage certified by such public recording office to be true
and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon;
(e) any rider executed in connection with the related
Mortgage Note or Mortgage;
(f) the original Assignment of Mortgage from the
Seller, either in blank or in such form as directed by the Purchaser, which
assignment shall be in form and substance acceptable for recording
certified by an authorized officer of the Seller to be a true and correct
copy thereof; the originals, with evidence of recording thereon or in the
case where a public recording office retains the original Assignment of
Mortgage, a copy certified by such public recording office to be a true and
complete copy of the original recorded Assignment of Mortgage shall be
delivered promptly upon receipt thereof by the Seller;
(g) the originals of all intervening assignments of
mortgage with evidence of recording thereon, including warehousing
assignments, if any, or if any such intervening assignment has not been
returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of
mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such intervening assignment, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller 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 the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy
of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening
assignment;
(h) the Primary Mortgage Insurance Policy or certificate
of insurance where required pursuant to the Agreement;
(i) XXX closing statement (Form HUD-1) and any other
truth-in-lending or real estate settlement procedure forms required by law;
(j) the original mortgagee title insurance policy;
(k) the original of any security agreement, chattel
mortgage or equivalent executed in connection with the Mortgage; and
(l) such other documents as the Purchaser may require.
In the event an Officer's Certificate of the Seller is
delivered to the Custodian because of a delay caused by the public
recording office in returning any recorded document, the Seller shall
deliver to the Custodian, within 180 days of the Closing Date, 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 caused 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 Seller
shall be required to deliver to the Custodian the applicable recorded
document by the date specified in (iv) above. An extension of the date
specified in (iv) above may be requested from the Purchaser.
From time to time, the Servicer shall forward to the
Custodian additional original documents pursuant to Section 3.1 or 3.3 of
the Sale and Servicing Agreement or additional documents evidencing an
assumption, modification, consolidation or extension of a XXX approved by
the Servicer, in accordance with Section 3.4 of the Sale and Servicing
Agreement. All such mortgage documents held by the Custodian as to each XXX
shall constitute the "Mortgage File."
Section 3. Initial Certification of the Custodian.
On or prior to and as a condition to each Closing Date, the
Custodian shall deliver to the Purchaser an Initial Certification to the
effect that the Custodian has received a Custodial File with respect to
each XXX on the applicable XXX Schedule and, as to each XXX, specifying any
document which has not been received.
Section 4. Obligations of the Custodian.
With respect to the Mortgage Note, the Mortgage and the
Assignment of Mortgage and other documents constituting each Custodial File
which is delivered to the Custodian or which come into the possession of
the Custodian, the Custodian is the custodian for and the bailee of the
Purchaser exclusively. The Custodian shall hold all mortgage documents
received by it constituting the Custodial File for the exclusive use and
benefit of the Purchaser, and shall make disposition thereof only in
accordance with the Agreement and the instructions furnished by the
Purchaser in writing. The Custodian shall segregate and maintain continuous
custody of all mortgage documents constituting the Custodial File in secure
and fireproof facilities in accordance with customary standards for such
custody.
Section 5. Final Certification.
Within 60 days after each Closing Date, the Custodian shall
ascertain that all documents referred to in paragraphs (a), (b), (c), (f),
(g), (l) and (m) and shall note whether the documents referred to in
paragraph (d) of Section 2 are in its possession, and shall deliver to the
Purchaser a Final Certification to the effect that, as to each XXX listed
in the XXX Schedule (other than any XXX paid in full or any XXX
specifically identified in such certification as not covered by such
certification): (i) all documents required to be delivered to it pursuant
to paragraphs (a), (b), (f), (g), (l) and (m) and shall note whether the
documents referred to in paragraph (d) of Section 2 of this Agreement are
in its possession; (ii) such documents have been reviewed by it and appear
regular on their face and relate to such XXX; (iii) based on its
examination and only as to the foregoing documents, the information set
forth in items (1), (2), (11), (12) and (16) of the XXX Schedule respecting
such XXX is correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2 of this Agreement. The Custodian shall not be
responsible except as expressly set forth in this agreement, to verify the
validity, sufficiency or genuineness of any document in any Custodial File.
Section 6. Future Defects.
During the term of this Agreement, if the Custodian
discovers any defect with respect to the Custodial File, the Custodian
shall give written specification of such defect to the Seller, the
Purchaser and any applicable Trustee.
Section 7. Release for Servicing.
