Exhibit 99.2
Execution Copy
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MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
XXXXXX, XXXX & XXXXXXXX MORTGAGE CORP.
Seller and Servicer
UBS REAL ESTATE SECURITIES INC.
Purchaser
Dated as of February 1, 2007
First and Second Lien
Fixed and Adjustable Rate Loans
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TABLE OF CONTENTS
Page
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SECTION 1. Definitions....................................................1
SECTION 2. Agreement to Purchase.........................................13
SECTION 3. Loan Schedules................................................13
SECTION 4. Purchase Price................................................13
SECTION 5. Examination of Loan Files.....................................14
SECTION 6. Conveyance from Seller to Purchaser...........................15
Subsection 6.01. Conveyance of Loans; Possession of Servicing Files......15
Subsection 6.02. Books and Records.......................................15
Subsection 6.03. Delivery of Loan Documents..............................15
SECTION 7. Representations, Warranties and Covenants; Remedies for
Breach........................................................16
Subsection 7.01. Representations and Warranties Respecting the Seller....16
Subsection 7.02. Representations and Warranties Regarding Individual
Loans...................................................19
Subsection 7.03. Remedies for Breach of Representations and Warranties...31
Subsection 7.04. Reserved................................................33
Subsection 7.05. Repurchase of Certain Loans.............................33
Subsection 7.06. Purchase Price Protection...............................33
SECTION 8. Closing.......................................................33
SECTION 9. Closing Documents.............................................34
SECTION 10. Costs.........................................................35
SECTION 11. Seller's Servicing Obligations................................35
SECTION 12. The Securitization Transaction................................35
SECTION 13. The Seller....................................................37
Subsection 13.01. Additional Indemnification by the Seller..............37
Subsection 13.02. Merger or Consolidation of the Seller.................37
Subsection 13.03. Limitation on Liability of the Seller and Others......38
Subsection 13.04. Seller Not to Resign..................................38
Subsection 13.05. No Transfer of Servicing..............................38
SECTION 14. DEFAULT.......................................................39
Subsection 14.01. Events of Default......................................39
Subsection 14.02. Waiver of Defaults.....................................40
SECTION 15. Termination...................................................40
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SECTION 16. Successor to the Seller.......................................41
SECTION 17. Reserved......................................................42
SECTION 18. Mandatory Delivery; Grant of Security Interest................42
SECTION 19. Notices.......................................................43
SECTION 20. Severability Clause...........................................44
SECTION 21. Counterparts..................................................44
SECTION 22. GOVERNING LAW.................................................44
SECTION 23. Intention of the Parties......................................44
SECTION 24. Successors and Assigns........................................45
SECTION 25. Waivers.......................................................45
SECTION 26. Exhibits......................................................45
SECTION 27. Nonsolicitation...............................................45
SECTION 28. Relationship of the Parties...................................46
SECTION 29. General Interpretive Principles...............................46
SECTION 30. Reproduction of Documents.....................................46
SECTION 31. Further Agreements............................................46
SECTION 32. Third Party Beneficiary.......................................47
SECTION 33. Compliance With Regulation AB.................................47
Subsection 33.01. Intent of the Parties; Reasonableness..................47
Subsection 33.02. Additional Representations and Warranties of the
Seller.................................................48
Subsection 33.03. Information to Be Provided by the Seller...............48
Subsection 33.04. Servicer Compliance Statement..........................54
Subsection 33.05. Report on Assessment of Compliance and Attestation.....54
Subsection 33.06. Use of Subservicers and Subcontractors.................55
Subsection 33.07. Indemnification; Remedies..............................56
Subsection 33.08. Third Party Beneficiary................................59
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EXHIBITS
EXHIBIT 1 OFFICER'S CERTIFICATE OF THE SELLER
EXHIBIT 2 FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT 3 SECURITY RELEASE CERTIFICATION
EXHIBIT 4 ASSIGNMENT AND CONVEYANCE
EXHIBIT 5 CONTENTS OF EACH LOAN FILE
EXHIBIT 6 LOAN DOCUMENTS
EXHIBIT 7 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 8 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 9 SERVICING ADDENDUM
EXHIBIT 10 SELLER UNDERWRITING STANDARDS
EXHIBIT 11 [Reserved.]
EXHIBIT 12 FORM OF ANNUAL CERTIFICATION
EXHIBIT 13 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
EXHIBIT 14-1 STANDARD FILE LAYOUT - MASTER SERVICING
EXHIBIT 14-2 STANDARD FILE LAYOUT - DELINQUENCY REPORTING
EXHIBIT 14-3 FORM 332
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MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
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This is a MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT (the
"Agreement"), dated as of February 1, 2007, by and between UBS Real Estate
Securities Inc., having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Purchaser", and the Depositor or the Person, if any, to
which the Purchaser has assigned its rights and obligations hereunder as
Purchaser with respect to one or more Loans, and each of their respective
successors and assigns, the "Purchaser") and Xxxxxx, Xxxx & Xxxxxxxx Mortgage
Corp., having an office at 000 XX 0xx Xxxxxx, Xxxxx Xxxxxxx 00000 (the
"Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, certain conventional fixed rate
and adjustable rate residential first and second lien mortgage loans (the
"Loans") as described herein on a servicing-retained basis;
WHEREAS, each Loan is secured by a mortgage, deed of trust or
other security instrument creating a first or second lien on a residential
dwelling located in the jurisdiction indicated on the Loan Schedule for the
Loans, which is to be annexed to the related Assignment and Conveyance;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance, servicing and control of the Loans; and
WHEREAS, following its purchase of the Loans from the Seller, the
Purchaser desires to sell all of the Loans to TBW Mortgage-Trust 2007-1 a
pursuant to a public or private mortgage-backed securities transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser
and the Seller agree as follows:
SECTION 1. Definitions. For purposes of this Agreement the
following capitalized terms shall have the respective meanings set forth
below.
Accepted Servicing Practices: With respect to any Loan, those
mortgage servicing practices (including collection procedures) of prudent
mortgage lending institutions which service loans of the same type as such
Loan in the jurisdiction where the related Mortgaged Property is located and
in accordance with applicable law, the terms of the Mortgage and Note and the
servicing guidelines established by Xxxxxxx Mac (including future updates).
Adjustable Rate Loan: A Loan which provides for the adjustment of
the Loan Interest Rate payable in respect thereto.
Adjustment Date: With respect to each Adjustable Rate Loan, the
date set forth in the related Note on which the Loan Interest Rate on such
Adjustable Rate Loan is adjusted in accordance with the terms of the related
Note.
Agreement: This Mortgage Loan Purchase and Servicing Agreement
including all exhibits, schedules, amendments and supplements hereto, as the
same may be amended or modified at any time or from time to time in accordance
with its terms.
Appraised Value: With respect to any Mortgaged Property, the
lesser of (i) the value thereof as determined by an appraisal made for the
originator of the Loan at the time of origination of the Loan by an appraiser
who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac, and (ii) the
purchase price paid for the related Mortgaged Property by the Borrower with
the proceeds of the Loan; notwithstanding the foregoing, if the related Loan
is a Refinanced Loan, the Appraised Value shall be clause (i) above.
Assignment and Conveyance: An assignment and conveyance of the
Loans purchased on a Closing Date in the form annexed hereto as Exhibit 4.
Assignment of Mortgage: An individual assignment of 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 give record notice of the sale of the Mortgage to the Purchaser.
Borrower: The obligor on a Note, the owner of the Mortgaged
Property and the grantor or borrower named in the related Mortgage and such
grantor's or borrower's successors in title to the Mortgaged Property.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the State of New York or
Florida are authorized or obligated by law or executive order to be closed.
Cash-Out Refinancing: A Refinanced Loan the proceeds of which were
in excess of the greater of $2,000 or 2% of the principal balance of any
existing first mortgage (and any existing junior mortgages, if applicable) on
the related Mortgaged Property and related closing costs, and were used to pay
any such existing first mortgage (and any existing junior mortgages, if
applicable), related closing costs, subordinate mortgages on the related
Mortgaged Property and to provide additional proceeds for the use of the
Borrower.
Closing Date: February 27, 2007.
Closing Documents: With respect to any Closing Date, the documents
required pursuant to Section 9.
Code: The Internal Revenue Code of 1986, or any successor statute
thereto.
Combined Loan-to-Value Ratio or CLTV: With respect to any Loan,
the ratio of the original outstanding principal amount of the Loan and any
other mortgage loan which is secured by a lien on the related Mortgaged
Property to (i) the Appraised Value of the related Mortgaged Property at
origination with respect to a Refinanced Loan, or (ii) the lesser of the
Appraised Value of the related Mortgaged Property at origination or the
purchase price of the related Mortgaged Property with respect to all other
Loans.
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Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property by exercise of the
power of condemnation or the right of eminent domain.
Confirmation: With respect to Loans purchased and sold on the
Closing Date pursuant to this Agreement, the letter agreement between the
Purchaser and the Seller (including any exhibits, schedules and attachments
thereto), setting forth the terms and conditions of such transaction and
describing the Loans to be purchased by the Purchaser on the Closing Date.
Convertible Loan: A Loan that by its terms and subject to certain
conditions contained in the related Mortgage or Note allows the Borrower to
convert the adjustable Loan Interest Rate on such Loan to a fixed Loan
Interest Rate.
Custodial Account: The separate account or accounts, each of which
shall be an Eligible Account, created and maintained pursuant to this
Agreement, which shall be entitled "Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., in
Trust for The Bank of New York, as Trustee for TBW Mortgage-Backed Trust,
Series 2007-1", established at Colonial Bank, N.A. or at any other financial
institution acceptable to the Purchaser. Such accounts shall be held as a
special deposit by the depository institution maintaining the related accounts
in a fiduciary capacity, separate and apart from its funds or general assets
and shall not be held in any capacity that would create a debtor-creditor
relationship between the depository institution maintaining the accounts and
the Seller or the Purchaser.
Custodial Agreement: The agreement governing the retention of the
originals of each Note, Mortgage, Assignment of Mortgage and other Loan
Documents.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement, as therein provided.
Cut-off Date: The first day of the month in which the Closing Date
occurs.
Deleted Loan: A Loan replaced or to be replaced by a Qualified
Substitute Loan.
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Determination Date: With respect to each Distribution Date, the
fifteenth (15th) day of the calendar month in which such Distribution Date
occurs or, if such fifteenth (15th) day is not a Business Day, the Business
Day immediately preceding such fifteenth (15th) day.
Distribution Date: The eighteenth (18th) day of each month,
commencing on the eighteenth (18th) day of the month next following the month
in which the related Cut-off Date occurs, or if such eighteenth (18th) day is
not a Business Day, the first Business Day immediately preceding such
eighteenth (18th) day.
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Due Date: With respect to each Distribution Date, the first day of
the calendar month in which such Distribution Date occurs, which is the day on
which the Monthly Payment is due on a Loan, 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 on the first day of the month of the Distribution
Date.
Eligible Account: Any of (i) an account or accounts maintained
with a federal or state chartered depository institution or trust company the
short term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have either (a)
a rating of at least "A-2" by S&P at the time any amounts are held on deposit
therein, if the amounts on deposit are to be held in the account for no more
than 30 days and are not intended to be used as credit enhancement (provided,
that if such rating falls below "A-2" by S&P, funds in such account shall
immediately be transferred to an otherwise Eligible Account) or (b) the
highest short term ratings of each Rating Agency at the time any amounts are
held on deposit therein, if the amounts on deposit are to be held in the
account for more than 30 days or are intended to be used as credit
enhancement, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to the Trustee, the Trust Administrator and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a non interest
bearing segregated trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution or (b) a
trust company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained
with the Trustee.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to this Agreement, each of which shall be an Eligible
Account, and each of which shall be entitled "Xxxxxx, Xxxx & Xxxxxxxx Mortgage
Corp., in Trust for The Bank of New York, as Trustee for TBW Mortgage-Backed
Trust, Series 2007-1", established at a financial institution acceptable to
the Purchaser.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water charges, sewer rents, Primary Insurance Policy premiums,
fire and hazard insurance premiums and other payments required to be escrowed
by the Borrower with the Mortgagee pursuant to the terms of any Note or
Mortgage.
Event of Default: Any one of the events enumerated in Section
14.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Recovery Determination: With respect to any defaulted Loan
or any REO Property (other than a Loan or REO Property purchased by the Seller
pursuant to this Agreement), a determination made by the Seller that all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
which the Seller, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Seller shall
maintain records, prepared by a servicing officer of the Seller, of each Final
Recovery Determination.
First Lien: With respect to each Mortgaged Property, the lien of
the mortgage, deed of trust or other instrument securing a Note which creates
a first lien on the Mortgaged Property.
Fixed Rate Loan: A Loan with respect to which the Loan Interest
Rate set forth in the Note is fixed for the term of such Loan.
Xxxxxxx Mac: Xxxxxxx Mac, f/k/a/The Federal Home Loan Mortgage
Corporation, or any successor thereto.
GAAP: Generally accepted accounting principals in the United
States of America in effect from time to time.
Gross Margin: With respect to any Adjustable Rate Loan, the fixed
percentage amount set forth in the related Note and the related Loan Schedule
that is added to the Index on each Adjustment Date in accordance with the
terms of the related Note to determine the new Loan Interest Rate for such
Loan.
HUD: The United States Department of Housing and Urban Development
or any successor thereto.
Index: With respect to any Adjustable Rate Loan, the index
identified on the Loan Schedule and set forth in the related Note for the
purpose of calculating the interest rate thereon.
Initial Rate Cap: With respect to each Adjustable Rate Loan and
the initial Adjustment Date therefor, a number of percentage points per annum
that is set forth in the related Loan Schedule and in the related Note, which
is the maximum amount by which the Loan Interest Rate for such Adjustable Rate
Loan may increase or decrease on such Adjustment Date from the Loan Interest
Rate in effect immediately prior to such Adjustment Date.
Insurance Proceeds: With respect to each Loan, proceeds of
insurance policies insuring the Loan or the related Mortgaged Property.
Liquidation Proceeds: Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received in connection with the liquidation of a
defaulted Loan through trustee's sale, foreclosure sale or otherwise, other
than amounts received following the acquisition of REO Property.
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Loan: Each first or second lien, residential mortgage loan, sold,
assigned and transferred to the Purchaser pursuant to this Agreement and the
Confirmation and identified on the Loan Schedule, which Loan includes without
limitation the Loan File, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition proceeds, and all other rights, benefits, proceeds and obligations
arising from or in connection with such Loan.
Loan Documents: The documents listed in Exhibit 6 annexed hereto
pertaining to any Loan.
Loan File: The items pertaining to a particular Loan referred to
in Exhibit 5 annexed hereto, and any additional documents required to be added
to the Loan File pursuant to this Agreement.
Loan Interest Rate: With respect to each Fixed Rate Loan, the
fixed annual rate of interest provided for in the related Note and, with
respect to each Adjustable Rate Loan, the annual rate at which interest
accrues on such Adjustable Rate Loan from time to time in accordance with the
provisions of the related Note.
Loan Schedule: The schedule of Loans to be annexed to the
Assignment and Conveyance on the Closing Date for the Loans delivered on such
Closing Date, such schedule setting forth, but not limited to, the following
information with respect to each Loan: (1) the Seller's Loan identification
number; (2) a code indicating whether the Loan is an Adjustable Rate Loan or a
fixed rate Loan; (3) the Borrower's first and last name; (4) the street
address of the Mortgaged Property including the city, state and zip code; (5)
the original principal balance of the Loan; (6) the Scheduled Principal
Balance of the Loan as of the close of business on the Cut-off Date; (7) the
actual unpaid principal balance of the Loan as of the close of business on the
Cut-off Date; (8) the last scheduled Due Date on which a Monthly Payment was
applied to the Scheduled Principal Balance; (9) the last Due Date on which a
Monthly Payment was actually applied to the actual unpaid principal balance;
(10) the Loan Interest Rate in effect immediately following origination; (11)
the Loan Interest Rate in effect immediately following the Cut-off Date (if
different from (10)); (12) the amount of the Monthly Payment at origination;
(13) the amount of the Monthly Payment as of the Cut-off Date (if different
from (12)); (14) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or an investor property; (15) a code indicating
whether the Mortgaged Property is a single family residence, a two-family
residence, a three-family residence, a four-family residence, a planned-unit
development, or a condominium; (16) a code indicating the loan purpose (i.e.,
purchase, rate/term refinance, cash-out refinance); (17) the stated maturity
date; (18) the original months to maturity; (19) the remaining months to
maturity from the Cut-off Date based on the original amortization schedule
and, if different, the remaining months to maturity expressed in the same
manner but based on the actual amortization schedule; (20) the origination
date of the Loan and the original date of the Note; (21) the Appraised Value
(including the purchase price of the Mortgaged Property, if applicable), LTV
and Combined Loan-to-Value Ratio at origination; (22) the date on which the
first Monthly Payment was due on the Loan after the origination date; (23)
with respect to each Adjustable Rate Loan, the Index; (24) with respect to
each Adjustable Rate Loan, the type of Adjustable Rate Loan (i.e., 1/1, 3/1,
5/1, etc.); (25) with respect to each Adjustable Rate Loan, the Gross Margin;
(26) with respect to each Adjustable Rate Loan, the
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Periodic Rate Cap; (27) with respect to each Adjustable Rate Loan, the Initial
Rate Cap (if different from the Periodic Rate Cap) (28) with respect to each
Adjustable Rate Loan, the Maximum Loan Interest Rate; (29) with respect to
each Adjustable Rate Loan, the Minimum Loan Interest Rate; (30) with respect
to each Adjustable Rate Loan, the first Adjustment Date immediately following
origination; (31) with respect to each Adjustable Rate Loan, the first
Adjustment Date immediately following the Cut-off Date (if different from
(30)); (32) a code indicating the documentation style of the Loan; (33) a code
indicating if the Loan is subject to a Primary Insurance Policy and, if so,
the name of the Qualified Insurer, the certificate number and the coverage
amount of the Primary Insurance Policy; (34) the Servicing Fee Rate; (35) the
Seller's program pursuant to which the Loan was underwritten; (36) a code
indicating whether the Loan is subject to a prepayment penalty and, if so, the
term of such prepayment penalty and such other information necessary to
calculate such prepayment penalty; (37) the credit score (or mortgage score)
of the Borrower; (38) the debt-to-income ratio of the Loan; (39) a code
indicating whether the Loan is a MERS Loan and, if so, the corresponding MIN;
(40) a code indicating whether the Loan is a "Home Loan" as defined in the
current Standard & Poor's LEVELS(R) Glossary Revised, Appendix E; (41) a code
indicating if the Loan is an interest-only Loan (including any Loans with any
interest-only features) and, if so, the term of the interest-only period of
such Loan; and (42) a code indicating whether the Mortgaged Property is
subject to a First Lien or a Second Lien. The Loan Schedule shall set forth
the following information, in aggregate, as of the related Cut-off Date: (1)
the number of Loans; (2) the original principal balance of the Loans; (3) the
Scheduled Principal Balance of the Loans; (4) the weighted average Loan
Interest Rate of the Loans; (5) the weighted average Net Loan Rate of the
Loans; (4) the weighted average remaining months to maturity of the Loans; and
(5) with respect to Adjustable Rate Loans, the weighted average Gross Margin
and the weighted average number of months until the next Adjustment Date. The
Loan Schedule will be prepared for each Closing Date and will be attached to
the Assignment and Conveyance. The Loan Schedule shall be delivered to the
Purchaser, the Depositor and the Custodian in both hard copy and electronic
format.
Loan-to-Value Ratio or LTV: With respect to any Loan as of any
date of determination, the ratio on such date of the outstanding principal
amount of the Loan, to the Appraised Value of the Mortgaged Property.
Master Servicer: With respect to the Securitization Transaction,
the "master servicer," if any, identified in the related transaction
documents.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Loan: Any Loan registered with MERS on the MERS System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Maximum Loan Interest Rate: With respect to each Adjustable Rate
Loan, a rate that is set forth on the Loan Schedule and in the related Note
which is the maximum interest rate to which the Loan Interest Rate on such
Loan may be increased on any Adjustment Date.
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MIN: The Mortgage Identification Number for any MERS Loan.
Minimum Loan Interest Rate: With respect to each Adjustable Rate
Loan, a rate that is set forth on the Loan Schedule and in the related Note
which is the minimum interest rate to which the Loan Interest Rate on such
Loan may be decreased on any Adjustment Date.
MOM Loan: Any Loan as to which MERS is acting as mortgagee, solely
as nominee for the originator of such Loan and its successors and assigns.
Monthly Advance: The aggregate of the advances made by the Seller
on any Distribution Date pursuant to Section 11.21 of the Servicing Addendum..
Monthly Payment: With respect to any Loan, the scheduled combined
payment of principal and interest payable by a Borrower under the related Note
on each Due Date.
Mortgaged Property: With respect to each Loan, the Borrower's real
property securing repayment of the related Note, consisting of real property
improved by a Residential Dwelling.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in
interest.
Mortgage: With respect to each Loan, the mortgage, deed of trust
or other instrument creating a first or second lien on the Mortgaged Property
securing the related Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Note: The original executed note or other evidence of the Loan
indebtedness of a Borrower.
Net Loan Rate: With respect to any Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the then applicable Loan Interest Rate for such Loan minus the Servicing
Fee Rate.
Nonrecoverable Monthly Advance: Any Monthly Advance previously
made or proposed to be made in respect of a Loan or REO Property that, in the
good faith business judgment of the Seller, will not, or, in the case of a
proposed Monthly Advance, would not be, ultimately recoverable from related
late payments, Insurance Proceeds or Liquidation Proceeds on such Loan or REO
Property as provided herein.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the Chief Executive Officer or the
Chief Financial Officer or a President or a Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Person on behalf of whom such certificate is being
delivered.
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Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Person on behalf of whom the opinion is being given,
reasonably acceptable to each Person to whom such opinion is addressed.
Periodic Rate Cap: With respect to each Adjustable Rate Loan and
any Adjustment Date therefor, a number of percentage points per annum that is
set forth in the Loan Schedule and in the related Note, which is the maximum
amount by which the Loan Interest Rate for such Adjustable Rate Loan may
increase (without regard to the Maximum Loan Interest Rate) or decrease
(without regard to the Minimum Loan Interest Rate) on such Adjustment Date
from the Loan Interest Rate in effect immediately prior to such Adjustment
Date.
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Prepayment Interest Excess: With respect to any Distribution Date,
for each Loan that was the subject of a Principal Prepayment in full during
the portion of the related Prepayment Period occurring between the first day
of the calendar month in which such Distribution Date occurs and the last day
of the related Prepayment Period, an amount equal to interest (to the extent
received) at the applicable Net Loan Rate on the amount of such Principal
Prepayment for the number of days commencing on the first day of the calendar
month in which such Distribution Date occurs and ending on the date on which
such prepayment is so applied.
Prepayment Interest Shortfall: With respect to any Distribution
Date and any Loan that was subject to a Principal Prepayment or other
unscheduled receipt of principal (including as a result of a liquidation)
during the portion of the related Prepayment Period occurring between and
including the first day of such related Prepayment Period and the last day of
the calendar month preceding the month in which such Distribution Date occurs,
an amount equal to interest at the applicable Net Loan Rate on the amount of
such Principal Prepayment for the number of days commencing on the date on
which the such prepayment is applied and ending on the last day of the
calendar month preceding the month in which such Distribution Date occurs.
Prepayment Period: With respect to any Distribution Date, the
previous calendar month.
Primary Insurance Policy: A policy of primary mortgage guaranty
insurance issued by a Qualified Insurer.
Principal Prepayment: Any payment or other recovery of principal
on a Loan 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.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller pursuant to the Confirmation in exchange for the Loans
purchased on the Closing Date as calculated as provided in Section 4.
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Purchaser: UBS Real Estate Securities Inc., or any successor.
Qualified Correspondent: Any Person from which the Seller
purchased Loans, provided that the following conditions are satisfied: (i)
such Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Loans
were in fact underwritten as described in clause (i) above and were acquired
by the Seller within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Loans were originated, used by
the Seller in origination of mortgage loans of the same type as the Loans for
the Seller's own account or (y) the Designated Guidelines were, at the time
such Loans were underwritten, designated by the Seller on a consistent basis
for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Loans were acquired by
the Seller, pre-purchase or post-purchase quality assurance procedures (which
may involve, among other things, review of a sample of mortgage loans
purchased during a particular time period or through particular channels)
designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Qualified Insurer: Any insurer duly authorized and licensed where
required by law to transact its business and which meets the requirements of
Xxxxxxx Mac.
Qualified Substitute Loan: A loan substituted for a Deleted Loan
pursuant to the terms of this Agreement which must, on the date of such
substitution, (i) have an outstanding principal balance, after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, not in excess of the Stated Principal Balance of the
Deleted Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a Loan Interest Rate not less than (and not
more than one percentage point in excess of) the Loan Interest Rate of the
Deleted Loan, (iii) have a Net Loan Rate equal to the Net Loan Rate of the
Deleted Loan, (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Loan, (v) have the same Due
Date as the Due Date on the Deleted Loan, (vi) have a Loan-to-Value Ratio as
of the date of substitution equal to or lower than the Loan-to-Value Ratio of
the Deleted Loan as of such date, (vii) be covered under a Primary Insurance
Policy if such Qualified Substitute Loan has a Loan-to-Value Ratio in excess
of 80%, (viii) conform to each representation and warranty set forth in
Section 7.02 of this Agreement and (ix) be the same type of loan (i.e. fixed
or adjustable rate with the same Gross Margin and Index as the Deleted Loan).
