MASTER MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
between
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
PURCHASER
and
CENTRE CAPITAL GROUP, INC.,
SELLER
CONVENTIONAL, FIXED AND ADJUSTABLE RATE, RESIDENTIAL MORTGAGE LOANS
Dated as of February 18, 2000
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................1
SECTION 2. CONVEYANCE FROM SELLER TO PURCHASER..............................8
SECTION 3. PURCHASE PRICE..................................................11
SECTION 4. SERVICING OF THE MORTGAGE LOANS.................................12
SECTION 5. TRANSFER OF SERVICING...........................................12
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER............15
SECTION 7. REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL
MORTGAGE LOANS..................................................17
SECTION 8. REMEDIES FOR BREACH OF REPRESENTATIONS AND WARRANTIES;
ADDITIONAL REPURCHASE OBLIGATIONS...............................26
SECTION 9. CLOSING.........................................................28
SECTION 10. CLOSING DOCUMENTS...............................................28
SECTION 11. COOPERATION OF SELLER WITH A RECONSTITUTION.....................30
SECTION 12. GUARANTY........................................................31
SECTION 13. MERGER OR CONSOLIDATION OF THE SELLER...........................31
SECTION 14. COSTS...........................................................32
SECTION 15. PROTECTION OF CONFIDENTIAL INFORMATION..........................32
SECTION 16. NOTICES.........................................................32
SECTION 17. SEVERABILITY CLAUSE.............................................32
SECTION 18. COUNTERPARTS....................................................33
SECTION 19. PLACE OF DELIVERY AND GOVERNING LAW.............................33
SECTION 20. FURTHER AGREEMENTS..............................................33
SECTION 21. INTENTION OF THE PARTIES........................................33
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SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT........34
SECTION 23. WAIVERS; OTHER AGREEMENTS.......................................34
SECTION 24. EXHIBITS........................................................34
SECTION 25. GENERAL INTERPRETIVE PRINCIPLES.................................34
SECTION 26. REPRODUCTION OF DOCUMENTS.......................................35
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE..........................35
SECTION 28. NO PERSONAL SOLICITATION........................................35
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EXHIBITS
EXHIBIT A-1 CONTENTS OF EACH MORTGAGE LOAN SCHEDULE
EXHIBIT A-2 MORTGAGE LOAN SCHEDULE
EXHIBIT B CONTENTS OF EACH MORTGAGE FILE
EXHIBIT C INTERIM SERVICING AGREEMENT
EXHIBIT D FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT E FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E-1 FORM OF OPINION OF COUNSEL TO THE AGGREGATOR TO BE RELIED
UPON BY PURCHASER
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H CUSTODIAL AGREEMENT
EXHIBIT I SELLER'S UNDERWRITING GUIDELINES
EXHIBIT J SERVICING AGREEMENT
EXHIBIT K ASSIGNMENT AND CONVEYANCE
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MASTER MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This is a Master Mortgage Loan Purchase and Warranties Agreement
(the "Agreement"), dated as of February 18, 2000, by and between ▇▇▇▇▇▇ Capital,
A Division of ▇▇▇▇▇▇ Brothers Holdings Inc., having an office at Three World
Financial Center, Eighth Floor, New York, NY 10285 (the "Purchaser") and Centre
Capital Group, Inc., having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Seller").
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller certain
conventional adjustable and fixed rate residential first lien mortgage loans
(the "Mortgage Loans") on either a servicing released or a servicing retained
basis as described herein, and which shall be delivered as whole loans;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first lien on a residential dwelling
located in the jurisdiction indicated on the Mortgage Loan Schedule, which is
annexed hereto as Exhibit A; and
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance and control of the Mortgage Loans.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. DEFINITIONS.
The following terms are defined as follows (except as otherwise
agreed in writing by the parties):
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Aggregator: Each entity which has sold Mortgage Loans to the Seller
and has entered into an agreement to service such Mortgage Loans under the
related Interim Servicing Agreement or Servicing Agreement, as applicable.
Agreement: This Master Mortgage Loan Purchase and Warranties
Agreement and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Approved Flood Policy Insurer: Any of the following insurers: Flood
Data Services, Inc., Flood Zone, Inc., GEOTrac, or Transamerica Flood Hazard
Certification.
Approved Tax Service Contract Provider: Any of the following
providers: First American and Transamerica.
ARM Mortgage Loan: A Mortgage Loan pursuant to which the interest
rate shall be adjusted from time to time in accordance with the related Mortgage
Note.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
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 and savings and loan institutions in the State of New York
are authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase and the Seller from time to time shall sell, the Mortgage
Loans listed on the related Mortgage Loan Schedule.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate trust account created and maintained
pursuant to the related Interim Servicing Agreement or related Servicing
Agreement, as applicable.
Custodial Agreement: That certain Custodial Agreement, by and
between the Purchaser and Norwest Bank Minnesota, National Association, dated as
of March 1, 1996, as amended from time to time, attached hereto as Exhibit H.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement, as therein provided.
Cut-off Date: The first day of the month in which the related
Closing Date occurs.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased [or
substituted with a Qualified Substitute Mortgage Loan] by the Seller in
accordance with the terms of this Agreement.
Determination Date: The fifteenth (15th) day of the calendar month
of the related Remittance Date (or if such day is not a Business Day, the
Business Day immediately preceding such day).
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Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace. With respect to the Mortgage
Loans for which payment from the Mortgagor is due on a day other than the first
day of the month, such Mortgage Loans will be treated as if the Monthly Payment
is due on the first day of the month following the actual Due Date.
Escrow Account: The separate account created and maintained pursuant
to Section 2.05 of the related Interim Servicing Agreement (if entered into by
the Seller and the Purchaser) or Section 3.06 of the related Servicing
Agreement.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, or any successor thereto.
Gross Margin: With respect to each ARM Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note which is added to the
Index to determine the Mortgage Interest Rate for ARM Mortgage Loans.
Index: With respect to each ARM Mortgage Loan, the index as set
forth on the related Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each ARM Mortgage
Loan, the date on which an adjustment to the Mortgage Interest Rate becomes
effective.
Interim Servicing Agreement: With respect to each Mortgage Loan
Package of Servicing Released Mortgage Loans, the agreement by and between the
Seller and the related Servicer, substantially in the form attached hereto as
Exhibit C hereto, providing for the Servicer to service the Mortgage Loans for
an interim period as specified by the Interim Servicing Agreement. On the
related Closing Date for each Mortgage Loan Package of Servicing Released
Mortgage Loans, the Seller shall assign all of its rights and interests under
the related Interim Servicing Agreement to the Purchaser.
Lifetime Rate Cap: With respect to each ARM Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum Mortgage
Interest Rate thereunder.
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Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio of the outstanding principal amount of the Mortgage Loan as of the related
Cut-off Date (unless otherwise indicated) to the lesser of (a) the Appraised
Value of the Mortgaged Property and (b) if the Mortgage Loan was made to finance
the acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property, expressed as a percentage.
LPMI Loan: A Mortgage Loan with a LPMI Policy.
LPMI Policy: A policy of primary mortgage guaranty insurance issued
by United Guaranty Corporation or another Qualified Insurer pursuant to which
the related premium is to be paid by the Servicer of the related Mortgage Loan
from payments of interest made by the Mortgagor in an amount as is set forth in
the related Trade Confirmation Letter and Mortgage Loan Schedule.
LPMI Fee: With respect to each LPMI Loan, the portion of the
Mortgage Interest Rate as set forth on the related Mortgage Loan Schedule (which
shall be payable solely from the interest portion of Monthly Payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds), which, during such
period prior to the required cancellation of the LPMI Policy, shall be used to
pay the premium due on the related LPMI Policy.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
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, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds,
Servicing Rights (with respect to Servicing Released Mortgage Loans) and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan.
Mortgage Loan Documents: The documents contained in the Mortgage
File pertaining to each Mortgage Loan.
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Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the Mortgage Interest Rate minus the (i) Servicing Fee Rate, and (ii) with
respect to LPMI Loans, the LPMI Fee.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A-2, such schedule setting forth the information as set forth in
Exhibit A-1 hereto, with respect to each Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of
a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the
debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Seller, reasonably acceptable to the Purchaser.
Originator: The originator of the related Mortgage Loan.
Pass-Through Transfer: As defined in Section 11 hereof.
Periodic Rate Cap: With respect to each ARM Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase on an Interest Rate
Adjustment Date above the Mortgage Interest Rate previously in effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by United Guaranty Corporation or other AAA rated primary mortgage guaranty
insurer which meets all the requirements set forth in this agreement, in each
case, acceptable to the Purchaser in its sole discretion.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the related Mortgage Loan Package as
calculated in Section 3 of this Agreement.
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Purchase Price and Terms Letter: That certain letter agreement
setting forth the general terms and conditions of the transactions hereunder, by
and between the Seller and the Purchaser.
Purchaser: ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings
Inc., or its successor in interest or assigns or any successor to the
Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation 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 Title XI of
the Federal Institutions Reform, Recovery and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Insurer: An insurer acceptable to the Purchaser in its
sole discretion.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) be of the same type as the Deleted Mortgage Loan
(e.g. fixed rate Mortgage Loan vs. ARM Mortgage Loan); (iii) have a Mortgage
Interest Rate not less than and not more than 2% greater than the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iv) have a remaining term to
maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (v) with respect to ARM Mortgage Loans, have a Gross
Margin not less than that of the Deleted Mortgage Loan; (vi) with respect to ARM
Mortgage Loans, have a Lifetime Rate Cap not less than that of the Deleted
Mortgage Loan; (vii) with respect to ARM Mortgage Loans, have a Periodic Rate
Cap not less than that of the Deleted Mortgage Loan; (viii) with respect to ARM
Mortgage Loans, have the same Index as the Deleted Mortgage Loan; (ix) with
respect to ARM Mortgage Loans, have the same Mortgage Interest Rate adjustment
frequency as the Deleted Mortgage Loan and (x) comply with each representation
and warranty set forth in Section 6 and 7.
Remittance Date: The remittance date shall be: (a) with respect to
each Servicing Released Mortgage Loan, the 10th day of each calendar month (or
if such 10th day is not a Business Day, the first Business Day immediately
following such 10th day) or (b) with respect to each Servicing Retained Mortgage
Loan, the 18th day of each calendar month (or if such 18th day is not a Business
Day, the first Business Day immediately following such 18th day).
REO Disposition Proceeds: All amounts received with respect to an
REO disposition.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance
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at (a) with respect to Servicing Released Mortgage Loans, the Mortgage Interest
Rate and (b) with respect to Servicing Retained Mortgage Loans, the Mortgage
Loan Remittance Rate, in each case from the date on which interest has last been
paid and distributed to the Purchaser to the date of repurchase, less amounts
received, if any, plus amounts advanced, if any, by any servicer, in respect of
such repurchased Mortgage Loan.
Seller: Centre Capital Group, Inc. or its successor in interest or
assigns or any successor to the Seller under this Agreement as herein provided.
Servicer: With respect to each Mortgage Loan Package, the related
servicer pursuant to the related Interim Servicing Agreement or related
Servicing Agreement, as applicable.
