MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT CITIGROUP GLOBAL MARKETS REALTY CORP. (Initial Purchaser) CITIMORTGAGE, INC. (Seller and Servicer) Fixed and Adjustable Rate Residential Mortgage Loans Dated and effective as of February 1, 2005
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Initial
Purchaser)
CITIMORTGAGE,
INC.
(Seller
and Servicer)
Fixed
and Adjustable Rate Residential Mortgage Loans
Dated
and effective as of February 1, 2005
Table
of Contents
|
ARTICLE
I
|
DEFINITIONS;
GENERAL INTERPRETIVE PRINCIPLES
|
|
Section
1.01.
|
Definitions.
|
|
Section
1.02.
|
General
Interpretive Principles.
|
|
ARTICLE
II
|
AGREEMENT
TO PURCHASE
|
|
Section
2.01.
|
Agreement
to Purchase.
|
|
ARTICLE
III
|
MORTGAGE
LOAN SCHEDULE
|
|
Section
3.01.
|
Mortgage
Loan Schedule.
|
|
ARTICLE
IV
|
PURCHASE
PRICE
|
|
Section
4.01.
|
Purchase
Price.
|
|
ARTICLE
V
|
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
DELIVERY OF MORTGAGE LOAN DOCUMENTS; TRANSFER OF MORTGAGE
LOANS
|
|
Section
5.01.
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files.
|
|
Section
5.02.
|
Books
and Records.
|
|
Section
5.03.
|
Delivery
of Mortgage Loan Documents.
|
|
Section
5.04.
|
Examination
of Mortgage Files.
|
|
Section
5.05.
|
Transfer
of Mortgage Loans.
|
|
Section
5.06.
|
Whole
Loan Transfers, Agency Transfers or Pass-Through
Transfers.
|
|
|
|
|
ARTICLE
VI
|
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
|
Section
6.01.
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
|
Section
6.02.
|
Representations
and Warranties Regarding Seller.
|
|
Section
6.03.
|
Remedies
for Breach of Representations and Warranties.
|
|
Section
6.04.
|
Repurchase
of Mortgage Loans With Early Payment Defaults
|
|
Section
6.05.
|
Purchase
Price Protection
|
|
ARTICLE
VII
|
CLOSING
|
|
Section
7.01.
|
Closing.
|
|
ARTICLE
VIII
|
CLOSING
DOCUMENTS
|
|
Section
8.01.
|
Closing
Documents.
|
|
ARTICLE
IX
|
COSTS
|
|
Section
9.01.
|
Costs.
|
|
ARTICLE
X
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
|
Section
10.01.
|
Seller
to Act as Servicer.
|
|
Section
10.02.
|
Subservicing
Agreements Between Seller and Subservicers.
|
|
Section
10.03.
|
Successor
Subservicers.
|
|
Section
10.04.
|
Liability
of Seller.
|
|
Section
10.05.
|
No
Contractual Relationship Between Subservicers and
Purchaser.
|
|
Section
10.06.
|
Subservicing
Accounts.
|
|
Section
10.07.
|
Realization
Upon Defaulted Mortgage Loans; Liquidation of Mortgage
Loans.
|
|
Section
10.08.
|
Collection
of Mortgage Loan Payments.
|
|
Section
10.09.
|
Establishment
of Custodial Account; Deposits in Custodial Account.
|
|
Section
10.10.
|
Withdrawals
From the Custodial Account.
|
|
Section
10.11.
|
Establishment
of Escrow Account; Deposits in Escrow Account.
|
|
Section
10.12.
|
Withdrawals
From Escrow Account.
|
|
Section
10.13.
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage
Insurance Policies.
|
|
Section
10.14.
|
Transfer
of Accounts.
|
|
Section
10.15.
|
Maintenance
of Hazard Insurance.
|
|
Section
10.16.
|
Fidelity
Bond; Errors and Omissions Insurance.
|
|
Section
10.17.
|
Title,
Management and Disposition of REO Property.
|
|
Section
10.18.
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
|
Section
10.19.
|
Liquidation
Reports.
|
|
|
|
|
ARTICLE
XI
|
PAYMENTS
TO PURCHASER
|
|
Section
11.01.
|
Distributions.
|
|
Section
11.02.
|
Statements
to Purchaser.
|
|
Section
11.03.
|
Monthly
Advances by Seller.
|
|
ARTICLE
XII
|
GENERAL
SERVICING PROCEDURE
|
|
Section
12.01.
|
Assumption
Agreements.
|
|
Section
12.02.
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
|
Section
12.03.
|
Servicing
Compensation.
|
|
Section
12.04.
|
Annual
Statement as to Compliance.
|
|
Section
12.05.
|
Annual
Independent Public Accountants' Servicing Report.
|
|
Section
12.06.
|
Purchaser's
Right to Examine Seller Records.
|
|
Section
12.07.
|
Seller
Shall Provide Access/Information as Reasonably
Required.
|
|
ARTICLE
XIII
|
SELLER
|
|
Section
13.01.
|
Indemnification;
Third Party Claims.
|
|
Section
13.02.
|
Merger
or Consolidation of Seller.
|
|
Section
13.03.
|
Limitation
on Liability of Seller and Others.
|
|
Section
13.04.
|
Seller
Not to Resign.
|
|
ARTICLE
XIV
|
DEFAULT
|
|
Section
14.01.
|
Events
of Default.
|
|
Section
14.02.
|
Waiver
of Defaults.
|
|
ARTICLE
XV
|
TERMINATION
|
|
Section
15.01.
|
Termination.
|
|
ARTICLE
XVI
|
MISCELLANEOUS
PROVISIONS
|
|
Section
16.01.
|
Successor
to Seller.
|
|
Section
16.02.
|
Amendment.
|
|
Section
16.03.
|
Recordation
of Agreement.
|
|
Section
16.04.
|
Duration
of Agreement.
|
|
Section
16.05.
|
Governing
Law.
|
|
Section
16.06.
|
Notices.
|
|
Section
16.07.
|
Severability
of Provisions.
|
|
Section
16.08.
|
No
Partnership.
|
|
Section
16.09.
|
Execution;
Successors and Assigns.
|
|
Section
16.10.
|
Further
Assurances.
|
|
Section
16.11.
|
Execution;
Successors and Assigns.
|
|
Section
16.12.
|
Exhibits
|
|
Section
16.13.
|
No
Solicitation
|
|
Section
16.14.
|
Protection
of Mortgagor Personal Information
|
|
Section
16.15.
|
Severability
of Provisions.
|
|
Section
16.16.
|
Reproduction
of Documents.
|
|
Section
16.17.
|
Confidentiality
of Information.
|
|
Section
16.18.
|
Recordation
of Assignments of Mortgage.
|
|
Section
16.19.
|
No
Partnership.
|
|
Section
16.20.
|
Entire
Agreement.
|
EXHIBITS
|
EXHIBIT
A
|
CONTENTS
OF MORTGAGE FILES
|
|
EXHIBIT
B
|
CUSTODIAL
ACCOUNT CERTIFICATION
|
|
EXHIBIT
C
|
CUSTODIAL
ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
D
|
REO
ACCOUNT CERTIFICATION
|
|
EXHIBIT
E
|
REO
ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
F
|
ESCROW
ACCOUNT CERTIFICATION
|
|
EXHIBIT
G
|
ESCROW
ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
H
|
FORM
OF TERM SHEET
|
|
EXHIBIT
I
|
FORM
OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
|
|
EXHIBIT
J
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
K
|
FORM
OF MONTHLY REPORT
|
|
EXHIBIT
L
|
WHOLE
LOAN/AGENCY/PASS-THROUGH TRANSFER INFORMATION
|
|
EXHIBIT
M
|
FORM
OF COMMITMENT LETTER
|
|
EXHIBIT
N
|
FORM
OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATE
|
MORTGAGE
LOAN PURCHASE AND SERVICING AGREEMENT
This
is a
Master Mortgage Loan Purchase and Servicing Agreement (the “Agreement”), dated
and effective as of February 1, 2005, by and between CITIGROUP
GLOBAL MARKETS REALTY CORP.
(the
"Initial Purchaser," and the Initial Purchaser or the Person, if any, to which
the Initial Purchaser has assigned its rights and obligations hereunder as
Purchaser with respect to a Mortgage Loan, and each of their respective
successors and assigns, the “Purchaser”), and CITIMORTGAGE, INC. (the
"Seller").
WITNESSETH:
WHEREAS,
Purchaser has agreed to purchase, from time to time, from Seller, and Seller
has
agreed to sell, from time to time, to Purchaser, certain fixed and adjustable
rate residential mortgage loans (the “Mortgage Loans”) on a non-recourse,
servicing retained basis, and which shall be delivered as whole loans on the
date provided herein (each a “Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other instrument
creating a first on a residential dwelling located in the jurisdiction indicated
on the Mortgage Loan Schedule to be provided to Purchaser on the Closing Date;
and
WHEREAS,
Purchaser and Seller wish to prescribe the manner of the purchase, conveyance,
management, servicing and control of the Mortgage Loans.
NOW
THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and
Seller agree as follows:
ARTICLE
I
DEFINITIONS;
GENERAL INTERPRETIVE PRINCIPLES
Section
1.01. Definitions.
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for adjustments to the Mortgage Interest Rate
from
time to time in accordance with the terms of the related Mortgage
Note.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on the Mortgage Loan is
adjusted in accordance with the terms of the Mortgage Note.
Agency
Transfer:
The
sale or transfer by the Purchaser of some or all of the Mortgage Loans to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac.
Agreement:
This
Master Mortgage Loan Purchase and Servicing Agreement, including all exhibits
hereto, and all amendments hereof and supplements hereto.
Appraised
Value:
As to
any Mortgage Loan, the value of the related Mortgaged Property based upon the
appraised value at the origination of the Mortgage Loan or the sales price
of
the Mortgaged Property, whichever is less; pro-vided, however, that in the
case
of a Refinanced Mortgage Loan, such value is based solely upon the appraised
value at the time of origination of such Refinanced Mortgage Loan.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, that when properly completed and recorded, is sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect of record the sale of the Mortgage Loan to Purchaser.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking or savings
and loan institutions in the States of New York or Missouri are authorized
or
obligated by law or executive order to be closed.
Buydown
Agreement:
An
agreement between the Seller and a Mortgagor, or an agreement among the Seller,
a Mortgagor and a seller of a Mortgaged Property or a third party with respect
to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
Amounts
delivered to the Seller by a Mortgagor, seller of a Mortgaged Property, the
Seller or third party in connection with a Buydown Mortgage Loan.
Buydown
Mortgage Loan:
An
individual Mortgage Loan which is subject to the terms of a Buydown Agreement
as
indicated on the Mortgage Loan Schedule.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Citibank:
Citibank (West), FSB and any successors or assigns.
Closing
Date:
The
date or dates on which the Purchaser from time to time shall purchase and the
Seller from time to time shall sell to the Purchaser, the Mortgage Loans listed
on the related Mortgage Loan Schedule or such other date as may be mutually
agreed to by Seller and Purchaser.
Closing
Documents:
With
respect to any Closing Date, the documents required pursuant to Section
8.01.
Commitment
Letter:
With
respect to the Mortgage Loan Package purchased and sold on any Closing Date,
the
letter agreement between the Purchaser and the Seller, in the form annexed
hereto as Exhibit M (including any exhibits, schedules and attachments thereto),
setting forth the terms and conditions of such transaction and describing the
Mortgage Loans to be purchased by the Purchaser on such Closing
Date.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of condemnation or the right of eminent domain to the
extent not required to be released to the related Mortgagor in accordance with
the terms of the related Mortgage Loan documents.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan purchased pursuant to this Agreement as to which
the related Mortgage Note permits the Mortgagor to convert the Mortgage Interest
Rate on such Mortgage Loan to a fixed Mortgage Interest Rate.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Co-op
Stock:
With
respect to a Co-op Loan, the single outstanding class of stock, partnership
interest or other ownership instrument in the related residential cooperative
housing corporation.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
10.09.
Customary
Servicing Procedures:
Procedures (including collection procedures) that comply with applicable
federal, state and local law and the requirements of the ▇▇▇▇▇▇ Mae Single
Family Servicing Guide for MBS pool mortgages and the Seller customarily employs
and exercises in servicing and administering mortgage loans for its own account
and which are in accordance with accepted ▇▇▇▇-▇▇▇▇ servicing practices of
prudent lending institutions.
Cut-off
Date:
The
date referenced as such in the applicable Commitment Letter and confirmed in
the
related Term Sheet.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced with a Qualified Substitute Mortgage
Loan in accordance with this Agreement.
Determination
Date:
The
fifteenth (15th)
day of
each month, commencing on the fifteenth (15th)
day of
the month next following the month in which the related Cut-off Date occurs,
or
if such fifteenth (15th)
day is
not a Business Day, the Business Day following such fifteenth (15th)
day.
Due
Date:
With
respect to each Remittance Date, the day of the month of the related Remittance
Date on which each Monthly Payment is due on a Mortgage Loan, exclusive of
any
days of grace.
Due
Period:
With
respect to each Remittance Date, the period beginning on the second day of
the
month preceding the month of the Remittance Date, and ending on the first day
of
the month in which the Remittance Date occurs.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
10.11.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water rates, mortgage
insurance pre-miums, fire and hazard insurance premiums and other payments
required to be escrowed by the Mortgagor with the Mortgagee pursuant to any
Mortgage Loan.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 14.01.
▇▇▇▇▇▇
▇▇▇:
The
entity formerly known as the Federal National Mortgage Association or any
successor thereto.
▇▇▇▇▇▇
Mae Guides:
The
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ Mae Servicers’ Guide, all amendments
and additions thereto, including, but not limited to, future updates thereof
and
any waivers obtained by Seller.
FDIC:
The
Federal Deposit Insurance Corporation or any successor
organization.
Fidelity
Bond:
A
fidelity bond required to be obtained by Seller pursuant to Section
10.16.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan purchased pursuant to this Agreement which bears a fixed Mortgage
Interest Rate during the life of the loan.
▇▇▇▇▇▇▇
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation or any
successor thereto.
GAAP:
Generally accepted accounting principles, consistently applied.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount set
forth in the related Mortgage Note and the related Mortgage Loan Schedule that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for such
Mortgage Loan.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the Mortgage Interest Rate thereon.
Initial
Purchaser:
Citigroup Global Markets Realty Corp., or any successor thereto.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgage Property.
Interest
Only Mortgage Loan:
A
Mortgage Loan that only requires payments of interest for a period of time
specified in the related Mortgage Note.
Liquidation
Proceeds:
Amounts
(other than Insurance Proceeds and REO Disposi-tion Proceeds) received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
the sale or assignment of the Mortgage Loan, trustee's sale, fore-closure sale
or other-wise.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the original principal balance of such Mortgage
Loan divided by the Appraised Value of the related Mortgaged
Property.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Advance:
The
payment required to be made by Seller with respect to any Remittance Date
pursuant to Section 11.03.
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled payment of principal and/or interest
payable by a Mortgagor under the related Mortgage Note on each Due
Date.
Moody’s:
▇▇▇▇▇’▇
Investor Service, Inc., and any successor thereto.
Mortgage:
With
respect to any Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust or other instru-ment creating a first lien on, or first priority ownership
interest in, an estate in fee simple in real property securing a Mortgage Note,
including any rider incorporated by reference therein. With respect to a Co-op
Loan, the related Security Agreement.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgage
File:
The
mortgage documents pertaining to a particular Mortgage Loan which are specified
in Exhibit A hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage
Interest Rate:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each mortgage
loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule. The term Mortgage Loan includes, without
limitation, the contents of the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed in Exhibit J hereto pertaining to any Mortgage
Loan.
Mortgage
Loan Package:
The
Mortgage Loans listed on a Mortgage Loan Schedule and purchased by the Purchaser
on the related Closing Date.
Mortgage
Loan Remittance Rate:
As to
each Mortgage Loan, the annual rate of interest payable to Purchaser, which
shall be equal to the related Mortgage Interest Rate minus the related Servicing
Fee Rate.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans to be
delivered annexed to the related Term Sheet as Exhibit A on the related Closing
Date, setting forth the following information with respect to each Mortgage
Loan
in the related Mortgage Loan Package:
(i) the
Seller’s Mortgage Loan identifying number;
(ii) the
Mortgagor’s name;
(iii) the
street address of the Mortgaged Property including the state and zip
code;
(iv) a
code
indicating whether the Mortgaged Property is owner-occupied;
(v) the
type
of residential property constituting the Mortgaged Property;
(vi) a
code
indicating whether the Mortgaged Property securing the Mortgage is held in
fee
simple or subject to a leasehold estate;
(vii) the
original months to maturity or the remaining months to maturity from the Cut-off
Date, in any case based on the original amortization schedule and, if different,
the maturity expressed in the same manner but based on the actual amortization
schedule;
(viii) the
Loan-to-Value Ratio at origination;
(ix) the
Mortgage Interest Rate at origination and as of the Cut-off Date;
(x) the
Mortgage Loan origination date;
(xi) the
paid
through date;
(xii) the
stated maturity date of the Mortgage Loan and of the First Lien, if
applicable;
(xiii) the
amount of the Monthly Payment as of the Cut-off Date;
(xiv) the
original principal amount of the Mortgage Loan as of the date of
origination;
(xv) the
Stated Principal Balance of the Mortgage Loan as of the Cut-off
Date;
(xvi) a
code
indicating the purpose of the Mortgage Loan (i.e., purchase, rate and term
refinance, equity take-out refinance);
(xvii) for
non-conforming loans only, a code indicating the documentation style (i.e.
full,
alternative or reduced);
(xviii) the
number of times during the twelve (12) month period preceding the Closing Date
that any Monthly Payment has been received thirty (30) or more days after its
Due Date;
(xix) the
date
on which the first payment is due;
(xx) a
code
indicating whether or not the Mortgage Loan is insured as to payment defaults
by
a Primary Mortgage Insurance Policy; and, in the case of any Mortgage Loan
which
is insured as to payment defaults by a Primary Mortgage Insurance Policy, the
name of the provider of such Primary Mortgage Insurance Policy;
(xxi) a
code
indicating whether or not the Mortgage Loan is the subject of a Prepayment
Penalty;
(xxii) the
Primary Mortgage Insurance Policy certificate number, if
applicable;
(xxiii) the
Primary Mortgage Insurance Policy coverage percentage, if
applicable;
(xxiv) a
code
indicating the credit score of the Mortgagor at the time of origination of
the
Mortgage Loan;
(xxv) the
loan
type (i.e. fixed, adjustable; 2/28, 3/27, 5/25, etc.);
(xxvi) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date and
the
Adjustment Date frequency;
(xxvii) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(xxviii) with
respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage Interest
Rate under the terms of the Mortgage Note;
(xxix) with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate under the terms of the Mortgage Note;
(xxx) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
(xxxi) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the related Cut-off Date;
(xxxii) with
respect to each Adjustable Rate Mortgage Loan, the Index;
(xxxiii) if
available, a code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
and
(xxxiv) a
code
indicating whether the Mortgage Loan is a Buydown Mortgage Loan.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to any Mortgage Loan other than a Co-op Loan, the real property securing
repayment of the debt evidenced by a Mortgage Note, consisting of a single
parcel of property considered to be real estate under the law of the state
in
which it is located improved by a residential dwelling. With respect to a Co-op
Loan, the related Co-op Stock and Co-op Lease securing the indebtedness of
the
Purchaser under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
OCC:
The
Office of the Comptroller of the Currency, or any successor
thereto.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President, a Senior Vice President or a Vice President and by
the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of Seller, or by other duly authorized officers or agents of Seller
and delivered to Purchaser as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel.
Pass-Through
Transfer:
The
sale or transfer of some or all of the Mortgage Loans by Purchaser to a trust
to
be formed as part of a publicly issued and/or privately placed mortgage-backed
securities transaction.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage Interest Rate
for such Mortgage Loan may increase (without regard to the Maximum Mortgage
Interest Rate) or decrease (without regard to the Minimum Mortgage Interest
Rate) on such Adjustment Date from the Mortgage Interest Rate in effect
immediately prior to such Adjustment Date, which may be a different amount
with
respect to the first Adjustment Date.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincor-porated organization or
government or any agency or political subdivision thereof.
Prepayment
Interest Shortfalls:
As
defined in Section 10.09(i).
Primary
Mortgage Insurance Policy:
Each
policy of primary mortgage insurance represented to be in effect pursuant to
Section 6.01(v), or any replacement policy therefor obtained by Seller pursuant
to Section 10.13.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date and is not accompanied by an amount of
interest repre-sent-ing 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
related Commitment Letter in exchange for the Mortgage Loans purchased on such
Closing Date, calculated as provided in Section 4.01.