In the event that one or more loans are substituted for one or more Deleted
Loans, the amounts described in clause (i) hereof shall be determined on the
basis of aggregate principal balances, the Loan Interest Rates described in
clause (ii) hereof shall be satisfied as to each such loan, the Net Loan Rates
described in clause (iii) hereof shall be satisfied as to each such loan, the
terms described in clause (iv) shall be determined on the basis of weighted
average remaining terms to maturity, the Loan-to-Value Ratios described in
clause (vi) hereof shall be satisfied as to each such loan and, except to the
extent otherwise provided in this sentence, the representations and warranties
described in clause (ix) hereof must be satisfied as to each Qualified
Substitute Loan or in the aggregate, as the case may be.
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Rate/Term Refinancing: A Refinanced Loan, the proceeds of which
are not in excess of the greater of $2,000 or 2% of the existing first lien
loan (and any existing junior lien loans, if applicable) of the related
Mortgaged Property and related closing costs, and were used exclusively to
satisfy the then existing first lien loan (and any existing junior lien loans,
if applicable) of the Borrower on the related Mortgaged Property and to pay
related closing costs.
Record Date: With respect to each Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
Refinanced Loan: A Loan the proceeds of which were not used to
purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to REMICs, which appear in Sections 860A through 860G of the Code;
and related provisions, and proposed, temporary and final regulations and
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
REO Disposition: The final sale by the Seller of any REO Property.
REO Property: A Mortgaged Property acquired as a result of the
liquidation of a Loan.
Repurchase Price: With respect to any Loan, a price equal to (i)
the product of the Stated Principal Balance of such Loan times the greater of
(x) the percentage of par used to calculate the Purchase Price pursuant to the
Confirmation and (y) 100% plus (ii) interest on such Stated Principal Balance
at the Loan Interest Rate from and including the last Due Date through which
interest has been paid by or on behalf of the Borrower to the first day of the
month following the date of repurchase, plus (iii) any costs and damages
incurred in connection with any violation of such Loan of any predatory or
abusive lending law; less amounts received in respect of such repurchased Loan
which are being held in the Custodial Account for distribution in connection
with such Loan.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two to four-family dwelling, (iii) a
one-family dwelling unit in a Xxxxxx Xxx eligible condominium project, or (iv)
a detached one-family dwelling in a planned unit development, none of which is
a unit in a cooperative property or a mobile or manufactured home.
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Xxxxxxxx-Xxxxx Act: Means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
Second Lien: With respect to each Mortgaged Property, the lien of
the mortgage, deed of trust or other instrument securing a Note which creates
a second lien on the Mortgaged Property.
Second Lien Loan: A Loan secured by the lien on the Mortgaged
Property, subject to one prior lien on such Mortgaged Property securing
financing obtained by the related Mortgagor.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: The transaction pursuant to which TBW
Mortgage-Backed Trust 2007-1 Mortgage-Backed Pass-Through Certificates, Series
2007-1 are issued.
Seller Information: As defined in Subsection 33.07(a).
Servicer: As defined in Subsection 33.03(c).
Servicing Addendum: The terms and conditions attached hereto as
Exhibit 9 which will govern the servicing of the Loans by Seller.
Servicing Advances: All customary, reasonable and necessary
"out-of-pocket" costs and expenses incurred by the Seller in the performance
of its servicing obligations, including, but not limited to, the cost of (i)
preservation, restoration and repair of a Mortgaged Property, (ii) any
enforcement or judicial proceedings with respect to a Loan, including
foreclosure actions and (iii) the management and liquidation of REO Property.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Loan, the amount of the annual
servicing fee the Purchaser shall pay to the Seller, which shall, for each
month, be equal to one-twelfth of the product of (a) the Servicing Fee Rate
and (b) the unpaid principal balance of the Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Loan is computed. The
obligation of the Purchaser to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds and other
proceeds, to the extent permitted by Section 11.05 of the Servicing Addendum)
of related Monthly Payments collected by the Seller.
Servicing Fee Rate: The per annum rate at which the Servicing Fee
accrues, which rate with respect to each Loan shall be equal to the percentage
specified as such on the Loan Schedule.
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Servicing File: With respect to each Loan, the file retained by
the Seller consisting of originals of all documents in the Loan File which are
not delivered to the Purchaser or the Custodian and copies of the Loan
Documents.
Standard & Poor's: Standard & Poor's Rating Services, a division
of The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Stated Principal Balance: As to each Loan as of any date of
determination, (i) the principal balance of the Loan as of the Cut-off Date
after giving effect to payments of principal due on or before such date,
whether or not collected from the Borrower on or before such date, minus (ii)
all amounts previously distributed to the Purchaser with respect to the
related Loan representing payments or recoveries of principal (or advances in
lieu thereof).
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of Loans
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Loans under the direction or authority of the
Seller or a Subservicer.
Subservicer: Any Person that services Loans on behalf of the
Seller or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion
of the material servicing functions required to be performed by the Seller
under this Agreement that are identified in Item 1122(d) of Regulation AB.
Subservicing Agreement: The written contract between the Seller
and a Subservicer relating to servicing and administration of certain Loans as
provided in Subsection 11.29 of the Servicing Addendum.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Loans acquired by the Seller and sold to the
Purchaser hereunder.
SECTION 2. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase Loans having an aggregate principal balance on
the Cut-off Date in an amount as set forth in the Confirmation on the Closing
Date.
SECTION 3. Loan Schedules. The Seller shall deliver the Loan
Schedule to the Purchaser at least five (5) Business Days prior to the Closing
Date in both hard copy and electronic format.
SECTION 4. Purchase Price. The Purchase Price for each Loan listed
on the Loan Schedule shall be the percentage of par as stated in the
Confirmation (subject to adjustment as provided therein), multiplied by its
Stated Principal Balance as of the Cut-off Date. If so provided in the
Confirmation, portions of the Loans shall be priced separately. The aggregate
Purchaser Price paid to the Seller shall be reduced by the price of the TBW
Mortgage-Backed
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Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1, Class C, Class
P and Class R Certificates (the "Transferred Certificates"). The aggregate
consideration for the sale of the Loans by the Seller and the purchase of the
Loans by the Purchaser shall be the total amount of cash paid by the Purchaser
and the Transferred Certificates.
In addition to the Purchase Price as described above, (i) the
Purchaser shall pay the Seller, at closing, accrued interest on the Stated
Principal Balance of each Loan as of the related Cut-off Date at its Net Loan
Rate from the related Cut-off Date through the day prior to the related
Closing Date, both inclusive and (ii) the Seller shall pay to the Purchaser
the costs and fees expected to be associated with the recording of an
Assignment of Mortgage with respect to each Loan (such amount may be set forth
in the Confirmation).
The Purchaser shall own and be entitled to receive with respect to
each Loan purchased, (1) all scheduled principal due after the related Cut-off
Date, (2) all other recoveries of principal collected after the related
Cut-off Date (provided, however, that all scheduled payments of principal due
on or before the related Cut-off Date and collected by the Seller after the
related Cut-off Date shall belong to the Seller), and (3) all payments of
interest on the Loans net of the Servicing Fee minus that portion of any such
interest payment that is allocable to the period prior to the related Cut-off
Date. The Stated Principal Balance of each Loan as of the related Cut-off Date
is determined after application to the reduction of principal of payments of
principal due on or before the related Cut-off Date whether or not collected.
Therefore, for the purposes of this Agreement, payments of scheduled principal
and interest prepaid for a Due Date beyond the related Cut-off Date shall not
be applied to the principal balance as of the related Cut-off Date. Such
prepaid amounts (minus the applicable Servicing Fee) shall be the property of
the Purchaser. The Seller shall deposit any such prepaid amounts into the
Custodial Account, which account is established for the benefit of the
Purchaser, for remittance by the Seller to the Purchaser on the first related
Distribution Date. All payments of principal and interest, less the applicable
Servicing Fee, due on a Due Date following the related Cut-off Date shall
belong to the Purchaser.
SECTION 5. Examination of Loan Files. In addition to the rights
granted to the Purchaser under the Confirmation to underwrite the Loans and
review the Loan Files prior to the Closing Date, prior to the related Closing
Date, the Seller shall (a) deliver to the Custodian in escrow, for examination
with respect to each Loan to be purchased on the Closing Date, the related
Loan File, or (b) make the related Loan File available to the Purchaser for
examination at the Seller's offices or such other location as shall otherwise
be agreed upon by the Purchaser and the Seller. Such examination may be made
by the Purchaser or its designee at any reasonable time before the related
Closing Date. If the Purchaser makes such examination prior to the Closing
Date and identifies any Loans that do not conform to the terms of the
Confirmation or the Purchaser's underwriting standards, such Loans may, at the
Purchaser's option, be rejected for purchase by the Purchaser. If not
purchased by the Purchaser, such Loans shall be deleted from the Loan
Schedule. The Purchaser may, at its option and without notice to the Seller,
purchase all or a portion of the Loans without conducting any partial or
complete examination. The fact that the Purchaser has conducted or has
determined not to conduct any partial or complete examination of the Loan
Files shall not affect the Purchaser's (or any of its successors') rights to
demand repurchase or other relief or remedy provided for in this Agreement.
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SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01. Conveyance of Loans; Possession of Servicing
Files.
The Seller, simultaneously with the payment of the Purchase Price,
shall execute and deliver to the Purchaser an Assignment and Conveyance with
respect to the related Loan Package in the form attached hereto as Exhibit 4.
The Servicing File retained by the Seller with respect to each Loan pursuant
to this Agreement shall be appropriately identified in the Seller's computer
system to reflect clearly the sale of such related Loan to the Purchaser. The
Seller shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement, except when such
release is required in connection with a repurchase of any such Loan pursuant
to Subsection 7.03 or 7.04.
In addition, in connection with the assignment of any MERS Loan,
the Seller agrees that on or prior to the Closing Date it will cause, at its
own expense, the MERS System to indicate that the related Loans have been
assigned by the Seller to the Purchaser in accordance with this Agreement by
including in such computer files the information required by the MERS System
to identify the Purchaser as owner of such Loans.
Subsection 6.02. Books and Records.
Record title to each Note and the related Mortgage as of the
related Closing Date shall be in the name of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall designate.
Notwithstanding the foregoing, beneficial ownership of each Note and the
related Mortgage shall be vested solely in the Purchaser. All rights arising
out of the Loans including, but not limited to, all funds received by the
Seller after the Cut-off Date on or in connection with a Loan as provided in
Section 4 shall be vested in the Purchaser or one or more designees of the
Purchaser; provided, however, that all such funds received on or in connection
with a Loan as provided in Section 4 shall be received and held by the Seller
in trust for the benefit of the Purchaser as the owner of the Loans pursuant
to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Loans by
the Seller and not a pledge of the Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller. Consequently, the sale of
each Loan shall be reflected as a sale on the Seller's business records, tax
returns and financial statements.
Subsection 6.03. Delivery of Loan Documents.
The Seller shall in connection with the Closing Date, at least
five (5) Business Days prior to the Closing Date, deliver and release to the
Custodian the Loan Documents with respect to each Loan to be purchased and
sold on the Closing Date and set forth on the related Loan Schedule.
The Custodian shall certify its receipt of all such Loan Documents
for the related Closing Date, as evidenced by a trust receipt and initial
certification of the Custodian delivered to the Purchaser. The fees and
expenses of the Custodian shall be paid by the Seller.
15
The Seller shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian with
a certified true copy of any such document submitted for recordation within
two weeks of its execution.
The Seller shall provide the original of any document submitted
for recordation promptly upon return of such document from the applicable
recording office and in no event later than 180 days following the Closing
Date, or in the case of an assumption, modification, consolidation or
extension pursuant to the preceding paragraph, 180 days following the date of
submission of such document to the applicable recording office for
recordation. The Seller shall provide an original mortgagee title insurance
policy meeting the requirements of this Agreement promptly upon the issuance
thereof and in no event later than 180 days following the related Closing
Date. To the extent that the Seller fails to provide any such original
document within the time period set forth herein, such failure shall be deemed
a material breach of a representation and warranty in Subsection 7.02 hereof
and the Purchaser may demand, and shall have the right to, a remedy for such
breach pursuant to Subsection 7.03 hereof (it being understood that any cure
period set forth in Subsection 7.03 shall be deemed to have expired).
Notwithstanding the foregoing, in the event the Seller is unable to deliver by
such date each original document and by reason of the fact that any such
documents have not been returned by the appropriate recording office, the
Seller shall deliver such documents to the Custodian as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date. The Seller shall forward or cause to be forwarded to the Custodian (a)
from time to time additional original documents evidencing an assumption or
modification of a Loan and (b) any other documents required to be delivered by
the Seller to the Custodian. In the event that the original document is not
delivered and in connection with the payment in full of the related Loan and
the public recording office requires the presentation of a "lost instruments
affidavit and indemnity" or any equivalent document, because only a copy of
the document can be delivered with the instrument of satisfaction or
reconveyance, the Custodian shall execute and deliver or cause to be executed
and delivered such a document to the public recording office. In the case
where a public recording office retains the original recorded document or in
the case where a document is lost after recordation in a public recording
office, the Seller shall deliver to the Custodian a copy of such document
certified by such public recording office to be a true and complete copy of
the original recorded document.
SECTION 7. Representations, Warranties and Covenants; Remedies for
Breach.
Subsection 7.01. Representations and Warranties Respecting the
Seller.
The Seller represents, warrants and covenants to the Purchaser as
of the Closing Date or as of such date specifically provided herein or in the
applicable Assignment and Conveyance:
(i) The Seller is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
licenses necessary to carry on its business as now being conducted. It is
licensed in, qualified to transact business in and is in good standing under
the laws of the state in which any Mortgaged Property is located except where
the
16
failure to be so licensed and qualified would not have a material adverse
effect on the Seller's business or operations or the enforceability of any
Loan or the Seller's ability to service such Loan in accordance with the terms
of this Agreement. No licenses or approvals obtained by Seller have been
suspended or revoked by any court, administrative agency, arbitrator or
governmental body and no proceedings are pending which might result in such
suspension or revocation;
(ii) The Seller has the full power and authority to hold each
Loan, to sell each Loan, and to execute, deliver and perform, and to enter
into and consummate, all transactions contemplated by this Agreement. The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Purchaser,
constitutes a legal, valid and binding obligation of the Seller, enforceable
against it in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or reorganization;
(iii) The execution and delivery of this Agreement by the Seller
and the performance of and compliance with the terms of this Agreement do not
and will not violate the Seller's articles of incorporation or by-laws or
constitute a default under or result in a breach or acceleration of, any
material contract, agreement or other instrument to which the Seller is a
party or which may be applicable to the Seller or its assets;
(iv) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and compliance
with the terms of this Agreement will not constitute a violation with respect
to, any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction over the
Seller or its assets, which violation might have consequences that would
materially and adversely affect the condition (financial or otherwise) or the
operation of the Seller or its assets or might have consequences that would
materially and adversely affect the performance of its obligations and duties
hereunder;
(v) The Seller is an approved seller/servicer for Xxxxxxx Mac in
good standing and is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act. No event has occurred, including but not limited to a
change in insurance coverage, which would make the Seller unable to comply
with Xxxxxxx Mac or HUD eligibility requirements or which would require
notification to Xxxxxxx Mac or HUD;
(vi) The Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(vii) The Note, the Mortgage, the Assignment of Mortgage and any
other documents required to be delivered with respect to each Loan pursuant to
this Agreement, have been delivered to the Custodian all in compliance with
the specific requirements of this Agreement. With respect to each Loan, the
Seller is in possession of a complete Loan File in compliance with Exhibit 5,
except for such documents as have been delivered to the Custodian;
17
(viii) Immediately prior to the payment of the Purchase Price for
each Loan, the Seller was the owner of record of the related Mortgage and the
indebtedness evidenced by the related Note and upon the payment of the
Purchase Price by the Purchaser, in the event that the Seller retains record
title, the Seller shall retain such record title in trust for the Purchaser as
the owner thereof and only for the purpose of servicing and supervising the
servicing of each Loan;
(ix) There are no actions or proceedings against, or
investigations of, the Seller before any court, administrative or other
tribunal (A) that might prohibit its entering into this Agreement, (B) seeking
to prevent the sale of the Loans or the consummation of the transactions
contemplated by this Agreement or (C) that might prohibit or materially and
adversely affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement;
(x) 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 the consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the related Closing Date;
(xi) 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 Notes and the Mortgages by the
Seller pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions;
(xii) Neither this Agreement nor any written statement, report or
other document prepared and furnished or to be prepared and furnished by the
Seller pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements contained herein or
therein not misleading;
(xiii) The origination, servicing and collection practices used by
the Seller (and by any prior originator or servicer) with respect to each Note
and Mortgage have been in all respects legal, proper, prudent and customary in
the mortgage origination and servicing industry and have been in accordance
with Accepted Servicing Practices. The Loan has been serviced by the Seller
and any predecessor servicer in accordance with the terms of the Note. With
respect to escrow deposits and Escrow Payments, if any, all such payments are
in the possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments or
other charges or payments due the Seller have been capitalized under any
Mortgage or the related Note and no such escrow deposits or Escrow Payments
are being held by the Seller for any work on a Mortgaged Property which has
not been completed;
(xiv) The transfer of the Loans shall be treated as a sale on the
books and records of the Seller, and the Seller has determined that, and will
treat, the disposition of the Loans pursuant to this Agreement for tax and
accounting purposes as a sale. The Seller shall maintain a complete set of
books and records for each Loan which shall be clearly marked to reflect the
ownership of such Loan by the Purchaser;
18
(xv) The consideration received by the Seller upon the sale of the
Loans constitutes fair consideration and reasonably equivalent value for such
Loan;
(xvi) The Seller is solvent and will not be rendered insolvent by
the consummation of the transactions contemplated hereby. The Seller is not
transferring any Loan with any intent to hinder; delay or defraud any of its
creditors;
(xvii) The information delivered by the Seller to the Purchaser
with respect to the Seller's loan loss, foreclosure and delinquency experience
for the twelve (12) months immediately preceding the Initial Closing Date on
loans underwritten to the same standards as the Loans and covering properties
similar to the Mortgaged Properties, is true and correct in all material
respects; and
(xviii) If the Seller is or becomes a member of MERS, the Seller
is in good standing, and will comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the MERS Loans for
as long as such Loans are registered with MERS.
Subsection 7.02. Representations and Warranties Regarding
Individual Loans.
The Seller hereby represents and warrants to the Purchaser that,
as to each Loan, as of the related Closing Date for such Loan:
(i) The information set forth in the related Loan Schedule is
complete, true and correct;
(ii) The Loan is in compliance with all requirements set forth in
the Confirmation, and the characteristics of the related Loan Package as set
forth in the Confirmation are true and correct;
(iii) 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 related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Note or Mortgage; and no Loan has been more than 30
days delinquent during the last twelve months;
(iv) There are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(v) The terms of the Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments,
recorded in the applicable public recording office if necessary to maintain
the lien priority of the Mortgage, and which have been delivered to the
Custodian; the substance of any such waiver, alteration or modification has
been approved by the insurer under the Primary Insurance Policy, if any, and
the title insurer, to the extent required by the related policy, and is
reflected on the related Loan Schedule. No instrument of waiver, alteration or
modification has been executed, and no Borrower has been released, in whole or
in part, except in connection with an assumption agreement approved by the
insurer under the Primary Insurance Policy, if any, and the title
19
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected in
the related Loan Schedule. With respect to each Second Lien Loan (a) the
related first lien is in full force and effect, (b) there is no default,
breach, violation or event of acceleration existing under the related first
lien mortgage or the mortgage note related to such first lien mortgage, (c)
either no consent for the Loan is required by the holder of the first lien or
such consent has been obtained and is contained in the Loan File, (d) 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 under the related first lien mortgage loan, and either (1) the
related first lien mortgage contains a provision which allows or (2)
applicable law requires, the mortgagee under the Second Lien Loan to receive
notice of, and affords such mortgagee an opportunity to cure any default by
payment in full or otherwise under the related first lien mortgage, and (e)
such Second Lien Loan is secured by a one- to four-family residence that is
the principal residence of the Borrower;
(vi) The Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Note and the Mortgage or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission, set
off, counterclaim or defense has been asserted with respect thereto;
(vii) All buildings upon the Mortgaged Property are insured by an
insurer acceptable to Xxxxxxx Mac against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the
Mortgaged Property is located, pursuant to insurance policies conforming to
the requirements of the Servicing Addendum, in an amount which is not less
than the lesser of 100% of the insurable value of the Mortgaged Property and
the outstanding principal balance of the Loans, but in no event less than the
minimum amount necessary to fully compensate for any damage or loss on a
replacement cost basis. All such insurance policies contain a standard
mortgagee clause naming the Seller, its successors and assigns as mortgagee
and all premiums thereon have been paid. If the Mortgaged Property is in an
area identified on a Flood Hazard Map or Flood Insurance Rate Map issued 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 Federal Insurance
Administration is in effect with a generally acceptable insurance carrier]
which policy conforms to the requirements of Xxxxxxx Mac, in an amount
representing coverage not less than the least of (A) the outstanding principal
balance of the Loan, (B) the full insurable value of the Mortgaged Property
and (C) the maximum amount of insurance which was available under the National
Flood Insurance Act of 1968, as amended. The Mortgage obligates the Borrower
thereunder to maintain all such insurance at the Borrower's cost and expense,
and on the Borrower's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Borrower's cost and expense and to seek
reimbursement therefor from the Borrower. No prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such insurance policies;
(viii) Each Loan and, if any, the related prepayment penalty
complies in all material respects with any and all requirements of any
federal, state or local law including, without limitation, usury, truth in
lending, real estate settlement procedures, consumer credit
20
protection, equal credit opportunity, fair housing, disclosure, or predatory,
fair and abusive lending laws applicable to the origination and servicing of
loans of a type similar to the Loans and the consummation of the transactions
contemplated hereby will not involve the violation of any such laws;
(ix) Neither the Mortgage nor the related Note has 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
satisfaction, cancellation, subordination, rescission or release;
(x) The Mortgage is a valid, existing and enforceable first or
second lien on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (a) the lien of current real property taxes
and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record
as of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the originator of the Loan and which do not adversely affect the
Appraised Value of the Mortgaged Property, (c) with respect to Second Lien
Loans, the first priority lien on the Mortgaged Property and (d) other matters
to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Loan establishes and
creates a valid, existing and enforceable first lien and first priority, or
with respect to Second Lien Loans, second lien and second priority, security
interest on the property described therein and the Seller has full right to
sell and assign the same to the Purchaser. The Mortgaged Property was not, as
of the date of origination of the Loan, subject to a mortgage, deed of trust,
deed to secure debt or other security instrument creating a lien subordinate
to the lien of the Mortgage;
(xi) The Note and the related Mortgage are genuine and each is the
legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms;
(xii) All parties to the Note and the Mortgage had legal capacity
to enter into the Loan and to execute and deliver the Note and the Mortgage,
and the Note and the Mortgage have been duly and properly executed by such
parties;
(xiii) The proceeds of the Loan have been fully disbursed to or
for the account of the Borrower and there is no obligation for the Mortgagee
to advance additional funds 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 Loan and the recording of the
Mortgage have been paid, and the Borrower is not entitled to any refund of any
amounts paid or due to the Mortgagee pursuant to the Note or Mortgage;
(xiv) The Seller is the sole legal, beneficial and equitable owner
of the Note and the Mortgage and has full right to transfer and sell the Loan
to the Purchaser free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest;
21
(xv) All parties which have had any interest in the Loan, whether
as mortgagee, assignee or otherwise, are (or, during the period in which they
held and disposed of such interest, were) in compliance with any and all
applicable "doing business" and licensing requirements of the laws of the
state wherein the Mortgaged Property is located;
(xvi) The Loan is covered by an ALTA lender's title insurance
policy (which, in the case of an Adjustable Rate Loan has an adjustable rate
mortgage endorsement in the form of ALTA 6.0 or 6.1) acceptable to Xxxxxxx
Mac, issued by a title insurer acceptable to Xxxxxxx Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in (x)(a), (b), (c) and (d) above) the
Seller, its successors and assigns as (i) to the first priority lien of the
Mortgage or (ii) with respect to a Second Lien Loan, the second priority lien
of the Mortgage, in either case, in the original principal amount of the Loan
and, with respect to any Adjustable Rate Loan, against any loss by reason of
the invalidity or unenforceability of the lien resulting from the provisions
of the Mortgage providing for adjustment in the Loan Interest Rate and Monthly
Payment. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress to and from the Mortgaged Property, 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
full force and effect upon the consummation of the transactions contemplated
by this Agreement. No claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy;
(xvii) There is no default, breach, violation or event of
acceleration existing under the Note or the Mortgage 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;
(xviii) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such lien) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
(xix) All improvements which were considered in determining the
Appraised Value of the related 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
unless otherwise disclosed and are affirmatively insured by the title
insurance policy referred to in (xvi) above; and to the best of the Seller's
knowledge, the Mortgaged Property and all improvements thereon comply with all
requirements of any applicable zoning and subdivision laws and ordinances;
(xx) The Loan was originated by the Seller or by a savings and
loan association, a savings bank, a commercial bank, a credit union, an
insurance company, or similar institution which is supervised and examined by
a federal or state authority, or by a mortgagee approved by the Secretary of
HUD pursuant to Sections 203 and 211 of the National Housing
22
Act all within the meaning of Section 3(a)(41) of the Securities Exchange Act
of 1934, as amended;
(xxi) Principal payments on the Loan commenced no more than sixty
days after the proceeds of the Loan were disbursed. The Loan bears interest at
the Loan Interest Rate. The Note is payable on the first day of each month in
Monthly Payments, which, in the case of a Fixed Rate Loan, are sufficient to
fully amortize the original principal balance over the original term thereof
(other than during the interest-only period with respect to a Loan identified
on the related Loan Schedule as an interest-only Loan) and to pay interest at
the related Loan Interest Rate, and, in the case of an Adjustable Rate Loan,
are changed on each Adjustment Date, and in any case, are sufficient to fully
amortize the original principal balance over the original term thereof (other
than during the interest-only period with respect to a Loan identified on the
related Loan Schedule as an interest-only Loan) and to pay interest at the
related Loan Interest Rate. With respect to each Loan identified on the Loan
Schedule as an interest-only Loan, the interest-only period does not exceed
ten (10) years (or such lesser period specified on the Loan Schedule) and
following the expiration of such interest-only period, the remaining Monthly
Payments shall be sufficient to fully amortize the original principal balance
over the remaining term of the Loan. The Index for each Adjustable Rate Loan
is as defined in the Confirmation and set forth in the related Loan Schedule.