Servicing Agreement: With respect to each Mortgage Loan Package of
Servicing Retained Mortgage Loans, the agreement, substantially in the form
attached hereto as Exhibit J, to be entered into by the Seller and the related
Servicer, providing for the Servicer to service the Mortgage Loans as specified
by the Servicing Agreement. On the related Closing Date for each Mortgage Loan
Package of Servicing Retained Mortgage Loans, the Seller shall assign the
related Servicing Agreement to the Purchaser.
Servicing Fee Rate: With respect to (a) each Servicing Released
Mortgage Loan, $8 per Mortgage Loan per month, and (b) each Servicing Retained
Mortgage Loan, a rate equal to 0.25% per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the related Servicer consisting of originals of all documents in the
Mortgage File, which are not delivered to the Purchaser or the Purchaser's
designee, and copies of the Mortgage Loan Documents listed on Exhibit B hereto.
Servicing Released Mortgage Loans: Mortgage Loans with respect to
which the Seller is selling the Servicing Rights to the Purchaser. Servicing
Released Mortgage Loans shall be serviced by the related Servicer pursuant to
the related Interim Servicing Agreement until the related Transfer Date.
Servicing Retained Mortgage Loans: Mortgage Loans with respect to
which the Seller is not selling the Servicing Rights to the Purchaser. Servicing
Released Mortgage Loans shall be serviced by the related Servicer pursuant to
the related Servicing Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Servicer for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Servicer with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
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computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage Loans.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal received on or before such date, minus (ii) all
amounts previously distributed to the Purchaser with respect to the related
Mortgage Loan representing payments or recoveries of principal or advances in
lieu thereof.
Trade Confirmation Letter: With respect to each purchase of a
Mortgage Loan Package hereunder, that certain letter agreement setting forth the
general terms and conditions of such transaction and identifying the Mortgage
Loans to be purchased thereunder, by and between the Seller and the Purchaser.
Transfer Date: The date on which the Purchaser, or its designee,
shall receive the transfer of servicing responsibilities and begin to perform
the servicing of the Servicing Released Mortgage Loans, and the related Servicer
shall cease all servicing responsibilities. Such Transfer Date shall occur on a
date designated by the Purchaser but no later than 30 calendar days following
the related Closing Date, unless otherwise stated in the related Trade
Confirmation Letter.
Whole Loan Transfer: As defined in Section 11 hereof.
The parties intend hereby to set forth the terms and conditions upon
which the proposed transactions will be effected, and, in consideration of the
premises and the mutual agreements set forth herein, agree as follows:
SECTION 2. CONVEYANCE FROM SELLER TO PURCHASER.
(a) Conveyance of Mortgage Loans; Possession
of Mortgage Files.
The Seller does hereby agree to sell, transfer, assign, set over and
convey, from time to time, to the Purchaser, without recourse, but subject to
the terms of this Agreement, (i) all rights, title and interest of the Seller in
and to the Mortgage Loans in the related Mortgage Loan Package, (ii) with
respect to Servicing Released Mortgage Loans, the Servicing Rights with respect
to such Mortgage Loans and (iii) the Mortgage Files and all rights and
obligations arising under the documents contained therein for each Mortgage Loan
in the related Mortgage Loan Package. Pursuant to Section 2(c) hereof, the
Seller has delivered the Mortgage File for each Mortgage Loan in the related
Mortgage Loan Package to the Purchaser. The contents of each Servicing File
required to be retained by the related Servicer to service the Mortgage Loans
pursuant to the related Interim Servicing Agreement (with respect to Servicing
Released Mortgage Loans) or the related Servicing Agreement (with respect to
Servicing Retained Mortgage Loans) and thus not delivered to the Purchaser are
and shall be held in trust by the related Servicer for the benefit of Purchaser
as the owner thereof. The related Servicer's possession of any portion of the
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to the related
Interim Servicing Agreement or the related Servicing Agreement, as applicable,
and such retention and possession
8
by the related Servicer shall be in a custodial capacity only. The ownership of
each Mortgage Note, Mortgage, and the contents of the Mortgage File and
Servicing File is vested in the Purchaser and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or which come
into the possession of the Seller or related Servicer shall immediately vest in
the Purchaser and shall be retained and maintained, in trust, by the Seller or
the related Servicer at the will of the Purchaser in such custodial capacity
only. The Servicing File retained by the related Servicer pursuant to the
related Interim Servicing Agreement or the related Servicing Agreement, as
applicable, shall be segregated from the other books and records of the related
Servicer and shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loan to the Purchaser. The related Servicer shall release from
its custody the contents of any Servicing File retained by it only in accordance
with the related Interim Servicing Agreement or the related Servicing Agreement,
as applicable, except when such release is required in connection with a
repurchase of any such Mortgage Loan pursuant to Section 8.
(b) Books and Records.
Record title to each Mortgage and the related Mortgage Note as of
the applicable Closing Date shall be either (i) with respect to Servicing
Released Mortgage Loans, in the name of the Purchaser or as Purchaser shall
designate and (ii) with respect to Servicing Retained Mortgage Loans, in the
name of the related Servicer in trust for the benefit of the Purchaser or one or
more designees of the Purchaser, as the Purchaser shall designate, for the sole
purpose of facilitating the servicing and the supervision of the servicing of
the Mortgage Loans. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller or the related Servicer after
the related Cut-off Date on or in connection with a Mortgage Loan shall be
vested in the Purchaser; provided, however, that all funds received on or in
connection with a Mortgage Loan shall be received and held by the Seller or
related Servicer in trust for the benefit of the Purchaser as the owner of the
Mortgage Loans pursuant to the terms of the related Interim Servicing Agreement
or the related Servicing Agreement, as applicable.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
(c) Delivery of Mortgage Loan Documents.
On or prior to the related Closing Date, the Seller shall deliver to
the Purchaser, or its designee, each of the following documents for each
Mortgage Loan in the related Mortgage Loan Package:
(i) The original Mortgage Note endorsed, "Pay to the order of
________________, without recourse" and signed in the name of the
[Originator ]by an authorized officer. In the event that the Mortgage Loan
was acquired by the [Originator] in a merger, the endorsement must be by
"[Originator], successor by merger to [name of predecessor]"; and in the
event that the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the endorsement must be by
"[Originator], formerly known as [previous name]";
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(ii) Original recorded Mortgage, with evidence of recording
information thereon except for any Mortgage which has been forwarded to
the appropriate recorder's office for recordation and which has not been
returned by such recording officer, in which case the Seller shall deliver
and release to Purchaser a certified true copy of any such Mortgage so
certified by the Seller with evidence of such Mortgage's delivery to the
appropriate recorder's office. In addition, the Seller shall deliver and
release to the Purchaser the original recorded Mortgage within 180 days
after the related Closing Date;
(iii) Original Assignment of Mortgage, in blank, which assignment
shall be in form and substance acceptable for recording but not recorded.
In the event that the Mortgage Loan was acquired by the [Originator] in a
merger, the assignment must be by "[Originator], successor by merger to
[name of predecessor]"; and in the event that the Mortgage Loan was
acquired or originated by the Seller while doing business under another
name, the assignment must be by "[Originator], formerly known as [previous
name]";
(iv) Original policy of title insurance, except for those Mortgage
Loans originated within 180 days before the related Closing Date, for
which Mortgage Loans the Seller shall have delivered and released to the
Purchaser the related binders. In addition, the Seller shall deliver to
the Purchaser the original policy of title insurance within 180 days after
the related Closing Date. The policy must be properly endorsed, any
necessary notices of transfer must be forwarded and any other action
required to be taken must be taken in order to fully protect, under the
terms of the policy and applicable law, Purchaser's interest as first
mortgagee;
(v) Original of all assumption, extensions and modification
agreements;
(vi) The original policy of primary mortgage guaranty insurance, or
where such insurance is provided by a master policy, a certified true copy
of the master policy and the original certificate of insurance;
(vii) Original recorded intermediate assignments of the Mortgage,
including warehousing assignments, if any; and
(viii) The contents of the Mortgage File for each Mortgage Loan, not
expressly stated herein, and as set forth in Exhibit B hereto, except such
documents retained by the Seller pursuant to Section 2(a) herein.
The Mortgage Loan Documents listed in (i) - (vii) of this subsection
2(c) shall be delivered to the Purchaser or its designee, notwithstanding the
assignment of the related Interim Servicing Agreement and/or the related
Servicing Agreement by the Seller to the Purchaser.
Pursuant to the Custodial Agreement delivered to the Purchaser
contemporaneously with the delivery of this Agreement, the Seller has delivered
and released to the Custodian those Mortgage Loan Documents listed in (i) -
(vii) of this subsection 2(c) and as required by the Custodial Agreement with
respect to each Mortgage Loan a list of which is set forth in the Custodial
Agreement.
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The Custodian has certified its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement, as
evidenced by the Initial Certification of the Custodian in the form annexed to
the Custodial Agreement. The Seller shall be responsible for, as and when due,
(i) any and all initial document review fees, (ii) initial and final
certification fees and recertification fees, and (iii) any costs associated with
correcting any deficiencies identified in connection with such review(s). The
related Servicer shall be responsible for, as and when due, (x) any and all
annual and warehousing fees of the Custodian, (y) any and all termination fees
in the event the Custodian is terminated by the related Servicer, and (z) any
and all fees due in connection with the deposit or retrieval of a Mortgage Loan
document or documents.
The Seller shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with the related Interim Servicing
Agreement or the related Servicing Agreement, as applicable, within two weeks of
their execution, provided, however, that the Seller shall provide the Custodian
with a certified true copy of any such document submitted for recordation within
one week of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within 180 days of its submission for recordation.
SECTION 3. PURCHASE PRICE.
(a) The Purchase Price shall be the percentage of
par as stated in the related Trade Confirmation Letter,
multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans listed on the
related Mortgage Loan Schedule, after application of payments
of principal received on or before the related Cut-off Date.
The initial principal amount of the Mortgage Loans shall be
the aggregate principal balance of the Mortgage Loans, so
computed as of the related Cut-off Date.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on each Closing Date, accrued interest on the initial
principal amount of the related Mortgage Loans at (i) with respect to Servicing
Released Mortgage Loans, the weighted average Mortgage Interest Rate and (ii)
with respect to the Servicing Retained Mortgage Loans, the weighted average
Mortgage Loan Remittance Rate, from the date interest was last received on
the Mortgage Loan through the day prior to the related Closing Date, inclusive.
(b) The Purchase Price shall be paid on the
related Closing Date by wire transfer of immediately available
federal funds.
(c) The Purchaser shall be entitled to (1) (A)
with respect to the Servicing Released Mortgage Loans, all
principal received after the related Cut-off Date, and (B)
with respect to the Servicing Retained Mortgage Loans, all
principal due after the related Cut-off Date,
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(2) all other recoveries of late charges, assumption fees or
other charges collected after the related Cut-off Date, and
(3) all payments of interest on the Mortgage Loans at the
Mortgage Interest Rate (less the related Servicing Fee
Rate and any LPMI Fee, if applicable). The principal balance
of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal received
on or before the related Cut-off Date. All payments of
principal and interest (minus interest at the servicing fee
rate, pursuant to the related Interim Servicing Agreement or
the related Servicing Agreement, as applicable) due on the
first day of the month after the related Cut-off Date shall
belong to the Purchaser.