Purchase
Price Percentage:
The
purchase price percentage set forth in the related Commitment Letter and
confirmed in the related Term Sheet applicable to the Mortgage Loans purchased
on such Closing Date.
Purchaser:
The
Initial Purchaser and any subsequent permitted holder or holders of the Mortgage
Loans.
Qualified
Appraiser:
With
respect to each Mortgage Loan, an appraiser, duly appointed by the Seller,
who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of ▇▇▇▇▇▇ ▇▇▇
or
▇▇▇▇▇▇▇ Mac and Title XI of FIRREA and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated.
Qualified
Insurer:
An
insurance company duly qualified to do business in the state in which any
related Mortgaged Property is located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided by the insurance policy issued by it, and approved as an insurer by
▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac.
Qualified
Substitute Mortgage Loan:
A
mortgage loan substituted by Seller for a Deleted Mortgage Loan which must,
on
the date of such substitution, (a) have an outstanding principal balance, after
deduction of all scheduled payments due in the month of substitution (or in
the
case of a substitution of more than one mortgage loan for a Deleted Mortgage
Loan, an aggregate principal balance), not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan (the amount of any shortfall will be
distributed by Seller to Purchaser in the month of substitution), (b) have
a
Mortgage Interest Rate equal to the Mortgage Interest Rate of the Deleted
Mortgage Loan, (c) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (d) have a
Loan-to-Value Ratio at origination no greater that that of the Deleted Mortgage
Loan, (e) have the same lien priority as the Deleted Mortgage Loan, (f) be,
in
the reasonable determination of the Purchaser, of the same type, quality and
character (including location of the Mortgaged Property) as the Deleted Mortgage
Loan, and (g) comply as of the date of substitution with each representa-tion
and warranty set forth in Section 6.01.
Rating
Agencies:
Standard & Poor’s, Moody’s, or, in the event that some or all ownership of
the Mortgage Loans is evidenced by mortgage-backed securities, the national
recognized rating agencies issuing ratings with respect to such securities,
if
any.
Record
Date:
With
respect to each Remittance Date, the close of business of the last Busi-ness
Day
of the month preceding the month of the related Remittance Date.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
The
eighteenth (18th) day of any month, begin-ning in March, 2005, or if such
eighteenth (18th) day is not a Business Day, the first Business Day immediately
preceding such eighteenth (18th) day.
REO
Account:
The
account or accounts maintained pursuant to Section 10.17. REO
Disposition:
The
final sale by Seller of a Mortgaged Property acquired by Seller in foreclosure
or by deed in lieu of foreclosure.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
10.17.
REO
Property:
A
Mortgaged Property acquired by Seller through foreclosure or deed in lieu of
foreclosure, as described in Section 10.17.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (a) either (1) within nine months
after the related Closing Date, the product of the Stated Principal Balance
of
the Mortgage Loan times the greater of (x) the Purchase Price Percentage or
(y)
100%; or (2) thereafter, the Stated Principal Balance of the Mortgage Loan
as of
the date on which such repurchase takes place, plus (b) interest on such Stated
Principal Balance at a rate equal to the related Mortgage Loan Remittance Rate
from the date to which interest has last been paid and distributed to Purchaser
to the first day of the month following the month of repurchase, plus (c) with
regard to any Mortgage Loan subject to a Pass-Through Transfer, any costs and
damages incurred by the related trust in connection with any violation by such
Mortgage Loan of any predatory or abusive lending law.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Security
Agreement:
With
respect to a Co-op Loan, the agreement or mortgage creating a security interest
in favor of the originator of the Co-op Loan in the related Co-op
Stock.
Seller:
CitiMortgage, Inc., its successors and assigns.
Servicing
Advances:
All
customary, reasonable and necessary out-of-pocket costs and expenses, other
than
advances pursuant to Section 11.03, incurred in the performance by Seller of
its
servicing obligations, including, but not limited to, the cost of (a) the
inspection, preservation, restoration and protection of the Mortgaged Property,
(b) any enforcement or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage and (d) compliance with the
obligations under Section 10.13.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee Purchaser shall
pay
to Seller, which shall, for each month, be equal to one-twelfth of the product
of (a) the Servicing Fee Rate and (b) the outstanding principal balance of
such
Mortgage Loan. Such fee shall be payable monthly, computed on the basis of
the
same principal amount and period respecting which any related interest payment
on a Mortgage Loan is computed. The obligation of Purchaser to pay the Servicing
Fee is limited to, and payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds and other
proceeds, to the extent permitted by Section 10.10) of related Monthly Payments
collected by Seller, or as otherwise provided under Section 10.10.
Servicing
Fee Rate:
With
respect to any Mortgage Loan, the per annum rate provided in the related
Commitment Letter.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and any successor thereto.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (a) the principal balance
of
the Mortgage Loan at the Cut-off Date after giving effect to payments of
principal due on or before such date, whether or not received, minus (b) all
amounts previously distributed to Purchaser with respect to the Mortgage Loan
representing payments or recoveries of principal, or advances in lieu
thereof.
Subservicer:
Any
mortgage loan servicing institution other than Seller which is responsible
for
the servicing and administration of any Mortgage Loan or any successor appointed
pursuant to any Subservicing Agreement.
Subservicing
Account:
As
defined in Section 10.06.
Subservicing
Agreement:
Each
agreement providing for the servicing of any of the Mortgage Loans by a
Subservicer.
Subservicing
Fee:
As to
each Mortgage Loan, the monthly fee payable to the Subservicer, paid by Seller
from its Servicing Fee.
Term
Sheet:
An
assignment and conveyance of the Mortgage Loans purchased on a Closing Date
in
the form annexed hereto as Exhibit H.
Underwriting
Standards:
As to
each Mortgage Loan, the Seller’s underwriting guidelines in effect as of the
related Closing Date.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by Purchaser to a third
party which sale or transfer is not a Pass-Through Transfer or Agency
Transfer.
Section
1.02. 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) |
a
reference to a Subsection without further reference to a Section
is a
reference to such Subsection as contained in the same Section in
which the
reference appears, and this rule shall also apply to Paragraphs and
other
subdivisions;
|
| (e) |
the
words "herein", "hereof", "hereunder" and other words of similar
import
refer to this Agreement as a whole and not to any particular provision;
and
|
| (f) |
the
term "include" or "including" shall mean without limitation by reason
of
enumeration.
|
ARTICLE
II
AGREEMENT
TO PURCHASE
Section
2.01. Agreement
to Purchase.
The
Seller agrees to sell, and the Purchaser agrees to purchase, from time-to-time,
the Mortgage Loans having an aggregate principal balance on the related Cut-off
Date in an amount as set forth in the related Commitment Letter, or in such
other amount as agreed by the Purchaser and the Seller as evidenced by the
actual aggregate principal balance of the Mortgage Loans accepted by the
Purchaser on the related Closing Date.
ARTICLE
III
MORTGAGE
LOAN SCHEDULE
Section
3.01. Mortgage
Loan Schedule.
With
respect to each Closing Date, Seller shall deliver to Purchaser a preliminary
Mortgage Loan Schedule with respect to the Mortgage Loans to be sold and
purchased on such Closing Date at least five (5) Business Day prior to such
Closing Date and the final Mortgage Loan Schedule with respect to such Mortgage
Loans at least one (1) Business Day prior to such Closing Date.
ARTICLE
IV
PURCHASE
PRICE
Section
4.01. Purchase
Price.
The
Purchase Price for each Mortgage Loan listed on the related Mortgage Loan
Schedule shall be the Purchase Price Percentage as stated in the related
Commitment Letter (subject to adjustment as provided therein), multiplied by
its
Stated Principal Balance as of the related Cut-off Date. If so provided in
the
related Commitment Letter, portions of each Mortgage Loan Package shall be
priced separately. In addition to the Purchase Price as described above, the
Purchaser shall pay to the Seller, at closing, accrued interest on the Stated
Principal Balance of each Mortgage Loan as of the related Cut-off Date at the
related Mortgage Loan Remittance Rate from the related Cut-off Date through
the
day prior to the related Closing Date, both inclusive, pro-rated on the basis
of
a 30-day month.
Purchaser
shall own and be entitled to receive with respect to each Mortgage Loan
purchased, (a) all scheduled principal due after the Cut-off Date, (b) all
other
recoveries of principal collected after the Cut-off Date (provided, however,
that all scheduled payments of principal due on or before the Cut-off Date
and
collected by Seller after the Cut-off Date shall belong to Seller), and (c)
all
payments of interest on the Mortgage Loans net of the Servicing Fee (minus
that
portion of any such interest payment that is allocable to the period prior
to
the Cut-off Date). The Stated Principal Balance of each Mortgage Loan as of
the
Cut-off Date is determined after application to the reduction of principal
of
payments of principal due on or before the Cut-off Date whether or not
collected. Therefore, for the purposes of this Agreement, payments of scheduled
principal and interest prepaid for a Due Date beyond the Cut-off Date shall
not
be applied to the principal balance as of the Cut-off Date. Such prepaid amounts
(minus the applicable Servicing Fee) shall be the property of Purchaser. Seller
shall deposit any such prepaid amounts into the Custodial Account, which account
is established for the benefit of Purchaser, for remittance by Seller to
Purchaser on the first Remittance Date following the related Closing Date.
All
payments of principal and interest, less the applicable Servicing Fee, due
on a
Due Date following the Cut-off Date shall belong to Purchaser.
ARTICLE
V
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; DELIVERY OF MORTGAGE
LOAN
DOCUMENTS; TRANSFER OF MORTGAGE LOANS
Section
5.01. Conveyance
of Mortgage Loans; Possession of Mortgage Files.
The
Seller, simultaneously with the payment of the Purchase Price, shall execute
and
deliver to the Purchaser a Term Sheet with respect to the related Mortgage
Loan
Package in the form attached hereto as Exhibit H. Simultaneously with the
execution and delivery of the related Term Sheet, for each Mortgage Loan
Package, the Seller hereby agrees to service the Mortgage Loans listed on the
related Mortgage Loan Schedule in accordance with Customary Servicing Procedures
and this Agreement. The rights of the Purchaser to receive payments with respect
to the related Mortgage Loans shall be as set forth in this
Agreement.
Any
documentation retained by the Seller with respect to each Mortgage Loan pursuant
to this Agreement shall be appropriately identified in the Seller's computer
system to reflect clearly the sale of such related Mortgage Loan to the
Purchaser. The contents of each Mortgage File not delivered to Purchaser are
and
shall be held in trust by Seller for the benefit of Purchaser as the owner
thereof and Seller's possession of the portion of each Mortgage File so retained
is for the sole purpose of servicing the related Mortgage Loan, and such
retention and possession by Seller is in a custodial capacity only. Upon the
purchase of the Mortgage Loans, the ownership of each Mortgage Note, Mortgage
and each related Mortgage File is vested in Purchaser and the ownership of
all
records and documents with respect to each related Mortgage Loan prepared by
or
which come into the possession of Seller shall immediately vest in Purchaser
and
shall be retained and maintained, in trust, by Seller in such custodial capacity
only. The portion of each Mortgage File so retained shall be appropriately
marked to clearly reflect the sale of the related Mortgage Loan to Purchaser.
Seller shall release from its custody the contents of any Mortgage File only
in
accordance with written instructions from Purchaser, unless such release is
required as incidental to Seller's servicing of the Mortgage Loans or is in
connection with a repurchase of any Mortgage Loan pursuant to Section
6.03.
Section
5.02. Books
and Records.
All
rights arising out of the Mortgage Loans including, but not limited to, all
funds received on or in connection with a Mortgage Loan shall be held by Seller
in trust for the benefit of Purchaser or one or more designees as the owner
of
the Mortgage Loans.
The
sale
of each Mortgage Loan shall be reflected on Seller's balance sheet and other
financial statements as a sale of assets by Seller and not a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. Seller shall be responsible for maintaining, and
shall
maintain, a complete set of books and records for each Mortgage Loan which
shall
be clearly marked to reflect the ownership of each Mortgage Loan by Purchaser
in
Seller’s computer system. In particular, the Seller shall maintain in its
possession, available for inspection by the Purchaser, or its designee and
shall
deliver to the Purchaser upon demand, evidence of compliance with all federal,
state and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇ Mae
or
▇▇▇▇▇▇▇ Mac, as applicable, including but not limited to documentation as to
the
method used in determining the applicability of the provisions of the Flood
Disaster Protection Act of 1973, as amended, to the Mortgaged Property,
documentation evidencing insurance coverage and eligibility of any condominium
project for approval by Seller and periodic inspection reports as required
by
Section 10.17. To the extent that original documents are not required for
purposes of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Seller may be in the form of microfilm or microfiche or such
other reliable means of recreating original documents, including but not limited
to, optical imagery techniques so long as the Seller complies with the
requirements of the ▇▇▇▇▇▇ Mae Guides.
The
Seller shall, with respect to any Mortgage Loan not registered with the MERS
System, at the option of the Purchaser, prepare and deliver to Purchaser an
original Assignment of Mortgage in blank. For one transfer only, the Seller
shall bear the cost and expense related to (i) providing all Assignments of
Mortgages in blank and (ii) recording fees and fees for title policy
endorsements and any additional transfers shall be at the Purchaser’s expense.
In connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that it will cause, at the Seller’s expense, the MERS System to indicate that
such Mortgage Loans have been assigned by the Seller to the Purchaser (or
deleting, in the case of Mortgage Loans which are repurchased in accordance
with
this Agreement) by including in such computer files the information required
by
the MERS System to identify the Purchaser (such information to be provided
to
the Seller from the Purchaser) and the series in which such Mortgage Loans
were
sold. The Seller further agrees that it will not alter the codes referenced
in
this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance
with
the terms of this Agreement.
In
addition to the foregoing, the Seller shall provide, at Purchaser’s expense, to
any supervisory agents or examiners that regulate the Purchaser, including
but
not limited to, OCC, OTS, FDIC and other similar entities or such supervisory
agents or examiners, access, during normal business hours, upon reasonable
advance notice to the Seller and to any documentation regarding the Mortgage
Loans that may be required by any applicable regulator.
Section
5.03. Delivery
of Mortgage Loan Documents.
Seller
shall deliver to Purchaser or its designee, as directed by Purchaser, the
Mortgage Loan Documents as required by Exhibit J hereto for each Mortgage Loan
no later than five (5) Business Days prior to the related Closing
Date.
Except
as
otherwise provided in this Section 5.03, upon discovery or receipt of notice
of
any materially defective Mortgage Loan Document, or that a Mortgage Loan
Document is missing, Seller shall have sixty (60) days to cure such defect
or
deliver such missing document to Purchaser or its designee. If Seller does
not
cure such defect or deliver such missing document within such time period,
Seller shall either repurchase or substitute for such Mortgage Loan in
accordance with Section 6.03.
Seller
shall forward to Purchaser or its designee, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two (2) weeks of their
execution; provided, however, that Seller shall provide Purchaser or its
designee, with a certified true copy of any such document submitted for
recordation within two (2) weeks of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within 270 days of its submission for recordation.
In
the
event Seller cannot deliver the original of such documents submitted for
recording due to a delay by the recording office in the applicable jurisdiction,
Seller shall instead deliver a recording receipt of such recording office or,
if
such recording receipt is not available, an Officer's Certificate from Seller
confirming that such documents have been accepted for recording. Any such
document shall be delivered to Purchaser or its designee promptly upon receipt
thereof from the related recording office.
From
time
to time Purchaser shall deliver or cause to be delivered to Seller, as soon
as
practicable following receipt of a written request from Seller and at no expense
to Seller, any Mortgage Loan Document needed by Seller in connection with the
servicing of a Mortgage Loan. Seller’s request for the release of a Mortgage
Loan Document shall specify in reasonable detail the reason for Seller’s
request. Seller shall use its best efforts to provide notice to the Purchaser
of
Purchaser’s or its designee’s failure to act in a timely manner with respect to
Seller’s request for Mortgage Loan Documents; provided, however, Seller’s
failure to notify Purchaser shall not alleviate, eliminate or diminish any
obligation of Purchaser to indemnify Seller under this Section 5.03. During
the
time that any such Mortgage Loan Document is in the possession of Seller, such
possession shall be deemed to be in trust for the benefit of Purchaser and
Seller shall promptly return to Purchaser or its designee any Mortgage Loan
Document so released when Seller’s need for such Mortgage Loan Document no
longer exists. Purchaser shall indemnify and hold Seller 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 Seller may sustain in connection with any third party claim in
any
way related to Purchaser’s or its designee’s failure to release, in a timely
manner, the Mortgage Loan Documents requested by Seller. Purchaser shall pay
all
costs, fees and expenses in connection with the possession of the Mortgage
Loan
Documents.
Purchaser
shall provide Seller with written notice at least fifteen (15) days prior to
any
transfer of the Mortgage Loan Documents.
Section
5.04. Examination
of Mortgage Files.
In
addition to the rights granted to the Purchaser under the related Commitment
Letter to underwrite the Mortgage Loans and review the Mortgage Files prior
to
the Closing Date, the Seller shall (a) deliver to the Purchaser in escrow,
for
examination with respect to each Mortgage Loan to be purchased on such Closing
Date, the related Mortgage File, including the Assignment of Mortgage,
pertaining to each Mortgage Loan, or (b) make the related Mortgage 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 or after the applicable Closing Date. If the Purchaser makes such
examination prior to the applicable Closing Date and identifies any Mortgage
Loans which do not conform to the terms of the related Commitment Letter, such
Mortgage Loans may, at the Purchaser’s option, be rejected for purchase by the
Purchaser. If not purchased by the Purchaser, such Mortgage Loans shall be
deleted from the related Mortgage Loan Schedule. The Purchaser may, at its
option and without notice to the Seller, purchase any Mortgage Loan Package
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 Mortgage Files shall not affect the Purchaser’s (or any of
its successors’) rights to demand repurchase or other relief or remedy provided
for in this Agreement.
Section
5.05. Transfer
of Mortgage Loans.
The
Initial Purchaser shall have the right, without the consent of Seller, to assign
its interest under this Agreement with respect to all or some of the Mortgage
Loans, and designate any person to exercise any rights of Purchaser hereunder,
and the assignee or designee shall accede to the rights and obligations
hereunder of Purchaser with respect to such Mortgage Loans; provided, however,
that Seller shall not be required to recognize any assignment to the extent
that
it would result in Mortgage Loans in any one Mortgage Loan Package being
serviced for more than three (3) Purchasers hereunder. All references to
Purchaser shall be deemed to include its assignee or designee.
Seller
shall keep at its servicing office books and records in which, subject to such
reasonable regulations as it may prescribe, Seller shall note transfers of
the
Mortgage Loans. No transfer of the Mortgage Loans may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, Seller shall be under no obligation to deal with any person with
respect to this Agreement or the Mortgage Loans unless the books and records
show such person as Purchaser of the Mortgage Loans. Purchaser may, subject
to
the terms of this Agreement, sell and transfer, in whole or in part, the
Mortgage Loans, provided that no such sale and transfer shall be binding upon
Seller unless a properly executed Assignment, Assumption and Recognition
Agreement, substantially in the form attached hereto as Exhibit I, shall have
been delivered to Seller. Upon receipt thereof, Seller shall ▇▇▇▇ its books
and
records to reflect the ownership of the Mortgage Loans by such assignee, and
the
previous Purchaser shall be released from its obligations hereunder to the
extent such obligations relate to Mortgage Loans sold by Purchaser. This
Agreement shall be binding upon and inure to the benefit of Purchaser and Seller
and their respective permitted successors, assignees and designees.
Section
5.06. Whole
Loan Transfers, Agency Transfers or Pass-Through Transfers.
Seller
and Purchaser agree that with respect to some or all of the Mortgage Loans
upon
written notice to Seller at least seven (7) days prior to the first day of
the
first Due Period of such Whole Loan Transfer, Agency Transfer or Pass
Through-Transfer, provided Purchaser provides to Seller all information included
on Exhibit L hereto with such notice, Purchaser may effect either one or more
Whole Loan Transfers, one or more Agency Transfers and/or one or more
Pass-Through Transfers.
| (a) |
Whole
Loan Transfers.
With respect to each Whole Loan Transfer entered into by Purchaser,
Seller
agrees:
|
| (i) |
to
cooperate fully with Purchaser and any prospective purchaser with
respect
to all reasonable requests;
|
| (ii) |
to
execute or acknowledge, at Purchaser’s discretion, an assignment, in the
form of Exhibit I, by Purchaser to a successor purchaser of some
or all of
the Mortgage Loans, which Mortgage Loans will be assigned subject
to the
representations and warranties set forth in this Agreement and covenants
to service the Mortgage Loans on behalf of the successor purchaser
in
accordance with the terms and conditions of this Agreement or otherwise;
|
| (iii) |
the
Seller shall make the representations and warranties regarding (1)
the
Seller as of the date of the Whole Loan Transfer, and (2) the Mortgage
Loans as of the date of the Whole Loan Transfer; provided that such
Whole
Loan Transfer occurs within twelve months of the related Closing
Date.
|
| (b) |
Agency
Transfers and Pass-Through Transfers.