The Note does not permit negative amortization. No Loan provides for the
capitalization or forbearance of interest. No Loan is a Convertible Loan;
(xxii) The Mortgaged Property is undamaged by water, fire,
earthquake or other earth movement, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Seller makes no representations), so as
to affect adversely the value of the Mortgaged Property as security for the
Loan or the use for which the premises were intended and to the best of the
Seller's knowledge, there is no proceeding pending or threatened for the total
or partial condemnation of the Mortgaged Property;
(xxiii) The Mortgage and related Note contain customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise
by judicial foreclosure. The Mortgaged Property has not been subject to any
bankruptcy proceeding or foreclosure proceeding and the Borrower has not filed
for protection under applicable bankruptcy laws. There is no homestead or
other exemption available to the Borrower which would interfere with the right
to sell the Mortgaged Property at a trustee's sale or the right to foreclose
the Mortgage. The Borrower has not notified the Seller requesting relief under
the Soldiers' and Sailors' Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act, and the Seller has no knowledge of any relief requested or
allowed to the Borrower under the Soldiers' and Sailors' Civil Relief Act of
1940 or the Servicemembers Civil Relief Act or any similar state laws;
(xxiv) The Loan was underwritten in accordance with the
underwriting standards of the Seller in effect at the time the Loan was
originated, a copy of which underwriting standards are attached as Exhibit 10
hereto. The Note and Mortgage are on forms acceptable to Xxxxxxx Mac;
23
(xxv) The 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 (x) or (xi)
above;
(xxvi) The Loan File contains an appraisal of the related
Mortgaged Property which is on appraisal form 1004 or form 2055 with an
interior inspection or, with respect to any Second Lien Loan, is on appraisal
form 704, 2065 or 2055 with an exterior inspection only, and, in each case,
which satisfied the standards of Xxxxxxx Mac and was made and signed, prior to
the approval of the Loan application, by a qualified appraiser, duly appointed
by the Seller, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof; whose compensation is
not affected by the approval or disapproval of the Loan and who met the
minimum qualifications of Xxxxxxx Mac. Each appraisal of the Loan was made in
accordance with the relevant provisions of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989;
(xxvii) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and
no fees or expenses are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Borrower;
(xxviii) No Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in any separate
account established by the Seller, the Borrower, or anyone on behalf of the
Borrower or (b) paid by any source other than the Borrower. The Loan is not a
graduated payment loan and the Loan does not have a shared appreciation or
other contingent interest feature. No Loan contains any provisions which may
constitute buydown provisions;
(xxix) The Borrower has executed a statement to the effect that
the Borrower has received all disclosure materials required by applicable law
with respect to the making of fixed rate loans in the case of Fixed Rate
Loans, and adjustable rate loans in the case of Adjustable Rate Loans and
rescission materials with respect to Refinanced Loans, and such statement is
and will remain in the Loan File;
(xxx) No Loan was made in connection with (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the trade-in or
exchange of a Mortgaged Property;
(xxxi) The Seller has no knowledge of any circumstances or
condition with respect to the Mortgaged Property, the Borrower, the Borrower's
credit standing or the Mortgage that can reasonably be expected to cause the
Loan to be an unacceptable investment, cause the Loan to become delinquent, or
adversely affect the value of the Loan;
(xxxii) Each Loan with an LTV at origination in excess of 80% is
and will be subject to a Primary Insurance Policy, issued by a Qualified
Insurer, which insures that portion of the Loan in excess of the portion of
the Appraised Value of the Mortgaged Property required by Xxxxxx Mae. All
provisions of such Primary Insurance Policy have been and are being
24
complied with, such policy is in full force and effect, and all premiums due
thereunder have been paid. Any Mortgage subject to any such Primary Insurance
Policy obligates the Borrower thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith. No Loan requires payment of
such premiums, in whole or in part, by the Purchaser. The Loan Interest Rate
for the Loan does not include any such insurance premium. No Loan had a CLTV
at the time of origination in excess of 100%;
(xxxiii) The Mortgaged Property is lawfully occupied under
applicable law; all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited
to certificates of occupancy, have been made or obtained from the appropriate
authorities;
(xxxiv) No error, omission, misrepresentation, negligence, fraud
or similar occurrence with respect to a Loan has taken place on the part of
any person, including without limitation the Borrower, any appraiser, any
builder or developer, or any other party involved in the origination of the
Loan or in the application of any insurance in relation to such Loan;
(xxxv) The Assignment of Mortgage, if required, is in recordable
form and is acceptable for recording under the laws of the jurisdiction in
which the Mortgaged Property is located;
(xxxvi) Any principal advances made to the Borrower prior to the
Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly insured as
having first lien priority (or with respect to a Second Lien Loan, second lien
priority) by a title insurance policy, an endorsement to the policy insuring
the mortgagee's consolidated interest or by other title evidence acceptable to
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Loan;
(xxxvii) No Loan has a balloon payment feature;
(xxxviii) If the Residential Dwelling on the Mortgaged Property is
a condominium unit or unit in a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project meets the eligibility requirements of Xxxxxxx Mac;
(xxxix) Each Loan constitutes a qualified mortgage under Section
860(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1);
(xl) No Loan is (a) subject to, covered by or in violation of the
Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b) classified as
"high cost," "covered," "high risk home", "threshold", or "predatory" loans
under HOEPA or any other applicable state, federal or local law, including any
predatory or abusive lending laws (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees), (c) a High Cost Loan or Covered Loan, as
applicable (as such terms are
25
defined in the current Standard & Poor's LEVELS(R) Glossary, Appendix E) or
(d) in violation of any state law or ordinance comparable to HOEPA. No Loan
(including purchase money loans or refinance transactions) has an "annual
percentage rate" or "total points and fees" payable by the Borrower (as each
such term is defined under HOEPA) that equal or exceed the applicable
thresholds defined under HOEPA (Section 32 of Regulation Z, 12 C.F.R. Section
226.32(a)(1)(i) and (ii));
(xli) No Borrower was required to purchase any credit life,
disability, accident, unemployment, property or health insurance product or
debt cancellation agreement as a condition of obtaining the extension of
credit. No Borrower obtained a prepaid single premium credit life, disability,
unemployment, property, mortgage, accident or health insurance policy in
connection with the origination of the Loan. No proceeds from any Loan were
used to finance or purchase single-premium credit insurance policies or debt
cancellation agreements as part of the origination of or as a condition to
closing, such Loan;
(xlii) Interest on each Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(xliii) The Mortgaged Property is in compliance with all
applicable environmental laws pertaining to environmental hazards including,
without limitation, asbestos, and neither the Seller nor, to the Seller's
knowledge, the related Borrower, has received any notice of any violation or
potential violation of such law;
(xliv) With respect to each Loan, the Seller has fully and
accurately furnished complete information (e.g., favorable and unfavorable) on
the related borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), in accordance with the
Fair Credit Reporting Act and its implementing regulations, on a monthly basis
and the Seller will furnish for each Loan, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis;
(xlv) Except as set forth on the related Loan Schedule, none of
the Loans are subject to a prepayment penalty. With respect to any Loan that
contains a provision permitting imposition of a penalty upon a prepayment
prior to maturity: (i) the Loan provides some benefit to the Borrower (e.g., a
rate or fee reduction) in exchange for accepting such prepayment penalty; (ii)
the Loan's originator had a written policy of offering the Borrower, or
requiring third-party brokers to offer the Borrower, the option of obtaining a
Loan that did not require payment of such a prepayment penalty and the
Borrower was offered such a product by the Loan's originator; (iii) the
prepayment penalty was adequately disclosed to the Borrower in the loan
documents pursuant to applicable state and federal law; (v) the Loan, will not
provide for prepayment penalties for a term in excess of five years; unless
the Loan was modified to reduce the prepayment period to no more five years;
and (v) such prepayment penalty shall not be imposed in any instance where the
Loan is accelerated or paid off in connection with the workout of a delinquent
mortgage or due to the Borrower's default, notwithstanding that the terms of
the Loan or state or federal law might permit the imposition of such
prepayment penalty. Any such prepayment penalty is permissible and enforceable
in accordance with its terms upon the
26
mortgagor's full and voluntary principal prepayment under applicable law,
except to the extent that: the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights; the collectability thereof may be limited due
to acceleration in connection with a foreclosure or other involuntary
prepayment; or subsequent changes in applicable law may limit or prohibit
enforceability thereof under applicable law;
(xlvi) The Seller has complied with all applicable anti-money
laundering laws and regulations, including without limitation the USA Patriot
Act of 200l (collectively, the "Anti-Money Laundering Laws"), the Seller has
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Loan for purposes of the Anti-Money
Laundering Laws, including with respect to the legitimacy of the applicable
Borrower and the origin of the assets used by the said Borrower to purchase
the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Borrower for purposes of the Anti-Money
Laundering Laws. No Loan is subject to nullification pursuant to Executive
Order 13224 (the "Executive Order") or the regulations promulgated by the
Office of Foreign Assets Control of the United States Department of the
Treasury (the "OFAC Regulations") or in violation of the Executive Order or
the OFAC Regulations, and no Borrower is subject to the provisions of such
Executive Order or the OFAC Regulations nor listed as a "blocked person" for
purposes of the OFAC Regulations;
(xlvii) With respect to each Loan secured in whole or in part by
the interest of the Borrower as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease") the real property securing such Loan is located in
a jurisdiction in which the use of leasehold estates for residential
properties is a widely-accepted practice and:
(a) The Borrower is the owner of a valid and subsisting interest
as tenant under the Ground Lease;
(b) The Ground Lease is in full force and effect, unmodified and
not supplemented by any writing or otherwise;
(c) The mortgagor is not in default under any of the terms thereof
and there are no circumstances which, with the passage of time or the
giving of notice or both, would constitute an event of default
thereunder;
(d) The lessor under the Ground Lease is not in default under any
of the terms or provisions thereof on the part of the lessor to be
observed or performed;
(e) The term of the Ground Lease exceeds the maturity date of the
related Loan by at least ten years;
(f) The Ground Lease or a memorandum thereof has been recorded and
by its terms permits the leasehold estate to be mortgaged. The Ground
Lease grants any leasehold mortgagee standard protection necessary to
protect the security of a leasehold mortgagee;
27
(g) The Ground Lease does not contain any default provisions that
could give rise to forfeiture or termination of the Ground Lease except
for the non-payment of the Ground Lease rents;
(h) The execution, delivery and performance of the Mortgage do not
require the consent (other than those consents which have been obtained
and are in full force and effect) under, and will not contravene any
provision of or cause a default under, the Ground Lease; and
(i) The Ground Lease provides that the leasehold can be
transferred, mortgaged and sublet an unlimited number of times either
without restriction or on payment of a reasonable fee and delivery of
reasonable documentation to the lessor.
(xlviii) No predatory or deceptive lending practices, including
but not limited to, the extension of credit to the applicable Borrower without
regard for said Borrower's ability to repay the Loan and the extension of
credit to said Borrower which has no apparent benefit to said Borrower, were
employed by the originator of the Loan in connection with the origination of
the Loan. Each Loan is in compliance with the anti-predatory lending
eligibility for purchase requirements of Xxxxxxx Mac
(xlix) No Loan is a "High Cost Home Loan" as defined in the
Georgia Fair Lending Act, as amended (the "Georgia Act") or the New York
Banking Law 6-1. There is no Loan that was originated (or modified) on or
after October 1, 2002 through and including March 6, 2003, which is secured by
property located in the State of Georgia;
(l) No Borrower was encouraged or required to select a Loan
product offered by the Loan's originator which is a higher cost product
designed for less creditworthy borrowers, taking into account such facts as,
without limitation, the mortgage loan's requirements and the Borrower's credit
history, income, assets and liabilities. Any Borrower who sought financing
through Loan originator's higher-priced subprime lending channel was directed
towards or offered the Loan originator's standard mortgage line if the
Borrower was able to qualify for one of the standard products. If, at the time
of loan application, the Borrower may have qualified for a lower cost credit
product then offered by any mortgage lending affiliate of the Loan's
originator, the Loan's originator referred the Borrower's application to such
affiliate for underwriting consideration;
(li) The methodology used in underwriting the extension of credit
for each Loan did not rely solely on the extent of the Borrower's equity in
the collateral as the principal determining factor in approving such extension
of credit. The methodology employed objective criteria such as the Borrower's
income, assets and liabilities, to the proposed mortgage payment and, based on
such methodology, the Loan's originator made a reasonable determination that
at the time of origination the Borrower had the ability to make timely
payments on the Loan;
(lii) All points, fees and charges (including finance charges) and
whether or not financed, assessed, collected or to be collected in connection
with the origination and servicing of each Loan has been disclosed in writing
to the Borrower in accordance with applicable state and federal law and
regulation;
28
(liii) No Loan is a "high cost home," "covered" (excluding home
loans defined as "covered home loans" in the New Jersey Home Ownership
Security Act of 2002 (the "NJ Act") that were originated between November 26,
2004 and July 7, 2004), "high risk home" or "predatory" loan under any
applicable state, federal or local law (or similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees); and each Loan subject to the NJ Act is considered
under the NJ Act as, either, a (1) purchase money Home Loan, (2) purchase
money Covered Loan (with respect to Loans which were originated between
November 26, 2003 and July 7, 2004), or (3) a rate/term refinance Home Loan;
(liv) The Borrower has not made or caused to be made any payment
in the nature of an `average' or `yield spread premium' to a mortgage broker
or a like Person which has not been fully disclosed to the Borrower;
(lv) No Loan secured by a Mortgaged Property located in the
Commonwealth of Massachusetts was made to pay off or refinance an existing
loan or other debt of the related borrower (as the term "borrower" is defined
in the regulations promulgated by the Massachusetts Secretary of State in
connection with the Massachusetts General Laws Chapter 183, Section 28C)
unless (a) the related Loan Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Loans) did or would
not exceed by more than 2.50% the yield on United States Treasury securities
having comparable periods of maturity to the maturity of the related Loan as
of the fifteenth day of the month immediately preceding the month in which the
application for the extension of credit was received by the related lender or
(b) the Loan is an "open-end home loan" (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Note provides that the
related Loan Interest Rate may not exceed at any time the Prime rate index as
published in The Wall Street Journal plus a margin of one percent;
(lvi) With respect to each Second Lien Loan, the related first
lien does not provide for negative amortization;
(lvii) No Borrower was charged "points and fees" in an amount
greater than (a) $1,000 or (b) 5% of the principal amount of the related Loan,
whichever is greater. For purposes of this representation, "points and fees"
(x) include origination, underwriting, broker and finder's fees and charges
that the lender imposed as a condition of making the Loan, whether they are
paid to the lender or a third party; and (y) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the Mortgage (such as attorneys' fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations and
extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title,
hazard, and flood insurance policies; state and local transfer taxes or fees;
escrow deposits for the future payment of taxes and insurance premiums; and
other miscellaneous fees and charges, which miscellaneous fees and charges, in
total, do not exceed 0.25 percent of the loan amount;
(lviii) With respect to each Loan, the related Residential
Dwelling is not a manufactured housing unit;
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(lix) With respect to any Loan originated on or after August 1,
2004, neither the related Mortgage nor the related Note requires the borrower
to submit to arbitration to resolve any dispute arising out of or relating in
any way to the Loan transaction;
(lx) The original principal balance of each Loan is within Xxxxxxx
Mac's dollar amount limits for conforming one-to-four family Loans;
(lxi) No Loan is "seasoned" (a seasoned Loan is one where the date
of the Note is more than one year before February 1, 2007);
(lxii) Each Mortgaged Property consists of a one to four unit
residential property, which may include a detached home, townhouse,
condominium unit or a unit in a planned unit development;
(lxiii) With respect to each Mortgage where a lost note affidavit
has been delivered to the Trustee in place of the related Note, the related
Note is no longer in existence;
(lxiv) In the event that the Mortgagor is an inter vivos "living"
trust, (i) such trust is in compliance with Xxxxxx Xxx or Xxxxxxx Mac
standards for inter vivos trusts and (ii) holding title to the Mortgaged
Property in such trust will not diminish any rights as a creditor including
the right to full title to the Mortgaged Property in the event foreclosure
proceedings are initiated;
(lxv) If the Loan is secured by a long term residential lease, (1)
the lessor under the lease holds a fee simple interest in the land; (2) the
terms of such lease expressly permit the mortgaging of the leasehold estate,
the assignment of the lease without the lessor's consent and the acquisition
by the holder of the Mortgage of the rights of the lessee upon foreclosure or
assignment in lieu of foreclosure or provide the holder of the Mortgage with
substantially similar protections; (3) the terms of such lease do not (a)
allow the termination thereof upon the lessee's default without the holder of
the Mortgage being entitled to receive written notice of, and opportunity to
cure, such default or (b) allow the termination of the lease in the event of
damage or destruction as long as the Mortgage is in existence; (4) the term of
such lease does not terminate earlier than five years after the maturity date
of the Note; and (5) the Mortgaged Property is located in a jurisdiction in
which the use of leasehold estates in transferring ownership in residential
properties is a widely accepted practice;
(lxvi) The Seller used no adverse selection procedures in
selecting the Loan from among the outstanding first lien, residential mortgage
loans owned by it which were available for sale to the Seller;
(lxvii) With respect to each Loan, the Seller is in possession of
a complete Loan File except for the documents which have been delivered to the
Custodian or which have been submitted for recording and not yet returned; and
(lxviii) With respect to each Loan, the related Servicing
Agreement requires the related Servicer to deposit into the related Protected
Account an amount equal to all payments of principal and interest on such Loan
that are delinquent at the close of business on the related Determination Date
and not previously advanced by such Servicer. The obligation of
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such Servicer to advance such payments as to such Loan will continue through
the final disposition or liquidation of the Mortgaged Property, unless such
Servicer deems such advance to be nonrecoverable from liquidation proceeds,
REO disposition proceeds, condemnation proceeds or insurance proceeds with
respect to such Loan.
Subsection 7.03. Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and
warranties set forth in Subsections 7.01 and 7.02 shall survive the sale of
the Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Note or
Assignment of Mortgage or the examination or lack of examination of any Loan
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 Loans or the interest of the Purchaser (or which
materially and adversely affects the value of a Loan or the interests of the
Purchaser in the related Loan in the case of a representation and warranty
relating to a particular Loan), the party discovering such breach shall give
prompt written notice to the other.
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 a Loan or the Loans, the Seller shall use
commercially reasonable 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 Loan at the Repurchase Price. In the event
that a breach shall involve any representation or warranty set forth in
Subsection 7.01 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
Loans shall, at the Purchaser's option, be repurchased by the Seller at the
Repurchase Price. The Seller shall, at the request of the Purchaser and
assuming that Seller has a Qualified Substitute Loan, rather than repurchase
the Loan as provided above, remove such Loan and substitute in its place a
Qualified Substitute Loan or Loans; provided that such substitution shall be
effected not later than 120 days after the related Closing Date. If the Seller
has no Qualified Substitute Loan, it shall repurchase the deficient Loan. Any
repurchase of a Loan(s) pursuant to the foregoing provisions of this
Subsection 7.03 shall occur on a date designated by the Purchaser and shall be
accomplished by deposit in the Custodial Account of the amount of the
Repurchase Price for distribution to the Purchaser on the next scheduled
Distribution Date.
At the time of repurchase of any deficient Loan, the Purchaser and
the Seller shall arrange for the reassignment of the repurchased Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the repurchased Loan. In the event the Repurchase Price is
deposited in the Custodial Account, the Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken
place. Upon such repurchase the related Loan Schedule shall be amended to
reflect the withdrawal of the repurchased Loan from this Agreement.
As to any Deleted Loan for which the Seller substitutes a
Qualified Substitute Loan or Loans, the Seller shall effect such substitution
by delivering to the Purchaser for such Qualified Substitute Loan or Loans the
Note, the Mortgage, the Assignment of Mortgage and such other documents and
agreements as are required by this Agreement, with the Note endorsed
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as required therein. The Seller shall deposit in the Custodial Account the
Monthly Payment less the Servicing Fee due on such Qualified Substitute Loan
or Loans in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Loans in the month of
substitution will be retained by the Seller. For the month of substitution,
distributions to the Purchaser will include the Monthly Payment due on such
Deleted Loan in the month of substitution, and the Seller shall thereafter be
entitled to retain all amounts subsequently received by the Seller in respect
of such Deleted Loan. The Seller shall give written notice to the Purchaser
that such substitution has taken place and shall amend the Loan Schedule to
reflect the removal of such Deleted Loan from the terms of this Agreement and
the substitution of the Qualified Substitute Loan. Upon such substitution,
such Qualified Substitute Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Qualified Substitute Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set forth in
Sections 7.01 and 7.02.
For any month in which the Seller substitutes one or more
Qualified Substitute Loans for one or more Deleted Loans, the Seller will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all such Deleted Loans (after
application of scheduled principal payments due in the month of substitution).
An amount equal to the product of the amount of such shortfall multiplied by
the percentage of par set forth in the definition of "Repurchase Price" shall
be distributed by the Seller in the month of substitution pursuant to the
Servicing Addendum. Accordingly, on the date of such substitution, the Seller
will deposit from its own funds into the Custodial Account an amount equal to
such amount.
Notwithstanding the foregoing, within 90 days of the earlier of
discovery by the Seller or receipt of notice by the Seller of a breach of any
representation or warranty by the Seller which materially and adversely
affects the interests of the Purchaser in any prepayment charge or penalty,
the Seller shall pay the amount of such prepayment charge or penalty to the
Purchaser.
In addition to such cure, repurchase, payment and substitution
obligations, 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 actually incurred, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of the Seller's
representations and warranties contained in this Section 7. It is understood
and agreed that the obligations of the Seller set forth in this Subsection
7.03 to cure or repurchase a defective Loan, to pay the amount of certain
prepayment penalties and to indemnify the Purchaser as provided in this
Subsection 7.03 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 Subsections 7.01
or 7.02 shall accrue as to any Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Loan as specified above, and
(iii) demand upon the Seller by the Purchaser for compliance with the relevant
provisions of this Agreement.
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Subsection 7.04. Reserved.
Subsection 7.05. Repurchase of Certain Loans.
If a Monthly Payment becomes one (1) or more scheduled Monthly
Payments delinquent at any time on or prior to the first day of the fourth
calendar month following the related Closing Date (or such other date set
forth in the Confirmation), then the Seller, at the Purchaser's option, shall
(a) promptly repurchase the related Loan from the Purchaser in accordance with
the procedures set forth in Subsection 7.03 hereof and any such repurchase
shall be made at the Repurchase Price, (b) indemnify the Purchaser in
accordance with Subsection 13.01 hereof, or (c) substitute a mortgage loan
acceptable to the Purchaser in accordance with Subsection 7.03 hereof.
Subsection 7.06. Purchase Price Protection.
With respect to any Loan that prepays in full on or prior to the
last day of the third full month following the related Closing Date (or such
other date set forth in the Confirmation), the Seller shall reimburse the
Purchaser an amount equal to the product of (a) the excess of the Purchase
Price percentage paid by the Purchaser to the Seller for such Loan over 100%,
times (b) the outstanding principal balance of the Loan as of the date of such
prepayment in full. Such payment shall be made within thirty (30) days of such
payoff. Upon any assignment of a Loan and/or this Agreement, the Purchaser may
at its option retain its rights under this Section 7.06 notwithstanding such
assignment.
SECTION 8. Closing. The closing for the sale and purchase of Loans
shall take place on the Closing Date. At the Purchaser's option, the closing
shall be either: by telephone, confirmed by letter or wire as the parties
shall agree, or conducted in person, at such place as the parties shall agree.
The closing for the Loans to be purchased on each Closing Date
shall be subject to each of the following conditions:
(a) all of the representations and warranties of the Seller under
this Agreement shall be true and correct as of the related Closing Date
and no event shall have occurred which, with notice or the passage of
time, would constitute a default under this Agreement;
(b) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, in such forms as are agreed upon and acceptable
to the Purchaser, duly executed by all signatories other than the
Purchaser as required pursuant to the terms hereof,
(c) the Seller shall have delivered and released to the Custodian
all documents required pursuant to this Agreement; and
(d) all other terms and conditions of this Agreement shall have
been complied with.
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Subject to the foregoing conditions, the Purchaser shall pay to
the Seller on the related Closing Date the Purchase Price, plus accrued
interest pursuant to Section 4, by wire transfer of immediately available
funds to the account designated by the Seller.
SECTION 9. Closing Documents.
(a) On or before the Closing Date, the Seller shall submit to the
Purchaser fully executed originals of the following documents:
1. this Agreement, in four counterparts;
2. a Custodial Account Letter Agreement in the form attached as
Exhibit 7 hereto;
3. an Escrow Account Letter Agreement in the form attached as
Exhibit 8 hereto;
4. an Officer's Certificate, in the form of Exhibit 1 hereto,
including all attachments thereto;
5. an Opinion of Counsel to the Seller, in the form of Exhibit
2 hereto; and
6. the Seller's underwriting guidelines, to be attached as
Exhibit 10 hereto.