SECTION 4. SERVICING OF THE MORTGAGE LOANS.
(a) Servicing Released Mortgage Loans. The Servicing Released
Mortgage Loans are being sold by the Seller to the Purchaser on a servicing
released basis. Subject to, and upon the terms and conditions of this Agreement
and the related Interim Servicing Agreement, the Seller does hereby agree to
sell, transfer, assign and deliver to the Purchaser on the related Closing Date,
the Servicing Rights with respect to each Servicing Released Mortgage Loan in
the related Mortgage Loan Package.
With respect to each Servicing Released Mortgage Loan sold to the
Purchaser in a Mortgage Loan Package, on the related Closing Date the Seller
shall assign to the Purchaser the related Interim Servicing Agreement, pursuant
to which the related Servicer shall act as the contract servicer of the related
Mortgage Loans for an interim period pursuant to and in accordance with the
terms and conditions contained in the related Interim Servicing Agreement.
Pursuant to the related Interim Servicing Agreement, the related
Servicer shall begin servicing the related Mortgage Loans on behalf of the
Purchaser and shall be entitled to all servicing fees due the Servicer as set
forth in the Interim Servicing Agreement. The rights of the Purchaser to receive
payments with respect to the related Mortgage Loans shall be as set forth in the
Interim Servicing Agreement. The Servicer shall conduct such servicing in
accordance with the terms of the Interim Servicing Agreement.
(b) Servicing Retained Mortgage Loans. The Servicing Retained
Mortgage Loans are being sold by the Seller to the Purchaser on a servicing
retained basis. With respect to each Servicing Retained Mortgage Loan sold to
the Purchaser in a Mortgage Loan Package, on the related Closing Date the Seller
shall assign to the Purchaser the related Servicing Agreement, pursuant to which
the related Servicer shall service such Mortgage Loan subject to the terms of
the Servicing Agreement. The rights of the Purchaser to receive payments with
respect to the related Mortgage Loans shall be as set forth in the Servicing
Agreement. The Servicer shall conduct such servicing in accordance with the
terms of the Servicing Agreement.
(c) Servicing Prior to Related Closing Date. With respect to any
Mortgage Loan, the Seller and/or related Servicer shall be responsible for
errors or omissions with respect to servicing of the Mortgage Loans prior to the
related Closing Date.
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SECTION 5. TRANSFER OF SERVICING.
With respect to each Servicing Released Mortgage Loan, on the
related Transfer Date, the Purchaser, or its designee, shall assume all
servicing responsibilities related to, and the related Servicer shall cease all
servicing responsibilities related to, such Servicing Released Mortgage Loans.
The related Transfer Date shall be the date set forth in Section 6.03 of the
related Interim Servicing Agreement.
On or prior to the related Transfer Date the Seller shall, at its
sole cost and expense, cause the related Servicer to take such steps as may be
necessary or appropriate to effectuate and evidence the transfer of the
servicing of the Servicing Released Mortgage Loans to the Purchaser, or its
designee, including but not limited to the following:
(a) Notice to Mortgagors. The Servicer shall mail
to the Mortgagor of each Mortgage a letter advising the
Mortgagor of the transfer of the servicing of the related
Servicing Released Mortgage Loan to Purchaser or its designee,
in accordance with the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ National Affordable
Housing Act of 1990, as the same may be amended from time to
time, and the regulations provided in accordance with the Real
Estate Settlement Procedures Act; provided, however, the
content and format of the letter shall have the prior approval
of Purchaser. The Servicer shall provide Purchaser with copies
of all such notices no later than the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance
Companies. The Servicer shall transmit to the applicable tax
services, taxing authorities and insurance companies
(including primary mortgage insurance policy insurers and
flood insurance insurers, if applicable) and/or agents,
notification of the transfer of the servicing to the
Purchaser, or its designee, and instructions to deliver all
notices, tax bills and insurance statements, as the case may
be, to the Purchaser, or its designee, from and after the
related Transfer Date. The Servicer shall provide the
Purchaser with copies of all such notices no later than the
related Transfer Date.
(c) Delivery of Servicing Records. The Servicer
shall forward to the Purchaser, or its designee, all servicing
records and the Servicing File in the Servicer's possession
relating to each Servicing Released Mortgage Loan including
the information enumerated in the related Interim Servicing
Agreement.
(d) Escrow Payments. The Servicer shall provide
the Purchaser, or its designee, with immediately available
funds by wire transfer in the amount of the net Escrow
Payments and suspense balances and all loss draft balances
associated with the Servicing Released Mortgage Loans. The
Servicer shall provide the Purchaser with an accounting
statement of Escrow Payments and suspense balances and loss
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draft balances sufficient to enable the Purchaser to reconcile
the amount of such payment with the accounts of the Servicing
Released Mortgage Loans. Additionally, the Servicer shall wire
transfer to the Purchaser the amount of any agency, trustee or
prepaid Servicing Released Mortgage Loan payments and all
other similar amounts held by the Servicer.
(e) Payoffs and Assumptions. The Servicer shall
provide to the Purchaser, or its designee, copies of all
assumption and payoff statements generated by the Servicer on
the Servicing Released Mortgage Loans from the applicable
Cut-off Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer
Date. Prior to the related Transfer Date all payments received
by the Servicer on each Servicing Released Mortgage Loan shall
be properly applied by the Servicer to the account of the
particular Mortgagor.
(g) Mortgage Payments Received After Transfer
Date. The amount of any Monthly Payments received by the
Servicer shall be forwarded to the Purchaser by (i) with
respect to Monthly Payments received on or prior to 30 days
after the related Transfer Date, overnight mail on the date of
receipt and (ii) with respect to Monthly Payments received
after 30 days from the related Transfer Date, regular mail on
the date of receipt. The Servicer shall notify the Purchaser
of the particulars of the payment, which notification
requirement shall be satisfied if the Servicer forwards with
its payment sufficient information to permit appropriate
processing of the payment by the Purchaser. The Servicer shall
assume full responsibility for the necessary and appropriate
legal application of Monthly Payments received by the Servicer
after the related Transfer Date with respect to Servicing
Released Mortgage Loans then in foreclosure or bankruptcy;
provided, for purposes of this Agreement, necessary and
appropriate legal application of such Monthly Payments shall
include, but not be limited to, endorsement of a Monthly
Payment to the Purchaser with the particulars of the payment
such as the account number, dollar amount, date received and
any special Mortgagor application instructions.
(h) Misapplied Payments. Misapplied payments
shall be processed as follows:
(i) All parties shall cooperate in correcting misapplication
errors;
(ii) The party receiving notice of a misapplied payment occurring
prior to the related Transfer Date and discovered after the related
Transfer Date shall immediately notify the other party;
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(iii) If a misapplied payment which occurred prior to the related
Transfer Date cannot be identified and said misapplied payment has
resulted in a shortage in a Custodial Account or Escrow Account, the
Servicer shall be liable for the amount of such shortage. The Servicer
shall reimburse the Purchaser for the amount of such shortage within
thirty (30) days after receipt of written demand therefor from the
Purchaser;
(iv) If a misapplied payment which occurred prior to the related
Transfer Date has created an improper Purchase Price as the result of an
inaccurate outstanding principal balance, a check shall be issued to the
party shorted by the improper payment application within five (5) Business
Days after notice thereof by the other party;
(v) Any check issued under the provisions of this Section 5(h) shall
be accompanied by a statement indicating the corresponding Servicer and/or
the Purchaser Servicing Released Mortgage Loan identification number and
an explanation of the allocation of any such payments.
(i) Books and Records. On the related Transfer
Date, the books, records and accounts of the Servicer with
respect to the Servicing Released Mortgage Loans shall be in
accordance with all applicable Purchaser requirements.
(j) Reconciliation. The Servicer shall, on or
before the related Transfer Date, reconcile principal balances
and make any monetary adjustments required by the Purchaser.
Any such monetary adjustments will be transferred between the
Servicer and the Purchaser as appropriate.
(k) IRS Forms. The Servicer shall prepare and file
all IRS forms 1098, 1099 and other applicable forms and
reports which are required to be filed with respect to the
period prior to the related Transfer Date in relation to the
servicing and ownership of the Servicing Released Mortgage
Loans. The Servicer shall provide copies of such forms to the
Purchaser upon request and shall reimburse the Purchaser for
any costs or penalties incurred by the Purchaser due to the
Servicer's failure to comply with this paragraph. The
Purchaser or the Purchaser's designee shall prepare and file
all such reports with respect to any period commencing on or
after the related Transfer Date.
(l) Tax Service Contracts. With respect to each
Servicing Released Mortgage Loan for which there is a tax
service contract with an Approved Tax Service Contract
Provider in effect on the related Transfer Date, the Servicer
shall assign such Tax Service Contract to the Purchaser or the
Purchaser's designee. In the event that the Servicer is unable
to assign the Tax Service Contract to the Purchaser or the
Purchaser's designee, the Servicer shall purchase a Tax
Service Contract and assign the same to the Purchaser or the
Purchaser's designee.
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(m) Flood Certification Contracts. With respect to
each Servicing Released Mortgage Loan for which there is a
flood certification contract in effect on the related Transfer
Date, the Servicer shall assign such flood certification
contract to the Purchaser or the Purchaser's designee. In the
event that the Servicer is unable to assign the flood
certification contract to the Purchaser or the Purchaser's
designee, the Servicer shall purchase a flood certification
contract and assign the same to the Purchaser or the
Purchaser's designee.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER.