Purchaser and Seller agree that in connection with the completion
of an
Agency Transfer or Pass-Through Transfer, Seller
shall:
|
| (i) |
if
Seller is required to be a party to any of the reconstitution agreements,
execute any reconstitution agreement required to effectuate the foregoing;
|
| (ii) |
to
execute or acknowledge, at Purchaser’s discretion, either: (a) an
assignment, in the form of Exhibit I, by Purchaser to a successor
purchaser of some or all of the Mortgage Loans, which Mortgage Loans
will
be assigned subject to the representations and warranties set forth
in
this Agreement and covenants to service the Mortgage Loans on behalf
of
the successor purchaser in accordance with the terms and conditions
of
this Agreement or (b) execute a letter agreement to be provided to
the
Seller by the master servicer (such letter agreement to delivered
to
Seller in accordance with the timing requirements of this Section
5.06),
setting forth which Mortgage Loans will be: assigned into the Pass-through
Transfer(s) and subject to the representations and warranties pursuant
to
Section 5.06(b)(v) of the Agreement. Seller covenants to service
the
Mortgage Loans on behalf of and at the direction of the master servicer.
Such letter agreement shall also require that Seller shall establish
and
maintain, at the direction of the master servicer, a separate Custodial
Account and a seperate Escrow Account with respect to any Mortgage
Loans
that are sold pursuant to such Pass-Through Transfer(s). Pursuant
to the
letter agreement, Purchaser agrees to provide any applicable MERS
information that Seller may request in order to properly reflect
the
ownership of any MERS loans sold pursuant to the Pass-Through
Tranfer(s);
|
|
(ii)
|
to
deliver to the Purchaser
|
|
(iii)
|
agree
to service the Mortgage Loans in accordance with the requirements
of this
Agreement or in accordance with the requirements of ▇▇▇▇▇▇ Mae, or
any
successor thereto, or ▇▇▇▇▇▇▇ Mac, or any successor thereto; subject
to
such waivers, variances, and modifications as may be agreed to between
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, as the case may be, the Seller and the
master
servicer;
|
| (iv) |
provide
all other assistance reasonably requested by Purchaser in connection
with
completion of the Pass-Through Transfer or Agency Transfer, including,
without limitation, the obligation to deliver officer’s certificate in the
form of Exhibit N;
|
| (v) |
with
respect to any Pass-Through Transfer or Agency Transfer, the Seller
shall
make the representations and warranties regarding (1) the Seller
as of the
date of the Pass-Through Transfer or Agency Transfer, and (2) the
Mortgage
Loans as of the date of the Pass-Through Transfer or Agency Transfer;
provided that such Pass-Through Transfer or Agency Transfer occurs
within
twelve months of the related Closing
Date.
|
|
(c)
|
With
respect to any Pass-Through Transfer, Purchaser shall be entitled
to
include in any disclosure document any unaltered information specifically
requested by Purchaser for this purpose and provided by Seller and
Seller
acknowledges and agrees that the related investors will be permitted
to
rely on such information. If Purchaser determines that Seller is
required
to be a party to any reconstitution agreement, Seller shall execute
such
reconstitution agreement within a reasonable period of time, but
in no
event shall such time exceed five (5) Business Days after mutual
agreement
between Purchaser and Seller as to the terms
thereof.
|
|
(d)
|
All
of the Mortgage Loans, including those Mortgage Loans that are subject
to
a Pass-Through Transfer or a Whole Loan Transfer, shall continue
to be
subject to this Agreement, and with respect thereto, this Agreement
shall
remain in full force and effect. In no event shall a Whole Loan Transfer
or a Pass-Through Transfer be deemed to relieve the Seller of its
obligations as set forth in Article VI hereof nor to increase the
Seller’s
liabilities, duties, obligations, or responsibilities as set forth
in this
Agreement.
|
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
FOR BREACH
Section
6.01. Representations
and Warranties Regarding Individual Mortgage Loans.
Seller
hereby represents and warrants to Purchaser that, as to each Mortgage Loan,
as
of the applicable Closing Date (or such other date as may be specified
herein):
| (a) |
The
information set forth on the Mortgage Loan Schedule and the magnetic
tape
or diskette delivered to Purchaser by Seller is complete, true and
correct;
|
| (b) |
The
Mortgage Note and the Mortgage have not been assigned or pledged,
and
Seller has good and marketable title thereto, and Seller is the sole
owner
and holder of the Mortgage Loan free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges,
charges
or security interests of any nature and has full right and author-ity,
subject to no interest or participation of, or agreement with, any
other
party, to sell and assign the same pursuant to this
Agreement;
|
| (c) |
The
Mortgage is a valid, enforceable and subsisting first lien on the
property
therein described, and the Mortgaged Property is free and clear of
any and
all adverse claims, encumbrances and liens having priority over the
first
lien of the ▇▇▇▇-▇▇▇▇ except for (i) liens for current real estate
taxes
and special assessments not yet due and payable, (ii) covenants,
conditions and restrictions, rights of way, easements and other matters
of
public record as of the date of recording being acceptable to mortgage
lending institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of the
Mortgage Loan and which do not adversely affect the Appraised Value
of the
Mortgaged Property, and (iii) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits
of
the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property.
Any
security agreement, chattel mortgage or equivalent document related
to the
Mortgage Loan and delivered to Purchaser establishes in Seller a
valid,
enforceable and sub-sisting first lien and first priority security
interest with respect to each first lien Mortgage Loan on the property
described therein, and Seller has full right to sell and assign the
same
to Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage 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;
|
| (d) |
Except
to the extent of a discharge Chapter 7, the terms of the Mortgage
Note and
the Mortgage have not been impaired, waived, altered or modified
in any
respect, except by a written instrument which has been recorded in
the
appropriate public recording office, if required by law, or, if necessary,
to protect the interest of Purchaser and which have been delivered
to
Purchaser. The substance of any such alteration or modification is
reflected on the Mortgage Loan Schedule and has been approved by
the
issuer of any related Primary Mortgage Insurance Policy, if any,
and the
title insurer, to the extent required by the related
policy;
|
| (e) |
Except
to the extent of a discharge Chapter 7, no instrument of release,
alteration, modification or waiver has been executed in connection
with
the Mortgage Loan, and no Mortgagor has been released, in whole or
in
part, except in connection with an assumption agreement which has
been
approved by the issuer of any Private Mortgage Insurance Policy,
if any,
and the title insurer, to the extent required by the related policy,
and
except such Mortgage Loan which contains in the related Mortgage
File, as
set forth on the related Mortgage Loan Schedule, evidence of a release
or
waiver or an assumption agreement discharging the original borrower
from
all of the debt obligations in connection with the related Mortgage
Loan
and providing for the assumption of all such debt obligations by
the party
assuming the obligations under the Mortgage Loan and, in each case,
terms
of which are reflected in the Mortgage Loan
Schedule;
|
| (f) |
All
taxes, governmental assessments, insurance premiums, water, sewer
and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, or an escrow of funds has been
established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and
payable
and except as permitted in clause (l), there are no defaults in complying
with the terms of the Mortgage. Seller has not advanced funds, or
induced,
solicited or knowingly received any advance of funds by a party other
than
the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage Note or Mortgage, except for interest accruing
from the date of the Mortgage Note or date of disbursement of the
Mortgage
proceeds, whichever is greater, to the day which precedes by one
month the
Due Date of the first installment of principal and
interest;
|
| (g) |
The
Mortgaged Property is free of material damage and waste and there
is no
proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property, nor is such a proceeding currently occurring,
and
such property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty, so as to affect materially
and adversely the value of the Mortgaged Property as security for
the
Mortgage Loan or the use for which the premises were
intended;
|
| (h) |
There
are no mechanics' or similar liens or claims which have been filed
for
work, labor or material (and no rights are outstanding that under
law
could give rise to such lien) affecting the Mortgaged Property which
are,
or may be, liens prior or equal to, or coordinate with, the lien
of the
related Mortgage unless such lien is insured under the related title
insurance policy;
|
| (i) |
All
improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and building restriction lines of the Mortgaged Property and, to
Seller's
knowledge, no improvements on adjoining properties encroach upon
the
Mortgaged Property (other than minor encroachments (i) which do not
affect
the value of the Mortgage Loan or the Purchaser’s interest therein and
(ii) to which properties similar to the Mortgaged Property within
the same
jurisdiction are commonly subject and which do not interfere with
the
benefits of the security intended to be provided by the related Mortgage
or the use, enjoyment, value or marketability of the related Mortgaged
Property). Each appraisal has been performed in accordance with the
provisions of Title XI of FIRREA and the regulations promulgated
thereunder;
|
| (j) |
No
improvement located on or being part of the Mortgaged Property is
in
violation of any applicable zoning law or regulation and all inspections,
licenses and certificates required to be made or issued with respect
to
all occupied portions of the Mortgaged Property and, with respect
to the
use and occupancy of the same, including but not limited to certificates
of occupancy and fire underwriting certif-icates, have been made
or
obtained from the appropriate authorities and the Mortgaged Property
is
lawfully occupied under applicable
law;
|
| (k) |
All
parties which have had any interest in the Mortgage Loan, whether
as
mortgagee, assignee, pledgee or otherwise, are (or, during the period
in
which they held and disposed of such interest, were) (i) in compliance
with any and all applicable licensing requirements of the laws of
the
state wherein the Mortgaged Property is located, and (ii) either
(1)
organized under the laws of such state, or (2) qualified to do business
in
such state, or (3) federal savings and loan associations, federal
savings
banks or national banks having authorized offices in such state,
or (4)
not doing business in such state;
|
| (l) |
Unless
otherwise disclosed in the Commitment Letter, all Monthly Payments
due
prior to the related Cut-off Date for such Mortgage Loan have been
made by
the related Closing Date and no Monthly Payment due under any Mortgage
Loan has been more than thirty (30) days due past the related Due
Date,
exclusive of any grace period, within the prior twelve months prior
to the
Cut-off Date. The Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than the
owner
of the related Mortgaged Property, directly or indirectly, for the
payment
of any amount required by the Mortgage Note or Mortgage;
|
| (m) |
The
Mortgage has not been satisfied, canceled, subordinated or rescinded,
in
whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part, nor has any instrument
been
executed that would effect any such satisfaction, release, cancellation,
subordination or rescission, except in connection with an assumption
agreement which has been delivered to the Purchaser; and any such
release
is reflected on the Mortgage Loan
Schedule;
|
| (n) |
The
Mortgage File contains each of the documents and instruments specified
to
be included therein duly executed and in due and proper form, and
each
such document or instrument is in form acceptable to ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇
Mac, and each Mortgage Note, Mortgage, and appraisal are on forms
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac;
|
| (o) |
The
Mortgage 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, except as enforceability may be limited
by
applicable bankruptcy, insolvency, reorganization or other similar
laws
relating to or affecting the enforcement of creditors' rights and
by
general principles of equity. All parties to the Mortgage Note and
the
▇▇▇▇-▇▇▇▇ had legal capacity to execute the Mortgage Note and the
Mortgage, and each Mortgage Note and Mortgage have been duly and
properly
executed by such parties;
|
| (p) |
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, predatory and abusive lending, equal
credit
opportunity or disclo-sure laws applicable to the originating or
servicing
of the Mortgage Loans have been complied with and the consummation
of the
transactions contemplated hereby will not involve the violation of
any
such laws;
|
| (q) |
The
proceeds of the Mortgage Loan have been fully disbursed to or for
the
account of the Mortgagor, there is no requirement for future advances
thereunder and any and all requirements as to comple-tion of any
on-site
or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred
in
making or closing Mortgage Loans and the recording of the Mortgage
were
paid and the Mortgagor is not entitled to any refund of any amounts
paid
or due under the Mortgage Note or
Mortgage;
|
| (r) |
Any
future advances made prior to the Cut-off Date have been consolidated
with
the outstanding principal amount secured by the Mortgage, and the
secured
princi-pal amount, as consolidated, bears a single interest rate
and
single repayment term reflected on the ▇▇▇▇-▇▇▇▇ Loan Schedule. The
lien
of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy,
an
endorsement to the policy insuring the Mortgagee's consolidated interest
or by other title evidence acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
The
consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan;
|
| (s) |
All
improvements upon the Mortgaged Property are insured by a Qualified
Insurer against loss by fire, hazards of extended coverage and such
other
hazards as are customary in the area where the Mortgaged Property
is
located, pursuant to insurance policies conforming to the requirements
of
Section 10.15 hereof. All individual insurance policies (collectively,
the
"hazard insurance policy") are in full force and effect and are the
valid
and binding obligation of the insurer and contain a standard mortgagee
clause naming Seller, its successors and assigns, as mortgagee. All
premiums thereon have been paid. If the Mortgaged Property is in
an area
identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance
has been
made available) Seller will cause to be maintained a flood insurance
policy meeting the requirements of the current guide-lines of the
Federal
Insurance Administration with an insurance carrier acceptable to
▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac, in an amount representing coverage not less
than the
least of (i) the out-standing principal balance of the Mortgage Loan,
(ii)
the full insurable value of the Mortgaged Property, or (iii) the
maximum
amount of insurance available under the Flood Disaster Protection
Act of
1973, as amended. The Mortgage obligates the Mortgagor thereunder
to
maintain all such insurance at the Mortgagor's cost and expense,
and upon
the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to
obtain and maintain such insurance at the Mortgagor's cost and expense
and
to seek reimbursement therefor from the
Mortgagor;
|
| (t) |
There
is no default, breach, violation or event of acceleration existing
under
the Mortgage or the related Mortgage Note and, to Seller's knowledge,
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, ▇▇▇▇▇-tion
or event of acceleration; and Seller has not waived any default,
breach,
violation or event of acceleration;
|
| (u) |
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation,
the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in
whole or
in part, or subject to any right of rescission, set-off, counter-claim
or
defense, including the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto;
and unless otherwise disclosed in the Commitment Letter, the Mortgagor
is
not and was not at the time the Mortgage Loan was originated, a debtor
in
any state or federal bankruptcy or insolvency
proceeding;
|
| (v) |
No
Mortgage Loan has an LTV greater than 100%. If a Mortgage Loan has
an LTV
greater than 80%, the excess of the principal balance of the Mortgage
Loan
over 75% of the Appraised Value, with respect to a Refinanced Mortgage
Loan, or the lesser of the Appraised Value or the purchase price
of the
Mortgaged Property, with respect to a purchase money Mortgage Loan,
is
insured as to payment defaults by a Primary Mortgage Insurance Policy
issued by a Qualified Insurer. All provisions of such Primary Mortgage
Insurance Policy have been and are being complied with, such policy
is in
full force and effect, and all premiums due thereunder have been
paid. No
action, inaction, or event has occurred and no state of facts exists
that
has, or will result in the exclusion from, denial of, or defense
to
coverage. Any Mortgage Loan subject to a Primary Mortgage Insurance
Policy
obligates the Mortgagor thereunder to maintain the Primary Mortgage
Insurance Policy and to pay all premiums and charges in connection
therewith until such time as applicable law allows the termination
of such
insurance. The mortgage interest rate for the Mortgage Loan as set
forth
on the Mortgage Loan Schedule is net of any such insurance
premium;
|
| (w) |
The
Mortgage Note is not secured by any collateral, pledged account or
other
security except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage
referred
to in Section 6.01(c);
|
| (x) |
The
Mortgage and related Mortgage Note contain customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure, subject only to rights of redemption,
seizure and other laws that would not materially interfere with the
ultimate realization of the benefits of the security. The Mortgagor
has
not notified the Seller and the Seller has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act;
|
| (y) |
No
fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of
Seller or the Mortgagor or, to the best of Seller’s knowledge, any other
party involved in the origination of the Mortgage
Loan;
|
| (z) |
As
to Mortgage Loans that are not Co-op Loans, the Mortgaged Property
is
located in the state identified in the Mortgage Loan Schedule and
consists
of a single parcel of real property with a detached single family
residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project,
or
an individual unit in a planned unit development or a de minimis
planned
unit development, provided, however, that no residence or dwelling
is a
single parcel of real property with a cooperative housing corporation
erected thereon, or a mobile home. As of the date of origination,
no
portion of the Mortgaged Property was used for commercial purposes,
and
since the date of origination no portion of the Mortgaged Property
has
been used for commercial purposes. If the Mortgaged Property is a
condominium unit or a planned unit development (other than a de minimis
planned unit development), or stock in a cooperative housing corporation,
such condominium, cooperative or planned unit development project
meets
the
|
Seller’s
eligibility requirements as set forth in the Underwriting Standards or as may
otherwise be set forth and agreed to in the related Commitment Letter;
| (aa) |
There
exist no deficiencies with respect to escrow deposits and payments,
if
such are required, for which customary arrangements for repayment
thereof
have not been made, and, to Seller's knowledge, no escrow deposits
or
payments of other charges or payments due Seller have been capital-ized
under the Mortgage or the related Mortgage
Note;
|
| (bb) |
The
origination, collection and servicing practices used by Seller with
respect to the Mortgage Note and Mortgage have been in all respects
legal
and customary in the mortgage servicing
business;
|
| (cc) |
Each
Mortgage Loan that is not Co-op Loan is covered by an ALTA or CLTA
mortgage title insurance policy acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac,
or such other generally acceptable form of policy or insurance, issued
by
and the valid and binding obligation of a Qualified Insurer, insuring
Seller, its successors and assigns, as to the first priority lien
of the
Mortgage in the original principal amount of the Mortgage Loan
and against any loss by reason of the invalidity or unenforceability
of
the lien resulting from the provisions of the Mortgage.
Such mortgage title insurance policy insures Seller, its successors
and
assigns as mortgagee and the assignment to Purchaser of Seller's
interest
in such mortgage title insurance policy does not require the consent
of or
notification to the insurer, such mortgage title insurance policy
is in
full force and effect and will be in full force and effect and inure
to
the benefit of Purchaser upon the consummation of the trans-actions
contemplated by this Agreement. No claims have been made under such
mortgage title insurance policy and, to Seller's knowledge, no prior
holder of the related Mortgage, including Seller, has done, by act
or
omission, anything which would impair the coverage of such mortgage
title
insurance policy;
|
| (dd) |
Except
with respect to Interest Only Mortgage Loans, principal payments
on the
Mortgage Loan commenced no more than sixty (60) days after the proceeds
of
the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the
Mortgage Interest Rate. With respect to each Mortgage Loan, the Mortgage
Note has an original term of not more than thirty (30) years and
is
payable on the first day of each month; provided, however, in the
case of
a balloon Mortgage Loan, the Mortgage Loan matures at least five
(5) years
after the first payment date thereby requiring a final payment of
the
outstanding principal balance prior to the full amortization of the
Mortgage Loan. Except with respect to Interest Only Mortgage Loans,
the
Monthly Payments will fully amortize the Stated Principal Balance
of the
Mortgage Loan over its remaining term at the Mortgage Interest Rate.
The
Mortgage Note does not permit negative amortization. The Monthly
Payment
on each Interest Only Mortgage Loan during the related interest-only
period is equal to the product of the related Mortgage Interest Rate
and
the principal balance of such Mortgage Loan on the first day of each
month
and after such interest-only period, except with respect to Interest
Only
Mortgage Loans that are Adjustable Rate Mortgage Loans, such Mortgage
Loan
is payable in equal monthly installments of principal and
interest;
|
| (ee) |
No
Mortgage Loan is classified as a “high cost” mortgage loan under the Home
Ownership and Equity Protection Act of 1994, as amended, nor is any
Mortgage Loan a “high cost home,” “covered,” “high risk home” or
“predatory” loan under any applicable state, federal or local law (or a
similarly classified loan using different terminology under an applicable
law imposing heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates, points
and/or
fees);
|
| (ff) |
Each
Mortgage Loan is a “qualified mortgage” within Section 860G(a)(3) of the
Code;
|
| (gg) |
With
respect to each Mortgage Loan for which the Underwriting Standards
require
an appraisal to be performed in connection with the origination thereof,
the Mortgage File contains an appraisal of the related Mortgaged
Property
made and signed, prior to the approval of the Mortgage Loan application,
by a Qualified Appraiser;
|
| (hh) |
If
the Mortgage constitutes a deed of trust, a trustee, authorized and
duly
qualified if required under applicable law to act as such, has been
properly designated and currently so serves and is named in the Mortgage,
and no fees or expenses, except as may be required by local law,
are or
will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
|
| (ii) |
No
Mortgage Loan contains “graduated payment,” “shared appreciation” or other
contingent interest features; to the extent any Mortgage Loan (as
identified on the Mortgage Loan Schedule) contains any buydown provision,
such buydown funds have been maintained and administered in accordance
with, and such Mortgage Loan otherwise complies with, ▇▇▇▇▇▇ Mae
and
▇▇▇▇▇▇▇ Mac requirements relating to buydown
loans;
|
| (jj) |
The
Mortgagor has received all disclosure materials required by applicable
law
with respect to the making of such mortgage
loans;
|
| (kk) |
No
Mortgage Loan was made for the purpose of (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the trade-in
or
exchange of a Mortgaged Property;
|
| (ll) |
All
information supplied by, on behalf of, or concerning the Mortgagor
is
true, accurate and complete and does not contain any statement that
is or
will be inaccurate or misleading in any material
respect;
|
| (mm) |
The
Assignment of Mortgage is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged
Property is located;
|
| (nn) |
With
respect to each Mortgage Loan that contains a Prepayment Penalty,
such
Prepayment Penalty is enforceable and will be enforced by Seller,
and such
Prepayment Penalty is permitted pursuant to federal, state and local
law.