(b) The Closing Documents for the Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
1. the Confirmation;
2. the related Loan Schedule, one copy to be attached hereto
and one copy to be attached to the Custodian's counterpart
of the Custodial Agreement, as the Loan Schedule thereto;
3. a Custodian's Trust Receipt and Initial Certification, as
required under the Custodial Agreement, in a form acceptable
to the Purchaser;
4. if requested by the Purchaser, an Officer's Certificate, in
the form of Exhibit 1 hereto, including all attachments
thereto;
5. if requested by the Purchaser, an Opinion of Counsel to the
Seller, in the form of Exhibit 2 hereto;
6. if any of the Loans has at any time been subject to any
security interest, pledge or hypothecation for the benefit
of any Person, a Security Release Certification, in the form
of Exhibit 3 hereto, executed by such Person;
7. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Loans were acquired by the Seller by merger or
acquired or originated by the Seller
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while conducting business under a name other than its
present name, if applicable; and
8. an Assignment and Conveyance in the form of Exhibit 4
hereto.
SECTION 10. Costs. The Purchaser shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys. All other costs and
expenses incurred in connection with the transfer and delivery of the Loans,
including without limitation recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage and
the Seller's attorney's fees, shall be paid by the Seller.
SECTION 11. Seller's Servicing Obligations. The Seller, as
independent contract servicer, shall service and administer the Loans
directly, or through one or more Subservicers, in accordance with the terms
and provisions set forth in the Servicing Addendum attached as Exhibit 9;
which Servicing Addendum is incorporated herein by reference.
SECTION 12. The Securitization Transaction.
The Seller and the Purchaser agree that with respect to all of the
Loans, the Depositor will effect a Securitization Transaction.
With respect to the Securitization Transaction entered into by the
Depositor, the Seller agrees:
(1) to cooperate fully with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due
diligence procedures and with respect to the preparation
(including, but not limited to, the endorsement, delivery,
assignment, and execution) of the Loan Documents and other
related documents, and with respect to servicing
requirements reasonably requested by the rating agencies and
credit enhancers;
(2) to deliver (x) to the Purchaser and to any Person designated
by the Purchaser for inclusion in any prospectus or other
offering material such publicly available information
regarding the Seller, its financial condition and its
mortgage loan delinquency, foreclosure and loss experience
and any additional information reasonably requested by the
Purchaser, and which the Seller is capable of providing
without unreasonable effort or expense, and (y) to the
Purchaser any similar nonpublic, unaudited financial
information (which the Purchaser may, at its option and at
its cost, have audited by certified public accountants); and
to indemnify the Purchaser and any related underwriter and
their affiliates for any untrue statement or alleged untrue
statement of any material fact contained in such information
or an omission or alleged omission to state in such
information a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(3) to deliver to the Purchaser and to any Person designated by
the Purchaser, at the Purchaser's expense, such statements
and audit letters of reputable,
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certified public accountants pertaining to information
provided by the Seller pursuant to clause (4) above as shall
be reasonably requested by the Purchaser;
(4) to deliver to the Purchaser, and to any Person designated by
the Purchaser, at the Seller's expense, such legal documents
and in-house Opinions of Counsel and opinion of outside
counsel as are customarily delivered by originators or
servicers, as the case may be, and reasonably determined by
the Purchaser to be necessary in connection with the
Securitization Transactions, as the case may be, Opinions of
Counsel for a Securitization Transaction to be in the form
reasonably acceptable to the Purchaser;
(5) to negotiate and execute one or more subservicing agreements
between the Seller and any master servicer which is
generally considered to be a prudent master servicer in the
secondary mortgage market, designated by the Purchaser in
its sole discretion after consultation with the Seller
and/or one or more custodial and servicing agreements among
the Purchaser, the Seller and a third party
custodian/trustee which is generally considered to be a
prudent custodian/trustee in the secondary mortgage market
designated by the Purchaser in its sole discretion after
consultation with the Seller, in either case for the purpose
of pooling the Loans with other Loans for resale or
securitization;
(6) in connection with the securitization of Loans, to the
extent the Purchaser requests the Seller to be a party to a
pooling and servicing agereement prior to the Closing Date,
to execute a pooling and servicing agreement, which pooling
and servicing agreement may, at the Purchaser's direction,
contain contractual provisions including, but not limited
to, a 24-day certificate payment delay (54-day total payment
delay), servicer advances of delinquent scheduled payments
of principal and interest through liquidation (unless deemed
non-recoverable) and prepayment interest shortfalls (to the
extent of the monthly servicing fee payable thereto),
servicing and loan representations and warranties which in
form and substance conform to the representations and
warranties in this Agreement and to secondary market
standards for securities backed by loans similar to the
Loans and such provisions with regard to servicing
responsibilities, investor reporting, segregation and
deposit of principal and interest payments, custody of the
Loans, a requirement that the master servicer and any
servicer provide backup certifications as to all matters
required to be certified to the Commission pursuant to the
provisions of the Xxxxxxxx-Xxxxx Act and the regulations
issued thereunder, in a form reasonably required by the
depositor, and to indemnify the depositor, the trustee,
their officers, directors and affiliates and any other
entity making such certifications to the Commission for any
errors or omission in such certification, and such
provisions with regard to servicing responsibilities,
investor reporting, segregation and deposit of principal and
interest payments, custody of the Loans, and other covenants
as are required by
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the Purchaser and one or more nationally recognized rating
agencies for "AAA" rated mortgage pass-through transactions
which are "mortgage related securities" for the purposes of
the Secondary Mortgage Market Enhancement Act of 1984,
unless otherwise mutually agreed. If the Purchaser deems it
advisable at any time to pool the Loans with other loans for
the purpose of resale or securitization, the Seller agrees
to execute one or more subservicing agreements between
itself (as servicer) and a master servicer designated by the
Purchaser at its sole discretion, and/or one or more
servicing agreements among the Seller (as servicer), the
Purchaser and a trustee designated by the Purchaser at its
sole discretion, such agreements in each case incorporating
terms and provisions substantially identical to those
described in the immediately preceding paragraph; and
(7) to transfer the servicing rights to the Purchaser or its
designee as described in Section 15 upon the direction of
the Purchaser.
SECTION 13. The Seller.
Subsection 13.01. Additional Indemnification by the Seller.
In addition to the indemnification provided in Subsection 7.03,
the Seller shall indemnify the Purchaser and hold the Purchaser harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way
related to the failure of the Seller to perform its obligations under this
Agreement including but not limited to its obligation to service and
administer the Loans in strict compliance with the terms of this Agreement.
Subsection 13.02. Merger or Consolidation of the Seller.
The Seller shall keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the state of its
incorporation except as permitted herein, 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 Loans, and to enable the Seller
to perform its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Seller shall be a party, or any Person succeeding to the business of
the Seller, shall be the successor of the Seller hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person shall be an institution having
a GAAP net worth of not less than $25,000,000 and whose deposits are insured
by FDIC or a company whose primary business is the origination and servicing
of loans, shall be a Xxxxxx Xxx or Xxxxxxx Mac approved
37
seller/servicer in good standing and shall satisfy any requirements of Section
16 with respect to the qualifications of a successor to the Seller.
Subsection 13.03. Limitation on Liability of the Seller and
Others.
Neither the Seller nor any of the officers, employees or agents of
the Seller shall be under any liability to the Purchaser for any action taken
or for refraining from the taking of any action in good faith in connection
with the servicing of the Loans pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Seller
or any such person against any breach of warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions of
this Agreement. The Seller and any officer, employee or agent of the Seller
may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Seller shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its obligation to sell or duty to
service the Loans in accordance with this Agreement and which in its opinion
may result in its incurring any expenses or liability; provided, however, that
the Seller may, with the consent of the Purchaser, undertake any such action
which it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities for which the Purchaser shall be liable, the Seller
shall be entitled to reimbursement therefor from the Purchaser upon written
demand except when such expenses, costs and liabilities are subject to the
Seller's indemnification under Subsections 7.03 or 13.01.
Subsection 13.04. Seller Not to Resign.
The Seller shall not assign this Agreement or resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Seller and the Purchaser or upon the determination that its servicing duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Seller, in which event the Seller may resign as
servicer. Any such determination permitting the resignation of the Seller as
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 and which shall be provided at the cost of the
Seller. No such resignation shall become effective until a successor shall
have assumed the Seller's responsibilities and obligations hereunder in the
manner provided in Section 16.
Subsection 13.05. No Transfer of Servicing.
The Seller acknowledges that the Purchaser has acted in reliance
upon the Seller's independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way
limiting the generality of this Section, the Seller 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 will not be unreasonably withheld;
38
provided, however, that the Seller shall have the right to pledge its
servicing rights hereunder so long as any successor servicer who forecloses
upon such servicing rights complies with all of the requirements of Section 16
herein.
SECTION 14. DEFAULT.
Subsection 14.01. Events of Default.
In case one or more of the following Events of Default by the
Seller shall occur and be continuing, that is to say:
(a) any failure by the Seller to remit to the Purchaser when due
any payment required to be made under the terms of this Agreement; or
(b) failure on the part of the Seller duly to observe or perform
in any material respect any other of the covenants or agreements on the
part of the Seller set forth in this Agreement which continues
unremedied for a period of thirty (30) days (except that such number of
days shall be fifteen (15) in the case of a failure to pay any premium
for any insurance policy required to be maintained under this Agreement)
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Seller by the
Purchaser; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been
entered against the Seller and such decree or order shall have remained
in force undischarged or unstayed for a period of sixty days; or
(d) the Seller shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Seller or of or relating to all or substantially all of
its property; or
(e) the Seller 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 or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(f) failure by the Seller to be in compliance with the "doing
business" or licensing laws of any jurisdiction where a Mortgaged
Property is located; or
(g) the Seller ceases to be approved by Xxxxxxx Mac as a seller or
servicer; or
(h) the Seller attempts to assign its right to servicing
compensation hereunder or the Seller 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
39
thereof; provided, however, that it shall not be an Event of Default if
the Seller pledges its servicing rights hereunder in accordance with
Section 13.05 herein; or
(i) the Seller fails to duly perform, within the required time
period, its obligations under Sections 11.24 and 11.25 of the Servicing
Addendum, which failure continues unremedied for a period of thirty (30)
days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Seller by any
party to this Agreement or by any master servicer responsible for master
servicing the Loans pursuant to a securitization of such Loans;
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Purchaser, by notice in writing to the Seller may,
in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, terminate all
the rights and obligations of the Seller as servicer under this Agreement. On
or after the receipt by the Seller of such written notice, all authority and
power of the Seller to service the Loans under this Agreement shall on the
date set forth in such notice pass to and be vested in the successor appointed
pursuant to Section 16.
Subsection 14.02. Waiver of Defaults.
The Purchaser may waive any default by the Seller in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
SECTION 15. Termination. The respective obligations and
responsibilities of the Seller, as servicer, shall terminate upon the
distribution to the Purchaser of the final payment or liquidation with respect
to the last Loan (or advances of same by the Seller) or the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure with respect
to the last Loan and the remittance of all funds due hereunder unless
terminated with respect to all or a portion of the Loans on an earlier date at
the option of the Purchaser pursuant to this Section 15 or pursuant to Section
14.01. In the event that the Seller is terminated pursuant to this Section 15
without cause, the Purchaser shall pay to the Seller a termination fee in an
amount mutually agreed upon in a side letter dated the date hereof among the
Purchaser and the Seller. Upon written request from the Purchaser in
connection with any such termination, the Seller shall prepare, execute and
deliver, any and all documents and other instruments, place in the Purchaser's
possession all Loan Files, and do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Loans
and related documents, or otherwise, at the Seller's sole expense. The Seller
agrees to cooperate with the Purchaser and such successor in effecting the
termination of the Seller's responsibilities and rights hereunder as servicer,
including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by the Seller to the Custodial Account or Escrow Account or thereafter
received with respect to the Loans.
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SECTION 16. Successor to the Seller. Prior to termination of the
Seller's responsibilities and duties under this Agreement pursuant to Section
13, 14 or 15, the Purchaser shall (i) succeed to and assume all of the
Seller's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Seller as
servicer 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 Loans as it and such successor shall agree.
In the event that the Seller's duties, responsibilities and liabilities as
servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Seller shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or
financial condition of the Purchaser or such successor. The termination of the
Seller as servicer pursuant to the aforementioned Sections shall not become
effective until a successor shall be appointed pursuant to this Section 16 and
shall in no event relieve the Seller of the representations and warranties
made pursuant to Subsections 7.01 and 7.02 and the remedies available to the
Purchaser under Subsection 7.03, 7.04 or 13.01, it being understood and agreed
that the provisions of such Subsections 7.01, 7.02, 7.03, 7.04 and 13.01 shall
be applicable to the Seller notwithstanding any such resignation or
termination of the Seller, or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Seller and to the Purchaser an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Seller, with like effect as if originally named as a party
to this Agreement; provided, however, that such successor shall not assume,
and Seller shall indemnify such successor for, any and all liabilities arising
out of the Seller's acts as servicer. Any termination of the Seller as
servicer pursuant to Section 13, 14 or 15 shall not affect any claims that the
Purchaser may have against the Seller arising prior to any such termination or
resignation or remedies with respect to such claims.
If any of the Loans are MERS Loans, in connection with the
termination or resignation of the Seller hereunder, either (i) the successor
Seller shall represent and warrant that it is a member of MERS in good
standing and shall agree to comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Loans that are
registered with MERS, or (ii) the predecessor Seller shall cooperate with the
successor Seller either (x) in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to the Purchaser and to execute and deliver such other notices, documents and
other instruments as may be necessary or desirable to effect a transfer of
such Loan or servicing of such Loan on the MERS System to the successor Seller
or (y) in causing MERS to designate on the MERS System the successor Seller as
the servicer of such Loan; provided, however, if the Seller is terminated
without cause, the Purchaser shall be responsible for any costs or expenses
associated with any actions taken pursuant to this paragraph.
The Seller shall timely deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Loan Files and related
documents and statements held by it
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hereunder and the Seller shall account for all funds. The Seller shall execute
and deliver such instruments and do such other things all as may reasonably be
required to more fully and definitely vest and confirm in the successor all
such rights, powers, duties, responsibilities, obligations and liabilities of
the Seller as servicer. The successor shall make arrangements as it may deem
appropriate to reimburse the Seller for amounts the Seller actually expended
as servicer pursuant to this Agreement which the successor is entitled to
retain hereunder and which would otherwise have been recovered by the Seller
pursuant to this Agreement but for the appointment of the successor servicer.
SECTION 17. Reserved.
SECTION 18. Mandatory Delivery; Grant of Security Interest. The
sale and delivery of each Loan on the Closing Date is mandatory from and after
the date of the execution of the Confirmation, it being specifically
understood and agreed that each Loan is unique and identifiable on the date of
such Confirmation and that an award of money damages would be insufficient to
compensate the Purchaser for the losses and damages incurred by the Purchaser
(including damages to prospective purchasers of the Loans) in the event of the
Seller's failure to deliver each of the related Loans or one or more Loans
otherwise acceptable to the Purchaser on or before the related Closing Date.
The Seller hereby grants to the Purchaser a lien on and a continuing security
interest in each Loan and each document and instrument evidencing each such
Loan to secure the performance by the Seller of its obligations hereunder, and
the Seller agrees that it holds such Loans in custody for the Purchaser
subject to the Purchaser's (i) right to reject any Loan under the terms of
this Agreement and the Confirmation, and (ii) obligation to pay the related
Purchase Price for the Loans. All rights and remedies of the Purchaser under
this Agreement are distinct from, and cumulative with, any other rights or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or successively.
It is the express intent of the parties hereto that the conveyance
of the Loans by the Seller to the Purchaser as provided in Section 6.01 hereof
be, and be construed as, a sale of the Loans by the Seller to the Purchaser
and not as a pledge of the Loans by the Seller to the Purchaser to secure a
debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Loans are held
by any court or regulatory authority to be property of the Seller, then (a) it
is the express intent of the parties that such conveyance be deemed a pledge
of the Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller and (b) (1) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code; (2) the conveyance provided for in Section 6.01
hereof shall be deemed to be a grant by the Seller to the Purchaser of a
perfected first priority security interest in all of the Seller right, title
and interest in and to the Loans and all amounts payable to the holders of the
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in the Custodial
Account whether in the form of cash, instruments, securities or other property
free and clear of adverse claims; (3) the possession by the Purchaser or its
agent of Notes, the related Mortgages and such other items of property that
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting
42
the security interest pursuant to Section 9-305 of the New York Uniform
Commercial Code; and (4) notifications to persons holding such property and
acknowledgments, receipts or confirmations from persons holding such property
shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to Section 24 hereof shall also be deemed to be an assignment of any
security interest created hereby. The Seller and the Purchaser shall, to the
extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Loans, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement. Furthermore, the Seller hereby
authorizes the Purchaser to file financing statements relating to the Loans
and any appurtenant rights, as the Purchaser, at its sole discretion, may deem
appropriate.
SECTION 19. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or, if by
other means, when received by the other party at the address as follows:
(a) if to the Purchaser:
UBS Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
UBS Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
(b) if to the Seller:
Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.
000 XX 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
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General Counsel
0000 Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx, Xxxxxxx 00000
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 20. Severability Clause. Any part, provision,
representation or warranty of this Agreement which is prohibited or which is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Loan shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law which prohibits or renders
void or unenforceable any provision hereof. If the invalidity of any part,
provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 21. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument.
SECTION 22. GOVERNING LAW. THE AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW WHICH SHALL GOVERN) AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
SECTION 23. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling, the Loans
and not a debt instrument of the Seller or another security. Accordingly, the
parties hereto each intend to treat the transaction for federal income tax
purposes as a sale by the Seller, and a purchase by the Purchaser, of the
Loans. The Purchaser shall have the right to review the Loans and the related
Loan Files to determine the characteristics of the Loans which shall affect
the Federal income tax consequences of owning the Loans and the Seller shall
cooperate with all reasonable requests made by the Purchaser in the course of
such review.
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SECTION 24. Successors and Assigns. This Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser and
the respective successors and assigns of the Seller and the Purchaser. The
Purchaser may assign this Agreement to any Person to whom any Loan is
transferred whether pursuant to a sale or financing and to any Person to whom
the servicing or master servicing of any Loan is sold or transferred. Upon any
such assignment, the person to whom such assignment is made shall succeed to
all rights and obligations of the Purchaser under this Agreement. In the event
that this Agreement is assigned to any Person to whom the servicing or master
servicing of any Loan is sold or transferred, the rights and benefits under
this Agreement which inure to the Purchaser shall inure to the benefit of both
the Person to whom such Loan is transferred and the Person to whom the
servicing or master servicing of the Loan has been transferred; provided that,
the right to require a Loan to be repurchased by the Seller pursuant to
Subsection 7.03, 7.04 or 7.05 shall be retained solely by the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
third party without the consent of the Purchaser; provided, however, that the
Seller shall have the right to pledge its servicing rights hereunder in
accordance with Section 13.05 herein.
SECTION 25. Waivers. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be
enforced.
SECTION 26. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this
Agreement.
SECTION 27. Nonsolicitation. From and after the Closing Date, the
Seller agrees that it will not take any action or permit or cause any action
to be taken by any of its agents or affiliates, or by any independent
contractors on the Seller's behalf, to personally, by telephone, by mail, or
electronically by e-mail or through the internet or otherwise, solicit the
borrower or obligor under any Mortgage Loan to refinance the Mortgage Loan, in
whole or in part, without the prior written consent of the Purchaser. It is
understood and agreed that all rights and benefits relating to the
solicitation of any Mortgagors to refinance any Mortgage Loans and the
attendant rights, title and interest in and to the list of such Mortgagors and
data relating to their Mortgages (including insurance renewal dates) shall be
transferred to the Purchaser pursuant hereto on the Closing Date and the
Seller shall take no action to undermine these rights and benefits.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Seller or any affiliate of the Seller that are directed to
the general public at large, or segments thereof, provided that no segment
shall consist primarily of the borrowers or obligors under the Mortgage Loans,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section 27, nor shall efforts undertaken by
the Servicer to direct borrowers who are determined to be in the course of
refinancing a Mortgage Loan to conduct such refinance with the Servicer's
affiliated originator be deemed to constitute impermissible solicitation under
this Section 27, provided that such efforts shall not be intended to cause the
refinance of a Mortgage Loan that would not otherwise have been refinanced or
have the effect of increasing the rate at which the Mortgage Loans are
prepaid. This Section 27 shall not be deemed to preclude the Seller or any of
its affiliates from soliciting any Mortgagor for any other financial products
or services. The Seller shall use its best efforts to prevent the sale of the
name of any Mortgagor to any Person who is not an affiliate of the Seller.
45
SECTION 28. Relationship of the 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 Seller shall be rendered as an
independent contractor and not as agent for the Purchaser.
SECTION 29. General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include
the other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision;
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration; and
(g) the Section and Subsection titles and headings in this
Agreement are for convenience of reference only and will be disregarded
in and have no effect on any interpretation of the provisions of this
Agreement.
SECTION 30. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 31. Further Agreements. The Seller and the Purchaser each
agree to execute and deliver to the other such reasonable and appropriate
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
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SECTION 32. Third Party Beneficiary. For purposes of this
Agreement, including but not limited to Subsection 14.01(i), any Master
Servicer shall be considered a third party beneficiary to this Agreement
entitled to all the rights and benefits accruing to any Master Servicer herein
as if it were a direct party to this Agreement.
SECTION 33. Compliance With Regulation AB.
Subsection 33.01. Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the
purpose of Section 33 of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is applicable
by its terms only to offerings of asset backed securities that are registered
under the Securities Act, the Seller acknowledges that investors in privately
offered securities may require that the Purchaser or any Depositor provide
comparable disclosure in unregistered offerings. References in this Agreement
to compliance with Regulation AB include provision of comparable disclosure in
private offerings.
Neither the Purchaser nor any Depositor shall exercise its right
to request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and, in each case, the rules and regulations
of the Commission thereunder (or the provision in a private offering of
disclosure comparable to that required under the Securities Act) and the
Xxxxxxxx-Xxxxx Act. The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser, any
Master Servicer or any Depositor in good faith for delivery of information
under these provisions on the basis of established and evolving
interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate fully with the Purchaser and any
Master Servicer to deliver to the Purchaser (including any of its assignees or
designees), any Master Servicer and any Depositor, any and all statements,
reports, certifications, records and any other information necessary in the
good faith determination of the Purchaser, the Master Servicer or any
Depositor to permit the Purchaser, such Master Servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer, any Third-Party Originator and the
Loans, or the servicing of the Loans, reasonably believed by the Purchaser or
any Depositor to be necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Purchaser's reasonable judgment, to comply with
Regulation AB, the Securities Act, the Exchange Act and rules and regulations
of the Commission.
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Subsection 33.02. Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser, to any
Master Servicer and to any Depositor, as of the date on which information
is first provided to the Purchaser, any Master Servicer or any Depositor
under Subsection 33.03 that, except as disclosed in writing to the
Purchaser, such Master Servicer or such Depositor prior to such date: (i)
the Seller is not aware and has not received notice that any default,
early amortization or other performance triggering event has occurred as
to any other securitization due to any act or failure to act of the
Seller; (ii) the Seller has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger;
(iii) there has been no material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential
mortgage loans involving the Seller as servicer except as disclosed or
reported by the Seller; (iv) no material changes to the Seller's policies
or procedures with respect to the servicing function it will perform
under this Agreement; (v) there are no aspects of the Seller's financial
condition that could have a material adverse effect on the performance by
the Seller of its servicing obligations under this Agreement; (vi) there
are no material legal or governmental proceedings pending (or known to be
contemplated) against the Seller, any Subservicer or any Third-Party
Originator; and (vii) there are no affiliations, relationships or
transactions relating to the Seller, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any party
thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser, any Master Servicer or any
Depositor on any date following the date on which information is first
provided to the Purchaser, any Master Servicer or any Depositor under
Subsection 33.03, the Seller shall, within five (5) Business Days
following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this
Subsection 33.02 or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting party.
Subsection 33.03. Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five (5) Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator and each Subservicer to provide), in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor, the information and materials specified in paragraphs (a), (b),
(c), (f) and (g) of this Subsection 33.03, and (ii) as promptly as practicable
following notice to or discovery by the Seller, provide to the Purchaser and
any Depositor (in writing and in form and substance reasonably satisfactory to
the Purchaser and such Depositor) the information specified in paragraph (d)
of this Subsection 33.03.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator
of the Loans (including as an acquirer of Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator,
48
and (iii) as applicable, each Subservicer, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119
of Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) description of the originator's origination program and how
long the originator has been engaged in originating residential mortgage
loans, which description shall include a discussion of the originator's
experience in originating mortgage loans of a similar type as the Loans;
information regarding the size and composition of the originator's
origination portfolio; and information that may be material, in the good
faith judgment of the Purchaser or any Depositor, to an analysis of the
performance of the Loans, including the originators' credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the Loans
and such other information as the Purchaser or any Depositor may
reasonably request for the purpose of compliance with Item 1110(b)(2) of
Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Seller,
each Third-Party Originator and each Subservicer; and
(D) a description of any affiliation or relationship between the
Seller, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans (of
a similar type as the Loans, as reasonably identified by the Purchaser
as provided below) originated by (i) the Seller, if the Seller is an
originator of Loans (including as an acquirer of Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static
Pool Information shall be prepared by the Seller (or Third-Party
Originator) on the basis of its reasonable, good faith interpretation of
the requirements of Item 1105(a)(1)-(3) of Regulation AB, which good
faith interpretation shall not be inconsistent with what is customarily
determined by similar mortgage loan originators to be required to be
provided pursuant to Item 1105(a)(1)-(3) of Regulation AB. To the extent
that there is reasonably available to
49
the Seller (or Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any
Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. The content of
such Static Pool Information may be in the form customarily provided by
the Seller, and need not be customized for the Purchaser or any
Depositor. Such Static Pool Information for each vintage origination
year or prior securitized pool, as applicable, shall be presented in
increments no less frequently than quarterly over the life of the
mortgage loans included in the vintage origination year or prior
securitized pool. The most recent periodic increment must be as of a
date no later than one hundred thirty-five 135 days prior to the date of
the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static
Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable
document format (pdf) file, or other such electronic format reasonably
required by the Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in
Static Pool Information provided pursuant to the immediately preceding
paragraph (including an omission to include therein information required to be
provided pursuant to such paragraph), the Seller shall provide corrected
Static Pool Information to the Purchaser or any Depositor, as applicable, in
the same format in which Static Pool Information was previously provided to
such party by the Seller.