The Seller, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Purchaser as of each Closing Date:
(a) Due Organization and Authority. The Seller is
a corporation duly organized, validly existing and in good
standing under the laws of North Carolina and has all licenses
necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in each state
where a Mortgaged Property is located if the laws of such
state require licensing or qualification in order to conduct
business of the type conducted by the Seller, and in any event
the Seller is in compliance with the laws of any such state to
the extent necessary to ensure the enforceability of the
related Mortgage Loan in accordance with the terms of this
Agreement; the Seller has the full corporate 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) by the
Seller and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the
Seller; and all requisite corporate action has been taken by
the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
(b) Ordinary Course of Business. The consummation
of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer,
assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and
delivery of this Agreement, the acquisition of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the
Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms
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and conditions of this Agreement, will conflict with or result
in a breach of any of the terms, conditions or provisions of
the Seller's charter or by-laws or any legal restriction or
any agreement or instrument to which the Seller is now a party
or by which it is bound, or constitute a default or result in
an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or
decree to which the Seller or its property is subject, or
impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans;
(d) Ability to Perform. The Seller does not
believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement. The Seller is solvent and the sale of the Mortgage
Loans will not cause the Seller to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to
hinder, delay or defraud any of the Seller's creditors;
(e) No Litigation Pending. There is no action,
suit, proceeding or investigation pending or threatened
against the Seller which, either in any one instance or in the
aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the
right or ability of the Seller to carry on its business
substantially as now conducted, or in any material liability
on the part of the Seller, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations
of the Seller contemplated herein, or which would be likely to
impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) No Consent Required. No consent, approval,
authorization or order of any court or governmental agency or
body is required for the execution, delivery and performance
by the Seller of or compliance by the Seller with this
Agreement or the Mortgage Loans, the delivery of a portion of
the Mortgage Files to the Custodian or the sale of the
Mortgage Loans to the Purchaser or the consummation of the
transactions contemplated by this Agreement, or if required,
such approval has been obtained prior to the initial Closing
Date;
(g) Selection Process. The Mortgage Loans were not
intentionally selected in a manner so as to affect adversely
the interests of the Purchaser;
(h) No Untrue Information. Neither this Agreement
nor any statement, report or other document furnished or to be
furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement
of fact or omits to state a fact necessary to make the
statements contained therein not misleading;
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(i) Sale Treatment. The Seller has determined that
the disposition of the Mortgage Loans pursuant to this
Agreement will be afforded sale treatment for accounting and
tax purposes;
(j) Financial Statements. The Seller has delivered
to the Purchaser financial statements as to each fiscal year
it has been in existence and any later quarter ended more than
60 days prior to the execution of this Agreement. All such
financial statements fairly present the pertinent results of
operations and changes in financial position at the end of
each such period of the Seller and its subsidiaries and have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
involved, except as set forth in the notes thereto. To the
extent available, the Seller has delivered information as to
its loan gain and loss experience for the immediately
preceding three-year period, in each case with respect to
mortgage loans owned by it and such mortgage loans serviced
for others during such period, and all such information so
delivered is true and correct in all material respects. There
has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date
of the Seller's financial statements that would have a
material adverse effect on its ability to perform its
obligations under this Agreement. The Seller has completed any
forms requested by the Purchaser in a timely manner and in
accordance with the provided instructions;
(k) Fair Consideration. The consideration received
by the Seller upon the sale of the Mortgage Loans under this
Agreement constitutes fair consideration and reasonably
equivalent value for the Mortgage Loans;
(l) Computer Systems The computer systems utilized
by the Seller and any Servicer in the performance of its
activities under this Agreement will be capable of properly
performing any calculations and recordkeeping functions with
respect to the Mortgage Loans after January 1, 2000;
(m) Closing Documents. All documents required to
be delivered on such applicable Closing Date pursuant to
Section 10 hereof have been delivered to the Purchaser unless
expressly waived in writing by the Purchaser.
SECTION 7. REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL
MORTGAGE LOANS.
As to each Mortgage Loan, the Seller hereby represents and warrants
to the Purchaser that as of the related Closing Date:
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(a) Mortgage Loans as Described. The information
set forth in the Mortgage Loan Schedule is complete, true and
correct;
(b) Payments Current. All payments required to be
made up to the related Closing Date for the Mortgage Loan
under the terms of the Mortgage Note have been made and
credited. No payment required under the Mortgage Loan is
delinquent nor has any payment under the Mortgage Loan been
delinquent for more than 30 days at any time prior to the
related Closing Date. The first Monthly Payment shall be made
with respect to the Mortgage Loan on its Due Date or within
the grace period, all in accordance with the terms of the
related Mortgage Note;
(c) No Outstanding Charges. There are no defaults
in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or an escrow
of funds has been established in an amount sufficient to pay
for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not
advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required
under the Mortgage Loan, except for interest accruing from the
date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is earlier, to the day which
precedes by one month the Due Date of the first installment of
principal and interest;
(d) Original Terms Unmodified. The terms of the
Mortgage Note and Mortgage have not been impaired, waived,
altered or modified in any respect, except by a written
instrument which has been recorded, if necessary to protect
the interests of the Purchaser and which has been delivered to
the Purchaser. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by
the policy, and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by
the issuer of any related PMI Policy and the title insurer, to
the extent required by the policy, and which assumption
agreement is part of the Mortgage Loan File delivered to the
Purchaser and the terms of which are reflected in the Mortgage
Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject
to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, nor will
the operation of
19
any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage
Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or
defense, including without limitation the defense of usury,
and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto, and no
Mortgagor was a debtor in any state or federal bankruptcy or
insolvency proceeding at the time the Mortgage Loan was
originated;
(f) Hazard Insurance. Pursuant to the terms of the
Mortgage, all buildings or other improvements upon the
Mortgaged Property are insured by a generally acceptable
insurer against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area where the
Mortgaged Property is located pursuant to insurance policies
conforming to the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
If upon origination of the Mortgage Loan, the Mortgaged
Property was in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special
flood hazards a life-of-loan flood insurance policy meeting
the requirements of the current guidelines of the Federal
Flood Insurance Administration is in effect which policy
conforms to the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Such flood insurance shall be with an Approved Flood Policy
Insurer. All individual insurance policies contain a standard
mortgagee clause naming the related Servicer and its
successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at such Mortgagor's cost and expense,
and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required
hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance
policy is the valid and binding obligation of the insurer, is
in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this
Agreement. The Seller has not engaged in, and has no knowledge
of the Mortgagor's or any subservicer's having engaged in, any
act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein,
or the validity and binding effect of either, including,
without limitation, no unlawful fee, commission, kickback or
other unlawful compensation or value of any kind has been or
will be received, retained or realized by any attorney, firm
or other person or entity, and no such unlawful items have
been received, retained or realized by the Seller;
20
(g) Compliance with Applicable Laws. Any and all
requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal
credit opportunity or disclosure laws applicable to the
Mortgage Loan have been complied with, and the Seller shall
maintain in its possession or under its control, available for
the Purchaser's inspection, after reasonable notice to Seller,
and shall deliver to the Purchaser (i) with respect to
Servicing Released Mortgage Loans, on the related Transfer
Date and (ii) with respect to Servicing Retained Mortgage
Loans, upon request, in each case, evidence of compliance with
all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has
not been satisfied, canceled, subordinated or rescinded, in
whole or in part, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part,
nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any
action, if the Mortgagor's failure to perform such action
would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or
inaction by the Mortgagor;
(i) Location and Type of Mortgaged Property. The
Mortgaged Property is an owner-occupied fee simple property
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 two- to
four-family dwelling, or an individual condominium unit in a
low-rise condominium project, or an individual unit in a
planned unit development, provided, however, that any
condominium unit or planned unit development shall conform
with the Seller's "Borrower Advantage Program" Guidelines
regarding such dwellings and that no residence or dwelling is
a mobile home or a manufactured dwelling. No portion of the
Mortgaged Property is used for commercial purposes;
(j) Valid First Lien. The Mortgage is a valid,
subsisting enforceable and perfected first lien on the
Mortgaged Property, including all buildings on the Mortgaged
Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems located in or
annexed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing.
The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
21
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording 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 (i) referred to or to otherwise
considered in the appraisal made for the originator of the Mortgage Loan
or (ii) which do not adversely affect the appraised value of the Mortgaged
Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and the Seller has full right to sell and assign
the same to the Purchaser. The Mortgaged Property was not, as of the date of
origination of the 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;
(k) Validity of Mortgage Documents. The Mortgage
Note and the Mortgage are genuine, and each is the legal,
valid and binding obligation of the maker thereof enforceable
in accordance with its terms. All parties to the Mortgage Note
and the Mortgage and any other related agreement had legal
capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage and any other
related agreement, and the Mortgage Note and the Mortgage and
any other related agreement have been duly and properly
executed by such parties. The documents, instruments and
agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to
state a material fact required to be stated therein or
necessary to make the information and statements therein not
misleading. No fraud was committed in connection with the
origination of the Mortgage Loan;
(l) Full Disbursement of Proceeds. The Mortgage
Loan has been closed and the proceeds of the Mortgage Loan
have been fully disbursed and there is no requirement for
future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied
with. All costs, fees and expenses incurred in making or
closing the Mortgage Loan and the recording of the Mortgage
were paid, and the Mortgagor is not entitled to any refund of
any amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of
record and holder of the Mortgage Loan. The Mortgage Loan is
not
22
assigned or pledged, and the Seller has good and marketable
title thereto, and has full right to transfer and sell the
Mortgage Loan therein to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement;
(n) Doing Business. All parties which have had any
interest in the Mortgage Loan, whether as mortgagee, assignee,
pledgee or otherwise, are (or, during the period in which they
held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and
(2) organized under the laws of such state, or (3) qualified
to do business in such state, or (4) federal savings and loan
associations or national banks having principal offices in
such state, or (5) not doing business in such state;
(o) LTV, PMI Policy. The Mortgage Loan has an LTV
equal to or less than 103%. Any Mortgage Loan with an LTV over
80% has a PMI Policy insuring, as to payment defaults, the
excess LTV over 67% (or such other percentage as stated in the
related Trade Confirmation Letter) of the Appraised Value
until the LTV of such Mortgage Loan is reduced to 80%. All
provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all
premiums due thereunder have been paid. No action, inaction,
or event has occurred and no state of facts exists that has,
or will result in the exclusion from, denial of, or defense to
coverage. Any Mortgage Loan subject to a PMI Policy obligates
the Mortgagor thereunder to maintain the PMI Policy and to pay
all premiums and charges in connection therewith; provided,
that, with respect to LPMI Loans, the related Servicer is
obligated thereunder to maintain the LPMI Policy and to pay
all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the
Mortgage Loan Schedule is net of any such insurance premium;
(p) Title Insurance. The Mortgage Loan is covered
by an ALTA lender's title insurance policy or other generally
acceptable form of policy of insurance acceptable to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac, issued by a title insurer acceptable to
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount
of the Mortgage Loan, and, with respect to ARM Mortgage Loans,
against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of
the Mortgage providing for adjustment in the Mortgage Interest
Rate and Monthly Payment, subject only to the
23
exceptions contained in clauses (1), (2) and (3) of paragraph
(j) of this Section 7. Where required by state law or
regulation, the Mortgagor has been given the opportunity to
choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any
interest therein. The Seller is the sole insured of such
lender's title insurance policy, and such lender's title
insurance policy is in full force and effect and will be in
force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of
the Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such
lender's title insurance policy including without limitation,
no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
(q) No Defaults. There is no default, breach,
violation or event of acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of
time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event
of acceleration, and neither the Seller nor its predecessors
have waived any default, breach, violation or event of
acceleration;
(r) No Mechanics' Liens. There are no mechanics'
or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under
the law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments.