No
Mortgage Loan originated on or after October 1, 2002 imposes a Prepayment
Penalty for a term in excess of three years, and no Mortgage Loan
originated prior to October 1, 2002 imposes a Prepayment Penalty
in excess
of five years; Except
as otherwise set forth on the Mortgage Loan Schedule, with respect
to each
Mortgage Loan that contains a Prepayment Penalty, such Prepayment
Penalty
is at least equal to the lesser of (A) the maximum amount permitted
under
applicable law and (B) six months interest at the related Mortgage
Interest Rate on the amount prepaid in excess of 20% of the original
principal balance of such Mortgage
Loan;
|
| (oo) |
Any
principal advances made to the Mortgagor prior to the Cut-off Date
have
been consolidated with the outstanding principal amount secured by
the
Mortgage, and the secured principal amount, as consolidated, bears
a
single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as
having
first lien priority by a title insurance policy, an endorsement to
the
policy insuring the mortgagee’s consolidated interest or by other title
evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated
principal amount does not exceed the original principal amount of
the
Mortgage Loan;
|
| (pp) |
No
Mortgagor was required to purchase any credit life, disability, accident
or health insurance product as a condition of obtaining the extension
of
credit. No Mortgagor obtained a prepaid single premium credit life,
disability, accident or health insurance policy or debt cancellation
agreement as a condition of obtaining the extension of credit or
in
connection the with the origination of the Mortgage Loan. No proceeds
from
any Mortgage Loan were used to purchase single premium credit insurance
policies as part of the origination of, or as a condition to closing,
such
Mortgage Loan;
|
| (qq) |
Each
Mortgage Loan has been serviced in all material respects in compliance
with Customary Servicing
Procedures;
|
| (rr) |
With
respect to each Co-op Loan, the related Mortgage is a valid, enforceable
and subsisting first security interest on the related cooperative
shares
securing the related cooperative note, subject only to (a) liens
of the
cooperative for unpaid assessments representing the Mortgagor’s pro rata
share of the cooperative’s payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees
and other
assessments to which like collateral is commonly subject and (b)
other
matters to which like collateral is commonly subject which do not
materially interfere with the benefits of the security intended to
be
provided by the Security Agreement. There are no liens against or
security
interest in the cooperative shares relating to each Co-op Loan (except
for
unpaid maintenance, assessments and other amounts owed to the related
cooperative which individually or in the aggregate will not have
a
material adverse effect on such Co-op Loan), which have priority
over
Seller’s security interest in such cooperative
shares;
|
| (ss) |
With
respect to each Co-op Loan, a search for filings of financing statements
has been made by a company competent to make the same, which company
is
acceptable to ▇▇▇▇▇▇ Mae and qualified to do business in the jurisdiction
where the cooperative unit is located, and such search has not found
anything which would materially and adversely affect the Co-op
Loan;
|
| (tt) |
With
respect to each Co-op Loan, the related cooperative corporation that
owns
title to the related cooperative apartment building is a “cooperative
housing corporation” within the meaning of Section 216 of the Code, and is
in material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect
on the
Mortgaged Property;
|
| (uu) |
With
respect to each Co-op Loan, there is no prohibition against pledging
the
shares of the cooperative corporation or assigning the Co-op
Lease;
|
| (vv) |
The
Mortgage Loan was originated by a Mortgagee approved by the Secretary
of
HUD pursuant to sections 203 and 211 of the National Housing Act,
a
savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised
and
examined by a federal or state
authority;
|
| (ww) |
With
respect to any ground lease to which a Mortgaged Property may be
subject:
(i) a true, correct and complete copy of the ground lease and all
amendments, modifications and supplements thereto is included in
the
Mortgage File, and the Mortgagor is the owner of a valid and subsisting
leasehold interest under such ground lease; (ii) such ground lease
is in
full force and effect, unmodified and not supplemented by any writing
or
otherwise except as contained in the Mortgage File; (iii) all rent,
additional rent and other charges reserved therein have been fully
paid to
the extent payable as of the Closing Date; (iv) the Mortgagor enjoys
the
quiet and peaceful possession of the leasehold estate, subject to
any
sublease; (v) the Mortgagor is not in default under any of the terms
of
such ground lease, and there are no circumstances which, with the
passage
of time or the giving of notice, or both, would result in a default
under
such ground lease; (vi) the lessor under such ground lease is not
in
default under any of the terms or provisions of such ground lease
on the
part of the lessor to be observed or performed; (vii) the lessor
under
such ground lease has satisfied any repair or construction obligations
due
as of the Closing Date pursuant to the terms of such ground lease;
(viii)
the execution, delivery and performance of the Mortgage do not require
the
consent (other than those consents which have been obtained and are
in
full force and effect) under, and will not contravene any provision
of or
cause a default under, such ground lease; (ix) the ground lease term
exceeds, or is automatically renewable, for at least five years beyond
the
maturity date of the related Mortgage Loan; and (x) the Purchaser
has the
right to cure defaults on the ground
lease;
|
| (xx) |
With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all broker fees have been properly assessed to the borrower
and no
claims will arise as to broker fees that are double charged and for
which
the borrower would be entitled to
reimbursement;
|
| (yy) |
With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the Purchaser certifying that the original Mortgage Note has been
lost
or destroyed and not been replaced, if such Mortgage Loan is subsequently
in default, the enforcement of such Mortgage Loan will not be materially
adversely affected by the absence of the original Mortgage
Note;
|
| (zz) |
There
is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or
regulation is an issue. There is no violation of any environmental
law,
rule or regulation with respect to the Mortgaged Property; and Seller
has
not received any notice of any environmental hazard on the Mortgaged
Property and nothing further remains to be done to satisfy in full
all
requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said
property;
|
| (aaa) |
With
respect to any Mortgage Loan which is a Texas Home Equity Loan, any
and
all requirements of Section 50, Article XVI of the Texas Constitution
applicable to Texas Home Equity Loans which were in effect at the
time of
the origination of the Mortgage Loan have been complied
with;
|
| (bbb) |
No
Mortgage Loan is secured by real property or secured by a manufactured
home located in the state of Georgia unless (x) such Mortgage Loan
was
originated prior to October 1, 2002 or after March 6, 2003, or (y)
the
property securing the Mortgage Loan is not, nor will be, occupied
by the
Mortgagor as the Mortgagor’s principal dwelling. No Mortgage Loan is a
“High Cost Home Loan” as defined in the Georgia Fair Lending Act, as
amended (the “Georgia Act”). Each Mortgage Loan that is a “Home Loan”
under the Georgia Act complies with all applicable provisions of
the
Georgia Act. No Mortgage Loan secured by owner occupied real property
or
an owner occupied manufactured home located in the State of Georgia
was
originated (or modified) on or after October 1, 2002 through and
including
March 6, 2003;
|
| (ccc) |
No
Mortgage Loan is a “High Cost Loan” or “Covered Loan”, as applicable, as
such terms are defined in Appendix E of the then-current Standard
&
Poor’s Levelsâ
Glossary;
|
| (ddd) |
No
Mortgage Loan is a Convertible Mortgage Loan;
|
| (eee) |
For
each Mortgage Loan, the servicer has fully furnished, in accordance
with
the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (i.e.
favorable and unfavorable) on its borrowers’ credit files to Equifax,
Experian and Trans Union Credit Information Company (three of the
credit
repositories) on a monthly basis;
|
| (fff) |
With
respect to each MOM Loan, a MIN has been assigned by MERS and such
MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment
of Mortgage to MERS has been duly and properly recorded, or has been
delivered for recording to the applicable recording
office;
|
| (ggg) |
With
respect to each MOM Loan, Seller has not received any notice of liens
or
legal actions with respect to such Mortgage Loan and no such notices
have
been electronically posted by MERS;
|
| (hhh) |
No
Mortgage or Mortgage Note in connection with any Mortgage Loan originated
on or after August 1, 2004 requires the Mortgagor to submit to arbitration
to resolve any dispute arising out of or relating in any ay to the
Mortgage Loan; and
|
| (iii) |
[reserved]
|
| (jjj) |
Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for purchase requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac;
and
|
| (kkk) |
With
respect to each Buydown Mortgage
Loan:
|
| (i) |
On
or before the date of origination of such Mortgage Loan, the Seller
and
the Mortgagor, or the Seller, the Mortgagor and the seller of the
Mortgaged Property or a third party entered into a Buydown Agreement.
The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Seller temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments that,
when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due on
such
Mortgage Loan. The Buydown Period shall not exceed thirty-six months
and
increases shall take place in 12 month intervals. The total annual
increase may not exceed 1%
|
| (ii) |
The
Mortgage and Mortgage Note reflect the permanent payment terms rather
than
the payment terms of the Buydown Agreement. The Buydown Agreement
provides
for the payment by the Mortgagor of the full amount of the Monthly
Payment
on any Due Date that the Buydown Funds are not available. The Buydown
Funds were not used to reduce the original principal balance of the
Mortgage Loan or to increase the Appraised Value of the Mortgaged
Property
when calculating the Loan-to-Value Ratios for purposes of this Agreement
and, if the Buydown Funds were provided by the Seller and if required
under the Underwriting Standards, the terms of the Buydown Agreement
were
disclosed to the appraiser of the Mortgaged Property;
and
|
| (iii) |
As
of the date of origination of the Mortgage Loan, the provisions of
the
related Buydown Agreement complied with the requirements of the Seller
as
set forth in the Underwriting Standards regarding buydown
agreements.
|
Section
6.02. Representations
and Warranties Regarding Seller.
Seller
hereby represents and warrants to Purchaser as of each applicable Closing
Date:
| (a) |
Seller
is duly organized, validly existing and in good standing under the
laws of
Delaware and is and will remain in compliance with the laws of each
state
in which any Mortgaged Property is located to the extent necessary
to
ensure the enforceability of each Mortgage Loan and the servicing
of the
Mortgage Loan in accordance with the terms of this
Agreement;
|
| (b) |
Seller
has power and authority to execute and deliver this Agreement and
to
perform in accordance herewith; the execution, delivery and performance
of
this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement), the related Commitment Letter and the
related
Term Sheet by Seller and the consummation of the transactions contemplated
hereby have been duly and validly authorized; Seller has duly executed
and
delivered this Agreement, and any agreements contemplated hereby;
this
Agreement and any agreements contemplated hereby, and each Assignment
of
Mortgage evidence the valid, binding and enforceable obligation of
Seller,
subject to applicable law; and all requisite corporate action has
been
taken by Seller to make this Agreement valid and binding upon Seller
in
accordance with its terms;
|
| (c) |
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
Seller of, or compliance by Seller with, this Agreement, the related
Commitment Letter, the related Term Sheet or any agreements contemplated
herein or therein 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 applicable Closing
Date;
|
| (d) |
The
consummation of the transactions contemplated by this Agreement,
the
related Commitment Letter and the related Term Sheet are in the ordinary
course of business of Seller and will not result in the breach of
any term
or provision of the charter or by-laws of Seller or result in the
breach
of any term or provi-sion of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any
agreement, indenture or loan or credit agreement or other instrument
to
which Seller or its property is subject, or result in the violation
of any
law, rule, regulation, order, judgment or decree to which Seller
or its
property is subject;
|
| (e) |
The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgage
Loans by Seller pursuant to this Agreement and the related Term Sheet
are
not subject to the bulk transfer or any similar statutory provi-sions
in
effect in any applic-able
jurisdiction;
|
| (f) |
There
is no action, suit, proceeding or investigation pending or, to the
best
knowledge of Seller, threatened against Seller which, either individually
or in the aggregate, would result in any material adverse change
in the
business, operations, financial condition, properties or assets of
Seller,
or in any material impairment of the right or ability of Seller to
carry
on its business substantially as now conducted or which would draw
into
question the validity of this Agreement or the Mortgage Loans or
of any
action taken or to be taken in connection with the obligations of
Seller
contemplated herein, or which would materially impair the ability
of
Seller to perform under or the validity or enforceability of the
terms of
this Agreement;
|
| (g) |
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;
|
| (h) |
No
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;
|
| (i) |
Seller
used no adverse selection procedures in selecting the Mortgage Loans
from
among the mortgage loans in the Seller’s portfolio at the Closing Date as
to which the representations and warranties set forth in Section
6.01
could be made;
|
| (j) |
Seller
is solvent and the sale of the Mortgage Loans will not cause Seller
to
become insolvent. The sale of the Mortgage Loans is not undertaken
to
hinder, delay or defraud any of Seller’s
creditors;
|
| (k) |
Seller
has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of
2001
(collectively, the “Anti-Money
Laundering Laws”);
|
Section
6.03. Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Sections 6.01 and 6.02 shall survive delivery of the Mortgage Loans to Purchaser
and shall inure to the benefit of Purchaser, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination of any Mortgage File.
Upon
discovery by either Seller or Purchaser of a breach of any of the foregoing
representations and warranties which materially and adversely affects the value
of the Mortgage Loans or the interest of Purchaser (or which materially and
adversely affects the interest of Purchaser in the related Mortgage Loan in
the
case of a repre-sentation and warranty relating to a particular Mortgage Loan),
the party discovering such breach shall give prompt written notice to the
others. Any breach of representation and warranty 6.01 (ff), (ee), (nn), (pp),
(bbb), (eee), and (hhh) shall be deemed to materially and adversely affect
the
value of a Mortgage Loan. With respect to the representations and warranties
which are made to the best of the Seller’s knowledge, if it is discovered by
Seller or Purchaser that the substance of such representation and warranty
is
inaccurate and such inaccuracy materially and adversely affects the value of
the
related Mortgage Loan or the interests of Purchaser therein, notwithstanding
such Seller’s lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty and the Seller shall repurchase or
substitute for such Mortgage Loan, and shall indemnify the Purchaser in
connection therewith.
Within
sixty (60) days of the earlier of either discovery by it or notice to it of
any
such breach, Seller shall use its best efforts to promptly cure such breach
in
all material respects and, if such breach cannot be cured during such sixty
(60)
day period, Seller shall, at Purchaser's option, repurchase such Mortgage Loan
at the Repurchase Price. In the event that any such breach shall involve any
representation or warranty set forth in Section 6.02, and such breach cannot
be
cured within sixty (60) days of the earlier of either discovery by or notice
to
Seller of such breach, all the Mortgage Loans shall, at Purchaser's option,
be
repurchased by Seller at the Repurchase Price. Any repurchase of a Mortgage
Loan
or Loans pursuant to the foregoing provisions of this Section 6.03 shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price (after deducting therefrom any amounts received in respect of such
repurchased Mortgage Loan or Loans and being held in the Custodial Account
for
future distribution). Notwithstanding the foregoing, Seller may, at its option
and assuming that Seller has a Qualified Substitute Mortgage Loan, rather than
repurchase any Mortgage Loan as a result of a breach of a representation or
warranty set forth in Section 6.01 as provided above, remove such Mortgage
Loan
and substitute in its place a Qualified Substitute Mortgage Loan or Loans,
provided, however, that any such substitution shall be effected not later than
one hundred twenty (120) days after the related Closing Date. If Seller has
no
Qualified Substitute Mortgage Loan, it shall repurchase the deficient Mortgage
Loan.
If
pursuant to the foregoing provisions Seller repurchases a Mortgage Loan that
is
a MERS Mortgage Loan, Purchaser shall either (a) cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to Seller and shall cause such Mortgage to be removed from
registration on the MERS® System in accordance with MERS’ rules and regulations
or (b) cause MERS to designate on the MERS® System Seller as the beneficial
holder of such Mortgage Loan.
As
to any
Deleted Mortgage Loan for which Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, Seller shall effect such substitution by delivering
to
Purchaser for such Qualified Substitute Mortgage Loan or Loans the Mortgage
Note, the Mortgage, the Assignment of Mortgage and such other documents and
agreements as are required by Section 5.03, with the Mortgage Note endorsed
as
required by Section 5.03. Seller shall deposit in the Custodial Account the
Monthly Payment less the Servicing Fee due on such Qualified Substitute Mortgage
Loan or Loans in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of
substitution will be retained by Seller. For the month of substitution,
distributions to Purchaser will include the Monthly Payment due on such Deleted
Mortgage Loan in the month of substitution, and Seller shall thereafter be
entitled to retain all amounts subsequently received by Seller in respect of
such Deleted Mortgage Loan. Seller shall give written notice to Purchaser that
such substitution has taken place and shall amend the related Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms
of
this Agreement and the substitu-tion of the Qualified Substitute Mortgage Loan.
Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall
be subject to the terms of this Agreement in all respects, and Seller shall
be
deemed to have made with respect to such Qualified Substitute Mortgage Loan
or
Loans, as of the date of substitu-tion, the covenants, representations and
warranties set forth in Sections 6.01 and 6.02.
For
any
month in which Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, Seller will determine the amount
(if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Seller in the month of
substitution pursuant to Section 11.01. Accordingly, on the date of such
substitution, Seller will deposit from its own funds into the Custodial Account
an amount equal to the amount of such shortfall.
In
addition to such cure, repurchase and substitution obligation, Seller shall
indemnify Purchaser and hold it harmless against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
Seller's representations and warranties contained in this Article VI. It is
understood and agreed that the obligations of Seller set forth in this Section
6.03 to cure or repurchase a defective Mortgage Loan and to indemnify Purchaser
as provided in this Section 6.03 constitute the sole remedies of Purchaser
respecting a breach of the foregoing representations and
warranties.
Within
five (5) Business Days of the repurchase of a Mortgage Loan or substitution
of a
Qualified Substitute Mortgage Loan for a Deleted Mortgage Loan by Seller,
Purchaser agrees to return, such repurchased or Deleted Mortgaged Loan to
Seller, together with the related Mortgage File and all the documents included
therein.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 6.01 or 6.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Seller by the Purchaser for compliance with the relevant
provisions of this Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, Purchaser may, in connection
with
any substitution of a Deleted Mortgage Loan pursuant to this Section 6.03,
require that the Seller deliver, at Seller’s expense, an Opinion of Counsel to
the effect that such repurchase or substitution will not (i) result in the
imposition of taxes on “prohibited transactions” of such REMIC (as defined in
Section 860F of the Code) or otherwise subject the REMIC to tax, or (ii) cause
the REMIC to fail to qualify as a REMIC at any time.
Section
6.04 Repurchase
of Mortgage Loans With Early Payment Defaults.
In
the event that (i) the first due date for a Mortgage Loan is subsequent to
the
Cut-off Date and the initial monthly payment is not made by the last day of
the
month in which such payment was due, or (ii) the first monthly payment due
following the Cut-off Date on any Mortgage Loan is not made by the last day
of
the month in which such payment was due,
Seller, at Purchaser’s option, shall promptly repurchase such Mortgage Loan from
Purchaser within thirty (30) days’ receipt of written notice from Purchaser, in
accordance with the procedures set forth in Section 6.03 hereof, however, any
such repurchase shall be made at the Repurchase Price.
Section
6.05 Purchase Price Protection
Unless
as otherwise set forth in the related Commitment Letter, with respect to any
Mortgage Loan that prepays in full during the first month period from and after
the applicable Closing Date, Seller shall reimburse Purchaser the amount (if
any) by which the Purchase Price paid by Purchaser to Seller exceeded 100%
of
the Stated Principal Balance of the Mortgage Loan as of the date of such
prepayment in full, within thirty days of such payoff.
ARTICLE
VII
CLOSING
Section
7.01. Closing.
The
closing for each purchase and sale of the Mortgage Loans shall take place on
the
applicable Closing Date. The closing shall, at Purchaser's option, be either
by
telephone, confirmed by letter or wire as the parties shall agree or conducted
in person, at such place as the parties shall agree.