If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this
Agreement), such agreed-upon procedures letters of certified public
accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1, 2006 or,
in the case of Static Pool Information with respect to the Seller's or
Third-Party Originator's originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or Depositor with respect to the
Securitization Transaction. Any such statement or letter may take the form of
a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding the Seller, as servicer of the
Loans, and each Subservicer (each of the Seller and each Subservicer,
for purposes of this paragraph, a "Servicer"), as is requested for the
purpose of compliance with Items 1108, 1117 and 1119 of Regulation AB.
Such information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of
50
any type as well as a more detailed discussion of the Servicer's
experience in, and procedures for, the servicing function it will
perform under this Agreement; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Loans and information on factors
related to the Servicer that may be material, in the good faith judgment
of the Purchaser or any Depositor, to any analysis of the servicing of
the Loans or the related asset-backed securities, as applicable,
including, without limitation:
1. whether any prior securitizations of mortgage loans of a
type similar to the Loans involving the Servicer have defaulted or
experienced an early amortization or other performance triggering
event because of servicing during the three-year period
immediately preceding the Securitization Transaction;
2. the extent of outsourcing the Servicer utilizes;
3. whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect
to other securitizations of residential mortgage loans involving
the Servicer as a servicer during the three-year period
immediately preceding the Securitization Transaction;
4. whether the Servicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
5. such other information as the Purchaser or any Depositor
may reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three-year
period immediately preceding the Securitization Transaction to the
Servicer's policies or procedures with respect to the servicing function
it will perform under this Agreement for mortgage loans of a type
similar to the Loans;
(D) information regarding the Servicer's financial condition, to
the extent that there is a material risk that an adverse financial event
or circumstance involving the Servicer could have a material adverse
effect on the performance by the Seller of its servicing obligations
under this Agreement;
(E) information regarding advances made by the Servicer on the
Loans and the Servicer's overall servicing portfolio of residential
mortgage loans for the three-year period immediately preceding the
Securitization Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the Servicer has
made all advances required to be made on residential mortgage loans
serviced by it during such period, or, if such statement would not be
accurate, information regarding the percentage and type of advances not
made as required, and the reasons for such failure to advance;
51
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans or
workouts;
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other
practices with respect to delinquency and loss experience;
(I) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Servicer;
and
(J) a description of any affiliation or relationship between the
Servicer and any of the following parties to the Securitization
Transaction, as such parties are identified to the Servicer by the
Purchaser or any Depositor in writing in advance of the Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(d) For the purpose of satisfying the reporting obligation under
the Exchange Act with respect to any class of asset-backed securities,
the Seller shall (or shall cause each Subservicer and Third-Party
Originator to) (i) provide prompt notice to the Purchaser, any Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings involving the Seller, any Subservicer or any
Third-Party Originator, (B) any affiliations or relationships that
develop following the closing date of the Securitization Transaction
between the Seller, any Subservicer or any Third-Party Originator and
any of the parties specified in clause (D) of paragraph (a) of this
Subsection 33.03 (and any other parties identified in writing by the
requesting party) with respect to the Securitization Transaction, (C)
any Event of Default under the terms of this Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Seller,
and (E) the Seller's entry into an agreement with a Subservicer or
Subcontractor to perform or assist in the performance of any of the
Seller's obligations under this Agreement and (ii) provide to the
Purchaser and any Depositor a description of such proceedings,
affiliations or relationships.
52
(e) As a condition to the succession to the Seller or any
Subservicer as servicer or subservicer under this Agreement by any
Person (i) into which the Seller or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the
Seller or any Subservicer, the Seller shall provide to the Purchaser,
any Master Servicer and any Depositor, at least 15 calendar days prior
to the effective date of such succession or appointment, (x) written
notice to the Purchaser, any Master Servicer and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser, any Master Servicer and such
Depositor, all information reasonably requested by the Purchaser, any
Master Servicer or any Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of
asset-backed securities.
(f) In addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not
later than ten (10) days prior to the deadline for the filing of any
distribution report on Form 10-D in respect of the Securitization
Transaction that includes any of the Loans serviced by the Seller or any
Subservicer, the Seller or such Subservicer, as applicable, shall
provide to the party responsible for filing such report (including, if
applicable, the Master Servicer) notice of the occurrence of any of the
following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution
report on Form 10-D (as specified in the provisions of Regulation AB
referenced below):
(i) any material modifications, extensions or waivers of
pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become material over
time (Item 1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB); and
(iii) information regarding new asset-backed securities
issuances backed by the same pool assets, any pool asset changes
(such as, additions, substitutions or repurchases), and any
material changes in origination, underwriting or other criteria
for acquisition or selection of pool assets (Item 1121(a)(14) of
Regulation AB).
(g) In addition to such information as the Seller, as servicer is
obligated to provide pursuant to other provision of this Agreement, if
so requested by the Purchaser, any Master Servicer or any Depositor, the
Seller shall provide such additional information as such party may
reasonably request, including evidence of the authorization of the
person signing any certification or statement, copies or other evidence
of Fidelity Bond Insurance and Errors and Omission Insurance Policy,
financial information and reports, and such other information related to
the Seller or any Subservicer or the Seller or such Subservicer's
performance hereunder and such information regarding the performance or
servicing of the Mortgage Loans as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of
Regulation AB. Such information shall be provided concurrently with the
monthly reports otherwise required to be delivered by the servicer under
this Agreement,
53
commencing with the first such report due not less than ten Business
Days following such request.
(h) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligations under the Exchange Act
pursuant to Item 1111 of Regulation AB, the Seller shall (or shall cause
each Third-Party Originator to) provide the historical delinquency
experience of the Loans sold to the Depositor since the origination of
such Loan up to and including the cut-off date of the related
securitization transaction, which historical delinquency experience
shall be presented in a manner to indicate (a) the longest period of
delinquency of the Loans since the origination of such Loans and (b) the
greatest incidence of delinquency for each Loan since its origination in
groupings of "never delinquent", 30-, 60-, 90-days etc. (each such
grouping, a "Bucket"), which Buckets shall indicate the aggregate number
of Loans in such Bucket and the aggregate principal balance of such
Loans.
Subsection 33.04. Servicer Compliance Statement.
On or before March 1st of each calendar year, commencing in 2008,
the Seller shall deliver to the Purchaser, any Master Servicer and any
Depositor a statement of compliance addressed to the Purchaser, such Master
Servicer and such Depositor and signed by an authorized officer of the Seller,
to the effect that (i) a review of the Seller's activities during the
immediately preceding calendar year (or applicable portion thereof) and of its
performance under this Agreement during such period has been made under such
officer's supervision, and (ii) to the best of such officers' knowledge, based
on such review, the Seller has fulfilled all of its obligations under this
Agreement in all material respects throughout such calendar year (or
applicable portion thereof) or, if there has been a failure to fulfill any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status thereof.
Subsection 33.05. Report on Assessment of Compliance and
Attestation.
(a) On or before March 1st of each calendar year, commencing in
2008, the Seller shall:
(i) deliver to the Purchaser, any Master Servicer and the
Depositor a report (in form and substance reasonably satisfactory
to the Purchaser, such Master Servicer and such Depositor)
regarding the Seller's assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB. Such report shall be addressed to the
Purchaser, any Master Servicer and the Depositor and signed by an
authorized officer of the Seller, and shall address each of the
"Applicable Servicing Criteria" specified on Exhibit 13 hereto;
(ii) deliver to the Purchaser, any Master Servicer and the
Depositor a report of a registered public accounting firm
reasonably acceptable to the Purchaser, such Master Servicer and
the Depositor that attests to, and reports on,
54
the assessment of compliance made by the Seller and delivered
pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor
determined by the Seller pursuant to Subsection 33.06(b) to be
"participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, and, to the extent required of such
Subservicer or Subcontractor under Item 1123 of Regulation AB, an
annual compliance certificate as and when provided by Section
33.04, to deliver to the Purchaser, any Master Servicer and the
Depositor an assessment of compliance and accountants' attestation
as and when provided in paragraphs (a) and (b) of this Subsection;
and
(iv) not later than March 1 of the calendar year in which
such certification is to be delivered, deliver, and cause each
Subservicer and each Subcontractor described in clause (iii) above
to deliver, to the Purchaser, the Depositor, any Master Servicer
and any other Person that will be responsible for signing the
certification (a "Sarbanes Certification") required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by the appropriate officer of the Seller, in
the form attached hereto as Exhibit 12.
The Seller acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Seller pursuant to
such clause in signing a Sarbanes Certification and filing such with the
Commission.
(b) Each assessment of compliance provided by a Subservicer
pursuant to Subsection 33.05(a)(i) shall address each of the Servicing
Criteria specified on a certification substantially in the form of
Exhibit 13 hereto delivered to the Purchaser concurrently with the
execution of this Agreement or, in the case of a Subservicer
subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Subsection 33.05(a)(iii) need not address any elements of
the Servicing Criteria other than those specified by the Seller pursuant
to Subsection 33.06.
Subsection 33.06. Use of Subservicers and Subcontractors.
The Seller shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Seller as servicer under
this Agreement unless the Seller complies with the provisions of paragraph (a)
of this Subsection 33.06. The Seller shall not hire or otherwise utilize the
services of any Subcontractor, and shall not permit any Subservicer to hire or
otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement unless the Seller
complies with the provisions of paragraph (b) of this Subsection 33.06.
55
(a) It shall not be necessary for the Seller to seek the consent
of the Purchaser, any Master Servicer or any Depositor to the
utilization of any Subservicer. The Seller shall cause any Subservicer
used by the Seller (or by any Subservicer) for the benefit of the
Purchaser and the Depositor to comply with the provisions of this
Subsection 33.06, with Subsections 33.02, 33.03(c), (e), (f) and (g),
33.04, 33.05 and 33.07 of this Agreement and with Sections 11.29, 11.30,
11.31, 11.32 of the Servicing Addendum, to the same extent as if such
Subservicer were the Seller, and to provide the information required
with respect to such Subservicer under Subsection 33.03(d) of this
Agreement. The Seller shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser, any Master Servicer and any
Depositor any servicer compliance statement required to be delivered by
such Subservicer under Subsection 33.04, any assessment of compliance
and attestation required to be delivered by such Subservicer under
Subsection 33.05 and any certification required to be delivered to the
Person that will be responsible for signing the Sarbanes Certification
under Subsection 33.05 as and when required to be delivered.
(b) It shall not be necessary for the Seller to seek the consent
of the Purchaser, any Master Servicer or the Depositor to the
utilization of any Subcontractor. The Seller shall promptly upon request
provide to the Purchaser, any Master Servicer and any Depositor (or any
designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Purchaser, such
Depositor and such Master Servicer) of the role and function of each
Subcontractor utilized by the Seller or any Subservicer, specifying (i)
the identity of each such Subcontractor, (ii) each discrete function
identified in Item 1122(d) of Regulation AB which is being performed by
each such Subcontractor (iii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB, and (iv) which elements of the Servicing Criteria
will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (iii) of this paragraph.
As a condition to the utilization of any Subcontractor determined
to be "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, the Seller shall cause any such Subcontractor used by
the Seller (or by any Subservicer) for the benefit of the Purchaser and the
Depositor to comply with the provisions of Subsections 33.05 and 33.07 of this
Agreement to the same extent as if such Subcontractor were the Seller. The
Seller shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and the Depositor any assessment of compliance and
attestation and the other certifications required to be delivered by such
Subcontractor under Subsection 33.05, in each case as and when required to be
delivered.
Subsection 33.07. Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of
the Purchaser, any Master Servicer and each of the following parties
participating in the Securitization Transaction: each sponsor and
issuing entity; each Person (including, but not limited to, any Master
Servicer if applicable) responsible for the preparation, execution or
filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-
56
14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement agent
or Depositor, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees, agents and affiliates of each of the
foregoing and of the Depositor (each, an "Indemnified Party"), and shall
hold each of them harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
data, accountants' letter or other material provided in written or
electronic form under this Section 33 by or on behalf of the
Seller, or provided under this Section 33 by or on behalf of any
Subservicer, Subcontractor or Third-Party Originator
(collectively, the "Seller Information"), or (B) the omission or
alleged omission to state in the Seller Information a material
fact required to be stated in the Seller Information or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Seller
Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard
to whether the Seller Information or any portion thereof is
presented together with or separately from such other information;
(ii) any breach by the Seller of its obligations under this
Section 33, including particularly any failure by the Seller, any
Subservicer, any Subcontractor or any Third-Party Originator to
deliver any information, report, certification, accountants'
letter or other material when and as required under this Section
33, including any failure by the Seller to identify pursuant to
Subsection 33.06(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation
AB;
(iii) any breach by the Seller of a representation or
warranty set forth in Subsection 33.02(a) or in a writing
furnished pursuant to Subsection 33.02(b) and made as of a date
prior to the closing date of the Securitization Transaction, to
the extent that such breach is not cured by such closing date, or
any breach by the Seller of a representation or warranty in a
writing furnished pursuant to Subsection 33.02(b) to the extent
made as of a date subsequent to such closing date; or
(iv) the negligence, bad faith or willful misconduct of the
Seller in connection with its performance under this Section 33.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Seller agrees
that it shall contribute to the amount paid or payable by such Indemnified
Party as a result of any claims, losses, damages or liabilities
57
incurred by such Indemnified Party in such proportion as is appropriate to
reflect the relative fault of such Indemnified Party on the one hand and the
Seller on the other.
In the case of any failure of performance described in clause
(a)(ii) of this Subsection 33.07, the Seller shall promptly reimburse the
Purchaser, any Depositor, as applicable, and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to the Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to the Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' letter or other material not delivered as
required by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator.
This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement.
(b) (i) Any failure by the Seller, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Section 33, or any breach by the Seller of a
representation or warranty set forth in Subsection 33.02(a) or in a
writing furnished pursuant to Subsection 33.02(b) and made as of a date
prior to the closing date of the Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any breach
by the Seller of a representation or warranty in a writing furnished
pursuant to Subsection 33.02(b) to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause
(ii) of this paragraph, immediately and automatically, without notice or
grace period, constitute an Event of Default with respect to the Seller
under this Agreement, and shall entitle the Purchaser, any Master
Servicer or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Seller as servicer under
this Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Seller and if the
Seller is servicing any of the Loans in the Securitization Transaction,
appoint a successor servicer reasonably acceptable to any Master
Servicer for the Securitization Transaction; provided that to the extent
that any provision of this Agreement expressly provides for the survival
of certain rights or obligations following termination of the Seller as
servicer, such provision shall be given effect.
(ii) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Subsection 33.04 or
33.05, including (except as provided below) any failure by the
Seller to identify pursuant to Subsection 33.06(b) any
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, which continues unremedied
for ten calendar days after the date on which such information,
report, certification or accountants' letter was required to be
delivered shall constitute an Event of Default with respect to the
Seller under this Agreement, and shall entitle the Purchaser, any
Master Servicer or any Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Seller
as servicer under this Agreement without payment
58
(notwithstanding anything in this Agreement to the contrary) of
any compensation to the Seller; provided that to the extent that
any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of
the Seller as servicer, such provision shall be given effect.
None of the Purchaser, any Master Servicer or any Depositor
shall be entitled to terminate the rights and obligations of the
Seller pursuant to this subparagraph (b)(ii) if a failure of the
Seller to identify a Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor
with respect to mortgage loans other than the Loans.
(iii) The Seller shall promptly reimburse the Purchaser (or
any designee of the Purchaser, such as a master servicer) and the
Depositor, as applicable, for all reasonable expenses incurred by
the Purchaser (or such designee) or such Depositor, as such are
incurred, in connection with the termination of the Seller as
servicer and the transfer of servicing of the Loans to a successor
servicer. The provisions of this paragraph shall not limit
whatever rights the Purchaser or any Depositor may have under
other provisions of this Agreement or otherwise, whether in equity
or at law, such as an action for damages, specific performance or
injunctive relief.
Subsection 33.08. Third Party Beneficiary.
For purposes of this Section 33 and any related provisions
thereto, each Master Servicer shall be considered a third-party beneficiary of
this Agreement, entitled to all the rights and benefits hereof as if it were a
direct party to this Agreement.
59
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 date first above written.
XXXXXX, XXXX & XXXXXXXX MORTGAGE
CORP.
(Seller)
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
-------------------------------------
Title: CEO
------------------------------------
UBS REAL ESTATE SECURITIES INC.
(Purchaser)
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxx
-------------------------------------
Title: Executive Director
------------------------------------
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
-------------------------------------
Title: Director
------------------------------------
EXHIBIT 1
---------
OFFICER'S CERTIFICATE OF THE SELLER
I, ________________________________ hereby certify that I am the
duly elected ________________________ of Xxxxxx, Bean & Xxxxxxxx Mortgage
Corp., a ______________________ (the "Seller"), and further certify on behalf
of the Seller as follows:
1. Attached hereto as Attachment I are a true and correct copy of
the Certificate of Incorporation and by-laws of the Seller as are in
full force and effect on the date hereof.
2. No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Seller are pending or contemplated.
3. Each person who, as an officer or attorney-in-fact of the
Seller, signed (a) the Mortgage Loan Purchase and Servicing Agreement
(the "Purchase Agreement"), dated as of February 1, 2007, by and between
the Seller and UBS Real Estate Securities Inc. (the "Purchaser"); (b)
the Confirmation, dated _____________ 200__, between the Seller and the
Purchaser (the "Confirmation"); and (c) any other document delivered
prior hereto or on the date hereof in connection with the sale and
servicing of the Loans in accordance with the Purchase Agreement and the
Confirmation was, at the respective times of such signing and delivery,
and is as of the date hereof, duly elected or appointed, qualified and
acting as such officer or attorney-in fact, and the signatures of such
persons appearing on such documents are their genuine signatures.
4. Attached hereto as Attachment II is a true and correct copy of
the resolutions duly adopted by the board of directors of the Seller on
_____________, 200__ (the "Resolutions") with respect to the
authorization and approval of the sale and servicing of the Loans; said
Resolutions have not been amended, modified, annulled or revoked and are
in full force and effect on the date hereof.
5. Attached hereto as Attachment III is a Certificate of Good
Standing of the Seller dated _____________, 200__. No event has occurred
since ________, 200__ which has affected the good standing of the Seller
under the laws of the State of _____________.
6. All of the representations and warranties of the Seller
contained in Subsections 7.01 and 7.02 of the Purchase Agreement were
true and correct in all material respects as of the date of the Purchase
Agreement and are true and correct in all material respects as of the
date hereof.
7. The Seller has performed all of its duties and has satisfied
all the material conditions on its part to be performed or satisfied
prior to the related Closing Date pursuant to the Purchase Agreement and
the Confirmation.
All capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
Exhibit 1-1
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Seller.
Dated: ___________________________
[Seal]
XXXXXX, BEAN & XXXXXXXX MORTGAGE
CORP.
(Seller)
By:
-----------------------------------
Name:
---------------------------------
Title: Vice President
I, _____________________, Secretary of the Seller, hereby certify
that ____________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is his genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ___________________________
[Seal]
XXXXXX, BEAN & XXXXXXXX MORTGAGE
CORP.
(Seller)
By:
-----------------------------------
Name:
---------------------------------
Title: [Assistant] Secretary
Exhibit 1-2
EXHIBIT 2
---------
[FORM OF OPINION OF COUNSEL TO THE SELLER]
Exhibit 2-1
EXHIBIT 3
---------
SECURITY RELEASE CERTIFICATION
1. Release of Security Interest
_______________________________, hereby relinquishes any and all
right, title and interest it may have in and to the Loans described in Exhibit
A attached hereto upon purchase thereof by UBS Real Estate Securities Inc.
from the Seller named below pursuant to that certain Mortgage Loan Purchase
and Servicing Agreement, dated as of February 1, 2007, as of the date and time
of receipt by_____________________________ of $_______________ for such Loans
(the "Date and Time of Sale"), and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Loans have
been delivered and released to the Seller named below or its designees as of
the Date and Time of Sale.
Name and Address of Financial Institution
---------------------------------------------
(Name)
---------------------------------------------
(Address)
By:
------------------------------------------
Exhibit 3-1
II. Certification of Release
The Seller named below hereby certifies to UBS Real Estate
Securities Inc. that, as of the Date and Time of Sale of the above mentioned
Loans to UBS Real Estate Securities Inc, the security interests in the Loans
released by the above named corporation comprise all security interests
relating to or affecting any and all such Loans. The Seller warrants that, as
of such time, there are and will be no other security interests affecting any
or all of such Loans.
Seller
------------------------------------
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Exhibit 3-2
EXHIBIT 4
---------
ASSIGNMENT AND CONVEYANCE
On this ___ day of , 200__, Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.
("Seller") as the Seller under that certain Mortgage Loan Purchase and
Servicing Agreement, dated as of February 1, 2007 (the "Agreement") does
hereby sell, transfer, assign, set over and convey to UBS Real Estate
Securities Inc. as Purchaser under the Agreement, without recourse, but
subject to the terms of the Agreement, all rights, title and interest of the
Seller in and to the Loans listed on the Loan Schedule attached hereto,
together with the related Loan Files and all rights and obligations arising
under the documents contained therein. Pursuant to Section 6.03 of the
Agreement, the Seller has delivered to the Custodian the documents for each
Loan to be purchased as set forth in the Agreement. The contents of each
related Servicing File required to be retained by the Seller to service the
Loans pursuant to the Agreement and thus not delivered to the Purchaser are
and shall be held in trust by the Seller for the benefit of the Purchaser as
the owner thereof. The Seller's possession of any portion of each such
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Loan pursuant to the Agreement, and such
retention and possession by the Seller shall be in a custodial capacity only.
The ownership of each Note, Mortgage, and the contents of the Loan File and
Servicing File is vested in the Purchaser and the ownership of all records and
documents with respect to the related Loan prepared by or which come into the
possession of the Seller shall immediately vest in the Purchaser and shall be
retained and maintained, in trust, by the Seller at the will of the Purchaser
in such custodial capacity only.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
XXXXXX, BEAN & XXXXXXXX MORTGAGE
ORP.
(Seller)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 4-1
EXHIBIT 5
---------
CONTENTS OF EACH LOAN FILE
With respect to each Loan, the Loan File shall include each of the
following items (except if such item (other than the Loan Documents) is not
required pursuant to Seller's underwriting guidelines), which shall be
available for inspection by the Purchaser and which shall be retained by the
Seller or delivered to the Custodian:
1. Loan Documents.
2. Residential loan application.
3. Loan closing statement.
4. Verification of employment and income.
5. Verification of acceptable evidence of source and amount of
down payment.
6. Credit report on Borrower.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property.
10. Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the
title policy, i.e., map or plat, restrictions, easements,
sewer agreements, home association declarations, etc.
11. All required disclosure statements and statement of Borrower
confirming receipt thereof.
12. If available, termite report, structural engineer's report,
water potability and septic certification.
13. Sales Contract, if applicable.
14. Hazard insurance policy.
15. Amortization schedule, if available.
16. Payment history for Loans that have been closed for more
than 90 days.
17. Tax receipts, insurance premium receipts, ledger sheets,
payment history from date of origination, insurance claim
files, correspondence, current
Exhibit 5-1
and historical computerized data files, and all other
processing, underwriting and closing papers and records
which are customarily contained in a loan file and which are
required to document the Loan or to service the Loan.
Exhibit 5-2
EXHIBIT 6
---------
LOAN DOCUMENTS
(a) The original Note together with any applicable riders, bearing
all intervening endorsements necessary to show a complete chain of
endorsements from the original payee to the last endorsee, endorsed (on the
Note or an allonge attached thereto) "Pay to the order of ________________
without recourse," and signed in the name of the last endorsee by a duly
qualified officer of the last endorsee. If the Loan was acquired by the last
endorsee in a merger, the endorsement must be by "[name of last endorsee],
successor by merger to [name of predecessor]". If the Loan was acquired or
originated by the last endorsee while doing business under another name, the
endorsement must be by "[name of last endorsee], formerly known as [previous
name]";
(b) Except as provided below and for each Loan that is not a MERS
Loan, the original Mortgage with evidence of recording thereon, or a copy
thereof certified by the public recording office in which such Mortgage has
been recorded or, if the original Mortgage has not been returned from the
applicable public recording office, a true certified copy, certified by the
[title insurer], of the original Mortgage together with a certificate of the
Seller certifying that the original Mortgage has been delivered for recording
in the appropriate public recording office of the jurisdiction in which the
Mortgaged Property is located and in the case of each MERS Loan, the original
Mortgage, noting the presence of the MIN of the Loan and either language
indicating that the Loan is a MOM Loan or if the Loan was not a MOM Loan at
origination, the original Mortgage and the assignment thereof to MERS, with
evidence of recording indicated thereon, or a copy of the Mortgage certified
by the public recording office in which such Mortgage has been recorded.