All improvements which were considered in determining the
Appraised Value of the Mortgaged Property lay wholly within
the boundaries and building restriction lines of the Mortgaged
Property and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or
being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(t) Origination: Payment Terms. The Originator is
a ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac approved seller in good standing or
is an institution insured by FDIC which is supervised and
examined by a state or federal authority, or is a Housing and
Urban Development approved mortgagee, and was so at the time
each Mortgage Loan was originated. The Mortgage Interest Rate
is either (i) the fixed interest rate
24
set forth in the Mortgage Note or (ii) with respect to ARM
Mortgage Loans, adjusted on each Interest Rate Adjustment Date
to equal the Index plus the Gross Margin, rounded up or down
to the nearest 0.125%, subject to the Periodic Rate Cap and
the Lifetime Rate Cap. The Mortgage Note is payable in equal
monthly installments of principal and interest, which
installments of interest are subject to change due to
adjustments to the Mortgage Interest Rate on each, with
interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date,
over an original term of not more than thirty years from
commencement of amortization;
(u) Customary Provisions. The Mortgage contains
customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(ii) otherwise by judicial foreclosure. Upon default by a
Mortgagor on a Mortgage Loan and foreclosure on, or trustee's
sale of, the Mortgaged Property pursuant to the proper
procedures, the holder of the Mortgage Loan will be able to
deliver good and merchantable title to the Mortgaged Property.
There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage subject to applicable federal and state
laws and judicial precedent with respect to bankruptcy and
right of redemption;
(v) Conformance with Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Seller's
underwriting guidelines in effect at the time the Mortgage
Loan was originated, a copy of which underwriting guidelines
are attached as Exhibit I hereto. The Mortgage Note and
Mortgage are on forms acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae;
(w) Occupancy of the Mortgaged Property. As of the
applicable Closing Date the Mortgaged Property is lawfully
occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities;
(x) No Additional Collateral. The Mortgage Note is
not and has not been secured by any collateral except the lien
of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to
in (j) above;
25
(y) Deeds of Trust. In the event the Mortgage
constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the Purchaser
to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(z) Acceptable Investment. The Seller has no
knowledge of any circumstances or conditions with respect to
the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit standing that can reasonably be expected to
cause the Mortgage Loan to be deemed an unacceptable
investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage
Loan;
(aa) Delivery of Mortgage Documents. The Mortgage
Note, the Mortgage, the Assignment of Mortgage and any other
documents required to be delivered by the Seller under this
Agreement have been delivered to the Purchaser or its
designee. The related Servicer is in possession of a complete,
true and accurate Mortgage File in compliance with Exhibit B,
except for such documents the originals of which have been
delivered to the Purchaser or its designee;
(bb) Condominiums/Planned Unit Developments. If
the Mortgaged Property is a condominium unit or a planned unit
development (other than a de minimus planned unit development)
such condominium or planned unit development project meets
Seller's Underwriting Guidelines in Exhibit I and the
representations and warranties required by Seller's "Borrower
Advantage Program" Guidelines with respect to such condominium
or planned unit development have been made and remain true and
correct in all respects;
(cc) Due on Sale. The Mortgage contains an
enforceable provision for the acceleration of the payment of
the unpaid principal balance of the Mortgage Loan in the event
that the Mortgaged Property is sold or transferred without the
prior written consent of the Mortgagee thereunder;
(dd) Transfer of Mortgage Loans. 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;
(ee) No Buydown Provisions; No Graduated Payments
or Contingent Interests. The Mortgage Loan does not contain
provisions pursuant to which Monthly Payments are paid or
partially paid with funds deposited in any separate account
established by the Seller, the Mortgagor or anyone on behalf
of the Mortgagor, or paid by any source other than the
26
Mortgagor nor does it contain any other similar provisions
currently in effect which may constitute a "buydown"
provision. The Mortgage Loan is not a graduated payment
mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ff) Consolidation of Future Advances. Any future
advances made prior to the related 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
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The consolidated principal amount
does not exceed the original principal amount of the Mortgage
Loan;
(gg) Mortgaged Property Undamaged. There is no
proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Seller has no
actual knowledge that the Mortgaged Property has been damaged
by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty so as to affect adversely the
value of the Mortgaged Property as security for the Mortgage
Loan or the use for which the premises were intended;
(hh) Collection Practices; Escrow Deposits; ARM
Adjustments. The origination and collection practices used
with respect to the Mortgage Loan have been in accordance with
Accepted Servicing Practices and in all respects in compliance
with all applicable laws and regulations. With respect to
escrow deposits and Escrow Payments, all such payments are in
the possession of the related Servicer and there exist no
deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with
state and federal law. An escrow of funds is not prohibited by
applicable law and has been established in an amount
sufficient to pay for every item which remains unpaid and
which has been assessed but is not yet due and payable. No
escrow deposits or Escrow Payments or other charges or
payments due the related Servicer have been capitalized under
the Mortgage or the Mortgage Note. With respect to all ARM
Mortgage Loans, all Mortgage Interest Rate adjustments have
been made in strict compliance with state and federal law and
the terms of the related Mortgage Note. Any interest required
to be paid pursuant to state and local law has been properly
paid and credited;
27
(ii) Appraisal. The Mortgage File contains an
appraisal of the related Mortgage Property signed prior to the
approval of the Mortgage Loan application by a Qualified
Appraiser.
(jj) Environmental Matters. To the best of the
Seller's knowledge, the Mortgaged Property is free from any
and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law,
rule or regulation. There is no pending action or proceeding
directly involving any Mortgaged Property of which the Seller
is aware in which compliance with any environmental law, rule
or regulation is an issue; and to the best of the Seller's
knowledge, 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;
(kk) No Construction Loans. No Mortgage Loan was
made in connection with (i) the rehabilitation of a Mortgaged
Property or (ii) facilitating the trade-in or exchange of a
Mortgaged Property;
(ll) No Denial of Insurance. To the best of the
Seller's knowledge, no action, inaction, or event has occurred
and no state of fact exists or has existed that has resulted
or will result in the exclusion from, denial of, or defense to
coverage under any applicable pool insurance policy, special
hazard insurance policy, PMI Policy or bankruptcy bond,
irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be
received by the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or
employee had a financial interest at the time of placement of
such insurance;
(mm) Regarding the Mortgagor. The Mortgagor is one
or more natural persons [and/or trustees for an Illinois land
trust or a trustee under a "living trust" and such "living
trust" is in compliance with ▇▇▇▇▇▇ ▇▇▇ guidelines for such
trusts]; and
(nn) ▇▇▇▇▇▇ Act. None of the Mortgage Loans are
classified as "high cost" loans under the Home Ownership and
Equity Protection Act of 1994.
(oo) Tax Service Contract The Seller or the
related Servicer has obtained a life of loan, transferable
real estate Tax Service Contract with an Approved Tax Service
Contract Provider on each Mortgage Loans and such contract is
assignable to the Purchaser;
(pp) Flood Certification Contract. The Seller or
the related Servicer has obtained a life of loan, transferable
flood certification
28
contract for each Mortgage Loan and such contract is
assignable to the Purchaser;
(qq) Negative Amortization. No Mortgage Loan
provides for negative amortization.
(rr) Cash-out Refinance Mortgage Loans. No
Mortgage Loan was a cash-out refinance Mortgage Loan.
(ss) Recordation. Each original Mortgage was
recorded or has been delivered to the appropriate office for
recording and, except for those Mortgage Loans subject to the
MERS identification system, all subsequent assignments of the
original Mortgage (other than the assignment to the Purchaser)
have been recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the lien thereof as
against creditors of the Seller, or is in the process of being
recorded.
(tt) No Conversion. No ARM Mortgage Loan contains
a provision whereby the related Mortgagor can convert the
related Mortgage Loan to a fixed rate instrument.
SECTION 8. REMEDIES FOR BREACH OF REPRESENTATIONS AND
WARRANTIES; ADDITIONAL REPURCHASE OBLIGATIONS.
(a) It is understood and agreed that the
representations and warranties set forth in Sections 6 and 7
shall survive the sale of the Mortgage Loans to the Purchaser
and the delivery of the Mortgage Loan Documents to the
Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on
any Mortgage Note or Assignment of Mortgage or the examination
or failure to examine any Mortgage File. Upon discovery by
either the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and
adversely affects the value of the Mortgage Loans or the
interest of the Purchaser or which materially and adversely
affects the interests of Purchaser in the related Mortgage
Loan in the case of a representation and warranty relating to
a particular Mortgage Loan (in the case of any of the
foregoing, a "Breach"), the party discovering such Breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any Breach of a representation or warranty, the Seller shall use
its best efforts promptly to cure such Breach in all material respects and, if
such Breach cannot be cured, the Seller shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
Breach shall involve any representation or warranty set forth in Section 6, and
such Breach cannot be cured within 60 days of the earlier of either discovery by
or notice to the Seller of such
29
Breach, all of the Mortgage Loans shall, at the Purchaser's option, be
repurchased by the Seller at the Repurchase Price.
However, if the Breach shall involve a representation or warranty
set forth in Section 7 and the Seller discovers or receives notice of any such
Breach within 120 days of the related Closing Date, the Seller shall, at the
Purchaser's option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan or
Loans pursuant to the foregoing provisions of this Section 8 shall be
accomplished by direct remittance of the Repurchase Price to the Purchaser or in
accordance with the Purchaser's instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser and any Servicer of the Mortgage Loans that such
repurchase or substitution has taken place, amend the Mortgage Loan Schedule to
reflect the withdrawal of the Deleted Mortgage Loan from this Agreement, and, in
the case of substitution, identify a Qualified Substitute Mortgage Loan and
amend the Mortgage Loan Schedule to reflect the addition of such Qualified
Substitute Mortgage Loan to this Agreement. In connection with any such
substitution, the Seller shall be deemed to have made as to such Qualified
Substitute Mortgage Loan the representations and warranties set forth in this
Agreement except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. The Seller
shall effect such substitution by delivering to the Custodian for such Qualified
Substitute Mortgage Loan the documents required by Section 2(c), with the
Mortgage Note endorsed as required by Section 2(c). No substitution will be made
in any calendar month after the Determination Date for such month. The Seller
shall remit directly to the Purchaser or in accordance with the Purchaser's
instructions, 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 shall be retained by the Seller. For the
month of substitution, distributions to Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and the
Seller shall thereafter be entitled to retain all amounts subsequently received
by the Seller in respect of such Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be paid by the Seller directly to the Purchaser or in accordance
with the Purchaser's instructions, within two (2) Business Days of such
substitution.
30
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses, including, without
limitation, any reasonable legal fees and related expenses incurred by the
Purchaser in connection with enforcing this indemnity, resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
Breach of the Seller representations and warranties contained in this Agreement.
It is understood and agreed that the obligations of the Seller set forth in this
Section 8 to cure or repurchase a defective Mortgage Loan and to indemnify the
Purchaser as provided in this Section 8 constitute the sole remedies of the
Purchaser respecting a Breach of the foregoing representations and warranties.
Any cause of action against the Seller relating to or arising out of
the Breach of any representations and warranties made in Sections 6 and 7 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) failures 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 this
Agreement.
(b) With respect to any Mortgage Loan, if the
related Mortgagor is delinquent with respect to the Mortgage
Loan's first Monthly Payment, the Seller shall, upon receipt
of notice from the Purchaser, promptly repurchase such
Mortgage Loan from the Purchaser in accordance with Section
8(a) hereof; provided, that no right to cure set forth therein
shall apply.
SECTION 9. CLOSING.
Each closing for the purchase and sale of the Mortgage Loans shall
take place on the related Closing Date. At the Purchaser's option, each Closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree; or conducted in person, at such place as the parties shall agree.