Each
closing shall be subject to each of the following conditions:
| (a) |
All
of the representations and warranties of Seller under this Agreement
shall
be true and correct as of the applicable Closing Date, and no event
shall
have occurred which, with notice or the passage of time, or both,
would
constitute a default under this
Agreement;
|
| (b) |
Purchaser
and Seller shall have received, or Purchaser’s attorneys or Seller's
attorneys shall have received in escrow, all Closing Documents as
specified in Section 8.01 of this Agreement, in such forms as are
agreed
upon and acceptable to Purchaser and Seller, duly executed by all
signatories as required pursuant to the respective terms
thereof;
|
| (c) |
Seller
shall have delivered and released to Purchaser or its designee all
documents required to be so delivered hereunder;
|
| (d) |
At
least one (1) Business Day prior to the applicable Closing Date,
the
Seller shall deliver to the Purchaser a magnetic diskette, or transmit
by
modem or e-mail, a listing on a loan-level basis of the information
contained in the related final Mortgage Loan Schedule;
and
|
| (e) |
All
other terms and conditions of this Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, Purchaser shall pay to Seller on the related
Closing Date the Purchase Price, plus accrued interest pursuant to Section
4.01
of this Agreement, by wire transfer of immediately available funds to the
account designated by Seller.
ARTICLE
VIII
CLOSING
DOCUMENTS
Section
8.01. Closing
Documents.
The
Closing Documents for the initial closing shall consist of the
following:
| (a) |
This
Agreement, in two (2) counterparts;
|
| (b) |
The
Mortgage Loan Schedule, one copy to be attached to the related Term
Sheet;
|
| (c) |
The
related Commitment Letter, in two (2) counterparts;
and
|
| (d) |
The
related Term Sheet, in two (2)
counterparts.
|
The
Closing Documents for each additional closing shall consist of the
following:
| (a) |
The
Commitment Letter, in two (2) counterparts;
|
| (b) |
The
related Mortgage Loan Schedule, one copy to be attached to the related
Term Sheet; and
|
| (c) |
The
Term Sheet, in two (2)
counterparts.
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ARTICLE
IX
COSTS
Section
9.01. Costs.
Each
party shall bear its own costs and expenses. Purchaser will pay any commissions
due its salesmen, the legal fees and expenses of its attorneys and all expenses
relating to any review of the Mortgage Loans performed by Purchaser. All other
costs and expenses incurred in connection with the transfer and delivery of
the
Mortgage Loans, including recording fees and Seller's attorneys' fees, shall
be
paid by Seller.
ARTICLE
X
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
10.01. Seller
to Act as Servicer.
Seller
shall service and administer the Mortgage Loans in accordance with this
Agreement and Customary Servicing Procedures and shall have full power and
authority, acting alone or through Subservicers as provided in Section 10.02,
to
do or cause to be done any and all things in connection with such servicing
and
administration which Seller may deem necessary or desirable and consistent
with
the terms of this Agreement and with Customary Servicing Procedures. Seller
may
perform its servicing responsibilities through agents or independent
contractors, but shall not thereby be released from any of its responsibilities
hereunder, and Seller shall diligently pursue all of its rights against such
agents or independent contractors. The Seller shall service and administer
the
Mortgage Loans through the exercise of the same care that it customarily employs
for its own account. Except as set forth in this Agreement, the Seller shall
service the Mortgage Loans in strict compliance with the servicing provisions
of
the ▇▇▇▇▇▇ ▇▇▇ Guides (special servicing option). In the event of any conflict,
inconsistency or discrepancy between any of the servicing provisions of this
Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ Mae Guides, the
provisions of this Agreement shall control and be binding upon the Purchaser
and
the Seller.
Consistent
with the terms of this Agreement, Seller may waive, modify or vary any term
of
any Mortgage Loan or consent to the postponement of strict compliance with
any
such term or in any manner grant indulgence to any Mortgagor; provided, however,
that the Seller shall not permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate or the Monthly Payment amount,
defer or forgive the payment of any principal or interest, change the
outstanding principal balance (except for actual payments of principal), make
any future advances or extend the final maturity date on such Mortgage Loan.
Without limiting the generality of the fore-going, Seller in its own name or
in
the name of a Subservicer is hereby authorized and empowered by Purchaser when
Seller believes it appropriate and reasonable in its best judgment, to prepare,
execute and deliver, on behalf of itself and Purchaser, all instruments of
satisfaction or cancella-tion, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loans and the
Mort-gaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of Purchaser
pursuant to the provisions of Section 10.17. Seller shall make all required
Servicing Advances and shall service and administer the Mortgage Loans in
accor-dance with applicable state and ▇▇▇▇▇-al law and shall provide to the
Mortgagors any reports required to be provided to them thereby. Purchaser shall
furnish to Seller and any Subservicer any powers of attorney and other
docu-ments reasonably necessary or appropri-ate to enable Seller and any
Subservicer to carry out their servicing and administra-tive duties under this
Agreement.
Section
10.02. Subservicing
Agreements Between Seller and Subservicers.
Seller
may enter into Subservicing Agreements with Subservicers for the servicing
and
administration of the Mortgage Loans provided each Subservicer is a ▇▇▇▇▇▇
▇▇▇
or ▇▇▇▇▇▇▇ Mac approved servicer in good standing. Each Subservicing Agreement
must impose on the Subservicer requirements conforming
to the
provi-sions set forth in Section 10.06. Subject to Section 16.01, Seller and
the
Subservicers may make amend-ments to the Subservicing Agreements or enter into
different forms of Subservicing Agree-ments; pro-vided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agree-ment, and that no such amendment or different form
shall be made or entered into which could be reasonably expected to be
mate-rially adverse to the interests of Purchaser, without the consent of
Purchaser. Any variation from the provisions set forth in Section 10.06 relating
to insur-ance or priority requirements of Subservicing Accounts, or credits
and
charges to the Subservicing Accounts or the timing and amount of remittances
by
the Subservicers to Seller, are conclusively deemed to be inconsistent with
this
Agreement and therefore prohibited. Seller shall pay all fees and expenses
of
Subservicer from its own funds (provided that any such expenditures that would
constitute Servicing Advances if made by Seller hereunder shall be reimbursable
to Seller as Servicing Advances), and Subservicer’s fee shall not exceed the
Servicing Fee.
As
part
of its servicing activities hereunder, Seller, for the benefit of Purchaser,
shall enforce the obligations of each Subservicer under the related Subservicing
Agreement, including, without limitation, any obligation to make advances in
respect of delinquent payments as required by a Subservicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as Seller, in its good ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ judgment, would require were it
the
owner of the related Mortgage Loans. Seller shall pay the costs of such
enforce-ment at its own expense, but shall be reimbursed therefor only (i)
from
a general recovery resulting from such enforcement only to the extent, if any,
that such recovery exceeds all amounts due hereunder in respect of the related
Mortgage Loans or (ii) from a specific recovery of costs, expenses or attorneys'
fees against the party against whom such enforcement is directed.
Section
10.03. Successor
Subservicers.
At
the
cost and expense of Seller and without any right of reimbursement from the
Custodial Account, the Seller shall be entitled to terminate any Subservicing
Agreement and the rights, responsibilities and obligations of any Subservicer
pursuant to any Subservicing Agreement in accor-dance with the terms and
condi-tions of such Subservicing Agree-ment. In the event of termination of
any
Subservicer, all servicing obliga-tions of such Subservicer shall be assumed
simultan-eously by Seller without any act or deed on the part of such
Subservicer or Seller, and Seller either shall service directly the related
▇▇▇▇-▇▇▇▇ Loans or shall enter into a Subservicing Agreement with a successor
Subservicer which qualifies under Section 10.02. If Seller enters into a
Subservicing Agreement with a successor Subservicer, Seller shall use reasonable
efforts to have the successor Subservicer assume liability for the
representations and warranties made by the terminated Subservicer in respect
of
the related Mortgage Loans, and in the event of any such assumption by the
successor Subservicer, Seller may, in the exercise of its business judg-ment,
release the terminated Subservicer from liability for such representations
and
warranties.
Section
10.04. Liability
of Seller.
Notwithstanding
any Subservicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between Seller and a Subservicer or reference to
actions taken through a Subservicer or otherwise, Seller shall remain obligated
and liable to Purchaser for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 10.01 without diminution
of
such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer for any acts
and omissions and to the same extent and under the same terms and conditions
as
if Seller alone were servicing and administering the Mortgage Loans and any
other transactions or services relating to the Mortgage Loans involving the
Subservicer shall be deemed to be between the Subservicer and Seller alone
and
Purchaser shall have no obligations, duties or liabilities with respect to
the
Subservicer including no obligation, duty or liability of Purchaser to pay
Subservicer's fees and expenses except pursuant to an assumption of Seller's
obligations pursuant to Section 16.01. For purposes of this Agreement, Seller
shall be deemed to have received payments on Mortgage Loans when the Subservicer
has received such payments. Seller shall be entitled to enter into any agreement
with a Subservicer for indemnification of Seller by such Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemni-fication. Seller shall pay all fees and expenses of the Subservicer
from
its own funds, the Servicing Fee or other amounts permitted to be retained
by or
reimbursed to Seller hereunder.
Section
10.05. No
Contractual Relationship Between Subservicers and Purchaser.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
and not as Seller shall be deemed to be between the Subservicer and Seller
alone, and Purchaser shall not be deemed a party thereto and shall have no
claims, rights, obliga-tions, duties or liabilities with respect to the
Subservicer except as set forth in Section 16.01.
Section
10.06. Subservicing
Accounts.
In
those
cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more accounts (collectively, the "Subservicing Account"). The
Subservicing Account shall be insured by the FDIC to the limits established
by
such corporation and in no event shall amounts on deposit therein exceed such
limits, and shall be segregated on the books of the Subservicer and relate
only
to the Mortgage Loans subject to this Agreement and other mortgage loans owned
or serviced by Seller. All funds depos-ited in the Subservicing Account shall
be
held for the benefit of Seller. The Subservicer shall deposit in the
Subservicing Account on a daily basis all amounts of the type described in
clauses (a) through (f) of Section 10.09, received by the Subservicer with
respect to the Mortgage Loans. On the date set forth in the related Subservicing
Agreement (the "Subservicer Remittance Date"), the Subservicer will be required
to remit all such amounts to Seller, except, if applicable, any Monthly Payment
received which constitutes a late recovery with respect to which a Subservicer
Advance (as defined below) was previ-ously made; and, if the Subservicing
Agreement so provides, the Subservicer will also be required to remit, with
respect to each Mortgage Loan for which the Monthly Payment due on the
immediately preceding Due Date was delinquent as of the Subservicer Remittance
Date, an amount equal to such Monthly Payment net of the related Subservicing
Fee (a "Subservicer Advance"). The Subservicer may deduct from each remittance,
as provided above, an amount equal to Subservicing Fees to which it is then
entitled to the extent not previously paid to or retained by it. Seller is
not
obligated to require in a Subservicing Agreement that any Subservicer make
Subservicer Advances as described above.
Section
10.07. Realization
Upon Defaulted Mortgage Loans; Liquidation of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan is not paid when the same
becomes due and payable, or in the event the Mortgagor fails to perform any
other covenant or obligation under the Mortgage Loan and such failure continues
beyond any applicable grace period, Seller shall take such action as it shall
deem to be in the best interest of Purchaser. In the event that any payment
due
under any Mortgage Loan remains delinquent for a period of 120 days or more,
Seller shall commence foreclosure proceedings in accordance with its customary
and usual foreclosure procedures, Customary Servicing Procedures and the terms
of any applicable Primary Mortgage Insurance Policy. In such connection, Seller
shall from its own funds make all necessary and proper Servicing Advances
through final disposition but only to the extent that Seller shall determine,
in
its good faith judgment, that the amount of a proposed Servicing Advance is
recoverable. Seller shall be reimbursed for all Servicing Advances in accordance
with this Agreement.
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by Seller, with the consent of the Purchaser
as required pursuant to this Agreement, within three (3) years after becoming
an
REO Property, unless Seller provides to the trustee under such REMIC an opinion
of counsel to the effect that the holding of such REO Property subsequent to
three years after its becoming REO Property, will not result in the imposition
of taxes on “prohibited transactions” as defined in Section 860F of the Code, or
cause the transaction to fail to qualify as a REMIC at any time that
certificates are outstanding. Seller shall manage, conserve, protect and operate
each such REO Property for the certificateholders solely for the purpose of
its
prompt disposition and sale in a manner which does not cause such property
to
fail to qualify as “foreclosure property” within the meaning of Section
860G(a)(8) of the Code, or any “net income from foreclosure property” which is
subject to taxation under the REMIC provisions of the Code. Pursuant to its
efforts to sell such property, Seller shall either itself or through an agent
selected by Seller, protect and conserve such property in the same manner and
to
such an extent as is customary in the locality where such property is located.
Additionally, Seller shall perform the tax withholding and reporting related
to
Sections 1445 and 6050J of the Code.
Section
10.08. Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full and consistent with any constraints imposed by the bankruptcy
of
the Mortgagor, Seller shall proceed diligently, in accordance with this
Agreement, to collect all payments due under each of the Mortgage Loans when
the
same shall become due and payable and shall, to the extent such procedures
shall
be consistent with this Agreement, Customary Servicing Procedures and the terms
and provisions of any Primary Mortgage Insurance Policy, follow such collection
procedures that Seller follows with respect to mortgage loans comparable to
the
Mortgage Loans held for its own account. Further, Seller will 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 any Mortgage, will become due and payable
to
the end that the installments payable by the Mortgagors will be sufficient
to
pay such charges as and when they become due and payable.
Section
10.09. Establishment
of Custodial Account; Deposits in Custodial Account.
Seller
shall segregate and hold all funds collected and received pursuant to each
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts (collectively,
the "Custodial Account"), in the form of time deposit or demand accounts, which
may be interest bearing, titled "CitiMortgage, Inc. in trust for Purchaser
and
various Mortgagors - Fixed and Adjustable Rate Residential Mortgage Loans -
P&I". Such Custodial Account shall be established with Citibank or, at the
option of Seller, with a commercial bank, a savings bank or a savings and loan
association which meets the guidelines set forth by FNMA and FHLMC as an
eligible depository institution for custodial accounts. The creation of any
Custodial Account shall be evidenced by (a) a certification in the form of
Exhibit B hereto, in the case of an account estab-lished with Citibank, or
(b) a
letter agree-ment in the form of Exhibit C hereto, in the case of an account
held by a depository other than Citibank. In either case, a copy of such
certification or letter agreement shall be furnished to Purchaser within five
(5) Business Days after the initial Closing Date and a copy to any subsequent
purchaser upon request.
Seller
shall deposit in the Custodial Account on a daily basis, and in any event,
no
later than two (2) Business Days after receipt thereof, and retain therein
the
following payments and collections received or made by it subsequent to the
related Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due on or before the related Cut-off Date):
| (a) |
all
payments on account of principal, including Principal Prepayments,
on the
Mortgage Loans;
|
| (b) |
all
payments on account of interest on the Mortgage Loans adjusted to
the
Mortgage Loan Remittance Rate;
|
| (c) |
all
Monthly Advances required pursuant to Section 11.03
hereof;
|
| (d) |
all
Liquidation Proceeds;
|
| (e) |
all
proceeds received by Seller under any title, hazard, private mortgage
guaranty or other insurance policy other than proceeds to be held
in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Customary
Servicing Procedures;
|
| (f) |
all
Condemnation Proceeds and Insurance Proceeds which are not released
to the
Mortgagor in accordance with Customary Servicing
Procedures;
|
| (g) |
any
amount required to be deposited in the Custodial Account pursuant
to
Sections 10.13 11.01, 11.03 and
12.02;
|
| (h) |
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 6.03, and all amounts required to be deposited
by
Seller in connection with shortfalls in principal amount of Qualified
Substitute Mortgage Loans pursuant to Section 6.03;
and
|
| (i) |
with
respect to each full or partial Principal Prepayment received in
the
calendar month prior to the Remittance Date, any amounts to the extent
that collections of interest at the Mortgage Loan Remittance Rate
are less
than one (1) full month’s interest at the applicable Mortgage Loan
Remittance Rate (“Prepayment Interest Shortfalls”), such Prepayment
Interest Shortfalls will be deposited by Seller to the extent of
its
aggregate Servicing Fees 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 Seller in the Custodial Account. Any interest or
earnings on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of Seller and Seller shall be entitled
to retain and withdraw such interest from the Custodial Account pursuant to
Section 10.10(g).
Section
10.10. Withdrawals
From the Custodial Account.
Seller
shall, from time to time, withdraw funds from the Custodial Account for the
following purposes:
| (a) |
to
make payments to Purchaser in the amounts and in the manner provided
for
in Section 11.01;
|
| (b) |
to
reimburse itself for Monthly Advances, Seller's right to permanently
reimburse itself pursuant to this subclause (b) being limited to
amounts
received on the related Mortgage Loan which represent late payments
net of
the related Servicing Fee of principal and/or interest respecting
which
any such advance was made, it being understood that, in the case
of any
such ▇▇▇▇-bursement, Seller's right thereto shall be prior to the
rights
of Purchaser unless Seller is required to repurchase a Mortgage Loan
pursuant to Section 6.03, in which case Seller's right to such
reimbursement shall be subsequent to the payment to Purchaser of
the
repurchase price pursuant to Section 6.03 and all other amounts required
to be paid to Purchaser with respect to such Mortgage
Loan;
|
| (c) |
to
reimburse itself first
for all unreimbursed Servicing Advances, second
for unreimbursed Monthly Advances, and third
for any unpaid Servicing Fees, Seller's right to reimburse itself
pursuant
to this subclause (c) with respect to any Mortgage Loan being limited
to
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
and such other amounts as may be collected by Seller from the Mortgagor
or
otherwise relating to the Mortgage Loan, it being understood that,
in the
case of any such ▇▇▇▇-bursement, Seller's right thereto shall be
prior to
the rights of Purchaser unless Seller is required to repurchase a
Mortgage
Loan pursuant to Section 6.03, in which case Seller's right to such
reimbursement shall be subsequent to the payment to Purchaser of
the
repurchase price pursuant to Section 6.03 and all other amounts required
to be paid to Purchaser with respect to such Mortgage
Loan;
|
| (d) |
to
reimburse itself for all unreimbursed Servicing Advances, Monthly
Advances
and unpaid Servicing Fees to the extent that such amounts are deemed
nonrecoverable by Seller pursuant to the terms of this Agreement,
provided
that the Mortgage Loan for which such advances were made is not required
to be repurchased by Seller pursuant to Section 6.03, and to reimburse
itself for such amounts to the extent that such amounts are not recovered
from the disposition of REO Property pursuant to Section 10.17
hereof;
|
| (e) |
to
reimburse itself for subsequent trailing bills related to a previously
disposed of REO Property for which distribution of the related net
Liquidation Proceeds has occurred;
|
| (f) |
to
reimburse itself for expenses incurred by and reimbursable to it
pursuant
to Section 10.13;
|
| (g) |
to
withdraw Service Fees payable for the related Due Period, to the
extent
not otherwise retained pursuant to Section 6.03;
|
| (h) |
to
pay to itself any interest earned on funds deposited in the Custodial
Account to the extent such amount was previously deposited pursuant
to
Section 10.09, such withdrawal to be made monthly not later than
the
Remittance Date following the date of deposit
therein;
|
| (i) |
to
withdraw any amounts inadvertently deposited in the Custodial Account;
|
| (j) |
to
clear and terminate the Custodial Account upon the termination of
this
Agreement; and
|
| (k) |
to
reimburse itself for payments remitted or advances made for which
there
has been a reduction in the amount of interest collectible for such
related prepayment period as a result of the Servicemembers Civil
Relief
Act or any similar state law.
|
On
each
Remittance Date, Seller shall withdraw all funds from the Custodial Account
except for those amounts which, pursuant to Section 11.01(c) and (d), Seller
is
not obligated to remit on such Remittance Date. Seller may use such with-drawn
funds only for the purposes described in this Section 10.10.
Section
10.11. Establishment
of Escrow Account; Deposits in Escrow Account.
Seller
shall segregate and hold or cause any Subservicer to segregate and hold all
funds collected and received pursuant to each Mortgage Loan which constitute
Escrow Payments separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Escrow Accounts (collectively,
the
"Escrow Account"), in the form of time deposit or demand accounts, which may
be
interest bearing. The Escrow Account shall be established with Citibank or,
at
the option of Seller, with a commercial bank, a savings bank or a savings and
loan association . The Escrow Account shall be insured by the FDIC in a manner
which shall provide maximum available insurance thereunder and which may be
drawn on by Seller. The creation of any Escrow Account shall be evidenced by
(a)
a certification in the form of Exhibit F hereto, in the case of an account
estab-lished with Citibank, or (b) a letter agree-ment in the form of Exhibit
G
hereto, in the case of an account held by a depository other than Citibank.