From time to time and as appropriate for the foreclosure or
servicing of any of the XXXx, the Custodian is hereby authorized, upon
written receipt from the Servicer of a request for release of documents and
receipt in the form annexed hereto as Exhibit D-4, to release to the
Servicer the related Custodial File or the documents set forth in such
request and receipt to the Servicer. All documents so released to the
Servicer shall be held by the Seller in trust for the benefit of the
Purchaser in accordance with Section 3.1 of the Sale and Servicing
Agreement. The Servicer shall return to the Custodian the Custodial File or
other such documents when the Servicer's need therefor in connection with
such foreclosure or servicing no longer exists, unless the XXX shall be
liquidated in which case, upon receipt of an additional request for release
of documents and receipt certifying such liquidation from the Servicer to
the Custodian in the form annexed hereto as Exhibit D-4, the Servicer's
request and receipt submitted pursuant to the first sentence of this
Section 7 shall be released by the Custodian to the Servicer.
Section 8. Release for Payment.
Upon the repurchase or rejection of any XXX pursuant to
Article IV or Section 7.2 of the Sale and Servicing Agreement, or upon the
payment in full of any XXX, and upon receipt by the Custodian of the
Servicer's request for release of documents and receipt in the form annexed
hereto as Exhibit D-4 (which certification shall include a statement to the
effect that all amounts received in connection with such payment or
repurchase have been credited to the Collection Account as provided in the
Sale and Servicing Agreement), the Custodian shall promptly release the
related Custodial File to the Servicer.
Section 9. Fees of Custodian.
The Custodian shall charge such fees for its services under
this Agreement as are set forth in a separate agreement between the
Custodian and the Seller, the payment of which fees, together with the
Custodian's expenses in connection herewith, shall be solely the obligation
of the Seller.
Section 10. Removal of Custodian.
The Purchaser, with or without cause, or following a
resignation, removal or termination of the Servicer or an Event of Default
by the Servicer as defined under the Sale and Servicing Agreement, or upon
a failure by the Custodian to perform or observe any term of this
Agreement, may remove and discharge the Custodian from the performance of
its duties under this Agreement by written notice from the Purchaser to the
Custodian, with a copy to the Seller and the Servicer. Having given notice
of such removal, the Purchaser promptly shall appoint a successor Custodian
to act on behalf of the Purchaser by written instrument, one original
counterpart of which instrument shall be delivered to the Purchaser, with a
copy to the Seller and the Servicer and an original to the successor
Custodian. In the event of any such removal, the Custodian shall promptly
transfer to the successor Custodian, as directed, all Custodial Files being
administered under this Agreement, and shall assign the Mortgages and
endorse the Mortgage Notes to the successor Custodian if the endorsements
on the Mortgage Notes and the Assignments of Mortgages have been completed
in the name of the Custodian. In the event of any such appointment, the
Seller shall be responsible for the fees of the successor Custodian.
Section 11. Transfer of Mortgage Files Upon Termination.
If the Custodian is furnished evidence satisfactory to it
that the Sale and Servicing Agreement has been terminated as to any or all
of the XXXx, upon written request of the Purchaser and receipt of proof
satisfactory to the Custodian of the ownership of the XXXx, the Custodian
shall release to such Persons as the Purchaser shall designate the
Custodial Files relating to such XXXx as the Purchaser shall request.
Section 12. Examination of Mortgage Files.
Upon reasonable prior notice to the Custodian, the Purchaser
and its agents, accountants, attorneys and auditors will be permitted
during normal business hours to examine the Custodial Files, documents,
records and other papers in the possession of or under the control of the
Custodian relating to any or all of the XXXx.
Section 13. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all
times during the existence of this Agreement and keep in full force and
effect fidelity insurance, theft of documents insurance, forgery insurance
and errors and omissions 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
amounts and with insurance companies reasonably acceptable to the
Purchaser. The minimum coverage under any such bond and insurance policies
shall be at least equal to the corresponding amounts required by Xxxxxx Mae
in the Xxxxxx Xxx Guide. A certificate of the respective insurer as to each
such policy, with a copy of such policy attached, shall be furnished to the
Purchaser, upon request, containing the statement of the insurer or
endorsement evidencing that such insurance shall not terminate prior to
receipt by the Purchaser, by registered mail, of 30 days' prior written
notice thereof.
Section 14. Counterparts.
For the purpose of facilitating the execution 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 and be one and the same instrument.
Section 15. Periodic Statements.