Each closing shall be subject to each of the following conditions:
(a) all of the representations and warranties of
the Seller under this Agreement, the related Servicing
Agreement and/or the related Interim Servicing Agreement, as
applicable, shall be true and correct as of the related
Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default
under this Agreement or an Event of Default under the related
Interim Servicing Agreement and/or the related Servicing
Agreement, as applicable;
(b) the Purchaser shall have received, or the
Purchaser's attorneys shall have received in escrow, all
Closing Documents as specified in Section 10 of this
Agreement, in such forms as are agreed upon and acceptable to
the Purchaser, duly executed by all
31
signatories other than the Purchaser as required pursuant to
the respective terms thereof;
(c) The Seller shall have delivered and released
to the Custodian pursuant to this Agreement all documents
required pursuant to the related Custodial Agreement; and
(d) all other terms and conditions of this
Agreement shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 3 of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
SECTION 10. CLOSING DOCUMENTS.
The Closing Documents to be delivered on the initial Closing Date
shall consist of fully executed originals of the following documents:
(a) this Agreement;
(b) an Officer's Certificate, in the form of
Exhibit D hereto, including all attachments thereto;
(c) an Opinion of Counsel of the Seller, in the
form of Exhibit E hereto, or in a substantially similar form;
(d) the Purchase Price and Terms Letter;
(e) with respect to the Servicing Released
Mortgage Loans, if any, the related Interim Servicing
Agreement, dated as of the initial Cut-off Date; and
(f) with respect to the Servicing Retained
Mortgage Loans, if any, the related Servicing Agreement, dated
as of the initial Cut-off Date.
In addition, (i) prior to the first Closing Date upon which the
Mortgage Loans sold by any Aggregator to the Seller are subsequently sold by the
Seller to the Purchaser, then, with respect to such Aggregator, the Seller shall
deliver;
(A) an opinion of counsel to the Aggregator that sold the
related Mortgage Loans to the Seller, addressed to the Seller, containing
the opinion set forth on Exhibit E-1 hereto, in such form or in a
substantially similar form, which opinion may be expressly relied upon by
the Purchaser;
32
(B) an Escrow Account Certification or Escrow Account Letter
Agreement, as required under the Interim Servicing Agreement or Servicing
Agreement, as applicable; and
(C) a Custodial Account Certification or Custodial Account
Letter Agreement as required under the Interim Servicing Agreement or
Servicing Agreement, as applicable; and
(ii) prior to each Closing Date, the Closing
Documents for the Mortgage Loan Package to be purchased on such Closing Date
shall consist of fully executed originals of the following documents:
(a) an Assignment and Conveyance in the form of
Exhibit K hereto, including all exhibits;
(b) a Trade Confirmation Letter;
(c) the Mortgage Loan Schedule, with one copy to
be attached to the related Assignment and Conveyance;
(d) with respect to the Servicing Released
Mortgage Loans, if any, an assignment of the related Interim
Servicing Agreement from the Seller to the Purchaser, in the
form of Exhibit 8 to the Interim Servicing Agreement;
(e) with respect to the Servicing Retained
Mortgage Loans, if any, an assignment of the related Servicing
Agreement from the Seller to the Purchaser, in the form of
Exhibit J to the Servicing Agreement;
(f) a Security Release Certification, in the form
of Exhibit F hereto, executed by any person, as requested by
the Purchaser, if any of the Mortgage Loans have at any time
been subject to any security interest, pledge or hypothecation
for the benefit of such person and (ii) if applicable a
certificate of the Seller and an opinion of counsel of the
Seller stating that the Mortgage Loans are not subject to any
security interest, claim, pledge, hypothecation or lien;
(g) each of the documents required to be delivered
by the Seller pursuant to Section 2(c) hereof;
(h) the initial certification of the Custodian
with respect to the related Mortgage Loan Package;
(i) a Certificate or other evidence of merger or
change of name, signed or stamped by the applicable regulatory
authority, if any of the Mortgage Loans were acquired by the
Seller by merger or
33
acquired or originated by the Seller while conducting business
under a name other than its present name; and
(j) if requested by the Purchaser in connection
with a material change in Seller's financial condition or
corporate structure, an updated Officer's Certificate, in the
form of Exhibit D hereto, including all attachments thereto
and an updated Opinion of Counsel of the Seller, in the form
of Exhibit E hereto.
The Seller shall bear the risk of loss of the Closing Documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 11. COOPERATION OF SELLER WITH A
RECONSTITUTION
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after each Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may effect
a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
(i) one or more third party purchasers in one or more whole
loans pools (each a "Whole Loan Transfer"); or
(ii) (i) a trust to be formed as part of a publicly-issued and/or
privately placed, rated or unrated, mortgage pass-through transaction, or
(ii) to ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or GNMA on a negotiated basis, in each
case, retaining the Servicer as "servicer" (with or without a master
servicer) thereunder. (each a "Pass-Through Transfer").
The Seller agrees to execute in connection with any and all
reasonably acceptable pool purchase contracts, and/or agreements among the
Purchaser, the Seller and any servicer in connection with (a) a Whole Loan
Transfer, a Seller's Warranties and Servicing Agreement or a Participation and
Servicing Agreement in form and substance reasonably acceptable to the parties,
and in connection with (b) a Pass-Through Transfer, a Pooling and Servicing
Agreement in form and substance reasonably acceptable to the parties,
(collectively the agreements referred to herein are designated, the
"Reconstitution Agreements").
With respect to each Whole Loan Transfer and each Pass-Through
Transfer entered into by the Purchaser, the Seller shall (a) execute any
Reconstitution Agreement within a period of time after receipt of any
Reconstitution Agreement which is reasonably sufficient for the Seller and
Seller's counsel to review and comment on such Reconstitution Agreement but in
no event no later than 10 Business Days after receipt thereof, (b) provide to
the trustee or a third party purchaser, as the case may be, subject to any
Reconstitution Agreement and/or the Purchaser: (i) any and all information and
appropriate verification of information which may be reasonably available to the
Seller, whether through letters of its auditors and counsel or otherwise, as the
Purchaser shall reasonably request for use in any disclosure document; and (ii)
such additional covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller, that the Purchaser
may reasonably request and as are
34
customary, in connection with residential mortgage securitization transactions
or whole loan transactions, as the case may be, (c) enter into an agreement (an
"Indemnification Agreement") for the benefit of the Purchaser and any other
parties to such Pass-Through Transfer or Whole Loan Transfer, as the case may
be, (including the officers, directors, partners and controlling persons of the
Purchaser and any such party) in which the Seller shall undertake to indemnify
such persons against or contribute to any losses, damages or liability (or any
action in respect thereof) arising out of or based upon any untrue statement or
alleged untrue statement contained in the information provided by or on behalf
of the Seller pursuant to clause (i) above, subject to the receipt by the Seller
of usual and customary indemnification by the other parties to such Pass-Through
Transfer or Whole Loan Transfer with respect to information provided other than
by or on behalf of the Seller and (d) make such additional servicing
representations and warranties as may be reasonably requested by the Purchaser
and as are customary in residential mortgage securitizations as of the related
Reconstitution Date.
SECTION 12. GUARANTY
The Seller hereby agrees that in the event that the aggregate
principal balance as of the related Cut-off Date of Mortgage Loans purchased by
the Purchaser hereunder is equal to or exceeds $500,000,000 in any calendar
year, the Seller shall deliver to the Purchaser a guaranty, acceptable to the
Purchaser in its sole discretion, by an entity reasonably acceptable to
Purchaser in its sole discretion, pursuant to which such entity shall
unconditionally and irrevocably guarantee to the Purchaser and its successors,
indorsees, transferees and assigns the prompt and complete payment and
performance by the Seller of its obligations hereunder with respect to any
additional Mortgage Loans purchased by the Purchaser from the Seller in such
calendar year. The delivery of such guaranty shall be a condition precedent to
the Purchaser purchasing any additional Mortgage Loans in such calendar year.
From time to time, the Seller may provide to the Purchaser additional
information regarding its financial condition. The Purchaser agrees to review
such financial information, and consider if, in its sole discretion, any
amendment of the guaranty requirement set forth in this Section 12 is warranted.
SECTION 13. MERGER OR CONSOLIDATION OF THE SELLER.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
35
SECTION 14. COSTS.
The Purchaser shall pay any commissions due its salesmen and the
legal fees and expenses of its attorneys. All other costs and expenses incurred
in connection with the transfer and delivery of the Mortgage Loans and the
Servicing Rights, if applicable, including recording fees for the Assignments of
Mortgages, if the Purchaser elects to record them, fees for title policy
endorsements and continuations, the Seller's attorney's fees and fees of any
broker retained by the Seller with respect to the transaction covered by this
Agreement, shall be paid by the Seller.
SECTION 15. PROTECTION OF CONFIDENTIAL INFORMATION.
The Seller and the Purchaser shall each keep confidential and shall
not divulge to any party, without the other party's prior written consent, the
Purchase Price paid by the Purchaser for any Mortgage Loan or Mortgage Loan
Package, except to the extent that it is appropriate for the Seller or the
Purchaser to do so in working with legal counsel, auditors, taxing authorities
or other governmental agencies.
SECTION 16. NOTICES.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address shown on the first page hereof, or such other
address as may hereafter be furnished to the other party by like notice. Any
such demand, notice or communication hereunder shall be deemed to have been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted on
the return receipt).
SECTION 17. SEVERABILITY CLAUSE.
Any part, provision, representation or warranty of this Agreement
that is prohibited or that 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 that 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 that 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 as close as possible to the
economic effect of this Agreement, without regard to such invalidity.
36
SECTION 18. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 19. PLACE OF DELIVERY AND GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THE AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT
PREEMPTED BY FEDERAL LAW.
SECTION 20. FURTHER AGREEMENTS.
The Purchaser and the Seller each agree to execute and deliver to
the other such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Without limiting the generality of the foregoing, the Seller shall
cooperate with the Purchaser in connection with the initial resales of the
Mortgage Loans by the Purchaser. In that connection, the Seller shall provide to
the Purchaser: (i) any and all information and appropriate verification of
information, whether through letters of its auditors and counsel or otherwise,
as the Purchaser shall reasonably request; and (ii) covenants, opinions of
counsel, letters from auditors, and certificates of public officials or officers
of the Seller as are reasonably believed necessary by the Purchaser in
connection with such resales. The requirement of the Seller pursuant to (iii)
above shall terminate on the related Closing Date. Prior to incurring any
out-of-pocket expenses pursuant to this paragraph, the Seller shall notify the
Purchaser in writing of the estimated amount of such expense. The Purchaser
shall reimburse the Seller for any such expense following its receipt of
appropriate details thereof.
SECTION 21. INTENTION OF THE PARTIES.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling, 100% ownership interest in the Mortgage Loans in each
Mortgage Loan Package and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat each transaction
for Federal income tax purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Mortgage Loans in the related Mortgage Loan Package. Moreover,
the arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
37
SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective successors and
assigns of the Seller and the Purchaser. This Agreement shall not be assigned,
pledged or hypothecated by Seller to a third party without the prior written
consent of the Purchaser.