Upon
request, a copy of such certification or letter agreement shall be furnished
to
Purchaser within five (5) Business Days after the initial Closing Date and
a
copy to any subsequent purchaser upon request.
Seller
or
the Subservicer shall deposit in the Escrow Account on a daily basis, and retain
therein: (a) all Escrow Payments collected on account of the Mortgage Loans,
for
the purpose of effecting timely payment of any such items as required under
the
terms of this Agreement, (b) all amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to the restoration or repair
of
any Mortgaged Property and (c) Servicing Advances for Mortgagors whose Escrow
Payments are insufficient to cover escrow disbursements. Seller shall make
withdrawals therefrom only in accordance with Section 10.12 hereof. As part
of
its servicing duties, Seller or the Subservicer shall pay to the Mortgagors
interest on funds in the Escrow Account, to the extent required by
law.
Section
10.12. Withdrawals
From Escrow Account.
Withdrawals
from the Escrow Account shall be made by Seller or the Subservicer only (a)
to
effect timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy pre-miums, fire and hazard insurance premiums or
other
items constituting Escrow Payments for the related Mortgage, (b) to reimburse
Seller for any Servicing Advance made by Seller pursuant to Section 10.13 hereof
with respect to a related Mortgage Loan, but only from amounts received on
the
related Mortgage Loan which represent late payments or collections of Escrow
Payments there-under, (c) to refund to any Mortgagor any funds found to be
in
excess of the amounts required under the terms of the related Mortgage Loan,
(d)
for transfer to the Custodial Account upon default of a Mortgagor or in
accordance with the terms of the related Mortgage Loan and if permitted by
applicable law, (e) for application to restore or repair of the Mortgaged
Property, (f) to pay to the Mortgagor, to the extent required by law, any
interest paid on the funds deposited in the Escrow Account, (g) to pay to itself
any interest earned on funds deposited in the Escrow Account (and not required
to be paid to the Mortgagor), such withdrawal to be made monthly not later
than
the Remittance Date following the date of deposit therein or (h) to clear and
terminate the Escrow Account upon the termina-tion of this
Agreement.
Section
10.13. Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage Insurance
Policies.
With
respect to each Mortgage Loan, Seller or the Subservicer 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 private mortgage guaranty insurance premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by Seller in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage or applicable law. To the extent that a Mortgage
does not provide for Escrow Payments, Seller shall determine that any such
payments are made by the Mortgagor at the time they first become due. Seller
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of each Mortgagor'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.
Section
10.14. Transfer
of Accounts.
Seller
may transfer the Custodial Account or the Escrow Account to a different
depository institution..
Section
10.15. Maintenance
of Hazard Insurance.
Seller
shall cause to be maintained for each Mortgage Loan fire and hazard insurance
with extended coverage as is acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (a) the full insurable value of the
Mortgaged Property or (b) the greater of (i) the outstanding principal balance
owing on the Mortgage Loan and (ii) an amount such that the proceeds of such
insurance shall be sufficient to avoid the application to the Mortgagor or
loss
payee of any coinsurance clause under the policy. If the Mortgaged Property
is
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance
has
been made available) Seller will cause to be maintained a flood insurance policy
meeting the requirements of the current guide-lines of the Federal Insurance
Administration with a Qualified Insurer, in an amount representing coverage
not
less than the least of (a) the out-standing principal balance of the Mortgage
Loan, (b) the full insurable value of the Mortgaged Property, or (c) the maximum
amount of insurance available under the Flood Disaster Protection Act of 1973,
as amended. Seller shall also maintain on property acquired upon foreclos-ure,
or by deed in lieu of fore-closure, of any Mortgage Loan, fire and hazard
insurance with extended coverage in an amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insur-ance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, each as amended, flood insurance in an amount
required above. Any amounts collected by Seller under any such policies (other
than amounts to be depos-ited in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or property acquired in
liquida-tion of the Mortgage Loan, or to be released to the Mortgagor in
accordance with Customary Servicing Procedures) shall be depos-ited in the
Custodial Account, subject to with-drawal pursuant to Section 10.10. It is
understood and agreed that no earthquake or other additional insurance need
be
required by Seller of any Mortgagor or maintained on property acquired in
respect of a Mortgage Loan, other than pursuant to such appli-cable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to Seller and its successors and/or
assigns, and shall provide for at least thirty (30) days prior written notice
of
any cancellation, reduction in amount or material change in coverage to Seller.
Seller shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that Seller shall
not
accept any such insurance policies from insurance companies unless such
companies are Qualified Insurers.
Section
10.16. Fidelity
Bond; Errors and Omissions Insurance.
Seller
shall maintain, at its own expense, a blanket fidelity bond and an errors and
omissions insurance policy, with broad coverage on all officers, employees
or
other persons acting in any capacity requiring such persons to handle funds,
money, documents or papers relating to the Mortgage Loans ("Seller Employees").
Any such fidelity bond and errors and omissions insurance shall protect and
insure Seller against losses, including forgery, theft, embezzlement, fraud,
errors and omissions, failure to maintain any insurance policies required
pursuant to this Agreement, and negligent acts of such Seller Employees. Such
fidelity bond shall also protect and insure Seller against losses in connection
with the release or satis-faction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 10.16 requiring such fidelity bond and errors and omis-sions insurance
shall diminish or relieve Seller from its duties and obligations as set forth
in
this Agreement.
Section
10.17. Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure, by deed
in lieu of foreclosure or other method in full or partial satisfaction of the
related Mortgage, the deed or certificate of sale shall be taken in the name
of
Purchaser, or in the event Purchaser is not authorized or permitted to hold
title to real property in the state where the REO Property is located, or would
be adversely affected under the "doing business" or tax laws of such state
by so
holding title, the deed or certificate of sale shall be taken in the name of
such Person or Persons as shall be consistent with an Opinion of Counsel
obtained by Seller, at expense of Purchaser, from an attorney duly licensed
to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than Purchaser shall acknowledge in writing
that such title is being held as nominee for Purchaser.
Seller
shall manage, conserve, protect and operate each REO Property for Purchaser
solely for the purpose of its prompt disposition and sale. Seller shall either
itself or through an agent selected by Seller, manage, conserve, protect and
operate the REO Property in the same manner that it manages, conserves, protects
and operates other foreclosed property for its own account, and in the same
manner that similar property in the same locality as the REO Property is
managed. Seller shall attempt to sell the same (and may temporarily rent the
same) on such terms and conditions as Seller deems to be in the best interest
of
Purchaser.
With
respect to all REO Property, Seller shall 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 establish and maintain with respect to
all
REO Property an REO Account or Accounts, in the form of a non-interest bearing
demand account, titled "CitiMortgage, Inc. in trust for Purchaser-Fixed and
Adjustable Rate Residential Mortgage Loans as tenants in common" unless an
Opinion of Counsel is obtained by Seller to the effect that the classi-fication
as a grantor trust for federal income tax purposes of the arrangement under
which the Mortgage Loans and the REO Property are held will not be adversely
affected by holding such funds in another manner. Such REO Account shall be
established with Seller or with the prior consent of Purchaser, with a
commercial bank, a mutual savings bank or a savings and loan association. The
creation of the REO Account shall be evidenced by (a) a certifi-cation in the
form shown in Exhibit D hereto, in the case of an account established with
Citibank, or (b) a letter agreement in the form shown in Exhibit E hereto,
in
the case of an account held by a depository other than Citibank. In either
case,
an original of such certification or letter agreement shall be furnished to
Purchaser upon request.
Seller
shall cause to be deposited on a daily basis in the REO Account all revenues
received with respect to the conservation and disposition of the related REO
Property and shall withdraw therefrom funds necessary for the proper opera-tion,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 10.15 hereof and the fees
of any managing agent acting on behalf of Seller. Seller shall not be entitled
to retain interest paid or other earnings, if any, on funds deposited in such
REO Account. Seller shall make distributions as required on each Remittance
Date
to Purchaser of the net cash flow from the REO Property (which shall equal
the
revenues from such REO Property net of the expenses described above and of
any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
Seller
shall use its best efforts to dispose of the REO Property as soon as possible
and shall sell such REO Property as soon as practicable but in any event within
three (3) years after title has been taken to such REO Property, unless the
Seller determines, and gives an appropriate notice to the Purchaser to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a longer period than three (3) years is permitted under the
foregoing sentence and is necessary to sell any REO Property, the Seller shall
report monthly to the Purchaser as to the progress being made in selling such
REO Property.
The
disposition of REO Property shall be carried out by Seller and shall be made
at
such price, and upon such terms and conditions, as Seller deems to be in the
best interests of Purchaser. Upon the request of Purchaser, and at Purchaser's
expense, Seller shall cause an appraisal of the REO Property to be performed
for
Purchaser. The proceeds of sale of the REO Property shall be promptly deposited
in the REO Account and, as soon as practical there-after, the expenses of such
sale shall be paid, Seller shall reimburse itself for any and all related
unreimbursed Servicing Advances, unpaid Servicing Fees, any and all unreimbursed
advances made and any appraisal performed and the net cash proceeds of such
sale
remaining in the REO Account shall be distributed to Purchaser.
Upon
request, with respect to any REO property, Seller shall furnish to Purchaser
a
statement covering Seller's efforts in connection with the sale of each REO
Prop-erty and any rental of such REO Property incidental to the sale thereof
for
the previous month (together with an operat-ing state-ment). That statement
shall be accompanied by such other infor-mation as Purchaser shall reasonably
request.
Section
10.18. Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that Seller shall obtain and maintain a blanket policy issued by an issuer
acceptable to ▇▇▇▇▇▇ Mae and/or ▇▇▇▇▇▇▇ Mac insuring against hazard losses
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 10.15 and otherwise
complies with all other requirements of Section 10.15, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 10.15, it
being
understood and agreed that such policy may contain a deductible clause, in
which
case 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
10.15, and there shall have been a loss 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 Mortgage Loans, 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, Seller shall cause to be delivered to the Purchaser an insurance
certificate certifying coverage under such policy, and will provide an update
to
such certificate upon request, or upon renewal or material modification of
coverage.
Section
10.19. Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed in lieu of foreclosure, Seller shall submit to
Purchaser a liquidation report with respect to such Mortgaged Property. Seller
shall also provide reports on the status of REO Property containing such
information as the Purchaser may reasonably require.
ARTICLE
XI
PAYMENTS
TO PURCHASER
Section
11.01. Distributions.
On
each
Remittance Date, Seller shall remit by wire transfer of immediately available
funds to the account designated in writing by Purchaser of record on the
preceding Record Date (a) all amounts deposited in the Custodial Account as
of
the close of business on the preceding Determination Date (net of all amounts
subject to withdrawal therefrom pursuant to Section 10.10), plus (b) all
amounts, if any, which Seller is obli-gated to distribute pursuant to Section
11.03, plus (c) any additional interest required to be deposited in the
Custodial Account in connection with such Principal Prepayments in accordance
with Section 10.09(i), minus (d) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subse-quent to the related Due Period,
minus (e) any amounts attributable to Principal Prepayments received after
the
last day of the calendar month preceding the month of the Remittance Date,
which
amounts shall be remitted on the following Remittance Date.
With
respect to any remittance received by Purchaser after the Business Day on which
such payment was due, Seller shall pay to Purchaser interest on any such late
payment at a rate equal to the overnight federal funds effective rate, but
in no
event greater than the maximum amount permitted by applicable law. Such interest
shall be deposited in the Custodial Account and shall be paid by Seller to
Purchaser on the date such late payment is made and shall cover the period
commencing with the Business Day on which such payment was due and ending with
the Business Day on which such payment is made, both inclusive. The payment
by
Seller of any such interest shall not be deemed an extension of time for payment
or a waiver of any Event of Default by Seller.
To
the
extent that the amount of a remittance or distribution to Purchaser made
hereunder is in greater than the amount thereof properly to be remitted pursuant
to the terms of this Agreement, Seller will give prompt written notice thereof
to Purchaser after Seller's discovery thereof, including the amount of such
remittance or distribution that was paid in error. If, by the Remittance Date
immediately following such notice, Purchaser has not reimbursed the Custodial
Account or Seller, as applicable, for the amount of such erroneous remittance
or
distribution (without any liability on the part of Purchaser for interest
thereon), Seller shall be entitled to withhold such amount from the remittance
to be made on such Remittance Date.
Section
11.02. Statements
to Purchaser.
On
or
before the fifth (5th)
Business Day of each month, Seller shall provide the Purchaser an electronically
transmitted file containing the data set forth in Exhibit K.
In
addition, upon request of Purchaser, within sixty (60) days after the end of
each calendar year, Seller will furnish a report to each Person that was a
Purchaser at any time during such calendar year. Such report shall state the
aggregate of amounts (a) remitted on each Remittance Date which is allocable
to
principal and allocable to interest and (b) of servicing compensation received
by Seller as servicer on each Remittance Date for such calendar year or, in
the
event such Person was a Purchaser of record during only a portion of such
calendar year, for the applicable portion of such year. Such obligation of
Seller shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by Seller pursuant to any requirements
of the Code.
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
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, Seller shall provide
Purchaser with such information concerning the Mortgage Loans as is necessary
for such Purchaser to prepare its federal income tax return as Purchaser may
reasonably request from time to time.
Section
11.03. Monthly
Advances by Seller.
On
the
Business Day immediately preceding each Remittance Date, Seller shall deposit
in
the Custodial Account an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the close
of
business on the immediately preceding Determina-tion Date. This deposit may
be
offset by any funds held for a future distribution not due on the current
Remittance Date, but any such funds so used shall be replaced by Seller by
deposit in the Custodial Account on or before the next Remittance Date. Seller's
obligation to make such Monthly Advances as to any Mortgage Loan will continue
through the last Monthly Payment due prior to the payment in full of the
Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date
for the distribution of all other payments or recoveries (including proceeds
under any title, hazard or other insurance policy, or condemnation awards)
with
respect to the Mortgage Loan, or through the Remittance Date prior to the date
the Mortgage Loan is converted to REO Property, provided, however, that such
obligation shall cease if (a) there has been a final disposition of the Mortgage
Loan or (b) if Seller, in its good faith judgment, determines that such advances
would not be recoverable from late payments with respect to such Mortgage Loan
or Liquidation Proceeds or Insurance Proceeds received in connection with the
related Mortgaged Property. The determination by Seller that an advance, if
made, would be nonrecoverable, shall be evidenced by an Officer's Certificate
of
Seller, delivered to Purchaser, which details the reasons for such determination
and contains an appraisal of the value of the Mortgaged Property.
ARTICLE
XII
GENERAL
SERVICING PROCEDURE
Section
12.01. Assumption
Agreements.
Seller
will use its best efforts to enforce any "due-on-sale" provision contained
in
any Mortgage or Mortgage Note to the extent permitted by law, provided that
Seller shall permit such assumption if so required in accordance with the terms
of the Mortgage or the Mortgage Note. When the Mortgaged Property has been
conveyed by the Mortgagor, Seller will, to the extent it has knowledge of such
conveyance, exercise its rights to accelerate the maturity of such Mortgage
Loan
under the "due-on-sale" clause applicable thereto, provided, however, Seller
will not exercise 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 Mortgage Insurance Policy. If Seller reasonably believes
it
is unable under applicable law to enforce such "due-on-sale" clause, Seller
may
enter into an assumption and modifica-tion agree-ment with the person to whom
such property has been con-veyed, or is proposed to be conveyed pursuant to
which such person becomes liable under the Mortgage Note and, to the extent
permitted by applica-ble law, the Mort-gagor remains liable thereon. With
respect to an assumption, the outstanding principal amount, the Monthly Payment
and the Mortgage Interest Rate and any other material terms of the re-lated
Mortgage Note shall not be changed, and the term of the Mortgage Loan will
not
be increased or decreased. If an assumption is allowed pursuant to this Section
12.01, Seller with the prior consent of the issuer of the related Primary
Mortgage Insurance Policy is authorized to enter into a substitution of
liability agreement with Purchaser of the Mortgaged Property pursuant to which
the origi-nal Mortgagor is released from liability and Purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Any fee collected by Seller for entering into any such assumption
agreement will be retained by Seller as additional servicing compensation.
Section
12.02. Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by Seller of a notification
that payment in full will be escrowed in a manner customary for such purposes,
Seller or the Subservicer will obtain the portion of the Mortgage File that
is
in the possession of the Purchaser or Purchaser’s custodian, prepare and process
any required satisfaction or release of the Mortgage and notify Purchaser as
provided in Section 11.02. If such Mortgage Loan is a MERS Mortgage Loan, Seller
is authorized to cause the removal from the registration on the MERS System
of
such Mortgage and to execute and deliver, on behalf of the Purchaser, any and
all instruments of satisfaction or cancellation or of partial or full release.
No expense incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the Custodial Account. Purchaser shall
indemnify Seller for any out-of-pocket expenses that the Seller may sustain
from
Purchaser’s custodian’s failure to deliver such Mortgage File in a timely
manner.
In
the
event Seller grants a satisfaction or release of a ▇▇▇▇-▇▇▇▇ without having
obtained payment in full of the indebtedness secured by the Mortgage or should
Seller otherwise prejudice any right Purchaser may have under the mortgage
instru-ments, Seller, upon written demand of Purchaser, shall remit to Purchaser
the Stated Principal Balance of the related Mortgage Loan by deposit thereof
in
the Custodial Account within one (1) Business Day of receipt of such demand.
Seller shall maintain the Fidelity Bond and errors and omissions insurance
as
provided for in Section 10.16 insuring Seller against any loss it may sustain
with respect to any Mortgage Loan not satisfied in accordance with the
proce-dures set forth herein.
Section
12.03. Servicing
Compensation.
As
compensation for its services hereunder, Seller shall be entitled to retain
from
interest payments on the Mortgage Loans the Servicing Fee, subject to the
Seller’s obligation to make payments to offset Prepayment Interest Shortfalls as
provided in Section 10.09(i) hereof. Additional servicing compensation in the
form of assumption fees and late payment charges shall be retained by Seller
or
any related Subservicer to the extent not required to be deposited in the
Custodial Account. 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
herein.
Section
12.04. Annual
Statement as to Compliance.
Seller
will deliver to Purchaser, on or before March 15th of each year, beginning
March
15, 2006, an Officers’ Certificate stating that (a) a review of the activities
of Seller during the preceding calendar year and its performance under this
Agreement has been made under such officer's supervision, and (b) to the best
of
such officer's knowledge, based on such review, Seller has fulfilled all its
obligations under this Agreement throughout such year, or, if there has been
a
default in the fulfillment of any such obliga-tion, specifying each such default
known to such officer and the nature and status thereof and the action being
taken by Seller to cure such default.
Section
12.05. Annual
Independent Public Accountants' Servicing Report.
On
or
before March 15th of each year, beginning March 15, 2006, Seller at its expense
shall cause a firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
Purchaser to the effect that such firm has examined certain documents and
records, relating to the servicing of mortgage loans during the immediately
preceding fiscal year of Seller and that such firm is of the opinion that,
on
the basis of such examination conducted substantially in compliance with the
Single Audit Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for (a) such exceptions as such firm shall believe to be
immaterial and (b) such other exceptions as shall be set forth in such
statement.
Section
12.06. Purchaser's
Right to Examine Seller Records.
Purchaser
shall have the right, at all reasonable times upon reasonable notice and as
often as reasonably required, to examine and audit any and all of the books,
records or other information of Seller whether held by Seller or by another
on
behalf of Seller, which are relevant to the performance or observance by Seller
of the terms, covenants or condi-tions of this Agreement.
Section
12.07. Seller
Shall Provide Access/Information as Reasonably Required.
Seller
shall provide to Purchaser access to any documentation regarding the Mortgage
Loans which may be required by applicable regulations (the "Regulations").
Such
access shall be afforded without charge, but only upon reasonable request,
during normal business hours and at the offices of Seller.
In
addition, Seller shall furnish upon request by Purchaser, during the term of
this Agreement, such periodic, special or other reports or information, whether
or not provided for herein, as shall be necessary, reasonable and appropriate
with respect to the purposes of this Agreement and the Regulations. All such
reports or information shall be provided by and in accordance with all
reasonable instructions and direc-tions Purchaser may require. Seller agrees
to
execute and deliver all such instruments and take all such action as Purchaser,
from time to time, may reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
The
Seller shall maintain with respect to each Mortgage Loan and shall make
available for inspection by Purchaser or its designee the related Servicing
File
during the time Purchaser retains ownership of a Mortgage Loan and thereafter
in
accordance with applicable laws and regulations.
ARTICLE
XIII
SELLER
Section
13.01. Indemnification;
Third Party Claims.