Within 10 days of each anniversary of the date of this
Agreement, or upon the request of the Purchaser at any other time, the
Custodian shall provide to the Purchaser a list of all the XXXx for which
the Custodian holds a Custodial File pursuant to this Agreement. Such list
may be in the form of a copy of the XXX Schedule with manual deletions to
specifically denote any XXXx paid off or repurchased since the date of this
Agreement.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS. THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 17. Copies of Mortgage Documents.
Upon the request of the Purchaser and at the cost and
expense of the Purchaser, the Custodian shall provide the Purchaser with
copies of the Mortgage Notes, Mortgages, Assignment of Mortgages and other
documents relating to one or more of the XXXx.
Section 18. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and
warrants that it currently holds, and during the existence of this
Agreement shall hold, no adverse interest, by way of security or otherwise,
in any XXX, and hereby waives and releases any such interest which it may
have in any XXX as of the date hereof.
Section 19. Termination by Custodian.
The Custodian may terminate its obligations under this
Agreement upon at least 60 days' notice to the Seller, the Servicer, the
Purchaser. In the event of such termination, the Seller shall appoint a
successor Custodian, subject to approval by the Purchaser. The payment of
such successor Custodian's fees and expenses shall be solely the
responsibility of the Seller. Upon such appointment, the Custodian shall
promptly transfer to the successor Custodian, as directed, all Custodial
Files being administered under this Agreement and shall assign the
Mortgages and endorse the Mortgage Notes to the successor Custodian, if the
endorsements on the Mortgage Notes and the Assignments of Mortgage have
been completed in the name of the Custodian, or as otherwise directed by
the Purchaser.
Section 20. Term of Agreement.
Unless terminated pursuant to Section 11 or Section 19
hereof, this Agreement shall terminate upon the final payment or other
liquidation (or advance with respect thereto) of the last XXX or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any XXX, and/or the final remittance of all funds due on the
Note. In such event all documents remaining in the Custodial Files shall be
released in accordance with the written instructions of the Purchaser.
Section 21. Notices.
All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
(i) if to the Seller or Servicer:
Attention:
(ii) if to Purchaser:
Attention:
(iii) if to the Custodian:
Attention:
Section 22. Successor and Assigns.
This Agreement shall inure to the benefit of the successors
and assigns of the parties hereto. The Purchaser may assign its rights
hereunder by delivering written notice to the Custodian that all or a
portion of its interest in the XXXx have been transferred and instructing
the Custodian to act for such transferee.
Section 23. Indemnification of Custodian.
The Servicer agrees to indemnify the Custodian for, and to
hold it harmless against, any loss, liability or expense incurred by the
Custodian (other than through the negligence, bad faith or willful
misconduct of the Custodian) arising out of, or in connection with, any
suit, claim or other action relating to the Custodian's performance of this
Agreement, provided that the Custodian shall have given the Servicer prompt
written notice of any claim after the Custodian shall have knowledge
thereof. While maintaining control over its own defense, the Custodian
shall cooperate and consult fully with the Servicer in preparing such
defense. The Servicer shall have the right, but not the obligation, to
assume control over the defense of any suit or other action for which there
is a potential liability of the Servicer hereunder. Notwithstanding
anything herein to the contrary, the Servicer shall not be liable for
settlement of any such claim by the Custodian made without the consent of
the Servicer, which consent shall not be unreasonably withheld.
The Custodian agrees to indemnify the Servicer for, and to
hold it harmless against, any loss, liability or expense incurred by the
Servicer (other than through the negligence, bad faith or willful
misconduct of the Servicer) arising out of, or in connection with, any
suit, claim or other action arising out of or relating to negligence, bad
faith or willful misconduct by the Custodian in its performance of this
Agreement, provided that the Servicer shall have given the Custodian prompt
written notice of any claim after the Servicer shall have knowledge
thereof. While maintaining control over its own defense, the Servicer shall
cooperate and consult fully with the Custodian in preparing such defense.
The Custodian shall have the right, but not the obligation, to assume
control over the defense of any suit or other action for which there is a
potential liability of the Custodian hereunder. Notwithstanding anything
herein to the contrary, the Custodian shall not be liable for settlement of
any such claim by the Servicer made without the consent of the Custodian,
which consent shall not be unreasonably withheld.
IN WITNESS WHEREOF, Bear Xxxxxxx Mortgage Capital
Corporation, the Purchaser and the Custodian have caused their names to be
duly signed hereto by their respective officers thereunto duly authorized,
all as of the date first above written.