(c) In the case of each Loan that is not a MERS Loan, the original
Assignment of Mortgage, in blank, executed via original signature, which
assignment shall be in form and substance acceptable for recording (except for
the insertion of the name of the assignee and the related Mortgage recording
information). If the Loan was acquired by the last assignee in a merger, the
Assignment of Mortgage must be made by "[name of last assignee], successor by
merger to [name of predecessor]". If the Loan was acquired or originated by
the last assignee while doing business under another name, the Assignment of
Mortgage must be by "[name of last assignee], formerly known as [previous
name]";
(d) Originals of all intervening assignments of mortgage (if
applicable), with evidence of recording thereon, showing a complete chain of
title from the originator to the last assignee;
(e) Originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, unless such
originals are permanently retained by the applicable recording office (in
which event, a photocopy of each such original, certified by the applicable
recording office to be a true, correct and complete copy of the original)
along with an endorsement to the original policy of title insurance extending
coverage to the date and time of the recording of any such modification,
assumption, consolidation or extension;
Exhibit 6-1
(f) If the Note or Mortgage was executed pursuant to a power of
attorney or other instrument that authorized or empowered such Person to sign,
the original power of attorney (or such other instrument), with evidence of
recording thereon, unless such originals are permanently retained by the
applicable recording office (in which event, a photocopy of each such
original, certified by the applicable recording office to be a true, correct
and complete copy of the original);
(g) (i) The original mortgagee title insurance policy or (ii) if
such policy has not been issued, (a) a written commitment or binder for such
policy issued by a title insurer and an Officer's Certificate of the title
insurer certifying that all of the requirements specified in such commitment
have been satisfied or (b) a preliminary title report issued by a title
insurer in anticipation of issuing a title insurance policy which evidences
existing liens and gives a preliminary opinion as to the absence of any
encumbrance on title to the Mortgaged Property except liens to be removed on
or before purchase by the Borrower or which constitute customary exceptions
acceptable to lenders generally, and, in any event, an original mortgagee
title insurance policy shall be delivered to the Purchaser or its designee
promptly upon issuance thereof and not later than 180 days following the
related Closing Date pursuant to Section 6.03 of the Agreement;
(h) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage;
(i) the original of any loan agreement or guaranty executed in
connection with the Note;
If any original recorded document required to be delivered to the
Purchaser has been lost or if such public recording office retains the
original recorded document, then in lieu of delivering such original, the
Seller shall deliver, or cause to be delivered, a photocopy of such original
document certified by such public recording office to be a true, correct and
complete copy of the original recorded document.
If any original Mortgage required to be delivered to the Purchaser
has been delivered for recording to the appropriate public recording office of
the jurisdiction in which the Mortgaged Property is located but has not yet
been returned by such recording office, in lieu of delivering such original,
the Seller shall deliver, or cause to be delivered, a certified true, correct
and complete copy of such original Mortgage so certified by the Seller,
certifying that such original Mortgage has been delivered to the appropriate
public recording office for recordation; provided, however, the Seller shall
cause such original Mortgage to be delivered to the Purchaser or its designee
promptly upon return from the appropriate public recording office and in no
event later than 180 days following the related Closing Date pursuant to
Section 6.03 of the Agreement.
If any such other original document required to be delivered to
the Purchaser but which has been delivered for recording to the appropriate
public recording office of the jurisdiction in which the Mortgaged Property is
located but has not yet been returned by such recording office, in lieu of
delivering such original, the Seller shall deliver, or cause to be delivered,
a certified true, correct and complete copy of such document so certified by
the Seller
Exhibit 6-2
together with an Officer's Certificate of the Seller certifying that such
document has been delivered to the appropriate public recording office for
recordation; provided, that, the Seller shall cause such original document to
be delivered to the Purchaser or its designee promptly upon return from the
appropriate public recording office and in no event later than 180 days
following the related Closing Date pursuant to Section 6.03 of the Agreement.
Exhibit 6-3
EXHIBIT 7
---------
CUSTODIAL ACCOUNT LETTER AGREEMENT
1. ____________, 200_
To: ____________________
____________________
____________________
(the "Depository")
As Seller under the Mortgage Loan Purchase and Servicing
Agreement, dated as of February 1, 2007, we hereby authorize and request you
to establish an account, as a Custodial Account, to be designated as "[Xxxxxx,
Xxxx & Xxxxxxxx Mortgage Corp.] in trust for the Purchaser, Fixed and
Adjustable Rate Loans." Such account shall be a special deposit, which shall
be segregated and held by you maintaining such account in a fiduciary
capacity, separate and apart from your own funds and general assets and that
the account shall not be held in any capacity that would create a
debtor-creditor relationship between you and Xxxxxx, Bean & Xxxxxxxx Mortgage
Corp. or UBS Real Estate Securities Inc. All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Seller. You may refuse
any deposit which would result in violation of the requirement that the
account be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to us.
XXXXXX, BEAN & XXXXXXXX MORTGAGE
CORP.
(Seller)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Exhibit 7-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number _________ at
the office of the Depository indicated above, and agrees to honor withdrawals
on such account as provided above. The 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 7-2
EXHIBIT 8
---------
ESCROW ACCOUNT LETTER AGREEMENT
____________, 200_
To: ______________________
______________________
______________________
(the "Depository")
As Seller under the Mortgage Loan Purchase and Servicing
Agreement, dated as of February 1, 2007 between Xxxxxx, Bean & Xxxxxxxx
Mortgage Corp. as seller and UBS Real Estate Securities Inc. as purchaser, we
hereby authorize and request you to establish an account, as an Escrow
Account, to be designated as "Xxxxxx, Bean & Xxxxxxxx Mortgage Corp., in Trust
for The Bank of New York, as Trustee for TBW Mortgage-Backed Trust, Series
2007-1." All deposits in the account shall be subject to withdrawal therefrom
by order signed by the Seller. You may refuse any deposit which would result
in violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
XXXXXX, BEAN & XXXXXXXX MORTGAGE
CORP.
(Seller)
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Exhibit 8-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number _________ at
the office of the Depository indicated above, and agrees to honor withdrawals
on such account as provided above. The 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 8-2
EXHIBIT 9
---------
SERVICING ADDENDUM
Section 11.01. Seller to Act as Servicer.
The Seller, as independent contract servicer, shall service and
administer the Loans in accordance with this Agreement and shall have full
power and authority, acting alone, to do or cause to be done any and all
things in connection with such servicing and administration which the Seller
may deem necessary or desirable and consistent with the terms of this
Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the Seller may waive,
modify or vary any term of any Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any
Borrower if in the Seller's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser; provided, however, that without the prior written consent of the
Purchaser, the Seller shall not permit any modification with respect to any
Loan that would change the Loan Interest Rate, defer or forgive the payment
thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make additional
advances of additional principal or extend the final maturity date on such
Loan. Without limiting the generality of the foregoing, the Seller 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 Loans. If reasonably required by
the Seller, the Purchaser shall furnish the Seller with any powers of attorney
and other documents necessary or appropriate to enable the Seller to carry out
its servicing and administrative duties under this Agreement.
In servicing and administering the Loans, the Seller shall employ
procedures (including collection procedures) and exercise the same care that
it customarily employs and exercises in servicing and administering loans for
its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser's reliance on the Seller.
Notwithstanding anything to the contrary in this Agreement, the
Purchaser may at any time and from time to time, in its sole discretion, upon
thirty (30) days written notice to the Seller, terminate the Seller's
servicing obligations hereunder with respect to (1) any REO Property or (2)
any Loan that is 90 or more days delinquent. Upon the effectiveness of any
such termination of the Seller's servicing obligations with respect to any
such REO Property or Loan, the Seller shall deliver all agreements, documents,
and instruments related thereto to the Purchaser, in accordance with Accepted
Servicing Practices and applicable law and shall transfer servicing to the
Purchaser's designee in accordance with Acceptable Servicing Practices. In the
event of any such termination with respect to any Loan or REO Property, the
Purchaser shall immediately reimburse the Seller for all itemized Monthly
Advances and Servicing Advances of the Seller with respect to such Loan or REO
Property for which the Seller would be entitled to be reimbursed pursuant to
the terms of this Agreement.
Exhibit 9-1
The Seller shall accurately and fully report its borrower credit
files related to the Loans to Equifax, Transunion and Experian in a timely
manner.
Notwithstanding anything in this Agreement to the contrary, in the
event of a Principal Prepayment in full or in part of a Loan, the Seller may
not waive any prepayment penalty or portion thereof required by the terms of
the related Note unless (i) the Seller determines that such waiver would
maximize recovery of Liquidation Proceeds for such Loan, taking into account
the value of such prepayment penalty and the Loan, and the waiver of such
prepayment penalty is standard and customary in servicing similar Loans
(including the waiver of a prepayment penalty in connection with a refinancing
of the Loan related to a default or a reasonably foreseeable default) or (ii)
(A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors' rights
or (2) due to acceleration in connection with a foreclosure or other
involuntary payment, or (B) the enforceability is otherwise limited or
prohibited by subsequent changes in applicable law. In no event shall the
Seller waive a prepayment penalty in connection with a refinancing of a Loan
that is not related to a default or a reasonably foreseeable default. If the
Seller waives or does not collect all or a portion of a prepayment penalty
relating to a Principal Prepayment in full or in part due to any action or
omission of the Seller, other than as provided above, the Seller shall deposit
the amount of such prepayment penalty (or such portion thereof as had been
waived for deposit) into the Custodial Account at the time of such prepayment
for distribution in accordance with the terms of this Agreement.
Section 11.02 Collection of Loan Payments.
Continuously from the date hereof until the principal and interest
on all Loans are paid in full, the Seller shall proceed diligently to collect
all payments due under each Loan when the same shall become due and payable
and shall, to the extent such procedures shall be consistent with this
Agreement and the terms and provisions of any related Primary Insurance
Policy, follow such collection procedures as it follows with respect to loans
comparable to the Loans and held for its own account. Further, the Seller
shall take special care in ascertaining and estimating annual ground rents,
taxes, assessments, water rates, fire and hazard insurance premiums, mortgage
insurance premiums, and all other charges that, as provided in the Mortgage
will become due and payable to the end that the installments payable by the
Borrowers will be sufficient to pay such charges as and when they become due
and payable.
Section 11.03 Realization Upon Defaulted Loans.
(a) The Seller shall use its best efforts, consistent with
Accepted Servicing Practices and the procedures that the Seller would use in
servicing loans for its own account, to foreclose upon or otherwise comparably
convert the ownership of such Mortgaged Properties 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 11.01. The Seller shall
use its best efforts to realize upon defaulted Loans in such a 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 a Mortgaged
Property shall have suffered damage, the Seller 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
Exhibit 9-2
restoration will increase the proceeds of liquidation of the related Loan to
Purchaser after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Seller through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 11.05. In the event that any payment due under any Loan is not paid
when the same becomes due and payable, or in the event the Borrower fails to
perform any other covenant or obligation under the Loan and such failure
continues beyond any applicable grace period, the Seller shall take such
action as it shall deem to be in the best interest of the Purchaser.
In the event any payment due under any Loan is not paid when the
same becomes due and payable, or in the event the Borrower fails to perform
any other covenant or obligation under the Loan, and such failure continues
beyond any applicable grace period, the Seller will proceed diligently to
collect all payments due and shall take such action, including commencing
foreclosure, as it shall reasonably deem to be in the best interests of the
Purchaser in a manner consistent with Accepted Servicing Practices. Should any
Loan remain delinquent for a period of ninety (90) days, the Seller shall use
Accepted Servicing Practices and refer the file to foreclosure or loss
mitigation by the 120th day of delinquency. Notification of foreclosure
proceedings shall be reported to the Purchaser.
Should a foreclosure sale be imminent, the Seller shall obtain a
value and issue bidding instructions in accordance with Accepted Servicing
Practices.
(b) Notwithstanding the foregoing provisions of this Section
11.03, with respect to any Loan as to which the Seller has received actual
notice of, or has actual knowledge of, the presence of any toxic or hazardous
substance on the related Mortgaged Property, the Seller shall not either (i)
obtain title to such Mortgaged Property as a result of or in lieu of
foreclosure or otherwise, or (ii) otherwise acquire possession of, or take any
other action, with respect to, such Mortgaged Property if, as a result of any
such action, the Purchaser would be considered to hold title to, to be a
mortgagee-in-possession of, or to be an owner or operator of such Mortgaged
Property within the meaning of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, or any
comparable law, unless the Seller has also previously determined, based on its
reasonable judgment and a prudent report prepared by a Person who regularly
conducts environmental audits using customary industry standards, that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best
economic interest of the Purchaser to take such actions as are
necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or that if
any such materials are present for which such action could be
required, that it would be in the best economic interest of the
Purchaser to take such actions with respect to the affected
Mortgaged Property.
Exhibit 9-3
The cost of the environmental audit report contemplated by this
Section 11.03 shall be advanced by the Seller, subject to the Seller's right
to be reimbursed therefor from the Custodial Account as provided in Section
11.05(vii).
If the Seller determines, as described above, that it is in the
best economic interest of the Purchaser to take such actions as are necessary
to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials affecting any such Mortgaged
Property, then the Seller shall take such action as it deems to be in the best
economic interest of the Purchaser. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Seller, subject
to the Seller's right to be reimbursed therefor from the Custodial Account as
provided in Section 1 l.05(vii).
(c) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds in respect of any Loan, will be
applied in the following order of priority: first, to reimburse the Seller for
any related unreimbursed Servicing Advances, pursuant to Section 11.05(iii);
second, to accrued and unpaid interest on the Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Loan.
Section 11.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
The Seller shall segregate and hold all funds collected and
received pursuant to each Loan separate and apart from any of its own funds
and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts. The creation of any
Custodial Account shall be evidenced by a Custodial Account Letter Agreement
in the form of Exhibit 7.
The Seller shall deposit in the Custodial Account on a daily
basis, and retain therein the following payments and collections received by
it subsequent to the Cut-off Date, or received by it prior to the Cut-off Date
but allocable to a period subsequent thereto, other than in respect of
principal and interest on the Loans due on or before the Cut-off Date:
(i) all payments on account of principal on the Loans (including
any Principal Prepayments);
(ii) all payments on account of interest on the Loans;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Sections 11.10 and 11.11, 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 Borrower in accordance with the Seller's
normal servicing procedures, the loan documents or applicable law;
Exhibit 9-4
(v) all Condemnation Proceeds affecting any Mortgaged Property
which are not released to the Borrower in accordance with the Seller's normal
servicing procedures, the loan documents or applicable law;
(vi) all Monthly Advances;
(vii) all proceeds of any Loan repurchased in accordance with
Sections 7.03 and 7.04 and all amounts required to be deposited by the Seller
in connection with shortfalls in principal amount of Qualified Substitute
Loans pursuant to Section 7.03;
(viii) any amounts required to be deposited by the Seller
pursuant to Section 11.11 in connection with the deductible clause in any
blanket hazard insurance policy. Such deposit shall be made from the Seller's
own funds, without reimbursement therefor;
(ix) any amounts required to be deposited by the Seller in
connection with any REO Property pursuant to Section 11.13;
(x) any amounts required to be deposited in the Custodial Account
pursuant to Sections 11.19. 11.20 or 11.23; and
(xi) with respect to each Principal Prepayment in full or part,
any Prepayment Interest Shortfalls, to the extent of the Seller's aggregate
Servicing Fee received with respect to the related Due Period.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
and assumption fees need not be deposited by the Seller in the Custodial
Account. Such Custodial Account shall be an Eligible Account. Any interest or
earnings on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Seller and the Seller shall be
entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 11.05(iii). The Seller shall give notice to the Purchaser
of the location of the Custodial Account when established and prior to any
change thereof.
Without limiting the foregoing, the funds in the Custodial Account
shall at all times be segregated and held separate and apart from the Seller's
own funds and general assets and from any other funds or assets collected or
held by the Seller on behalf of third parties. The Custodial Account shall be
evidenced by a Custodial Account Letter Agreement in the form attached as
Exhibit 7 hereto. Such Custodial Account Letter Agreement shall provide that
such account is a special deposit, required to be segregated and held by the
depository institution maintaining such account in a fiduciary capacity,
separate and apart from the institution's own funds and general assets and
that the account shall not be held in any capacity that would create a
debtor-creditor relationship between the institution and the Seller or the
Purchaser. At all times, the Purchaser shall be the sole beneficial owner of
all funds in the Custodial Account. Seller's possession or control of any such
funds shall be solely in Seller's capacity as collecting agent for the
Purchaser.
Exhibit 9-5
Section 11.05 Permitted Withdrawals From the Custodial Account.
The Seller may, from time to time, withdraw from the Custodial
Account for the following purposes:
(i) to make distributions to the Purchaser in the amounts and in
the manner provided for in Section 11.14;
(ii) to reimburse itself for Monthly Advances, the Seller's right
to reimburse itself pursuant to this subclause (ii) being limited to amounts
received on the related Loan which represent late collections (net of the
related Servicing Fees) respecting which any such advance was made it being
understood that, in the case of such reimbursement, the Seller's right thereto
shall be prior to the rights of Purchaser, except that, where the Seller is
required to repurchase a Loan, pursuant to Subsection 7.03, the Seller's right
to such reimbursement shall be subsequent to the payment to the Purchaser of
the Repurchase Price pursuant to Subsection 7.03, and all other amounts
required to be paid to the Purchaser with respect to such Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, the
Seller's right to reimburse itself pursuant to this subclause (iii) with
respect to any Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may be
collected by the Seller from the Borrower or otherwise relating to the Loan,
it being understood that, in the case of such reimbursement, the Seller's
right thereto shall be prior to the rights of the Purchaser, except that,
where the Seller is required to repurchase a Loan, pursuant to Section 7.03,
the Seller's right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price pursuant to Section 7.03 and all other
amounts required to be paid to the Purchaser with respect to such Loans;
(iv) to pay to itself pursuant to Section 11.22 as servicing
compensation (a) any interest earned on funds in the Custodial Account (all
such interest to be withdrawn monthly not later than each Distribution Date),
(b) the Servicing Fee from that portion of any payment or recovery as to
interest on a particular Loan and (c) any Prepayment Interest Excess to the
extent set forth in Section 11.22;
(v) to pay to itself with respect to each Loan that has been
repurchased pursuant to Section 7.03 all amounts received thereon and not
distributed as of the date on which the related Repurchase Price is
determined;
(vi) to reimburse the Seller for any Monthly Advance previously
made which the Seller has determined to be a Nonrecoverable Monthly Advance;
(vii) to pay, or to reimburse the Seller for advances in respect
of, expenses incurred in connection with any Loan pursuant to Section
11.03(b), but only to the extent of amounts received in respect of the Loans
to which such expense is attributable;
(viii) to clear and terminate the Custodial Account on the
termination of this Agreement; and
Exhibit 9-6
(ix) to reimburse the Seller for funds deposited in the Custodial
Account in error.
The Seller shall keep and maintain separate accounting, on a Loan
by Loan basis, for the purpose of justifying any withdrawal from the Custodial
Account pursuant to such subclauses (ii) - (vii) above. The Seller shall
provide written notification in the form of an Officers' Certificate to the
Purchaser, on or prior to the next succeeding Distribution Date, upon making
any withdrawals from the Custodial Account pursuant to subclause (vi) above.
Section 11.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
The Seller shall segregate and hold all funds collected and
received pursuant to each Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts. The creation of any Escrow Account shall be evidenced by Escrow
Account Letter Agreement in the form of Exhibit 8.
The Seller shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein, (i) all Escrow Payments collected on account
of the Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement, and (ii) all Insurance Proceeds
which are to be applied to the restoration or repair of any Mortgaged
Property. The Seller shall make withdrawals therefrom only to effect such
payments as are required under this Agreement, and for such other purposes as
shall be as set forth or in accordance with Section 11.08. The Seller shall be
entitled to retain any interest paid on funds deposited in the Escrow Account
by the depository institution other than interest on escrowed funds required
by law to be paid to the Borrower and, to the extent required by law, the
Seller shall pay interest on escrowed funds to the Borrower notwithstanding
that the Escrow Account is non interest bearing or that interest paid thereon
is insufficient for such purposes.
Section 11.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account may be made by the Seller (i)
to effect timely payments of ground rents, taxes, assessments, water rates,
hazard insurance premiums, Primary Insurance Policy premiums, if applicable,
and comparable items, (ii) to reimburse the Seller for any Servicing Advance
made by the Seller with respect to a related Loan but only from amounts
received on the related Loan which represent late payments or collections of
Escrow Payments thereunder, (iii) to refund to the Borrower any funds as may
be determined to be overages, (iv) for transfer to the Custodial Account in
accordance with the terms of this Agreement, (v) for application to
restoration or repair of the Mortgaged Property, (vi) to pay to the Seller, or
to the Borrower to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (vii) to clear and terminate the Escrow
Account on the termination of this Agreement, or (viii) to withdraw funds
deposited in the Escrow Account in error.
Section 11.08 Payment of Taxes, Insurance and Other Charges;
Maintenance of Primary Insurance Policies; Collections Thereunder.
Exhibit 9-7
With respect to each Loan, the Seller shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates
and other charges which are or may become a lien upon the Mortgaged Property
and the status of Primary Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including insurance renewal premiums and shall effect
payment thereof prior to the applicable penalty or termination date and at a
time appropriate for securing maximum discounts allowable, employing for such
purpose deposits of the Borrower in the Escrow Account which shall have been
estimated and accumulated by the Seller in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage and applicable law. To
the extent that the Mortgage does not provide for Escrow Payments, the Seller
shall determine that any such payments are made by the Borrower at the time
they first become due. The Seller assumes full responsibility for the timely
payment of all such bills and shall effect timely payments of all such bills
irrespective of the Borrower's faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds
to effect such payments.
The Seller shall maintain in full force and effect, a Primary
Insurance Policy, issued by a Qualified Insurer, with respect to each Loan for
which such coverage is required. Such coverage shall be maintained until the
Loan-to-Value Ratio of the related Loan is reduced to that amount for which
Xxxxxx Xxx or Xxxxxxx Mac no longer requires such insurance to be maintained.
The Seller will not cancel or refuse to renew any Primary Insurance Policy in
effect on the Closing Date that is required to be kept in force under this
Agreement unless a replacement Primary Insurance Policy for such cancelled or
non-renewed policy is obtained from and maintained with a Qualified Insurer.
The Seller shall not take any action which would result in non coverage under
any applicable Primary Insurance Policy of any loss which, but for the actions
of the Seller, would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into
pursuant to Section 11.19, the Seller shall promptly notify the insurer under
the related Primary Insurance Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such policy and
shall take all actions which may be required by such insurer as a condition to
the continuation of coverage under the Primary Insurance Policy. If such
Primary Insurance Policy is terminated as a result of such assumption or
substitution of liability, the Seller shall obtain a replacement Primary
Insurance Policy as provided above.
In connection with its activities as servicer, the Seller agrees
to prepare and present, on behalf of itself, and the Purchaser, claims to the
insurer under any Primary Insurance Policy in a timely fashion in accordance
with the terms of such policies and, in this regard, to take such action as
shall be necessary to permit recovery under any Primary Insurance Policy
respecting a defaulted Loan. Pursuant to Section 11.04, any amounts collected
by the Seller under any Primary Insurance Policy, shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 11.05.
Section 11.09 Transfer of Accounts.
The Seller may transfer the Custodial Account or the Escrow
Account to a different depository institution from time to time. Such transfer
shall be made only upon
Exhibit 9-8
obtaining the consent of the Purchaser, which consent
shall not be unreasonably withheld. In any case, the Custodial Account and
Escrow Account shall be Eligible Accounts.
Section 11.10 Maintenance of Hazard Insurance.
The Seller shall cause to be maintained for each Loan fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount which is at least equal to the
lesser of (i) the amount necessary to fully compensate for any damage or loss
to the improvements which are a part of such property on a replacement cost
basis or (ii) the outstanding principal balance of the Loan, in each case in
an amount not less than such amount as is necessary to prevent the Borrower
and/or the Mortgagee from becoming a co insurer. If the Mortgaged Property is
in an area identified on a Flood Hazard Boundary Map or Flood Insurance Rate
Map issued by the Flood Emergency Management Agency as having special flood
hazards and such flood insurance has been made available, the Seller will
cause to be maintained a flood insurance policy meeting the requirements of
the current guidelines of the Federal Insurance Administration with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the lesser of (i) the outstanding principal balance of the Loan or
(ii) the maximum amount of insurance which is available under the National
Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as
amended. The Seller also shall maintain on any REO Property, fire and hazard
insurance with extended coverage in an amount which is at least equal to the
lesser of (i) the maximum insurable value of the improvements which are a part
of such property and (ii) the outstanding principal balance of the related
Loan at the time it became an REO Property, liability insurance and, to the
extent required and available under the National Flood Insurance Act of 1968
or the Flood Disaster Protection Act of 1973, as amended, flood insurance in
an amount as provided above. Pursuant to Section 11.04, any amounts collected
by the Seller under any such policies other than amounts to be deposited in
the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Borrower in accordance with the
Seller's normal servicing procedures, shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 11.05. Any cost incurred by
the Seller in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Purchaser, be added to the unpaid principal
balance of the related Loan, notwithstanding that the terms of such Loan so
permit. It is understood and agreed that no earthquake or other additional
insurance need be required by the Seller of the Borrower or maintained on
property acquired in respect of the Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to the Seller, or upon request to
the Purchaser, and shall provide for at least thirty days prior written notice
of any cancellation, reduction in the amount of, or material change in,
coverage to the Seller. The Seller shall not interfere with the Borrower's
freedom of choice in selecting either his insurance carrier or agent,
provided, however, that the Seller shall not accept any such insurance
policies from insurance companies unless such companies currently reflect a
General Policy Rating of A:VI or better in Best's Key Rating Guide and are
licensed to do business in the state wherein the property subject to the
policy is located.
Section 11.11 Maintenance of Mortgage Impairment Insurance Policy.