In
addition to the indemnification provided in Section 6.03, Seller shall indemnify
and hold harmless Purchaser against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that Purchaser may sustain
in
any way related to the failure of Seller to perform its duties, obligations,
covenants and agreements and service the Mortgage Loans in strict compliance
with the terms of this Agreement. Seller shall immediately notify Purchaser
if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans, and Seller shall assume (with the consent of Purchaser) the defense
of
any such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judg-ment or decree which
may
be entered against Seller or Purchaser in respect of such claim. Seller shall
provide Purchaser with a written report of all expenses and advances incurred
by
Seller pursuant to this Section 13.01 and Purchaser shall promptly ▇▇▇▇-▇▇▇▇▇
Seller for all amounts advanced by it pur-suant to the preceding sentence except
when the claim in any way relates to Seller's failure to service and administer
the Mortgage Loans in strict compliance with the terms of this Agreement.
Notwithstanding
anything to the contrary in this Agreement, in the event that Purchaser or
its
designee becomes record owner of any Mortgaged Property, Seller shall not be
deemed to have failed to perform its obligations hereunder where, when acting
in
accordance with Customary Servicing Procedures, it fails to act in response
to
any notice delivered to the record holder of the Mortgaged Property if (i)
statutory notice was not delivered to Seller and the record holder did not
notify Seller of receipt of such notice, (ii) Seller had no actual knowledge
of
the situation surrounding such notice and (iii) Seller's inaction was due
entirely to Seller's lack of receipt of such notice.
The
provisions of this Section 13.01 shall survive termination of this Agreement
and
transfer of the servicing rights.
Section
13.02. Merger
or Consolidation of Seller.
Seller
will keep in full effect its existence, rights and franchises as a corporation,
and will obtain and preserve its qualification to do business as a foreign
corpora-tion in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement or any
of
the Mortgage Loans and to perform its duties under this Agreement.
Any
Person into which Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Seller shall
be
a party, or any Person succeeding to substantially all of the business of Seller
(whether or not related to loan servic-ing), shall be the successor of 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 con-trary
notwithstanding.
Section
13.03. Limitation
on Liability of Seller and Others.
Seller
and any director, officer, employee or agent of Seller may rely on any document
of any kind which it in good faith reasonably believes to be genuine and to
have
been adopted or signed by the proper authorities respecting any matters arising
hereunder. Subject to the terms of Section 13.01, Seller shall have no
obligation to appear with respect to, prosecute or defend any legal action
which
is not incidental to Seller's duty to service the Mortgage Loans in accord-ance
with this Agreement.
Section
13.04. Seller
Not to Resign.
Seller
shall not assign this Agreement nor resign from the obligations and duties
hereby imposed on it except by mutual consent of Seller and Purchaser or upon
the determination that Seller's duties hereunder are no longer permissible
under
applicable law and such incapacity cannot be cured by Seller. Notwithstanding
the foregoing, Seller shall have the right to assign its rights under this
Agreement to Citigroup, Inc. or any subsidiary of Citigroup, Inc. that meets
the
minimum criteria established under Section 13.02.
ARTICLE
XIV
DEFAULT
Section
14.01. Events
of Default.
In
case
one or more of the following Events of Default by Seller shall occur and be
continuing, that is to say:
| (a) |
any
failure by Seller to remit to Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for
a period
of five (5) Business Days after the date upon which written notice
of such
failure, requiring the same to be remedied, shall have been given
to
Seller by Purchaser; or
|
| (b) |
failure
by Seller to duly observe or perform, in any material respect, any
other
covenants, obligations or agreements of Seller as set forth in this
Agreement, which failure continues unremedied for a period of sixty
(60)
days after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to Seller by 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
Seller and such decree or order shall have remained in force, undischarged
or unstayed for a period of sixty (60) days;
or
|
| (d) |
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 Seller or relating to all or substantially all of Seller's
property; or
|
| (e) |
Seller
shall admit in writing its inability to pay its debts as they become
due,
file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntar-ily suspend payment of its obligations;
or
|
| (f) |
Seller
attempts to assign this Agreement except in compliance with the terms
of
this Agreement; or
|
| (g) |
failure
by Seller to be in compliance with the "doing business" or licensing
laws
of any jurisdiction where a Mortgaged Property is located which materially
and adversely affects the servicing of the Mortgage Loans or the
enforceability or lien priority of the related Mortgage Loan.
|
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, Purchaser, by notice in writing to Seller, may, in addition to
whatever rights Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of Seller under this Agreement and in and to the Mortgage Loans
and
the proceeds thereof without compensating Seller for the same. On and after
the
receipt by Seller of such written notice all authority and power of Seller
under
this Agreement, whether with respect to the Mortgage Loans or otherwise, shall
pass to and be vested in the successor appointed pursuant to Section 16.01.
Upon
written request from Purchaser, Seller shall prepare, execute and deliver to
a
successor any and all documents and other instru-ments, place in such
successor's possession all Mortgage Files and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of such notice
of
termination, including, but not limited to, the transfer and endorsement or
assignment of the Mortgage Loans and related documents to the successor at
Seller's sole expense. Seller agrees to cooperate with Purchaser and such
successor in effecting the termination of Seller's responsibilities and rights
hereunder, including, without limitation, the transfer to such successor for
administration by it of all amounts which shall at the time be credited by
Seller to the Custodial Account or Escrow Account or thereafter received with
respect to the Mortgage Loans or any REO Property.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Section 13.04) of Seller hereunder, either
(i) the successor servicer 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
Mortgage Loans that are registered with MERS, or (ii) the Seller shall
cooperate with the successor servicer either (x) in causing MERS to execute
and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to 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 Mortgage Loan or servicing of such Mortgage Loan on the MERS® System to the
successor servicer or (y) in causing MERS to designate on the MERS® System the
successor servicer as the servicer of such Mortgage Loan.
Section
14.02. Waiver
of Defaults.
Purchaser
may waive only by written notice any default by 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 thereto except to the extent expressly so waived
in
writing.
ARTICLE
XV
TERMINATION
Section
15.01. Termination.
This
Agreement shall terminate upon either: (a) the later of the distribution to
Purchaser of final payment or liquidation with respect to the last Mortgage
Loan
(or advances of same by Seller), or the disposition of all property acquired
upon foreclosure or deed in lieu of foreclosure with respect to the last
Mortgage Loan and the remittance of all funds due hereunder; (b) mutual consent
of Seller and Purchaser in writing; or (c) termination of Seller by Purchaser
for cause hereunder.
ARTICLE
XVI
MISCELLANEOUS
PROVISIONS
Section
16.01. Successor
to Seller.
Prior
to
termination of Seller's responsibilities and duties under this Agreement
pursuant to Sections 13.04, 14.01 or 15.01(b), Purchaser shall (a) succeed
to
and assume all of Seller's responsibilities, rights, duties and obligations
under this Agreement and the Subservicing Agreements, or (b) appoint a successor
which shall succeed to all rights and assume all of the responsi-bilities,
duties and liabilities of Seller under this Agreement and the Subservicing
Agreements prior to the termination of Seller's responsibilities, duties and
liabilities under this Agreement. In connection with such appointment and
assumption, Purchaser may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compen-sation shall be in excess of
that
permitted Seller under this Agreement without the consent of Purchaser. In
the
event that Seller's duties, responsibili-ties and liabilities under this
Agreement shall be terminated pursuant to the afore-mentioned Sections, Seller
shall discharge such duties and responsibilities during the period from the
date
it acquires knowledge of such termin-ation until the effective date thereof
with
the same degree of diligence and prudence which it is obligated to exercise
under this Agreement, and shall take no action whatsoever that might impair
or
prejudice the rights or financial condition of its successor. The resignation
or
removal of Seller pursuant to the aforementioned Sections shall not become
effective until a successor shall be appointed pursuant to this Section and
shall in no event relieve Seller of the representations and warranties made
pursuant to Sections 6.01 and 6.02 and the remedies available to Purchaser
under
Section 6.03, it being understood and agreed that the provisions of such
Sections 6.01, 6.02 and 6.03 shall be applicable to Seller notwithstanding
any
such resignation or termination of Seller, or the termination of this
Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
Seller and to Purchaser an instrument accepting such appointment, whereupon
such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of Seller, with like effect as
if
originally named as a party to this Agreement. Any termination or resignation
of
Seller or this Agreement pursuant to Section 13.04, 14.01 or 15.01 shall not
affect any claims that Purchaser may have against Seller arising prior to any
such termination or resignation.
Seller
shall promptly deliver to the successor the funds in the Custodial Account
and
Escrow Account and all Mortgage Files and related documents and statements
held
by it hereunder and Seller shall account for all funds and shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and definitively vest in the successor all such rights, powers,
duties, respon-sibilities, obligations and liabilities of Seller. The successor
shall make arrangements as it may deem appropriate to reimburse Seller for
unreimbursed Monthly Advances and Servicing Advances and unpaid Servicing Fees
which the successor retains hereunder and which would otherwise have been
recovered by Seller pursuant to this Agreement but for the appointment of the
successor servicer.
Upon
a
successor's acceptance of appointment as such, Seller shall notify by mail
Purchaser of such appointment.
Section
16.02. Amendment.
This
Agreement may be amended from time to time by Seller and Purchaser by written
agreement signed by Seller and Purchaser.
Section
16.03. Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agree-ment is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by Seller at Purchaser’s expense
upon direction of Purchaser, but only when such direction is accompanied by
an
Opinion of Counsel to the effect that such recordation mate-rially and
beneficially affects the interests of Purchaser or is necessary for the
administration or servicing of the Mortgage Loans.
Section
16.04. Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided.
Section
16.05. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to its conflict of law provisions, except to the extent
preempted by Federal law, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section
16.06. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, to (a) in the case of Seller, CitiMortgage,
Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 55, O’▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Capital
Markets, with a copy to Investor Reporting Department, MS 314 or such other
address as may hereafter be furnished to Purchaser in writing by Seller and
(b)
in the case of Purchaser, Citigroup Global Markets Realty Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such other address
as
may hereafter be furnished to Seller in writing by Purchaser.
Section
16.07. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement.
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
inability.
Section
16.08. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of Seller shall be
rendered as an independent contractor and not as agent for
Purchaser.
Section
16.09. Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 13.04, this Agreement shall inure
to
the benefit of and be binding upon Seller, Seller and Purchaser and their
respective successors and assigns.
Section
16.10. Further
Assurances.
Seller
understands that Purchaser may resell the Mortgage Loans as whole loans or
as
part of a securitization in which a third party may act as master servicer.
In
the event that as part of such sale or securitization, additional information
regarding the Mortgage Loans or modification of the reporting requirements
may
be requested, Seller agrees to review such requests by Purchaser’s transferee or
master servicer only if, in Seller’s judgment, fulfilling such requests would
require no material modifications to Seller’s servicing processes or systems and
any and all costs to provide such reports and information shall be borne by
Purchaser.
Section
16.11. Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. This Agreement shall bind and inure to the benefit
of
and be enforceable by Seller and Purchaser and the respective successors and
assigns of Seller and Purchaser.
Section
16.12. Exhibits
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
16.13. No
Solicitation
From
and
after the applicable Closing Date, except as provided below, 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 Seller’s behalf,
to personally, by telephone, by mail, or electronically by e-mail or through
the
internet or otherwise, target 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 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 Purchaser pursuant hereto on the
applicable Closing Date and Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and agreed
that the following promotions undertaken by Seller or any affiliate of Seller
which 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, statement messaging, mass mailing
based on commercially acquired mailing lists, newspaper, radio and television
advertisements shall not constitute solicitation under this Section 16.13.
Section
16.14. Protection
of Mortgagor Personal Information
Seller
and Purchaser agree that it (i) shall comply with any applicable laws and
regulations regarding the privacy and security of a Mortgagor’s personal
information, (ii) shall not use Mortgagor’s personal information in any manner
inconsistent with any applicable laws and regulations regarding the privacy
and
security of such personal information, (iii) shall not disclose a Mortgagor’s
personal information to third parties except at the specific written direction
of the other; provided,
however,
that
Seller and Purchaser may disclose a Mortgagor’s personal information to third
parties in connection with secondary market transactions to the extent not
prohibited by applicable law, (iv) shall maintain adequate physical, technical
and administrative safeguards to protect a Mortgagor’s personal information from
unauthorized access and (v) shall immediately notify the other of any
actual or suspected breach of the confidentiality of a Mortgagor’s personal
information.
Section
16.15. Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to 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
16.16. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
16.17. Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required by law, each party agrees
to
keep all non-public information regarding the other party strictly confidential,
and to use all such information solely in order to effectuate the purpose of
the
Agreement, provided that each party may provide confidential information to
its
employees, agents and affiliates who have a need to know such information in
order to effectuate the transaction, provided further that such information
is
identified as confidential non-public information. In addition, confidential
information may be provided to a regulatory authority with supervisory power
over Purchaser, provided such information is identified as confidential
non-public information.
Section
16.18. Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at
Seller’s expense in the event recordation is either necessary under applicable
law or requested by Purchaser at its sole option. Seller shall be responsible
for the costs of recording Assignments of Mortgage or, with respect to Co-op
Loans, Form UCC-3s for one Purchaser. Any subsequent Purchaser requesting
recordation of Assignments of Mortgage or Forms UCC-3 shall bear the costs
of
recordation.
Section
16.19. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of Seller shall be
rendered as an independent contractor and not as agent for
Purchaser.
Section
16.20. Entire
Agreement.
Each
of
the parties to this Agreement acknowledges that no representations, agreements
or promises were made to any of the other parties to this Agreement or any
of
its employees other than those representations, agreements or promises
specifically contained herein. This Agreement, the related Commitment Letter
and
the related Term Sheet set forth the entire understanding between the parties
hereto and shall be binding upon all successors of all of the parties. In the
event of any inconsistency between a Commitment Letter, a Term Sheet and this
Agreement, the Term Sheet shall control.
IN
WITNESS WHEREOF, Seller and Purchaser have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
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CITIMORTGAGE,
INC.
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|
|
By:
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/s/
[Authorized Agent]
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Name:
|
Authorized
Agent
|
|
Title:
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Authorized
Agent
|
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
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|
|
By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
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Title:
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Authorized
Agent
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EXHIBIT
A
CONTENTS
OF MORTGAGE FILES
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, all of which shall be available for inspection by
Purchaser:
1.
Copies
of
Mortgage Loan Documents.
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2.
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Copy
of survey of the Mortgaged Property (if the title insurance policy
contains a survey exception).
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3.
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Copy
of each instrument necessary to complete identifi-cation of any exception
set forth in the exception schedule in the title policy, e.g., map
or
plat, restrictions, easements, sewer agreements, home asso-ciation
declarations, etc.
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4.
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Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending
or real
estate settlement procedure forms required by
law.
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5.
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Residential
loan application.
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6.
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Verification
of acceptable evidence of source and amount of downpayment, if
applicable.
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7.
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Verification
of employment.
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8.
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Credit
report on the Mortgagor.
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9.
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Residential
appraisal report.
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10.
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Photograph
of the property.
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11.
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Tax
receipts, insurance premium receipts, ledger sheets, payment records,
insurance claim files and correspondence, correspondence, current
and
historical computerized data files, underwriting standards used for
origination and all other papers and records developed or originated
by
Seller or others, required to document the Mortgage Loan or to service
the
Mortgage Loan.
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12.
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Original
of the related primary mortgage guaranty insurance policy, if any,
or a
copy thereof.
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EXHIBIT
B
CUSTODIAL
ACCOUNT CERTIFICATION
________
__,
2005
Citibank
(West), FSB hereby certifies that it has established the account described
below
as a Custodial Account pursuant to Section 11.09 of the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of ___________, 2005, Fixed and
Adjustable Rate Residential Mortgage Loans.
|
Title
of Account:
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"CitiMortgage,
Inc. in trust for Purchaser and various Mortgagors - Fixed and Adjustable
Rate Residential Mortgages Loans - P&I"
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|
Account
Number:
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__________________________
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Address
of office or
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|
branch
of Citibank
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(West),
FSB
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at
which Account is
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maintained:
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__________________________
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__________________________
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Citibank
(West), FSB
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By:
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EXHIBIT
C
CUSTODIAL
ACCOUNT LETTER AGREEMENT
__________
__,
2005
To:
(the
"Depository")
As
"Seller" under the Master Mortgage Loan Purchase and Servicing Agreement, dated
as of dated as of ___________, 2005, Fixed and Adjustable Rate Residential
Mortgage Loans (the "Agreement"), we hereby authorize and request you to
establish an account, as a Custodial Account pursuant to Section 10.09 of the
Agreement, to be designated as “CitiMortgage, Inc., in trust for Purchaser and
various Mortgagors - Fixed and Adjustable Rate Residential Mortgage Loans -
P&I”. All deposits in the account shall be subject to withdrawal therefrom
by order signed by Seller. This letter is submitted to you in duplicate. Please
execute and return one original to us.
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CitiMortgage,
Inc.
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By:
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|
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the depository indi-cated above, and agrees to honor withdrawals on such account
as provided above.
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___________________________
(Name
of Depository)
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|
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By:
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EXHIBIT
D
REO
ACCOUNT CERTIFICATION
(date)
Citibank
(West), FSB hereby certifies that it has established the non-interest bearing
account described below as an REO Account pursuant to Section 10.17 of the
Master Mortgage Loan Purchase and Servicing Agreement, dated as of February
1,
2005, Fixed and Adjustable Rate Residential Mortgage Loans.
|
Title
of Account:
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"CitiMortgage,
Inc. in trust for Purchaser - Fixed and Adjustable Rate Residential
Mortgage Loans, as tenants in common"
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|
Account
Number:
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__________________________
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|
Address
of office or
|
|
|
branch
of Citibank
|
|
|
(West),
FSB
|
|
|
at
which Account is
|
|
|
maintained:
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__________________________
|
|
__________________________
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|
Citibank
(West), FSB
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|
|
By:
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|
EXHIBIT
E
REO
ACCOUNT LETTER AGREEMENT
(date)
To:
(the
"Depository")
As
"Seller" under the Master Mortgage Loan Purchase and Servicing Agreement, dated
as of ___________ 1, 2005, Fixed and Adjustable Rate Residential Mortgage Loans
(the "Agreement"), we hereby authorize and request you to establish a
non-interest bearing account, as an REO Account pursuant to Section 10.17 of
the
Agreement, to be desig-nated as “CitiMortgage, Inc., in trust for Purchaser -
Fixed and Adjustable Rate Residential Mortgage Loans, as tenants in common.” All
deposits in the account shall be subject to withdrawal therefrom by order signed
by Seller. This letter is submitted to you in duplicate. Please execute and
return one original to us.
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CitiMortgage,
Inc.
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|
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By:
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|
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the depository indi-cated above, and agrees to honor withdrawals on such account
as provided above.
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_____________________________
(name
of Depository)
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|
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By:
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|
EXHIBIT
F
ESCROW
ACCOUNT CERTIFICATION
________
__,
2005
Citibank
(West), FSB hereby certifies that it has established the account described
below
as an Escrow Account pursuant to Section 11.11 of the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of___________ 1, 2005, Fixed and
Adjustable Rate Residential Mortgage Loans.
|
Title
of Account:
|
“CitiMortgage,
Inc., in trust for Purchaser and various Mortgagors - Fixed and Adjustable
Rate Residential Mortgage Loans - T&E”
|
|
Account
Number:
|
__________________________
|
|
Address
of office or
|
|
|
branch
of Citibank
|
|
|
(West),
FSB
|
|
|
at
which Account is
|
|
|
maintained:
|
__________________________
|
|
__________________________
|
|
Citibank
(West), FSB
|
|
|
By:
|
|
EXHIBIT
G
ESCROW
ACCOUNT LETTER AGREEMENT
__________
__,
2005
To:
(the
"Depository")
As
"Seller" under the Master Mortgage Loan Purchase and Servicing Agreement, dated
as of ___________ 1, 2005, Fixed and Adjustable Rate Residential Mortgage Loans
(the "Agreement"), we hereby authorize and request you to establish an account,
as an Escrow Account pursuant to Section 10.11 of the Agreement, to be
designated as “CitiMortgage, Inc., in trust for Purchaser and various Mortgagors
- Fixed and Adjustable Rate Residential Mortgage Loans - T&E”. All deposits
in the account shall be subject to withdrawal therefrom by order signed by
Seller. This letter is submitted to you in duplicate. Please execute and return
one original to us.
|
CitiMortgage,
Inc.
|
|
|
By:
|
|
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the depository indi-cated above, and agrees to honor withdrawals on such account
as provided above.
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_____________________________
(name
of Depository)
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|
|
By:
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EXHIBIT
H
FORM
OF TERM SHEET
This
Term
Sheet
(the
“Term Sheet”) is dated ______, 2005, by CitiMortgage, Inc., a Delaware
corporation (the “Seller”) and Citigroup Global Markets Realty Corp., a Delaware
corporation (the “Purchaser”).