BEAR XXXXXXX MORTGAGE
CAPITAL CORPORATION
(Purchaser)
By:_____________________________
Name:
Title:
[Servicer]
(Servicer)
By:_____________________________
Name:
Title:
[Custodian]
(Custodian)
By:_____________________________
Name:
Title:
EXHIBIT D-2
INITIAL CERTIFICATION
______________, [20__]
Bear Xxxxxxx Mortgage Capital Corporation
[Address]
Re: The Custodial Agreement, dated as of ______ 1,
[200_], by and among Bear Xxxxxxx Mortgage
Capital Corporation as the Purchaser,
______________________ as the Custodian, and
_____________________ as the ____, executed
pursuant to the Sale and Servicing Agreement,
Shared Appreciation Mortgages, dated of even
date therewith.
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies that it has received a complete Custodial File with
respect to each XXX identified on the XXX Schedule with the exception of
the documents specified on Schedule A attached hereto.
[Custodian].
By:_____________________________
Name:
Title:
EXHIBIT D-3
FINAL CERTIFICATION
____________, [200_]
Bear Xxxxxxx Mortgage Capital Corporation
[Address]
Re: The Custodial Agreement, dated as of ____ 1,
[200_], by and among Bear Xxxxxxx Mortgage
Capital Corporation as the Purchaser,
___________________ as the Custodian, and
_____________________ as the _________, executed
pursuant to the Sale and Servicing Agreement,
Shared Appreciation Mortgages, _________, dated
of even date therewith.
Ladies and Gentlemen:
In accordance with the provisions of Section 5 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies that as to each XXX listed in the XXX Schedule (other than
any XXX paid in full or any XXX listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents
required to be delivered to it pursuant to the Custodial Agreement are in
its possession; (ii) such documents have been reviewed by it and appear
regular on their face and related to such XXX; (iii) based on its
examination and only as to the foregoing documents, the information set
forth in the XXX Schedule respecting such XXX is correct; and (iv) each
Mortgage Note has been endorsed as provided in Section 2 of the Custodial
Agreement except as noted on Schedule A attached hereto.
[Custodian]
By:_____________________________
Name:
Title:
EXHIBIT D-4
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To:_________________________________[Address]
Re: The Custodial Agreement, dated as of _____ 1, [200_],
by and among Bear Xxxxxxx Mortgage Capital Corporation
as the Purchaser, _____________________as the
Custodian, and ________________________ as the
Servicer, executed pursuant to the Sale and Servicing
Agreement, Shared Appreciation Mortgages_______, dated
as of the date therewith.
In connection with the administration of the XXXx held by
you as the Custodian on behalf of the Purchaser, we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for
the XXX described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
------------------------------------
XXX Number:
----------
Reason for Requesting Documents (check one)
-------------------------------
___1. XXX Paid in Full. (The Servicer hereby certifies that all
amounts received in connection therewith have been credited to
the Certificate Account as provided in the Sale and Servicing
Agreement.)
___2. XXX Repurchase Pursuant to Article IV or Section 7.2 of the
Sale and Servicing Agreement. (The Servicer hereby certifies
that the repurchase price has been credited to any Collection
Account as provided in the Sale and Servicing Agreement.)
___3. XXX Liquidated By ___________________. (The Servicer hereby
certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to any Collection Account pursuant to the Sale and
Servicing Agreement.)
___4. XXX 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 XXX.
If box 4 or 5 above is checked, upon our return of all of
the above documents to you as the Custodian, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
[Servicer],
as Servicer
By:________________________________
Name:
Title:
Date:
Acknowledgment of Documents returned to the Custodian:
[Custodian]
By:_____________________________
Name:
Title:
Date:
EXHIBIT E-1
FORM OF COLLECTION ACCOUNT CERTIFICATION
_____________________, [200_]
__________________________ hereby certifies that it has
established the account described below as a Collection Account pursuant to
Section 5.4 of the Sale and Servicing Agreement, dated as of ________1,
[200_], XXXx ______.
Title of Account: _______________________________ .
Account Number:
Address of office or branch of the ____ at which Account is
maintained:
[Servicer],
as Servicer
By:_____________________________
Name:
Title:
EXHIBIT E-2
FORM OF COLLECTION ACCOUNT LETTER AGREEMENT
_________________, [200_]
To:
(the "Depository")
As Servicer under the Sale and
Servicing Agreement, dated as of [Cut-off Date], the "Agreement"), we
hereby authorize and request you to establish an account, as a Collection
Account pursuant to Section 5.4 of the Agreement, to be designated as
"________________________________." All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Servicer. You may
refuse any deposit which would result in violation of the requirement that
the account be fully insured as described below. This letter is submitted
to you in duplicate. Please execute and return one original to us.