Exhibit 9-9
In the event that the Seller shall obtain and maintain a mortgage
impairment or blanket policy issued by an issuer that has a Best rating of
A:VI insuring against hazard losses on all of Mortgaged Properties securing
the Loans, then, to the extent such policy provides coverage in an amount
equal to the amount required pursuant to Section 11.10 and otherwise complies
with all other requirements of Section 11.10, the Seller shall conclusively be
deemed to have satisfied its obligations as set forth in Section 11.10, it
being understood and agreed that such policy may contain a deductible clause,
in which case the Seller shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy
complying with Section 11.10, and there shall have been one or more losses
which would have been covered by such policy, deposit in the Custodial Account
the amount not otherwise payable under the blanket policy because of such
deductible clause. In connection with its activities as servicer of the Loans,
the Seller agrees to prepare and present, on behalf of the Purchaser, claims
under any such blanket policy in a timely fashion in accordance with the terms
of such policy. Upon request of the Purchaser, the Seller shall cause to be
delivered to the Purchaser a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without thirty days prior written notice to
the Purchaser.
Section 11.12 Fidelity Bond. Errors and Omissions Insurance.
The Seller shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage with
responsible companies that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac on all officers, employees or other persons acting in any capacity
with regard to the Loans to handle funds, money, documents and papers relating
to the Loans. The fidelity bond and errors and omissions insurance shall be in
the form of the Mortgage Banker's Blanket Bond and shall protect and insure
the Seller against losses, including forgery, theft, embezzlement, fraud,
errors and omissions and negligent acts of such persons. Such fidelity bond
shall also protect and insure the Seller against losses in connection with the
failure to maintain any insurance policies required pursuant to this Agreement
and the release or satisfaction of a Loan without having obtained payment in
full of the indebtedness secured thereby. No provision of this Section 11.12
requiring the fidelity bond and errors and omissions insurance shall diminish
or relieve the Seller from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such bond and insurance policy shall
be at least equal to the corresponding amounts required by Xxxxxx Mae in the
Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' and
Servicers' Guide. Upon request of the Purchaser, the Seller shall cause to be
delivered to the Purchaser a certified true copy of the fidelity bond and
insurance policy and a statement from the surety and the insurer that such
fidelity bond or insurance policy shall in no event be terminated or
materially modified without thirty days' prior written notice to the
Purchaser.
Section 11.13 Title Management and Disposition of REO Property.
In the event that title to the Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the person designated by the Purchaser, or in
the event such person is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or
Exhibit 9-10
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an opinion of counsel obtained by the Seller from an
attorney duly licensed to practice law in the state where the REO Property is
located. Any Person or Persons holding such title other than the Purchaser
shall acknowledge in writing that such title is being held as nominee for the
benefit of the Purchaser.
The Seller shall either itself or through an agent selected by the
Seller (such agents fees and expenses to be paid by the Seller without right
to reimbursement therefore), manage, conserve, protect and operate each REO
Property (and may temporarily rent the same) in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own account, in the same manner that similar property in the same locality as
the REO Property is managed, and in accordance with Accepted Servicing
Practices. If a REMIC election is or is to be made with respect to the
arrangement under which the Loans and any REO Property are held, the Seller
shall manage, conserve, protect and operate each REO Property in a manner
which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in
the receipt by such REMIC of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" within the meaning of Section 860G(c)(2) of the Code.
The Seller 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 annually thereafter. The Seller shall make or cause to be made a
written report of each such inspection. Such reports shall be retained in the
Loan File and copies thereof shall be forwarded by the Seller to the
Purchaser. The Seller shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless the
Seller determines, and gives appropriate notice to the Purchaser, that a
longer period is necessary for the orderly liquidation of such REO Property.
If a period longer than one year is necessary to sell any REO property, (i)
the Seller shall report monthly to the Purchaser as to the 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 Seller as mortgagee, and a
separate servicing agreement between the Seller and the Purchaser shall be
entered into with respect to such purchase money mortgage. Notwithstanding the
foregoing, if a REMIC election is made with respect to the arrangement under
which the Loans and the REO Property are held, such REO Property shall be
disposed of within three years or such other period as may be permitted under
Section 860G(a)(8) of the Code.
With respect to each REO Property, the Seller shall segregate and
hold all funds collected and received in connection with the operation of the
REO Property separate and apart from its own funds or general assets and shall
deposit such funds in the Custodial Account, unless an Opinion of Counsel is
obtained by the Seller to the effect that the classification as a grantor
trust or REMIC for federal income tax purposes of the arrangement under which
the Loans and the REO Property is held will not be adversely affected by
holding such funds in another manner.
The Seller shall deposit or cause to be deposited, on a daily
basis in the Custodial Account all revenues received with respect to the
related REO Property and shall withdraw therefrom funds necessary for the
proper operation, management and maintenance of the REO
Exhibit 9-11
Property, including the cost of maintaining any hazard insurance pursuant to
Section 11.10 hereof.
The Seller shall furnish to the Purchaser on each Distribution
Date, an operating statement for each REO Property subject to rental
agreements covering the operation of each such REO Property for the previous
month. Such operating statement shall be accompanied by such other information
as the Purchaser shall reasonably request.
Each REO Disposition shall be carried out by the Seller at such
price and upon such terms and conditions as the Seller deems to be in the best
interest of the Purchaser only with the prior written consent of the
Purchaser. If as of the date title to any REO Property was acquired by the
Seller there were outstanding unreimbursed Servicing Advances with respect to
the REO Property, the Seller, upon an REO Disposition of such REO Property,
shall be entitled to reimbursement for any related unreimbursed Servicing
Advances from proceeds received in connection with such REO Disposition. The
proceeds from the REO Disposition, net of any payment to the Seller as
provided above, shall be deposited in the Custodial Account following receipt
thereof for distribution on the succeeding Distribution Date in accordance
with Section 11.14.
Section 11.14 Distributions.
On each Distribution Date, the Seller shall distribute to the
Purchaser all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 11.05; plus (ii)
all Monthly Advances, if any, which the Seller is obligated to distribute
pursuant to Section 11.21, minus (iii) any amounts attributable to Principal
Prepayments received after the related Prepayment Period which amounts shall
be remitted on the following Distribution Date, together with any Prepayment
Interest Shortfalls required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 11.04(xi)
of this Servicing Addendum.
All distributions made to the Purchaser on each Distribution Date
will be made to the Purchaser of record on the preceding Record Date, and
shall be based on the Loans owned and held by the Purchaser, and shall be made
by wire transfer of immediately available funds to the account of the
Purchaser at a bank or other entity having appropriate facilities therefor, if
the Purchaser shall have so notified the Seller or by check mailed to the
address of the Purchaser.
With respect to any remittance received by the Purchaser following
the Business Day on which such payment was due, the Seller shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the
rate of interest as is publicly announced from time to time at its principal
office by JPMorgan Chase Bank, New York, New York, as its prime lending rate,
adjusted as of the date of each change, plus three percentage points, but in
no event greater than the maximum amount permitted by applicable law. Such
interest shall be paid by the Seller to the Purchaser on the date such late
payment is made and shall cover the period commencing with the day following
the Business Day on which such payment was due and ending with the Business
Day on which such payment is made, both inclusive. Such interest shall be
remitted
Exhibit 9-12
along with such late payment. The payment by the Seller of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event
of Default by the Seller.
Section 11.15 Remittance Reports.
On or prior to the tenth calendar day of the month in which such
Distribution Date occurs, or if such tenth day is not a Business Day, the
Business Day immediately following such tenth day, the Seller shall deliver to
the Purchaser in electronic format and hard copy a remittance advice (a
"Monthly Remittance Advice") substantially in the forms attached hereto as
Exhibit 14-1 and Exhibit 14-2, or in such other forms as may be mutually
agreed upon by the Seller and any Master Servicer, which shall include among
other information, the number of days which each Loan is delinquent, and shall
contain an explanation of all Servicing Advances made, the status of all Loans
in foreclosure or otherwise the subject of litigation, and the status of all
other collection efforts with respect to each Loan, and all realized losses
detailed on a Form 332, attached as Exhibit 14-3, or in such other form as may
be mutually agreed upon by the Seller and any related Master Servicer.
In addition, on or prior to the tenth calendar day of each month
the Seller shall furnish to Purchaser an individual loan accounting report
("Report"), as of the last Business Day of the prior month, in Purchaser's
assigned loan number order to document Loan payment activity on an individual
Loan basis. Each Report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
prepayment penalties, along with a detailed report of interest on Principal
Prepayment amounts remitted in accordance with Section 11.14 of this Servicing
Addendum);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by the Seller
during the prior distribution period;
(iv) the aggregate Stated Principal Balance of the Loans;
(v) the aggregate of any expenses reimbursed to the Seller during
the prior distribution period pursuant to Section 11.05 or 11.07 of this
Servicing Addendum;
(vi) the number and aggregate outstanding principal balances of
Loans (a) delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or
more; (b) as to which foreclosure has commenced; (c) as to which REO Property
has been acquired; (d) in bankruptcy and (e) which have become charged off
Loans;
(vii) the unpaid principal balance of each Loan;
(viii) the current Due Date of each Loan; and
Exhibit 9-13
(ix) any such other related information as reasonably requested by
the Purchaser.
The Seller shall also provide a trial balance, sorted in
Purchaser's assigned loan number order with each such Report.
Section 11.16 Statements to the Purchaser.
Upon Purchaser's request, the Seller shall forward to the
Purchaser or its designee a statement prepared by the Seller setting forth the
status of the Custodial Account as of the close of business on the most recent
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Custodial Account
of each category of deposit specified in Section 11.04 and each category of
withdrawal specified in Section 11.05.
In addition, not more than ninety days after the end of each
calendar year, the Seller shall furnish to each Person who was the Purchaser
at any time during such calendar year, as to the aggregate of remittances for
the applicable portion of such year, a statement in accordance with the
requirements of applicable federal income tax law.
The Seller shall prepare and file any and all tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority or to any Purchaser pursuant to Accepted
Servicing Practices or any applicable law with respect to the Loans and the
transactions contemplated hereby. In addition, the Seller shall provide the
Purchaser with such information concerning the Loans as is necessary for the
Purchaser to prepare its federal income tax return as any Purchaser may
reasonably request from time to time.
Section 11.17 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 11.18,
with respect to any REO Property, the Seller shall furnish to the Purchaser a
statement covering the Seller'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, together with the operating statement for
those REO Properties that are subject to rental agreements. Such statement
shall be accompanied by such other information as the Purchaser shall
reasonably request.
Section 11.18 Foreclosure 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 Seller shall submit to the Purchaser a report with respect to
such Mortgaged Property. The Seller shall notify the Purchaser of an acquired
property within one Business Day from the date the Seller receives notice of
such sale via e-mail or facsimile.
Section 11.19 Assumption Agreements.
The Seller shall, to the extent it has knowledge of any conveyance
or prospective conveyance by any Borrower of the Mortgaged Property (whether
by absolute conveyance or by
Exhibit 9-14
contract of sale, and whether or not the Borrower remains or is to remain
liable under the Note and/or the Mortgage), exercise its rights to accelerate
the maturity of such Loan under any "due-on-sale" clause applicable thereto;
provided, however, that the Seller shall not exercise any such rights if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related Primary Insurance Policy,
if any. If the Seller reasonably believes it is unable under applicable law to
enforce such "due-on-sale" clause, the Seller shall enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed or
is proposed to be conveyed, pursuant to which such person becomes liable under
the Note and, to the extent permitted by applicable state law, the Borrower
remains liable thereon. Where an assumption is allowed pursuant to this
Section 11.19, the Seller, with the prior written consent of the insurer under
the Primary Insurance Policy, if any, is authorized to enter into a
substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which the
original Borrower is released from liability and such Person is substituted as
Borrower and becomes liable under the related Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of
liability, the Seller shall follow the underwriting practices and procedures
of prudent mortgage lenders mortgage loans similar to the Loans in the state
in which the related Mortgaged Property is located. With respect to an
assumption or substitution of liability, Loan Interest Rate, the amount of the
Monthly Payment, and the final maturity date of such Note may not be changed.
The Seller shall notify the Purchaser that any such substitution of liability
or assumption agreement has been completed by forwarding to the Purchaser the
original of any such substitution of liability or assumption agreement, which
document shall be added to the related Loan File and shall, for all purposes,
be considered a part of such Loan File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraphs of this Section or any
other provision of this Agreement, the Seller shall not be deemed to be in
default, breach or any other violation of its obligations hereunder by reason
of any assumption of a Loan by operation of law or any assumption which the
Seller may be restricted by law from preventing, for any reason whatsoever.
For purposes of this Section 11.19, 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 11.20 Satisfaction of Mortgages and Release of Loan Files.
Upon the payment in full of any Loan, or the receipt by the Seller
of a notification that payment in full will be escrowed in a manner customary
for such purposes, the Seller will immediately notify the Purchaser by a
certification of a servicing officer of the Seller (a "Servicing Officer"),
which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required
to be deposited in the Custodial Account pursuant to Section 11.04 have been
or will be so deposited, and shall request execution of any document necessary
to satisfy the Loan and delivery to it of the portion of the Loan File held by
the Purchaser or the Purchaser's designee. Upon receipt of such certification
and request, the Purchaser, shall promptly release the related loan documents
to the Seller and the Seller shall prepare and process any satisfaction or
release. No expense incurred in
Exhibit 9-15
connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Custodial Account or the Purchaser.
In the event the Seller satisfies or releases a Mortgage without
having obtained payment in full of the indebtedness secured by the Mortgage or
should it otherwise prejudice any right the Purchaser may have under the loan
instruments, the Seller, upon written demand, shall remit to the Purchaser the
then outstanding principal balance of the related Loan by deposit thereof in
the Custodial Account. The Seller shall maintain the fidelity bond insuring
the Seller against any loss it may sustain with respect to any Loan not
satisfied in accordance with the procedures set forth herein.
From time to time and as appropriate for the servicing or
foreclosure of the Loan, including for this purpose collection under any
Primary Insurance Policy, the Purchaser shall, upon request of the Seller and
delivery to the Purchaser of a servicing receipt signed by a Servicing
Officer, release the requested portion of the Loan File held by the Purchaser
to the Seller. Such servicing receipt shall obligate the Seller to return the
related documents to the Purchaser when the need therefor by the Seller no
longer exists, unless the Loan has been liquidated and the Liquidation
Proceeds relating to the Loan have been deposited in the Custodial Account or
the Loan File or such document has been delivered to an attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Seller
has delivered to the Purchaser a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Loan 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 Loan was
liquidated, the servicing receipt shall be released by the Purchaser to the
Seller.
Section 11.21 Monthly Advances by the Seller.
(a) Not later than the close of business on the Business Day
preceding each Distribution Date, the Seller shall deposit in the Custodial
Account an amount equal to all payments not previously advanced by the Seller,
whether or not deferred pursuant to Section 11.01, of principal (due after the
Cut-off Date) and interest not allocable to the period prior to the Cut-off
Date, at the Loan Interest Rate net of the Servicing Fee, which were due on a
Loan and delinquent at the close of business on the related Determination
Date.
(b) The obligation of the Seller to make such Monthly Advances is
mandatory, notwithstanding any other provision of this Agreement, and, with
respect to any Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith; provided that, notwithstanding anything
herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Seller if such Monthly Advance would, if made, constitute a
Nonrecoverable Monthly Advance. The determination by the Seller that it has
made a Nonrecoverable Monthly Advance or that any proposed Monthly Advance, if
made, would constitute a Nonrecoverable Monthly Advance, shall be evidenced by
an Officers' Certificate delivered to the Purchaser.
Section 11.22 Servicing Compensation.
Exhibit 9-16
As compensation for its services hereunder, the Seller shall,
subject to Section 11.04(xi), be entitled to withdraw from the Custodial
Account or to retain from interest payments on the Loans the amounts provided
for as the Seller's Servicing Fee. Additional servicing compensation in the
form of assumption fees, as provided in Section 11.19, and late payment
charges or otherwise shall be retained by the Seller to the extent not
required to be deposited in the Custodial Account. The Seller shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor
except as specifically provided for.
The Servicer shall also be entitled on each Distribution Date to
the aggregate of any Prepayment Interest Excess collected in the related Due
Period, which Prepayment Interest Excess the Servicer may withdraw from the
Custodial Account pursuant to Section 11.05; provided, however, any such
Prepayment Interest Excess to which the Servicer is entitled shall be reduced
by the amount by which the aggregate Prepayment Interest Shortfalls for such
Prepayment Period exceed the Servicer's aggregate Servicing Fee received with
respect to the related Due Period.
Section 11.23 Notification of Adjustments.
On each Adjustment Date, the Seller shall make interest rate
adjustments for each Adjustable Rate Loan in compliance with the requirements
of the related Note and Mortgage. The Seller shall execute and deliver the
notices required by each Mortgage and Note regarding interest rate adjustments
and the Seller's methods of implementing such interest rate adjustments. The
Seller also shall provide timely notification to the Purchaser of all
applicable data and information regarding such interest rate adjustments. Upon
the discovery by the Seller to the Purchaser that the Seller has failed to
adjust a Loan Interest Rate or a Monthly Payment pursuant to the terms of the
related Note and Mortgage the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor.
Section 11.24 Statement as to Compliance.
(a) The Seller will deliver to the Purchaser, to any Master
Servicer and to any entity which is the depositor of the Loans pursuant to a
Securitization Transaction or other securitization transaction (each, a
"Depositor") not later than March 1, commencing in 2008, of each calendar year
(or if not a Business Day, the immediately preceding Business Day), an
Officer's Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Seller during the preceding year and of performance
under this Agreement has been made under such officers' supervision and (ii)
to the best of such officer's knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. Copies of such statement may be provided by the Purchaser to any
Person identified as a prospective purchaser of the Loans.
(b) With respect to any Loans that are subject to a Securitization
Transaction or other securitization transaction, by March 1, commencing in
2008, of each year (or if not a Business Day, the immediately preceding
Business Day), or at any other time upon thirty (30)
Exhibit 9-17
days written request, an officer of the Seller shall execute and deliver an
Officer's Certificate to the Purchaser, any Master Servicer and any Depositor
for the benefit of each such entity and such entity's affiliates and the
officers, directors and agents of any such entity and such entity's
affiliates, in the form attached hereto as Exhibit 12.
(c) The Seller shall indemnify and hold harmless the Master
Servicer, the Depositor, the Purchaser (and if this Agreement has been
assigned in whole or in part by the Purchaser, any and all Persons previously
acting as "Purchaser" hereunder), and their respective officers, directors,
agents and affiliates, and such affiliates' officers, directors and agents
(any such person, an "Indemnified Party") from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach by the Seller or any of its officers, directors, agents or affiliates
of its obligations under this Section 11.24 or Section 11.25, or the
negligence, bad faith or willful misconduct of the Seller in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Indemnified Party, then the Seller agrees
that it shall contribute to the amount paid or payable by the Indemnified
Party as a result of the losses, claims, damages or liabilities of the
Indemnified Party in such proportion as is appropriate to reflect the relative
fault of the Indemnified Party on the one hand and the Seller in the other in
connection with a breach of the Seller's obligations under this Section 11.24
or Section 11.25, or the Seller's negligence, bad faith or willful misconduct
in connection therewith.
Section 11.25 Independent Public Accountants' Servicing Report.
Not later than March 1 of each year(or if not a Business Day, the
immediately preceding Business Day), commencing in 2008, the Seller at its
expense shall cause a firm of independent public accountants (which may also
render other services to the Seller) which is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Purchaser or its designee to the effect that such firm has examined certain
documents and records relating to the servicing of the Loans under this
Agreement or of loans under pooling and servicing agreements (including the
Loans and this Agreement) substantially similar one to another (such statement
to have attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby) and that, on the basis of such examination
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers, such firm confirms that such servicing has been
conducted in compliance with such pooling and servicing agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage Bankers requires it
to report. Copies of such statement shall be provided by the Purchaser to any
Person identified as a prospective purchaser of the Loans.
Section 11.26 Access to Certain Documentation.
The Seller shall provide to the Office of Thrift Supervision, the
FDIC and any other federal or state banking or insurance regulatory authority
that may exercise authority over the Purchaser access to the documentation
regarding the Loans serviced by the Seller required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Seller. In addition,
Exhibit 9-18
access to the documentation will be provided to the Purchaser and any Person
identified to the Seller by the Purchaser without charge upon reasonable
request during normal business hours at the offices of the Seller.
Section 11.27 Reports and Returns to be Filed by the Seller.
The Seller shall file information reports with respect to the
receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property as required by Sections 6050H, 6050J and 6050P of the Code.
Such reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
Section 11.28 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement
under which the Loans and REO Property are held, the Seller 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 "contributions" to a REMIC set forth in
Section 860G(d) of the Code) unless the Seller has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such REMIC status or
result in the imposition of any such tax.
Section 11.29 Subservicing Agreements Between the Seller and
Subservicers.
The Seller, as servicer, may arrange for the subservicing of any
Loan by a Subservicer pursuant to a Subservicing Agreement; provided that such
Subservicing arrangement and the terms of the related Subservicing Agreement
must provide for the servicing of such Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Each Subservicer shall be (i)
authorized to transact business in the state or states where the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Subservicer to perform its
obligations hereunder and under the Subservicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Notwithstanding the provisions
of any Subservicing Agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Seller or a Subservicer or
reference to actions taken through the Seller or otherwise, the Seller shall
remain obligated and liable to the Purchaser and its successors and assigns
for the servicing and administration of the Loans in accordance with the
provisions of this Agreement without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms and conditions as if the Seller alone were servicing and
administering the Loans. Every Subservicing Agreement entered into by the
Seller shall contain a provision giving the successor servicer the option to
terminate such agreement in the event a successor servicer is appointed. All
actions of each Subservicer
Exhibit 9-19
performed pursuant to the related Subservicing Agreement shall be performed as
an agent of the Seller with the same force and effect as if performed directly
by the Seller.
For purposes of this Agreement, the Seller shall be deemed to have
received any collections, recoveries or payments with respect to the Loans
that are received by a Subservicer regardless of whether such payments are
remitted by the Subservicer to the Seller.
Section 11.30 Successor Subservicers.
Any Subservicing Agreement shall provide that the Seller shall be
entitled to terminate any Subservicing Agreement and to either itself directly
service the related Loans or enter into a Subservicing Agreement with a
successor Subservicer which qualifies under Section 11.29. Any Subservicing
Agreement shall include the provision that such agreement may be immediately
terminated by any successor to the Seller without fee, in accordance with the
terms of this Agreement, in the event that the Seller (or any successor to the
Seller) shall, for any reason, no longer be the servicer of the related Loans
(including termination due to an Event of Default).
Section 11.31 No Contractual Relationship Between Subservicer and
Purchaser.
Any Subservicing Agreement and any other transactions or services
relating to the Loans involving a Subservicer shall be deemed to be between
the Subservicer and the Seller alone and the Purchaser shall not be deemed a
party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to any Subservicer except as set forth in Section
11.32.
Section 11.32 Assumption or Termination of Subservicing Agreement
by Successor Servicer.
In connection with the assumption of the responsibilities, duties
and liabilities and of the authority, power and rights of the Seller hereunder
by a successor servicer pursuant to Section 16 of the Agreement, it is
understood and agreed that the Seller's rights and obligations under any
Subservicing Agreement then in force between the Seller and a Subservicer
shall be assumed simultaneously by such successor servicer without act or deed
on the part of such successor servicer; provided, however, that any successor
servicer may terminate the Subservicer.
The Seller shall, upon the reasonable request of the Purchaser,
but at its own expense, deliver to the assuming party documents and records
relating to each Subservicing Agreement and an accounting of amounts collected
and held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of the Subservicing Agreements to the assuming party.
The Servicing Fee payable to any such successor servicer shall be
payable from payments received on the Loans in the amount and in the manner
set forth in this Agreement.
Exhibit 9-20
EXHIBIT 10
----------
SELLER UNDERWRITING STANDARDS
Exhibit 10-1
EXHIBIT 11
----------
[Reserved]
Exhibit 11-1
EXHIBIT 12
----------
FORM OF ANNUAL CERTIFICATION
Re: The Mortgage Loan Purchase and Servicing Agreement, dated as of
February 1, 2007 (the "Agreement"), between UBS Real Estate
Securities Inc. (the "Purchaser") and Xxxxxx, Xxxx & Xxxxxxxx
Mortgage Corp. (the "Seller")
I am the _______________________ of XXXXXX, BEAN & XXXXXXXX and, in such
capacity, the officer in charge of the Seller's responsibility on Exhibit 13
to the Agreement. I hereby certify to [the Purchaser], [the Depositor], and
the [Master Servicer] [Securities Administrator] [Trustee], and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
1. Capitalized terms used but not defined herein have the meanings
ascribed to them in the Mortgage Loan Purchase and Servicing Agreement,
dated as of, February 1, 2007 (the "Servicing Agreement"), between
Xxxxxx, Bean & Xxxxxxxx Mortgage Corp. and UBS Real Estate Securities
Inc.;
2. I have reviewed the servicer compliance statement of the Seller
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Seller's compliance with
the servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the
registered public accounting firm's attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all
other data, servicing reports, officer's certificates and information
relating to the performance of the Seller under the terms of the
Agreement during 200[ ] that were delivered to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Seller Servicing Information");
3. Based on my knowledge, the information in the Annual Statement
of Compliance delivered pursuant to Section 11.24 of the Servicing
Addendum (the "Annual Statement of Compliance"), the Annual Independent
Public Accountant's Servicing Report delivered pursuant to Section 11.25
of the Servicing Addendum (the "Annual Independent Public Accountant's
Servicing Report") and all servicing reports, officer's certificates and
other information relating to the servicing of the Loans submitted to
the Master Servicer taken as a whole, does not contain any untrue
statement of material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the date of this
certification;
4. The servicing information required to be provided to the Master
Servicer by the Seller under the Servicing Agreement has been provided
to the Master Servicer;
5. I am responsible for reviewing the activities performed by the
Seller under the Servicing Agreement and based upon the review required
by the Servicing
Exhibit 12-1
Agreement, and except as disclosed in the Annual Statement of Compliance
or the Annual Independent Public Accountant's Servicing Report, the
Seller has, as of the date of this certification fulfilled its
obligation under the Servicing Agreement;
6. I have disclosed to the Master Servicer all significant
deficiencies relating to the Seller's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers of
similar standard as set forth in the Servicing Agreement; and
7. Based on my knowledge, the Seller Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the Seller
Servicing Information.