This
Term
Sheet is made pursuant to the terms and conditions of the Master Mortgage Loan
Purchase and Servicing Agreement (the “Agreement”), dated as of ___________ 1,
2005, among Seller and the Purchaser, the provisions of which are incorporated
here, as such terms may be modified or supplemented here. All capitalized terms
shall have the meanings ascribed to them in the Agreement, unless otherwise
defined here.
The
Purchaser hereby purchases from Seller and Seller hereby sells to the Purchaser,
all of Seller’s right, title and interest in and to the Mortgage Loans described
on the Mortgage Loan Schedule attached as Schedule I,
in
accordance with the terms of the Agreement, as such terms may be supplemented
or
modified by this Term Sheet.
1. DEFINITIONS
For
purposes of the Mortgage Loans to be sold pursuant to this Term Sheet, the
following terms shall have the following meanings:
Aggregate
Principal Balance
(as
of
the Cut-Off Date): $
Aggregate
Principal Balance by Product Type: $
Closing
Date:
Cut-off
Date:
Initial
Weighted Average
Mortgage
Loan Rate:
Mortgage
Loan Product Type:
Purchase
Price Percentage:
Servicing
Fee:
Buyup/Buydown
Factor:
2. Additional
Closing Conditions:
a.
In
addition to the conditions specified in the Agreement, the obligation of the
Seller and the Purchaser is subject to the fulfillment of the following
additional conditions:
3. Additional
Loan Documents:
a.
In
addition to the contents of the Mortgage File specified in the Agreement, the
following documents shall be delivered with respect to the Mortgage
Loans:
4. [Additional]
[Modification of] Representations and Warranties:
a.
[In
addition to the representations and warranties set forth in the Agreement,
as of
the date hereof, each of the Sellers makes the following additional
representations and warranties with respect to the Mortgage Loans:
TO
WITNESS THIS, the parties have caused their names to be signed by their
respective duly authorized officers as of the date first written
above.
|
______________________________________
By:
_________________________________
Name:
Title:
|
|
|
CITIMORTGAGE,
INC.
a
Delaware corporation
By:
_________________________________
Name:_________________________________
Title:
_________________________________
|
EXHIBIT
I
FORM
OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This
is
an Assignment, Assumption and Recognition Agreement (the “Agreement”) made this
______ day of __________, 2005, among Citigroup Global Markets Realty Corp.(the
"Assignor"), ________________ (the "Assignee") and CitiMortgage, Inc.
("Citicorp").
In
consideration of the mutual promises contained herein the parties hereto agree
that the mortgage loans (the “Mortgage Loans”) listed on Attachment 1 annexed
hereto (the "Mortgage Loan Schedule") now serviced by Citicorp for Assignor
and
its successors and assigns pursuant to the Master Mortgage Loan Purchase and
Servicing Agreement dated as of ___________ 1, 2005, between Assignor and
Citicorp (the “Purchase and Servicing Agreement”) and the additional terms and
provisions set forth on Attachment 3 annexed hereto shall be subject to the
terms of this Agreement. Capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Purchase and Servicing
Agreement.
Assignment
and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title and
interest of Assignor in the Mortgage Loans and, to the extent of the Mortgage
Loans, all of its right, title and interest in, to and under the Purchase and
Servicing Agreement, dated as of ________, 200__.
Simultaneously
with the execution of this Assignment Agreement, on the date hereof, the
Assignee shall pay to the Assignor for each Mortgage Loan the purchase price
as
calculated pursuant to the commitment letter, dated as of _______, 200_ (the
“[Commitment Letter]”), by and between the Assignee and the Assignor. The
Assignee shall pay the purchase price payable under the [Commitment Letter]
by
wire transfer of immediately available funds to the account specified by the
Assignor. The Assignee shall be entitled to (i) all payments and other
recoveries of principal on the Mortgage Loans received after _______, 200_
or
such other date mutually agreeable to the Assignor and the Assignee (the
“Mortgage Loans Cut-off Date”) and (ii) all payments of interest on the Mortgage
Loans at the related Mortgage Loan Remittance Rate.
Warranties
2. Assignor
warrants and represents to, and covenants with, the Assignee as of the date
hereof that:
| (a) |
Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
and
Servicing Agreement which agreement is in full force and effect as
of the
date hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been given
thereunder;
|
| (b) |
Assignor
is the lawful owner of the Mortgage Loans with full right to transfer
the
Mortgage Loans and any and all of its interests, rights and obligations
under the Purchase and Servicing Agreement to the extent of the Mortgage
Loans free and clear from any and all claims and encumbrances whatsoever
and upon the transfer of the Mortgage Loans to Assignee as contemplated
herein, Assignee shall have good title to each and every Mortgage
Loan, as
well as any and all of Assignee’s interests, rights and obligations under
the Purchase and Servicing Agreement to the extent of the Mortgage
Loans,
free and clear of all liens, claims and
encumbrances;
|
| (c) |
There
are no offsets, counterclaims or other defenses available to Citicorp
with
respect to the Mortgage Loans or the Purchase and Servicing
Agreement;
|
| (d) |
Assignor
has no knowledge of, and has not received notice of, any waivers
under, or
any modification of, the Mortgage
Loans;
|
| (e) |
Assignor
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to acquire, own and sell the Mortgage
Loans;
|
| (f) |
Assignor
has full corporate power and authority to execute, deliver and perform
its
obligations under this Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by
this
Agreement is in the ordinary course of Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of Assignor’s charter or by-laws or any legal restriction, or
any material agreement or instrument to which Assignor is now a party
or
by which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which Assignor or its property
is
subject. The execution, delivery and performance by Assignor of this
Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action
on
part of Assignor. This Agreement has been duly executed and delivered
by
Assignor and, upon the due authorization, execution and delivery
by
Assignee, will constitute the valid and legally binding obligation
of
Assignor enforceable against Assignor in accordance with its terms
except
as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding
in equity or at law; and
|
| (g) |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Assignor in connection with the execution, delivery or performance
by Assignor of this Agreement, or the consummation by it of the
transactions contemplated hereby.
|
3. Assignee
warrants and represents to, and covenants with, Assignor and Citicorp that
as of
the date hereof:
(a) The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
(b) Assignee
has full corporate power and authority to execute, deliver and perform its
obligations under this Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Agreement
is
in the ordinary course of Assignee’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of Assignee’s
charter or by-laws or any legal restriction, or any material agreement or
instrument to which Assignee is now a party or by which it is bound, or result
in the violation of any law, rule, regulation, order, judgment or decree to
which Assignee or its property is subject. The execution, delivery and
performance by Assignee of this Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Assignee. This Agreement has been duly executed
and
delivered by Assignee and, upon the due authorization, execution and delivery
by
Assignor, will constitute the valid and legally binding obligation of Assignee
enforceable against Assignee in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at
law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
Assignee in connection with the execution, delivery or performance by Assignee
of this Agreement, or the consummation by it of the transactions contemplated
hereby; and
(d) Assignee
agrees to be bound, as “Purchaser” (as such term is defined under the Purchase
and Servicing Agreement), by all of the terms, covenants and conditions of
the
Purchase and Servicing Agreement and the Mortgage Loans, and from and after
the
date hereof, the Assignee assumes for the benefit of each of Assignor and
Citicorp all of Assignor's obligations as Purchaser thereunder.
4. Citicorp
warrants and represents to, and covenants with, Assignor and the Assignee that
as of the date hereof:
(a) Citicorp
is a corporation duly organized, validly existing and in good standing under
the
laws of the jurisdiction of its formation, and has all requisite power and
authority to service the Mortgage Loans;
(b) Citicorp
has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Agreement is in the
ordinary course of Citicorp’s business and will not conflict with, or result in
a breach of, any of the terms, conditions or provisions of Citicorp’s charter or
by-laws, or any legal restriction, or any material agreement or instrument
to
which Citicorp is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
Citicorp or its property is subject. The execution, delivery and performance
by
Citicorp of this Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
of Citicorp. This Agreement has been duly executed and delivered by Citicorp
and
constitutes the valid and legally binding obligation of Citicorp enforceable
against Citicorp in accordance with its respective terms except as
enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditors’ rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(d) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
Citicorp in connection with the execution, delivery or performance by Citicorp
of this Agreement, or the consummation by it of the transactions contemplated
hereby;
(e) As
of the
date hereof, Citicorp is not in default under the Purchase and Servicing
Agreement; and
(f) Seller
has serviced the Mortgage Loans in accordance with the terms of the Purchase
and
Servicing Agreement,
Recognition
of Assignee
5. From
and
after the date hereof, Citicorp shall recognize Assignee as owner of the
Mortgage Loans and will service the Mortgage Loans in accordance with the
Purchase and Servicing Agreement, as if Assignee and Citicorp had entered into
a
separate purchase and servicing agreement for the servicing of the Mortgage
Loans in the form of the Purchase and Servicing Agreement, the terms of which
are incorporated herein by reference. It is the intention of Assignor, Citicorp
and Assignee that this Agreement will constitute a separate and distinct
servicing agreement, and the entire agreement, between Citicorp and Assignee
to
the extent of the Mortgage Loans and shall be binding upon and for the benefit
of the respective successors and assigns of the parties hereto.
6. The
Mortgage Loans shall be serviced by Citicorp for Assignee in accordance with
all
applicable state, federal and local laws as well as in conformity with the
provisions of the applicable Mortgages and Mortgage Notes, and pursuant to
the
terms and conditions of this Agreement.
Miscellaneous
7. All
demands, notices and communications related to the Mortgage Loans, the Purchase
and Servicing Agreement and this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, as follows:
(a) In
the
case of Seller,
CitiMortgage,
Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 55,
O’▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Capital Markets
with
a
copy to
Investor
Reporting Department, MS 314
(b) In
the
case of Assignee
Attention:____________________________________________
(c) In
the
case of Assignor,
Citigroup
Global Markets Realty Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
7. This
Agreement shall be construed in accordance with the laws of the State of New
York, except to the extent preempted by Federal law, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
8. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
9. This
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which the Assignor, Assignee or Citicorp may
be
merged or consolidated shall, without the requirement for any further writing,
be deemed the Assignor, Assignee or Citicorp, respectively,
hereunder.
10. This
Agreement shall survive the conveyance of the Mortgage Loans, the assignment
of
the Purchase and Servicing Agreement to the extent of the Mortgage Loans by
the
Assignor to the Assignee and the termination of the Purchase and Servicing
Agreement.
11. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.,
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
ASSIGNEE
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
CITIMORTGAGE,
INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
ATTACHMENT
1
MORTGAGE
LOAN SCHEDULE
ATTACHMENT
2
MORTGAGE
LOAN PURCHASE AND SERVICING AGREEMENT
EXHIBIT
J
MORTGAGE
LOAN DOCUMENTS
|
1.
|
The
original Mortgage Note endorsed, "Pay to the order of ,
without recourse" and signed in the name of Seller by an authorized
officer. In the event that the Mortgage Loan was acquired by Seller
in a
merger, the endorsement must be by "[Seller], successor by merger
to [name
of predecessor]"; and in the event that the Mortgage Loan was acquired
or
originated by Seller while doing business under another name, the
endorsement must be by "[Seller], formerly known as [previous
name]".
|
|
2.
|
Except
as provided below and for each Mortgage Loan that is not a MERS Mortgage
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, 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 Mortgage
Loan,
the original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a
MOM Loan
or if the Mortgage 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.
|
|
3.
|
In
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
the
original Assignment, from the Seller in accordance with Purchaser’s
instructions, which assignment shall, but for any blanks requested
by the
Purchaser, be in form and substance acceptable for recording, or
a copy
certified by the Seller as a true and correct copy of the original
Assignment which has been sent for recordation. If the Mortgage Loan
was
acquired or originated by the Seller while doing business under another
name, the Assignment must be by “[Seller] formerly known as [previous
name]”.
|
|
4.
|
With
respect to Mortgage Loans that are not Co-op Loans, the original
policy of
title insurance, or, if the policy has not yet been issued an electronic
copy of the written commitment or interim binder issued by the title
insurance company, dated and certified as of the date the Mortgage
Loan
was funded, with a statement by the title insurance company or closing
attorney on such binder or commit-ment that the priority of the lien
of
the related Mortgage during the period between the date of the funding
of
the related Mortgage Loan and the date of the related title policy
(which
title policy shall be dated the date of recording of the related
Mortgage)
is insured.
|
|
5.
|
Originals,
or certified true copies from the appropriate recording office, of
any
intervening assignments of the ▇▇▇▇-▇▇▇▇ with evidence of recording
thereon, or, if the original intervening assignment has not yet been
returned from the recording office, a certified copy of such
assignment.
|
|
6.
|
With
respect to a Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of such Co-op Lease to the originator of the Mortgage Loan, with
all
intervening assignments showing a complete chain of title and an
assignment thereof by Seller; (ii) the stock certificate together
with an
undated stock power relating to such stock certificate executed in
blank;
(iii) the recognition agreement in substantially the same form as
a
standard “AZTECH” form; (iv) the original Security Agreement entered into
by the Mortgagor with respect to such Co-op Loan; (v) Original assignment
of the proprietary lease in blank showing a complete chain of assignment
from the originator of the related Co-op Loan to Seller (vi) copies
of the
financial statement filed by the originator as secured party and,
if
applicable, a filed UCC-3 Assignment of the subject security interest
showing a complete chain of title, together with an executed UCC-3
Assignment of such security interest by the Seller in a form sufficient
for filing.
|
|
7.
|
Originals
or copies of all assumption and modification agree-ments, if
any.
|
8.
Original
power of attorney, if applicable.
Notwithstanding
anything to the contrary herein, the Seller may provide one certificate for
all
of the Mortgage Loans indicating that the documents were delivered for
recording.
EXHIBIT
K
MONTHLY
REPORT
Seller
shall provide the following information to Purchaser as required by Section
11.02 of the Agreement.
|
Reporting
Method - 80 byte format (similar to FNMA Laser
Format)
|
Scheduled/Scheduled
Portfolios
|
||
|
I.
Header Record
|
|||
|
Element
Name
|
Position
|
Size
|
Description
|
|
Recon
Period
|
1
-
4
|
4
|
Numeric
(MMYY). Pic
9(04)
|
|
II.
Data Record (RECORD TYPE 96)
|
|||
|
Element
Name
|
Position
|
Size
|
Description
|
|
Servicer
Number
|
1
-
9
|
9
|
Servicer
Loan Number. Must be numeric. Pic
9(09)
|
|
Investor
Type
|
10
|
1
|
F-▇▇▇▇▇▇
Mae
|
|
May
be blank or zero. Pic
X(01)
|
|||
|
Record
Type
|
11
- 12
|
2
|
Regular
transaction type code "96".
|
|
Pic
9(02)
|
|||
|
Filler
|
13
|
1
|
Always
0. Pic
X(01)
|
|
Loan
Number
|
14
- 23
|
10
|
Must
be
First Nationwide Master Servicing loan number, right aligned
with a
leading A0"
in the 1st position. No spaces or alpha characters. Numeric
Pic 9(10)
|
|
LPI
Date
|
24-27
|
4
|
MMYY.
Pic9(04)
|
|
|
(Last
Paid Installment Date).
|
||
|
Unpaid
Principal
|
28
- 38
|
11
|
Loan
Actual Principal Balance.
|
|
Balance
|
Numeric.
Pic
S9(09)v99
|
||
|
Interest
|
39
- 49
|
11
|
Scheduled
Net Interest remitted by Mortgagor. (Gross Interest less Service
Fee).
Pic
S9(09)v99
|
|
Principal
|
50
- 60
|
11
|
Scheduled
Principal remitted by Mortgagor. Pic
S9(09)v99
|
|
Action
Code
|
61
- 62
|
2
|
Numeric.
(Zeroes if no action occurred). Pic
9(02)
|
|
Action
Date
|
63
-68
|
6
|
MMDDYY.
Pic
9(06)
|
|
Other
Fees
|
69
- 79
|
11
|
Numeric
as follows: Code $210.25 as
|
|
00000021025.
May be zeroes.
|
|||
|
Pic
9(09)v99
|
|||
|
Filler
|
80
|
1
|
Always
Blank. Pic
X(01)
|
EXHIBIT
L
WHOLE
LOAN/AGENCY/PASS-THROUGH TRANSFER INFORMATION
Purchaser
shall provide to Seller the following information with respect to each Mortgage
Loan that is to be included in a Whole Loan or Pass-Through
Transfer:
CMI
Loan
Number
Investor
Loan Number
Mortgagors
Last Name
P&I
Payment
Pass
thru
Rate
Servicing
Fee
Ending
Scheduled Balance
Unpaid
Principal Balance
Paid
to
Date
Investor
Number
Block
EXHIBIT
M
FORM
OF COMMITMENT LETTER
[name]
[address]
|
RE:
|
Commitment
Letter Outlining Terms of Purchase of $_______ of
_____________
|
Dear
[name]:
_______
(a “Seller” and “Servicer”) hereby agree to sell, and _____ (“Purchaser”) hereby
agrees to purchase, the _____ mortgage loans described on Exhibit A hereto
(the
“Mortgage Loans”) In accordance with the Master Mortgage Loan Purchase and
Servicing Agreement dated ___________ 1, 2005 (the “Agreement”) by and between
Seller and Purchaser. The Mortgage Loans will be sold on a whole loan basis
servicing retained by the Seller. The purchase and sale of the Mortgage Loans
shall be subject to the terms and conditions set forth in this letter (the
“Commitment Letter”).
|
Amount
of
|
|
|
Mortgage
Loans:
|
The
aggregate principal balance of the Mortgage Loans, as of the Cut-off
Date,
will be $________
|
|
Balance
by Product Type:
|
The
aggregate principal balance of the Mortgage Loans, as of the Cut-Off
Date,
will be $____ for (product type), $____ for (product type) and $__
for
product type.
|
|
Purchase
Price
|
The
Purchase Price for each Mortgage Loan listed on the Exhibit A the
Purchase
Price Percentage multiplied by the unpaid principal balance as of
the
Cut-off Date.
|
|
Interest
on Purchase
|
|
|
Price:
|
|
|
Purchase
Price Percentage:
|
______%
|
|
Buyup/Buydown
Factor:
|
_______
|
|
Payment
of Purchase Price:
|
The
Purchase Price shall be paid to the Seller in immediately available
Federal Funds by Wire Transfer on the Closing Date by 3:00 p.m.
EDT.
|
|
Initial
Weighted
Average
|
|
|
Mortgage
Loan Rate:
|
The
initial weighted average Mortgage Loan rate will be
$___.
|
|
Closing
Date:
|
The
date on which the Mortgage Loans will be sold by the Seller to the
Purchaser which shall be _____________ or such other date as mutually
agreed upon by the Seller and the Purchaser.
|
|
Paid-To
Date:
|
________________
|
|
Cut-off
Date:
|
________
or such other date as mutually agreed upon by the Seller and the
Purchaser.
|
|
Servicing
Fee:
|
_____.
|
|
Mortgage
Loans:
|
Each
Mortgage Loan is secured by a first lien on a residential 1-4 family
property located in ____.
|
|
Due
Diligence Review of
|
|
|
Mortgage
Loans:
|
Purchaser
shall have the right to conduct an underwriting review of mortgage
files
relating to the Mortgage Loans to ensure conformity with the Agreement
(as
defined below). Such review (or waiver of review if Purchaser so
chooses)
shall not affect the Seller’s representations and warranties regarding the
Mortgage Loans in the Agreement.
|
|
Cooperation:
|
Purchaser
and Seller shall each cooperate with the other and each shall use
their
best efforts to meet targeted deadlines for a timetable established
by
Seller in connection with the sale of the Mortgage
Loans.
|
Additional
Purchase
Stipulations:
Please
acknowledge your agreement and acceptance of this Commitment Letter on or before
_______ by signing and faxing the executed document to the attention
of:
{Name}
{Address}
{Fax
Number}
|
Very
truly yours,
CitiMortgage,
Inc.
|
This
Commitment Letter is hereby Agreed to and Accepted on __________,
2005:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
EXHIBIT
N
FORM
OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATE
CITIMORTGAGE,
INC
▇▇▇▇▇▇▇▇-▇▇▇▇▇
CERTIFICATION
| 1. |
I
have reviewed the information required to be delivered to the Owner
and
the Master Servicer pursuant to the Agreement (the “Servicing
Information”).
|
| 2. |
Based
on my knowledge, the Servicing Information has been provided to the
Master
Servicer when and as required under the
Agreement.
|
| 3. |
Based
on my knowledge, the Servicing Information does not contain any material
untrue information or omit to state information necessary to make
the
Servicing Information, in light of the circumstances under which
such
information was provided, not misleading as of the date of this
certification;
|
| 4. |
I
am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on
or prior
to the date of this certification either in the accountants’ report
required under the Agreement or in disclosure a copy of which is
attached
hereto, the Servicer has, as of the date of this certification, fulfilled
its obligations under the
Agreement.
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[SELLER]
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By:
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Name:
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Title:
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Date:
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