[Servicer],
as Servicer
By:________________________________
Name:
Title:
Date:
The undersigned, as Depository, hereby
certifies that the above described account has been established under
Account Number __________, at the office of the Depository indicated above,
and agrees to honor withdrawals on such account as provided above. The full
amount deposited at any time in the account will be insured by the Federal
Deposit Insurance Corporation through the Bank Insurance Fund ("BIF") or
the Savings Association Insurance Fund ("SAIF").
Depository
By:________________________________
Name:
Title:
Date:
EXHIBIT F-1
FORM OF ESCROW ACCOUNT CERTIFICATION
__________________, [200_]
___________________________________ hereby certifies that it
has established the account described below as an Escrow Account pursuant
to Section 5.6 of the Sale and Servicing Agreement, dated as of _____1,
[200_].
Title of Account: "________________________ and various Mortgagors."
Account Number:
Address of office or branch of the ____ at which Account is
maintained:
[Servicer],
as Servicer
By:_____________________________
Name:
Title:
EXHIBIT F-2
FORM OF ESCROW ACCOUNT LETTER AGREEMENT
___________________, [200_]
To:
(the "Depository")
As Seller under the Sale and Servicing Agreement, dated as
of _____1, [200_] (the "Agreement"), we hereby authorize and request you to
establish an account, as an Escrow Account pursuant to Section 5.6 of the
Agreement, to be designated as "_____________________________." All
deposits in the account shall be subject to withdrawal therefrom by order
signed by the ____. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and
return one original to us.
[Servicer]
as Servicer
By:_____________________________
Name:
Title:
Date:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals
on such account as provided above. The full amount deposited at any time in
the account will be insured by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund ("BIF") or the Savings Association
Insurance Fund ("SAIF").
Depository
By:__________________________
Name:
Title:
Date:
EXHIBIT G
FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT H
FORM OF TRANSFER SUPPLEMENT
This TRANSFER SUPPLEMENT (the "Transfer Supplement") dated ,
between BEAR XXXXXXX MORTGAGE CAPITAL CORPORATION, a Delaware corporation,
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser") and
, a , located at (the "Seller") and is made pursuant to the terms and
conditions of that certain Sale and Servicing Agreement (the "Agreement")
dated as of , 199,_ between the Seller and the Purchaser, the provisions of
which are incorporated herein as if set forth in full herein, as such terms
and conditions may be modified or supplemented hereby. All initially
capitalized terms used herein unless otherwise defined shall have the
meanings ascribed thereto in the Agreement.
The Purchaser hereby purchases from the Seller and the Seller
hereby sells to the Purchaser, all of the Seller's right, title and
interest in and to the shared appreciation mortgage loans (the "XXXx")
described on the XXX Schedule annexed hereto as Schedule I, all Primary
Mortgage Insurance Policies associated therewith, all Hazard Insurance
Policies associated therewith, all title policies, amendments, waivers,
guarantees and other documents in the Mortgage File, all other documents
noted in Section 3 hereof, and all proceeds of the foregoing pursuant to
and in accordance with the terms and conditions set forth in the Agreement,
as same may be supplemented or modified hereby. Hereinafter, the Seller
shall service the XXXx for the benefit of the Purchaser and all subsequent
transferees of the XXXx pursuant to and in accordance with the terms and
conditions set forth in the Agreement.
(1) Definitions
For purposes of the XXXx to be sold pursuant to this Transfer
Supplement, the following terms shall have the following meanings:
XXX: residential first lien shared appreciation
mortgage loan having a term of not more than
____ years, and which is listed on the XXX
Schedule.
Closing Date:
Cut-off Date:
Custodian:
Aggregate Principal Balance
(as of the Cut-Off Date) $
Initial Weighted Average
Remittance Rate: %.
Purchase Price Percentage That certain purchase price percentage
set forth in the letter of intent, dated
, 1999, between the Seller and the
Purchaser, as may be adjusted as setforth
therein.
[Servicing Fee Rate]: %.
[Appreciation Index] ; [ days for look back date.]
[Servicing Retained]
[Servicing Released]
(2) Additional Closing Conditions.
In addition to the conditions specified in the Agreement, the
obligation of each of the Seller and the Purchaser is subject to the
fulfillment, on or prior to the applicable Closing Date, of the following
additional conditions:
[None.]
(3) Additional Mortgage File Documents.