Date:
-------------------------------
By:
---------------------------------
Name:
Title:
Exhibit 12-2
EXHIBIT 13
----------
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Seller] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
General Servicing Considerations
---------------- ----------------
---------------- ----------------
Policies and procedures are instituted to X
monitor any performance or other triggers
and events of default in accordance with the
1122(d)(1)(i) transaction agreements.
---------------- ----------------
If any material servicing activities are X
outsourced to third parties, policies and
procedures are instituted to monitor the
third party's performance and compliance
1122(d)(1)(ii) with such servicing activities.
---------------- ----------------
Any requirements in the transaction
agreements to maintain a back-up servicer
1122(d)(1)(iii) for the mortgage loans are maintained.
---------------- ----------------
A fidelity bond and errors and omissions X
policy is in effect on the party
participating in the servicing function
throughout the reporting period in the
amount of coverage required by and otherwise
in accordance with the terms of the
1122(d)(1)(iv) transaction agreements.
---------------- ----------------
Cash Collection and Administration
Payments on mortgage loans are deposited X
into the appropriate custodial bank accounts
and related bank clearing accounts no more
than two business days following receipt, or
such other number of days specified in the
1122(d)(2)(i) transaction agreements.
---------------- ----------------
Disbursements made via wire transfer on X
behalf of an obligor or to an investor are
1122(d)(2)(ii) made only by authorized personnel.
---------------- ----------------
Advances of funds or guarantees regarding X
collections, cash flows or distributions,
and any interest or other fees charged for
such advances, are made, reviewed and
approved as specified in the transaction
1122(d)(2)(iii) agreements.
---------------- ----------------
Exhibit 13-1
------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
The related accounts for the transaction, X
such as cash reserve accounts or accounts
established as a form of
overcollateralization, are separately
maintained (e.g., with respect to
commingling of cash) as set forth in the
1122(d)(2)(iv) transaction agreements.
---------------- ----------------
Each custodial account is maintained at a X
federally insured depository institution as
set forth in the transaction agreements. For
purposes of this criterion, "federally
insured depository institution" with respect
to a foreign financial institution means a
foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
1122(d)(2)(v) Securities Exchange Act.
---------------- ----------------
Unissued checks are safeguarded so as to X
1122(d)(2)(vi) prevent unauthorized access.
---------------- ----------------
Reconciliations are prepared on a monthly X
basis for all asset-backed securities
related bank accounts, including custodial
accounts and related bank clearing accounts.
These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date,
or such other number of days specified in
the transaction agreements; (C) reviewed and
approved by someone other than the person
who prepared the reconciliation; and (D)
contain explanations for reconciling items.
These reconciling items are resolved within
90 calendar days of their original
identification, or such other number of days
1122(d)(2)(vii) specified in the transaction agreements.
---------------- ----------------
Investor Remittances and Reporting
---------------- ----------------
Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements
and applicable Commission requirements.
Specifically, such reports (A) are prepared
in accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the terms
specified in the transaction agreements; (C)
are filed with the Commission as required by
1122(d)(3)(i) its rules and
---------------- ----------------
regulations; and (D) agree with investors' X
or the trustee's records as to the total
unpaid principal
Exhibit 13-2
------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
balance and number of mortgage loans
serviced by the Servicer.
---------------- ----------------
Amounts due to investors are allocated and X
remitted in accordance with timeframes,
distribution priority and other terms set
1122(d)(3)(ii) forth in the transaction agreements.
---------------- ----------------
Disbursements made to an investor are posted X
within two business days to the Servicer's
investor records, or such other number of
1122(d)(3)(iii) days specified in the transaction agreements.
---------------- ----------------
Amounts remitted to investors per the X
investor reports agree with cancelled
checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
---------------- ----------------
Pool Asset Administration
---------------- ----------------
Collateral or security on mortgage loans is X
maintained as required by the transaction
agreements or related mortgage loan
1122(d)(4)(i) documents.
---------------- ----------------
Mortgage loan and related documents are X
safeguarded as required by the transaction
1122(d)(4)(ii) agreements.
---------------- ----------------
Any additions, removals or substitutions to X
the asset pool are made, reviewed and
approved in accordance with any conditions
or requirements in the transaction
1122(d)(4)(iii) agreements.
---------------- ----------------
Payments on mortgage loans, including any X
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no
more than two business days after receipt,
or such other number of days specified in
the transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related
1122(d)(4)(iv) mortgage loan documents.
---------------- ----------------
The Servicer's records regarding the X
mortgage loans agree with the Servicer's
records with respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
---------------- ----------------
Changes with respect to the terms or status X
of an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made,
reviewed and approved by authorized
personnel in accordance with the transaction
1122(d)(4)(vi) agreements and related pool asset documents.
---------------- ----------------
Exhibit 13-3
------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
documents.
---------------- ----------------
Loss mitigation or recovery actions (e.g., X
forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with
the timeframes or other requirements
1122(d)(4)(vii) established by the transaction agreements.
---------------- ----------------
Records documenting collection efforts are X
maintained during the period a mortgage loan
is delinquent in accordance with the
transaction agreements. Such records are
maintained on at least a monthly basis, or
such other period specified in the
transaction agreements, and describe the
entity's activities in monitoring delinquent
mortgage loans including, for example, phone
calls, letters and payment rescheduling
plans in cases where delinquency is deemed
1122(d)(4)(viii)temporary (e.g., illness or unemployment).
---------------- ----------------
Adjustments to interest rates or rates of
return for mortgage loans with variable
rates are computed based on the related
1122(d)(4)(ix) mortgage loan documents.
---------------- ----------------
Regarding any funds held in trust for an X
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at
least an annual basis, or such other period
specified in the transaction agreements; (B)
interest on such funds is paid, or credited,
to obligors in accordance with applicable
mortgage loan documents and state laws; and
(C) such funds are returned to the obligor
within 30 calendar days of full repayment of
the related mortgage loans, or such other
number of days specified in the transaction
1122(d)(4)(x) agreements.
---------------- ----------------
Payments made on behalf of an obligor (such X
as tax or insurance payments) are made on or
before the related penalty or expiration
dates, as indicated on the appropriate bills
or notices for such payments, provided that
such support has been received by the
servicer at least 30 calendar days prior to
these dates, or such other number of days
1122(d)(4)(xi) specified in the transaction agreements.
---------------- ----------------
Exhibit 13-4
------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
Any late payment penalties in connection X
with any payment to be made on behalf of an
obligor are paid from the servicer's funds
and not charged to the obligor, unless the
late payment was due to the obligor's error
1122(d)(4)(xii) or omission.
---------------- ----------------
Disbursements made on behalf of an obligor X
are posted within two business days to the
obligor's records maintained by the
servicer, or such other number of days
1122(d)(4)(xiii)specified in the transaction agreements.
---------------- ----------------
Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in
1122(d)(4)(xiv) accordance with the transaction agreements.
---------------- ----------------
Any external enhancement or other support, X
identified in Item 1114(a)(1) through (3) or [if obligated
Item 1115 of Regulation AB, is maintained as under the
set forth in the transaction agreements. transaction
1122(d)(4)(xv) documents]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
[NAME OF SELLER] [NAME OF SUBSERVICER]
Date:
------------------------------
By:
Name:
------------------------------
Title:
-----------------------------
Exhibit 13-5
EXHIBIT 14-1
------------
STANDARD FILE LAYOUT - MASTER SERVICING
EXHIBIT: STANDARD FILE LAYOUT - MASTER SERVICING
-------------------------- ----------------------------- --------- ---------------------- -------
Column/Header Name Description Decimal Format Comment Max
Size
-------------------------- ----------------------------- --------- ---------------------- -------
SER_INVESTOR_NBR A value assigned by the Text up to 10 digits 20
Servicer to define a group
of loans.
-------------------------- ----------------------------- --------- ---------------------- -------
LOAN_NBR A unique identifier Text up to 10 digits 10
assigned to each loan by
the investor.
-------------------------- ----------------------------- --------- ---------------------- -------
SERVICER_LOAN_NBR A unique number assigned to Text up to 10 digits 10
a loan by the Servicer.
This may be different than
the LOAN_NBR.
-------------------------- ----------------------------- --------- ---------------------- -------
BORROWER_NAME The borrower name as Maximum length of 30 30
received in the file. It (Last, First)
is not separated by first
and last name.
-------------------------- ----------------------------- --------- ---------------------- -------
SCHED_PAY_AMT Scheduled monthly principal 2 No commas(,) or 11
and scheduled interest dollar signs ($)
payment that a borrower is
expected to pay, P&I
constant.
-------------------------- ----------------------------- --------- ---------------------- -------
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
NET_INT_RATE The loan gross interest 4 Max length of 6 6
rate less the service fee
rate as reported by the
Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_FEE_RATE The servicer's fee rate for 4 Max length of 6 6
a loan as reported by the
Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_FEE_AMT The servicer's fee amount 2 No commas(,) or 11
for a loan as reported by dollar signs ($)
the Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
NEW_PAY_AMT The new loan payment amount 2 No commas(,) or 11
as reported by the dollar signs ($)
Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
NEW_LOAN_RATE The new loan rate as 4 Max length of 6 6
reported by the Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
ARM_INDEX_RATE The index the Servicer is 4 Max length of 6 6
using to calculate a
forecasted rate.
-------------------------- ----------------------------- --------- ---------------------- -------
ACTL_BEG_PRIN_BAL The borrower's actual 2 No commas(,) or 11
principal balance at the dollar signs ($)
beginning of the processing
cycle.
-------------------------- ----------------------------- --------- ---------------------- -------
ACTL_END_PRIN_BAL The borrower's actual 2 No commas(,) or 11
principal balance at the dollar signs ($)
end of the processing cycle.
-------------------------- ----------------------------- --------- ---------------------- -------
BORR_NEXT_PAY_DUE_DATE The date at the end of MM/DD/YYYY 10
processing cycle that the
borrower's next payment is
due to the Servicer, as
reported by Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_CURT_AMT_1 The first curtailment 2 No commas(,) or 11
amount to be applied. dollar signs ($)
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_CURT_DATE_1 The curtailment date MM/DD/YYYY 10
associated with the first
curtailment amount.
-------------------------- ----------------------------- --------- ---------------------- -------
CURT_ADJ_ AMT_1 The curtailment interest on 2 No commas(,) or 11
the first curtailment dollar signs ($)
amount, if applicable.
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_CURT_AMT_2 The second curtailment 2 No commas(,) or 11
amount to be applied. dollar signs ($)
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_CURT_DATE_2 The curtailment date MM/DD/YYYY 10
associated with the second
curtailment amount.
-------------------------- ----------------------------- --------- ---------------------- -------
CURT_ADJ_ AMT_2 The curtailment interest on 2 No commas(,) or 11
the second curtailment dollar signs ($)
amount, if applicable.
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_CURT_AMT_3 The third curtailment 2 No commas(,) or 11
amount to be applied. dollar signs $
-------------------------- ----------------------------- --------- ---------------------- -------
SERV_CURT_DATE_3 The curtailment date MM/DD/YYYY 10
associated with the third
curtailment amount.
-------------------------- ----------------------------- --------- ---------------------- -------
CURT_ADJ_AMT_3 The curtailment interest on 2 No commas(,) or 11
the third curtailment dollar signs ($)
amount, if applicable.
-------------------------- ----------------------------- --------- ---------------------- -------
PIF_AMT The loan "paid in full" 2 No commas(,) or 11
amount as reported by the dollar signs ($)
Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
Exhibit 14-1-1
-------------------------- ----------------------------- --------- ---------------------- -------
PIF_DATE The paid in full date as MM/DD/YYYY 10
reported by the Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
ACTION_CODE The standard FNMA numeric Action Code Key: 2
code used to indicate the 15=Bankruptcy,
default/delinquent status 30=Foreclosure, ,
of a particular loan. 60=PIF,
63=Substitution,
65=Repurchase,70=REO
-------------------------- ----------------------------- --------- ---------------------- -------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or 11
adjustment as reported by dollar signs ($)
the Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor 2 No commas(,) or 11
Adjustment amount, if dollar signs ($)
applicable.
-------------------------- ----------------------------- --------- ---------------------- -------
NON_ADV_LOAN_AMT The Non Recoverable Loan 2 No commas(,) or 11
Amount, if applicable. dollar signs ($)
-------------------------- ----------------------------- --------- ---------------------- -------
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or 11
passing as a loss, if dollar signs ($)
applicable.
-------------------------- ----------------------------- --------- ---------------------- -------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or 11
principal amount due at the dollar signs ($)
beginning of the cycle date
to be passed through to
investors.
-------------------------- ----------------------------- --------- ---------------------- -------
SCHED_END_PRIN_BAL The scheduled principal 2 No commas(,) or 11
balance due to investors at dollar signs ($)
the end of a processing
cycle.
-------------------------- ----------------------------- --------- ---------------------- -------
SCHED_PRIN_AMT The scheduled principal 2 No commas(,) or 11
amount as reported by the dollar signs ($)
Servicer for the current
cycle -- only applicable
for Scheduled/Scheduled
Loans.
-------------------------- ----------------------------- --------- ---------------------- -------
SCHED_NET_INT The scheduled gross 2 No commas(,) or 11
interest amount less the dollar signs ($)
service fee amount for the
current cycle as reported
by the Servicer -- only
applicable for
Scheduled/Scheduled Loans.
-------------------------- ----------------------------- --------- ---------------------- -------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or 11
collected by the Servicer dollar signs ($)
for the current reporting
cycle -- only applicable
for Actual/Actual Loans.
-------------------------- ----------------------------- --------- ---------------------- -------
ACTL_NET_INT The actual gross interest 2 No commas(,) or 11
amount less the service fee dollar signs ($)
amount for the current
reporting cycle as reported
by the Servicer -- only
applicable for
Actual/Actual Loans.
-------------------------- ----------------------------- --------- ---------------------- -------
PREPAY_PENALTY_ AMT The penalty amount received 2 No commas(,) or 11
when a borrower prepays on dollar signs ($)
his loan as reported by the
Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
PREPAY_PENALTY_ WAIVED The prepayment penalty 2 No commas(,) or 11
amount for the loan waived dollar signs ($)
by the servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
MOD_DATE The Effective Payment Date MM/DD/YYYY 10
of the Modification for the
loan.
-------------------------- ----------------------------- --------- ---------------------- -------
MOD_TYPE The Modification Type. Varchar - value can 30
be alpha or numeric
-------------------------- ----------------------------- --------- ---------------------- -------
DELINQ_P&I_ADVANCE_AMT The current outstanding 2 No commas(,) or 11
principal and interest dollar signs ($)
advances made by Servicer.
-------------------------- ----------------------------- --------- ---------------------- -------
Exhibit 14-1-2
EXHIBIT 14-2
------------
STANDARD FILE LAYOUT - DELINQUENCY REPORTING
EXHIBIT: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
------------------------------- ----------------------------------------- --------- -------------
Column/Header Name Description Decimal Format
Comment
------------------------------- ----------------------------------------- --------- -------------
SERVICER_LOAN_NBR A unique number assigned to a loan by
the Servicer. This may be different
than the LOAN_NBR
------------------------------- ----------------------------------------- --------- -------------
LOAN_NBR A unique identifier assigned to each
loan by the originator.
------------------------------- ----------------------------------------- --------- -------------
CLIENT_NBR Servicer Client Number
------------------------------- ----------------------------------------- --------- -------------
SERV_INVESTOR_NBR Contains a unique number as assigned by
an external servicer to identify a
group of loans in their system.
------------------------------- ----------------------------------------- --------- -------------
BORROWER_FIRST_NAME First Name of the Borrower.
------------------------------- ----------------------------------------- --------- -------------
BORROWER_LAST_NAME Last name of the borrower.
------------------------------- ----------------------------------------- --------- -------------
XXXX_XXXXXXX Xxxxxx Name and Number of Property
------------------------------- ----------------------------------------- --------- -------------
PROP_STATE The state where the property located.
------------------------------- ----------------------------------------- --------- -------------
PROP_ZIP Zip code where the property is located.
------------------------------- ----------------------------------------- --------- -------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer at the
end of processing cycle, as reported by
Servicer.
------------------------------- ----------------------------------------- --------- -------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
------------------------------- ----------------------------------------- --------- -------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
------------------------------- ----------------------------------------- --------- -------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
------------------------------- ----------------------------------------- --------- -------------
BANKRUPTCY_CASE_NBR The case number assigned by the court
to the bankruptcy filing.
------------------------------- ----------------------------------------- --------- -------------
POST_PETITION_DUE_DATE The payment due date once the MM/DD/YYYY
bankruptcy has been approved by the
courts
------------------------------- ----------------------------------------- --------- -------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For Relief
Was Granted.
------------------------------- ----------------------------------------- --------- -------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
------------------------------- ----------------------------------------- --------- -------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved
For A Loan Such As;
------------------------------- ----------------------------------------- --------- -------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
------------------------------- ----------------------------------------- --------- -------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is MM/DD/YYYY
Actually Completed
------------------------------- ----------------------------------------- --------- -------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
------------------------------- ----------------------------------------- --------- -------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
------------------------------- ----------------------------------------- --------- -------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an MM/DD/YYYY
Attorney in a Foreclosure Action
------------------------------- ----------------------------------------- --------- -------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
------------------------------- ----------------------------------------- --------- -------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No
foreclosure sale. commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
EVICTION_START_DATE The date the servicer initiates MM/DD/YYYY
eviction of the borrower.
------------------------------- ----------------------------------------- --------- -------------
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the
borrower.
------------------------------- ----------------------------------------- --------- -------------
LIST_PRICE The price at which an REO property is 2 No
marketed. commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
------------------------------- ----------------------------------------- --------- -------------
OFFER_AMT The dollar value of an offer for an REO 2 No
property. commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
------------------------------- ----------------------------------------- --------- -------------
Exhibit 14-2-1
------------------------------- ----------------------------------------- --------- -------------
REO_CLOSING_DATE The date the REO sale of the property MM/DD/YYYY
is scheduled to close.
------------------------------- ----------------------------------------- --------- -------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
OCCUPANT_CODE Classification of how the property is
occupied.
------------------------------- ----------------------------------------- --------- -------------
PROP_CONDITION_CODE A code that indicates the condition of
the property.
------------------------------- ----------------------------------------- --------- -------------
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
------------------------------- ----------------------------------------- --------- -------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
------------------------------- ----------------------------------------- --------- -------------
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
------------------------------- ----------------------------------------- --------- -------------
If applicable:
------------------------------- ----------------------------------------- --------- -------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
------------------------------- ----------------------------------------- --------- -------------
DELINQ_REASON_CODE The circumstances which caused a
borrower to stop paying on a loan.
Code indicates the reason why the loan
is in default for this cycle.
------------------------------- ----------------------------------------- --------- -------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
------------------------------- ----------------------------------------- --------- -------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No
commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
------------------------------- ----------------------------------------- --------- -------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No
On Claim commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool MM/DD/YYYY
Insurance Company
------------------------------- ----------------------------------------- --------- -------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No
Insurance Company commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check MM/DD/YYYY
Was Issued By The Pool Insurer
------------------------------- ----------------------------------------- --------- -------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No
Company commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No
commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No
commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No
commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
------------------------------- ----------------------------------------- --------- -------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No
commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
------------------------------- ----------------------------------------- --------- -------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
------------------------------- ----------------------------------------- --------- -------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No
commas(,)
or dollar
signs ($)
------------------------------- ----------------------------------------- --------- -------------
Exhibit 2: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
Exhibit 14-2-2
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply
Xxxxx Fargo Bank with a description of each of the Loss Mitigation Types prior
to sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit 14-2-3
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency
as follows:
--------------------- --------------------------------------------
Delinquency Code Delinquency Description
--------------------- --------------------------------------------
001 FNMA-Death of principal mortgagor
--------------------- --------------------------------------------
002 FNMA-Illness of principal mortgagor
--------------------- --------------------------------------------
003 FNMA-Illness of mortgagor's family member
--------------------- --------------------------------------------
004 FNMA-Death of mortgagor's family member
--------------------- --------------------------------------------
005 FNMA-Marital difficulties
--------------------- --------------------------------------------
006 FNMA-Curtailment of income
--------------------- --------------------------------------------
007 FNMA-Excessive Obligation
--------------------- --------------------------------------------
008 FNMA-Abandonment of property
--------------------- --------------------------------------------
009 FNMA-Distant employee transfer
--------------------- --------------------------------------------
011 FNMA-Property problem
--------------------- --------------------------------------------
012 FNMA-Inability to sell property
--------------------- --------------------------------------------
013 FNMA-Inability to rent property
--------------------- --------------------------------------------
014 FNMA-Military Service
--------------------- --------------------------------------------
015 FNMA-Other
--------------------- --------------------------------------------
016 FNMA-Unemployment
--------------------- --------------------------------------------
017 FNMA-Business failure
--------------------- --------------------------------------------
019 FNMA-Casualty loss
--------------------- --------------------------------------------
022 FNMA-Energy environment costs
--------------------- --------------------------------------------
023 FNMA-Servicing problems
--------------------- --------------------------------------------
026 FNMA-Payment adjustment
--------------------- --------------------------------------------
027 FNMA-Payment dispute
--------------------- --------------------------------------------
029 FNMA-Transfer of ownership pending
--------------------- --------------------------------------------
030 FNMA-Fraud
--------------------- --------------------------------------------
031 FNMA-Unable to contact borrower
--------------------- --------------------------------------------
INC FNMA-Incarceration
--------------------- --------------------------------------------
Exhibit 14-2-4
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
--------------------- ---------------------------------------------
Status Code Status Description
--------------------- ---------------------------------------------
09 Forbearance
--------------------- ---------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
--------------------- ---------------------------------------------
24 Government Seizure
--------------------- ---------------------------------------------
26 Refinance
--------------------- ---------------------------------------------
27 Assumption
--------------------- ---------------------------------------------
28 Modification
--------------------- ---------------------------------------------
29 Charge-Off
--------------------- ---------------------------------------------
30 Third Party Sale
--------------------- ---------------------------------------------
31 Probate
--------------------- ---------------------------------------------
32 Military Indulgence
--------------------- ---------------------------------------------
43 Foreclosure Started
--------------------- ---------------------------------------------
44 Deed-in-Lieu Started
--------------------- ---------------------------------------------
49 Assignment Completed
--------------------- ---------------------------------------------
61 Second Lien Considerations
--------------------- ---------------------------------------------
62 Veteran's Affairs-No Bid
--------------------- ---------------------------------------------
63 Veteran's Affairs-Refund
--------------------- ---------------------------------------------
64 Veteran's Affairs-Buydown
--------------------- ---------------------------------------------
65 Chapter 7 Bankruptcy
--------------------- ---------------------------------------------
66 Chapter 11 Bankruptcy
--------------------- ---------------------------------------------
67 Chapter 13 Bankruptcy
--------------------- ---------------------------------------------
Exhibit 14-2-5
EXHIBIT 14-3
------------
FORM 332
Exhibit : Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and
all credits as separate line items. Claim packages are due on the
remittance report date. Late submissions may result in claims not being
passed until the following month. The Servicer is responsible to remit
all funds pending loss approval and /or resolution of any disputed
items.
(b)
(c) The numbers on the 332 form correspond with the numbers listed
below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from
date of default through liquidation breaking out the net interest
and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to
default require evidence of servicer efforts to recover advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
Exhibit 14-3-1
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Officer Certificate
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
(d) Credits:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds and
line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
Exhibit 14-3-2
Exhibit 3A: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
------------------------ ----------------------- ---------------------------
Servicer Loan No. Servicer Name Servicer Address
------------------------ ----------------------- ---------------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: ________________________________________________________
Property Address: _______________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount
---------------------------
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ___________ (1)
(2) Interest accrued at Net Rate _____________ (2)
(3) Accrued Servicing Fees _____________ (3)
(4) Attorney's Fees _____________ (4)
(5) Taxes (see page 2) _____________ (5)
(6) Property Maintenance _____________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) _____________ (7)
(8) Utility Expenses _____________ (8)
(9) Appraisal/BPO _____________ (9)
(10) Property Inspections _____________ (10)
(11) FC Costs/Other Legal Expenses _____________ (11)
(12) Other (itemize) _____________ (12)
Cash for Keys__________________________ _____________ (12)
HOA/Condo Fees_________________________ _____________ (12)
_______________________________________ _____________ (12)
Total Expenses $____________ (13)
Credits:
(14) Escrow Balance $____________ (14)
(15) HIP Refund _____________ (15)
(16) Rental Receipts _____________ (16)
(17) Hazard Loss Proceeds _____________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance _____________ (18a)
HUD Part A
HUD Part B _____________ (18b)
(19) Pool Insurance Proceeds _____________ (19)
(20) Proceeds from Sale of Acquired Property _____________ (20)
(21) Other (itemize) _____________ (21)
_________________________________________ _____________ (21)
Exhibit 14-3-3
Total Credits $____________ (22)
Total Realized Loss (or Amount of Gain) $____________ (23)
Exhibit 14-3-4
Escrow Disbursement Detail
--------------- ------------- ------------- ------------ ------------- ------------- ------------
Type Date Paid Period of Total Paid Base Amount Penalties Interest
(Tax /Ins.) Coverage
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
--------------- ------------- ------------- ------------ ------------- ------------- ------------
Exhibit 14-3-5