No transfer of a Mortgage Loan may be made unless such transfer is
in compliance with the terms hereof. For the purposes of this Agreement, the
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
the owner of the Mortgage Loan. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that the transferee will not be deemed to be a Purchaser hereunder
binding upon the Seller unless such transferee shall agree in writing to be
bound by the terms of this Agreement and an original counterpart of the
instrument of transfer and an assignment and assumption of this Agreement in the
form of Exhibit G hereto executed by the transferee shall have been delivered to
the Seller. The Purchaser also shall advise the Seller of the transfer. Upon
receipt of notice of the transfer, the Seller shall ▇▇▇▇ its books and records
to reflect the ownership of the Mortgage Loans by such assignee, and shall
release the previous Purchaser from its obligations hereunder with respect to
the Mortgage Loans sold or transferred.
SECTION 23. WAIVERS; OTHER AGREEMENTS.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 24. EXHIBITS.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 25. 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;
38
(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.
SECTION 26. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 27. 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 their comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere. The fees associated with the
preparation, endorsement and recordation of the initial Assignment of Mortgage
with respect to each Mortgage Loan shall be paid by the Seller. The fees
associated with the preparation, endorsement and recordation of any subsequent
Assignment of Mortgage shall be paid by the Purchaser (other than those in
connection with any breach of the representations and warranties set forth in
Section 7(dd) which shall in all events be borne by the Seller).
SECTION 28. NO PERSONAL SOLICITATION.
From and after each Closing Date, the Seller hereby agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by Servicer, or by any independent contractors on the
Seller's behalf, to personally, by telephone or
39
mail, solicit the borrower or obligor under any related Mortgage Loan for any
purpose whatsoever, including to refinance a Mortgage Loan, in whole or in part,
without the prior written consent of the Purchaser. It is understood and agreed
that all rights and benefits relating to the solicitation of any Mortgagors and
the attendant rights, title and interest in and to the list of such Mortgagors
and data relating to their Mortgages (including insurance renewal dates) shall
be transferred to the Purchaser pursuant hereto on the related Closing Date and
the Seller shall take no action to undermine these rights and benefits.
Notwithstanding the foregoing, it is understood and agreed that offers to
refinance a Mortgage Loan made within 30 days following receipt by the Seller of
a pay-off request from the Mortgagor and promotions undertaken by the Seller or
any affiliate of the Seller which are directed to the general public at large,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section 27.
40
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
(Purchaser)
By:____________________________________
Name:
Title:
CENTRE CAPITAL GROUP, INC.
(Seller)
By:____________________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____________, 200_ before me, a Notary Public in
and for said State, personally appeared ____________, known to me to be
______________ of ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.,
the corporation that executed the within instrument and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
My Commission expires _____________
STATE OF _____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of _______________, 200_ before me, a Notary Public
in and for said State, personally appeared ____________, known to me to be
_____________ of _______________________, the corporation that executed the
within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
My Commission expires _____________
EXHIBIT A-1
CONTENTS OF EACH MORTGAGE LOAN SCHEDULE
Each Mortgage Loan Schedule shall set forth the following
information, with respect to each Mortgage Loan:
1. The Aggregator's name;
2. The Aggregator's Mortgage Loan identifying number;
3. The Mortgagor's or Co-Mortgagor's (if applicable) names;
4. The street address of the Mortgaged Property, including the city, state
and the zip code;
5. A code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family residence, a unit in a condominium or a unit in a
planned unit development.
6. The original months to maturity or the remaining months to maturity from
the related Cut-off Date, in any case base on the original amortization
schedule, and if different, the maturity expressed in the same manner but
based on the actual amortization schedule;
7. The origination date;
8. The Loan to Value Ratio at origination;
9. The combined Loan to Value at Origination;
10. The Mortgage Interest Rate as of the cut off date;
11. The date on which the first payment is due;
12. The stated maturity date;
13. The amount of the monthly payment;
14. The next due date as of the related Cut-off Date;
15. The original principal amount of the Mortgage loan;
A-1
16. The principal balance of the Mortgage Loan as of the close of business on
the related Cut-off Date, after deduction of payments of principal
actually received on or before the related Cut-off Date;
17. Whether the Mortgage Loan is an LPMI Loan;
18. The LPMI Fee;
19. The PMI coverage;
20. The PMI carrier;
21. The loan purpose code;
22. The occupancy code;
23. The credit documentation code;
24. The debt to income ratio
25. The Mortgagor's and Co-Mortgagor's (if applicable) social security
numbers;
26. The Mortgagor's and Co-Mortgagor's (if applicable) FICO score;
27. The Mortgagor's home telephone number;
28. The Mortgagor's business telephone number;
29. The purchase price of the Mortgaged Property (if a purchase);
30. The Appraisal Value of the Mortgaged Property;
31. The Mortgagor's and Co-Mortgagor's (if applicable) race;
32. The Mortgagor's and Co-Mortgagor's (if applicable) gender
33. The Mortgagor's and Co-Mortgagor's (if applicable) date of birth; and
34. The number of bedrooms.
A-2
For Adjustable Rate Mortgage Loans, the following additional fields are to be
provided:
1. The Index;
2. The Margin;
3. The Periodic Cap
4. The Lifetime Cap
5. The First Interest Rate Adjustment Date;
6. The First Payment Adjustment Date;
7. The Interest Rate Adjustment Frequency;
8. The Payment Adjustment Frequency;
9. The minimum Mortgage Interest Rate; and
10. The maximum Mortgage Interest Rate.
A-3
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
A-1
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Purchaser pursuant to Section 2 of the Purchase Agreement to which this Exhibit
is attached (the "Agreement"):
1. The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________ without recourse" and signed
in the name of the Seller by an authorized officer.
2. The original of any guarantee executed in connection with the
Mortgage Note.
3. The original Mortgage, with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or
cause to be delivered the original Mortgage with evidence of
recording thereon on or prior to the related Closing Date because of
a delay caused by the public recording office where such Mortgage
has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered
to the Purchaser, a photocopy of such Mortgage, together with (i) in
the case of a delay caused by the public recording office, an
Officer's Certificate of the Seller stating that such Mortgage has
been dispatched to the appropriate public recording office for
recordation and that the original recorded Mortgage or a copy of
such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly
delivered to the Purchaser upon receipt thereof by the Seller; or
(ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a
Mortgage is lost after recordation in a public recording office, a
copy of such Mortgage certified by such public recording office to
be a true and complete copy of the original recorded Mortgage.
4. The originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon.
5. The original Assignment of Mortgage for each Mortgage Loan, in
blank, in form and substance acceptable for recording.
6. Originals of all intervening assignments of the Mortgage with
evidence of recording thereon, or if any such intervening assignment
has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause
to be delivered to the Purchaser, a photocopy of such intervening
B-1
assignment, together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of the Seller
stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment
of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office to be a true
and complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Purchaser upon receipt
thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original
recorded intervening assignment.
7. The original mortgagee policy of title insurance.
8. Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
9. The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with Section 7(f) of the Agreement.
10. The PMI Policy or certificate of insurance or an electronic notation
of the existence of such policy and the LPMI Policy, if applicable.
11. Residential loan application.
12. Mortgage Loan closing statement.
13. Verification of employment and income except for Mortgage Loans
originated under a Limited Documentation Program.
14. Verification of acceptable evidence of source and amount of
downpayment.
15. Credit report on the Mortgagor.
16. Residential appraisal report.
17. Photograph of the Mortgaged Property.
18. Survey of the Mortgaged Property, if any.
19. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.
20. All required disclosure statements.
21. If available, termite report, structural engineer's report, water
potability and septic certification.
B-2
22. Sales contract.
23. Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files,
correspondence, current and historical computerized data files, and
all other processing, underwriting and closing papers and records
which are customarily contained in a mortgage loan file and which
are required to document the Mortgage Loan or to service the
Mortgage Loan.
24. Amortization schedule.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 180 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded document
has not been delivered to the Custodian due solely to a delay caused by the
public recording office, (iii) state the amount of time generally required by
the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to Custodian. An extension of the date specified in (iv) above may be
requested from the Purchaser, which consent shall not be unreasonably withheld.
B-3
EXHIBIT C
INTERIM SERVICING AGREEMENT
[Intentionally Omitted]
C-1
EXHIBIT D
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Centre Capital Group, Inc., a state chartered institution
organized under the laws of the State of North Carolina, (the "Company") and
further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy of
the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy of
the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof,
and no event has occurred since the date thereof which would impair
such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy of
the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver the Master Mortgage
Loan Purchase and Warranties Agreement, Group No. 2000-1 dated
February 18, 2000 by and between the Company and ▇▇▇▇▇▇ Capital, A
Division of ▇▇▇▇▇▇ Brothers Holdings Inc., (the "Purchaser") (the
"Purchase Agreement") and to endorse the Mortgage Notes and execute
the Assignments of Mortgages by original signature, and such
resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification.
5. Either (i) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the
Company with the Purchase Agreement, the sale of the mortgage loans
or the consummation of the transactions contemplated by the
agreements; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement conflicts or
will conflict with or results or will result in a breach of or
constitutes or will constitute a default under the charter or
by-laws of the Company, the terms of any indenture or other
agreement or instrument to which the Company is a party or by which
it is bound or to which it is subject, or any statute or order,
rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company is
subject or by which it is bound.
D-1
7. There is no action, suit, proceeding or investigation pending or, to
the best of my knowledge, threatened against the Company which, in
my judgment, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to carry
on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into
question the validity of the Purchase Agreement or the mortgage
loans or of any action taken or to be taken in connection with the
transactions contemplated hereby, or which would be likely to impair
materially the ability of the Company to perform under the terms of
the Purchase Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an officer
or representative of the Company, signed (a) the Purchase Agreement
and (b) any other document delivered prior hereto or on the date
hereof in connection with any purchase described in the agreements
set forth above was, at the respective times of such signing and
delivery, and is now, a duly elected or appointed, qualified and
acting officer or representative of the Company, who holds the
office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their
genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
10. The Mortgage Loans are not subject to any security interest, claim,
pledge, hypothecation or lien.
D-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated: By:____________________________________
------------------------------
Name:__________________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of Centre
Capital Group, Inc., hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:____________________________________
------------------------------
Name:__________________________________
[Seal] Title: [Vice] President
D-3
EXHIBIT 5 to
Company's Officer's Certificate
Name Title Signature
__________________________________
__________________________________
__________________________________
__________________________________
D-4
EXHIBIT E
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.
3 World Financial Center
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to Centre Capital Group, Inc. (the "Company"), with respect to certain
matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Master Mortgage Loan Purchase and Warranties Agreement
by and between the Company and ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers
Holdings Inc. (the "Purchaser"), Group No. 2000-1 dated as of February 18, 2000
(the "Purchase Agreement") which sale is in the form of whole loans, serviced
pursuant to the related Interim Servicing Agreement or the related Servicing
Agreement, as applicable. Capitalized terms not otherwise defined herein have
the meanings set forth in the Purchase Agreement.