----------------------------------
In addition to the contents of the Mortgage File specified in
the Agreement, the following documents shall be delivered with respect to
the XXXx:
[None.]
(4) Additional Representations and Warranties.
In addition to the representations and warranties set forth in
the Agreement, as of the date hereof and as of the Closing Date, the Seller
makes the following additional representations and warranties to the
Purchaser with respect to each XXX to be sold on a Closing Date:
[None.]
5. Appraisal.
The Initial Appraisal Value of each Mortgaged Property is set
forth in Schedule I attached hereto. Such Appraisal was conducted in
accordance with the Mortgage Note. In addition, as set forth is the
Mortgage Notes, additional Appraisals will be conducted from time to time.
[None.]
6. Mortgage Termination Events
In addition to the Mortgage Termination Events specified in the related
Mortgage Notes, the following events will constitute Mortgage Termination
Events.
[None.]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date
first above written.
BEAR XXXXXXX MORTGAGE CAPITAL CORPORATION
By:______________________________________
Name:
Title:
[SELLER]
By:______________________________________
Name:
Title:
SCHEDULE I
LIST OF APPROVED APPRAISERS
SCHEDULE II
MORTGAGE TERMINATION EVENTS
Each Mortgage Note shall contain substantially the following Mortgage
Termination Events:
(a) Any transfer of any interest in the Mortgaged Property,
other than:
(i) a transfer by devise, descent, or operation of law on
the death of a joint tenant or tenant by the entirety;
(ii) a transfer to a relative resulting from the death of
the Mortgagor;
(iii) a transfer where the Mortgagor's spouse or children
become an owner of the Mortgaged Property;
(iv) a transfer resulting from a decree of a dissolution
of marriage, legal separation agreement, or from an
incidental property settlement agreement, by which the
Mortgagor's spouse becomes an owner of the Mortgaged
Property;
(v) a transfer into an inter vivos trust in which the
Mortgagor is and remains a beneficiary and which does not
relate to a transfer of rights of occupancy in the
property;
(vi) the creation of a lien or other encumbrance
subordinate to the Depositor's security instrument which
does not relate to a transfer of rights of occupancy in
the Mortgaged Property;
(vii) the creation of a purchase money security interest
for household appliances; or
(viii) any other transfer or disposition described in
regulations prescribed by the Office of Thrift
Supervision.
(b) Total taking of the Mortgaged Property as the result of any
condemning authority exercising rights of eminent domain;
(c) The commencement of foreclosure proceedings in connection
with any lien junior to the Note holder's security interest in the
Mortgaged Property;
(d) The voluntary or involuntary filing of any petition seeking
to extend to the Mortgagor the protection of any state or federal
bankruptcy law;
(e) No Mortgagor occupying the Mortgaged Property for a period
greater than 12 months or the rental of the Mortgaged Property;
(f) The repayment (including through refinancing) of the
principal amount of the XXX; and
(g) At the option of the Note Holder, a default by the
Mortgagor with respect to any amounts due (including any amounts required
to be escrowed), or any covenant or representation made, by the Mortgagor
under the Mortgage Note or the Mortgage.
SCHEDULE III
QUALIFIED MAJOR HOME IMPROVEMENTS
A Qualified Major Home Improvement is an improvement made to the
Mortgage Property which increases the value of the Mortgage Property and:
(a) is a major improvement having a minimum total project
value of the greater of $5,000 and 3% of the Original
Value of the Mortgaged Property or Adjusted Value, if one
exists;
(b) is completed within six months of the start date of the
Qualified Major Home Improvements; and
(c) excludes certain work or items, including, but not limited
to, the following:
(i) ordinary maintenance and repair, including the
replacement of roofing;
(ii) decorations, wallpaper, paint and the replacement of
appliances and floor coverings;
(iii) landscaping, plants, patios, decks, fences and sheds;
and
(iv) replacement or updating of existing systems such
as, heating, air conditioning, septic and xxxxx.
"Original Value" is an amount used to calculate the Adjusted Value
and is:
(a) the lower of the purchase price of the property or the
Initial Appraisal Amount if the Mortgagor is purchasing
the property at the origination of the Note; or
(b) the Initial Appraisal Amount if the Mortgagor is
refinancing the property at the origination of the Note.
"Adjusted Value" is an amount equal to the Original Value (or if the
Original Value has been adjusted, the most recent Adjusted Value), minus
the sum of any adjustments for casualty or condemnations.
SCHEDULE IV
MORTGAGE NOTE
SCHEDULE V
MORTGAGE