[We] [I] have examined the following documents:
1. the Purchase Agreement;
2. the form of Assignment of Mortgage;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained in
the Agreements. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
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Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly existing
and in good standing under the laws of the [United States] and is
qualified to transact business in, and is in good standing under,
the laws of [the state of incorporation].
2. The Company has the power to engage in the transactions contemplated
by the Purchase Agreement and all requisite power, authority and
legal right to execute and deliver the Purchase Agreement, and to
perform and observe the terms and conditions of such Purchase
Agreement.
3. The Purchase Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement
enforceable in accordance with its respective terms against the
Company, subject to bankruptcy laws and other similar laws of
general application affecting rights of creditors and subject to the
application of the rules of equity, including those respecting the
availability of specific performance, none of which will materially
interfere with the realization of the benefits provided thereunder
or with the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow any of its officers to
execute any and all documents by original signature in order to
complete the transactions contemplated by the Purchase Agreement
[and by original [or facsimile] signature in order to execute the
endorsements to the Mortgage Notes and the Assignments of Mortgages,
and the original [or facsimile] signature of the officer at the
Company executing the endorsements to the Mortgage Notes and the
Assignments of Mortgages represents the legal and valid signature of
said officer of the Company].
5. Either (i) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the
Company with the Purchase Agreement, the Interim Servicing
Agreement, the Master Servicing Agreement or the sale of the
Mortgage Loans or the consummation of the transactions contemplated
by the Purchase Agreement; or (ii) any required consent, approval,
authorization or order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of, the Purchase Agreement conflicts or
will conflict with or results or will result in a breach of or
constitutes or will constitute a default under the charter or
by-laws of the Company, the terms of any indenture or other
agreement or instrument to which the Company is a party or by which
it is bound or to which it is subject, or violates any statute or
order, rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company is
subject or by which it is bound.
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7. There is no action, suit, proceeding or investigation pending or, to
the best of [our] [my] knowledge, threatened against the Company
which, in [our] [my] judgment, either in any one instance or in the
aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of
the Company or in any material impairment of the right or ability of
the Company to carry on its business substantially as now conducted
or in any material liability on the part of the Company or which
would draw into question the validity of the Purchase Agreement, or
the Mortgage Loans or of any action taken or to be taken in
connection with the transactions contemplated thereby, or which
would be likely to impair materially the ability of the Company to
perform under the terms of the Purchase Agreement.
8. The sale of each Mortgage Note and Mortgage as and in the manner
contemplated by the Purchase Agreement is sufficient to fully
transfer to the Purchaser all right, title and interest of the
Company thereto as noteholder and mortgagee.
Very truly yours,
---------------------------------------
[Name]
[Assistant] General Counsel
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EXHIBIT E-1
FORM OF OPINION OF COUNSEL TO THE AGGREGATOR
TO BE RELIED UPON BY PURCHASER
1. The Assignment of Mortgage are in recordable form, except for the insertion
of the name of the assignee, and upon the name of the assignee being inserted,
are acceptable for recording under the laws of the state where each related
Mortgaged Property is located. The Mortgage Notes have been duly endorsed as
provided in the Master Mortgage Loan Purchase and Warranties Agreement.
2. The delivery of the original endorsed Mortgage Notes and of the Assignments
of Mortgage to Purchaser or its designee, upon receipt of adequate consideration
by the Aggregator pursuant to and as provided in the Master Mortgage Loan
Purchase and Warranties Agreement, is sufficient to fully transfer to the
Purchaser all right, title and interest of the Aggregator to the Mortgage Loans
and to constitute the Purchaser as the holder of each Note and the mortgagee
under the related Mortgage.
E-1
EXHIBIT F
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc. from the Company
named below pursuant to that certain Master Mortgage Loan Purchase and
Warranties Agreement, dated as of _________________, and certifies that all
notes, mortgages, assignments and other documents in its possession relating to
such Mortgage Loans have been delivered and released to the Company named below
or its designees, as of the date and time of the sale of such Mortgage Loans to
▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.
Name and Address of Financial Institution
-----------------------------------------
(name)
-----------------------------------------
(Address)
By:
--------------------------------------
F-1
II. Certification of Release
The Company named below hereby certifies to ▇▇▇▇▇▇ Capital, A
Division of ▇▇▇▇▇▇ Brothers Holdings Inc. that, as of the date and time of the
sale of the above-mentioned Mortgage Loans to ▇▇▇▇▇▇ Capital, A Division of
▇▇▇▇▇▇ Brothers Holdings Inc., the security interests in the Mortgage Loans
released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Company
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
CENTRE CAPITAL GROUP, INC.
By:____________________________________
Name:
Date:
F-2
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated __________ __, 200_,
between __________________________________, a ___________________ corporation
("Assignor") and ________________________________, a __________________
corporation ("Assignee"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee, as
Purchaser, all of the right, title and interest of Assignor with respect to the
mortgage loans identified on Exhibit A hereto (the "Mortgage Loans") under that
certain Master Mortgage Loan Purchase and Warranties Agreement, Conventional
Residential Adjustable Rate Mortgage Loans, Group ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇▇▇▇
Agreement"), [that certain Interim Servicing Agreement, Conventional Residential
Adjustable Rate Mortgage Loans, Group 2000-1 (the "Interim Servicing
Agreement"),] and [that certain Master Servicing Agreement, Conventional
Residential Adjustable Rate Mortgage Loans, Group 2000-1 (the "Master Servicing
Agreement", collectively, the "Agreements")] each dated as of February 18, 2000,
by and between ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc. (the
"Purchaser"), and Centre Capital Group, Inc. (the "Seller").
The Assignor specifically reserves any and all right, title and interest
and all obligations of the Assignor with respect to any mortgage loans subject
to the Agreement which are not the Mortgage Loans set forth on Exhibit A hereto
and are not the subject of this Assignment and Assumption Agreement.
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Seller with
respect to the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements, including
without limitation, the transfer of the servicing obligations under the Purchase
Agreement. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under, the Agreements; and
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d. Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which would
constitute a distribution of the Mortgage Loans under the Securities Act of 1933
(the "33 Act") or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 33 Act or require registration pursuant thereto.
3. That Assignee warrants and represents to, and covenants with, the
Assignor and the Seller pursuant to the Agreements that:
a. The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Agreements, the Mortgage Loans, and from
and after the date hereof, the Assignee assumes for the benefit of each of the
Seller and the Assignor all of the Assignor's obligations as Purchaser
thereunder;
b. The Assignee understands that the Mortgage Loans have not been
registered under the 33 Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the Mortgage
Loans is in excess of $250,000 and will be paid by cash remittance of the full
purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment for
its own account only and not for any other person;
e. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
f. The Assignee has been furnished with all information regarding
the Mortgage Loans that it has requested from the Assignor or the Seller;
g. Neither the Assignee nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security with, any
person in any manner which would constitute a distribution of the Mortgage Loans
under the `33 Act or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the `33 Act or require registration pursuant thereto,
nor will it act, nor has it authorized or will it authorize any person to act,
in such manner with respect to the Mortgage Loans; and
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h. Either: (1) the Assignee is not an employee benefit plan ("Plan")
within the meaning of section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the meaning of
section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and the
Assignee is not directly or indirectly purchasing the Mortgage Loans on behalf
of, investment manager of, as named fiduciary of, as Trustee of, or with assets
of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not result
in a prohibited transaction under section 406 of ERISA or section 4975 of the
Code.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
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Assignor Assignee
By: By:
-------------------------------- --------------------------------
Its: Its:
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Taxpayer Taxpayer
Identification No. Identification No.
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
G-4
EXHIBIT H
CUSTODIAL AGREEMENT
[Intentionally Omitted]
H-1
EXHIBIT I
SELLER'S UNDERWRITING GUIDELINES
[Intentionally Omitted]
J-1
EXHIBIT J
SERVICING AGREEMENT
[Intentionally Omitted]
J-2
EXHIBIT K
ASSIGNMENT AND CONVEYANCE
On this [_________] day of January, 2000, Centre Capital Group,
Inc., as the Seller, under that certain Master Mortgage Loan Purchase and
Warranties Agreement, dated as of February 18, 2000, (the "Agreement") does
hereby sell, transfer, assign, set over and convey to ▇▇▇▇▇▇ Capital, A Division
of ▇▇▇▇▇▇ Brothers Holdings Inc., as Purchaser under the Agreement, without
recourse, but subject to the terms of the Agreement all rights, title and
interest of the Seller in and to (a) the Mortgage Loans listed on the Mortgage
Loan Schedule attached hereto, and (b) the Servicing Rights with respect to the
Servicing Released Mortgage Loans, together with the related Mortgage Files and
all rights and obligations arising under the documents contained therein.
Pursuant to Section 2 of the Agreement, the Seller has delivered to the
Custodian the documents for each Mortgage Loan to be purchased as set forth in
the Agreement. The ownership of each Mortgage Note, Mortgage, and the contents
of each Mortgage File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be delivered promptly by the Seller to the Purchaser.
The Seller confirms to the Purchaser that the representations and
warranties set forth in Section 7 of the Agreement and Exhibit 2 attached hereto
with respect to the Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto, and the representations and warranties in Section 6 of the Agreement
with respect to the Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
CENTRE CAPITAL GROUP, INC.
(Seller)
By:________________________
Name:______________________
Title:_______________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
EXHIBIT 2
POOL CHARACTERISTICS
The Seller hereby represents and warrants to the Purchaser, as to
each Mortgage Loan, that as of ___________, 1999 or as of such other date
specifically provided therein:
(b) Pool Characteristics. With respect to both
aggregate outstanding principal balance of all the Mortgage
Loans, (a) no more than ___% of the Mortgage Loans are secured
by real property improved by two- to four- family dwellings,
(b) no more than ___% are secured by real property improved by
individual condominium units, (c) no more than ___% are
secured by real property improved by an individual unit in a
planned unit development, and (d) at least ___% are secured by
real property with a detached one family residence erected
thereon. Not more than __% of the Mortgage Loans are term
refinanced Mortgage Loans, and at least __% of the Mortgage
Loans are purchase money Mortgage Loans. When measured by
principal balance as of the related Cut-off Date, no more than
____% of the Mortgage Loans are secured by Mortgaged
Properties located in California, and no more than ____% of
the Mortgage Loans are secured by Mortgaged Properties located
in the same United States postal zip code. The Mortgage Loans
have a weighted average remaining term of ___ months. [With
respect to ARM Mortgage Loans, the weighted average Interest
Rate Adjustment Date as of the related Cut-off Date was
__________________. With respect to ARM Mortgage Loans, the
weighted average Lifetime Rate Cap on the Mortgage Loans as of
the related Cut-off Date was ____%. With respect to ARM
Mortgage Loans, the maximum Mortgage Interest Rate on the
Mortgage Loans as of the related Cut-off Date was ____%. With
respect to ARM Mortgage Loans, the minimum Mortgage Interest
Rate on the Mortgage Loans as of the related Cut-off Date was
____%;] No more than ___% of the Mortgage Loans have
alternative documentation, and at least ____% of the Mortgage
Loans have full documentation.