Exhibit 99.6(b)
EXECUTION COPY
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SECOND AMENDED AND RESTATED
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
among
COUNTRYWIDE HOME LOANS, INC.,
as Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
as Purchaser
Dated as of September 1, 2005
Conventional,
Fixed and Adjustable Rate,
Residential Mortgage Loans
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.......................................................................1
SECTION 2. PURCHASE AND CONVEYANCE..........................................................15
SECTION 3. MORTGAGE LOAN SCHEDULE...........................................................15
SECTION 4. PURCHASE PRICE...................................................................15
SECTION 5. EXAMINATION OF MORTGAGE FILES....................................................16
SECTION 6. DELIVERY OF MORTGAGE LOAN DOCUMENTS..............................................16
Subsection 6.01 Possession of Mortgage Files...................................................16
Subsection 6.02 Books and Records..............................................................16
Subsection 6.03 Delivery of Mortgage Loan Documents............................................17
Subsection 6.04 MERS Designated Loans..........................................................18
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS; REMEDIES FOR BREACH...................18
Subsection 7.01 Representations and Warranties Regarding Individual Mortgage Loans.............18
Subsection 7.02 Seller and Servicer Representations............................................29
Subsection 7.03 Remedies for Breach of Representations and Warranties..........................32
Subsection 7.04 Repurchase of Mortgage Loans with First Payment Defaults.......................34
Subsection 7.05 [Reserved].....................................................................34
Subsection 7.06 Representations and Warranties Regarding the Purchaser.........................34
SECTION 8. CLOSING..........................................................................35
SECTION 9. CLOSING DOCUMENTS................................................................36
SECTION 10. COSTS............................................................................37
SECTION 11. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS...............................37
Subsection 11.01 Servicer to Act as Servicer....................................................37
Subsection 11.02 Liquidation of Mortgage Loans..................................................38
Subsection 11.03 Collection of Mortgage Loan Payments...........................................38
Subsection 11.04 Establishment of Custodial Account; Deposits in Custodial Account..............38
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Subsection 11.05 Withdrawals From the Custodial Account.........................................40
Subsection 11.06 Establishment of Escrow Account; Deposits in Escrow Account....................41
Subsection 11.07 Withdrawals From Escrow Account................................................42
Subsection 11.08 Payment of Taxes, Insurance and Other Charges; Collections Thereunder..........42
Subsection 11.09 Transfer of Accounts...........................................................42
Subsection 11.10 Maintenance of Hazard Insurance................................................43
Subsection 11.11 Fidelity Bond; Errors and Omissions Insurance..................................43
Subsection 11.12 Title, Management and Disposition of REO Property..............................43
Subsection 11.13 Servicing Compensation.........................................................45
Subsection 11.14 Distributions..................................................................45
Subsection 11.15 Statements to the Purchaser....................................................45
Subsection 11.16 Advances by the Servicer.......................................................46
Subsection 11.17 Assumption Agreements..........................................................47
Subsection 11.18 Satisfaction of Mortgages and Release of Mortgage Files........................47
Subsection 11.19 Annual Statement as to Compliance..............................................47
Subsection 11.20 Annual Independent Public Accountants' Servicing Report........................48
Subsection 11.21 Servicer Shall Provide Access and Information as Reasonably Required...........48
Subsection 11.22 Transfer of Servicing..........................................................48
SECTION 12. THE SERVICER.....................................................................51
Subsection 12.01 Indemnification; Third Party Claims............................................51
Subsection 12.02 Merger or Consolidation of the Seller or Servicer..............................52
Subsection 12.03 Limitation on Liability of the Servicer and Others.............................52
Subsection 12.04 Seller and Servicer Not to Resign..............................................53
SECTION 13. DEFAULT..........................................................................53
Subsection 13.01 Events of Default..............................................................53
Subsection 13.02 Waiver of Defaults.............................................................54
SECTION 14. TERMINATION......................................................................54
Subsection 14.01 Termination....................................................................54
Subsection 14.02 Termination of the Servicer Without Cause......................................55
Subsection 14.03 Successors to the Servicer.....................................................55
SECTION 15. COOPERATION OF SELLER AND THE SERVICER WITH A RECONSTITUTION.....................56
SECTION 16. NOTICES..........................................................................59
SECTION 17. SEVERABILITY CLAUSE..............................................................60
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SECTION 18. NO PARTNERSHIP...................................................................60
SECTION 19. COUNTERPARTS.....................................................................60
SECTION 20. GOVERNING LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS........................60
SECTION 21. MANDATORY DELIVERY...............................................................61
SECTION 22. INTENTION OF THE PARTIES.........................................................61
SECTION 23. SUCCESSORS AND ASSIGNS...........................................................61
SECTION 24. WAIVERS..........................................................................61
SECTION 25. EXHIBITS.........................................................................62
SECTION 26. GENERAL INTERPRETIVE PRINCIPLES..................................................62
SECTION 27. REPRODUCTION OF DOCUMENTS........................................................62
SECTION 28. AMENDMENT........................................................................63
SECTION 29. CONFIDENTIALITY..................................................................63
SECTION 30. ENTIRE AGREEMENT.................................................................63
SECTION 31. FURTHER AGREEMENTS...............................................................63
SECTION 32. NO SOLICITATION..................................................................63
SECTION 33. WAIVER OF JURY TRIAL.............................................................64
EXHIBITS
EXHIBIT 1 MORTGAGE LOAN DOCUMENTS
EXHIBIT 2 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 3 FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT 4 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
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EXHIBIT 6 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 7 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 8 [RESERVED]
EXHIBIT 9 FORM OF MONTHLY REMITTANCE REPORT
EXHIBIT 10-1 FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT 10-2 FORM OF SERVICER'S OFFICER'S CERTIFICATE
EXHIBIT 11 [RESERVED]
EXHIBIT 12 FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT 13 FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT 14 FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT 15 FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
EXHIBIT 16 FORM OF ANNUAL CERTIFICATION
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SECOND AMENDED AND RESTATED
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS SECOND AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING
AGREEMENT (the "Agreement"), dated as of September 1, 2005, is hereby executed
by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC., a New York corporation (the
"Purchaser"), and COUNTRYWIDE HOME LOANS, INC., a New York corporation, as
seller (the "Seller" or "Countrywide") and COUNTRYWIDE HOME LOANS SERVICING
LP, a Texas limited partnership, as servicer (the "Servicer").
W I T N E S S E T H:
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WHEREAS, the Purchaser and the Seller are parties to that certain
Mortgage Loan Sale and Servicing Agreement, dated as of May 1, 2004, as
amended by that certain Amendment No. 1 to Mortgage Loan Sale and Servicing
Agreement, dated as of August 1, 2004, and as amended and restated by that
certain First Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated as of June 1, 2005 (collectively, the "Original Purchase Agreement"),
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, on a
servicing-retained basis, certain conventional fixed and adjustable rate
residential first-lien mortgage loans (the "Mortgage Loans") serviced by the
Servicer as described herein, and which shall be delivered in pools of whole
loans (each, a "Mortgage Loan Package") on various dates as provided herein
(each, a "Closing Date");
WHEREAS, at the present time, the Purchaser and the Seller desire
to amend the Original Purchase Agreement to make certain modifications.
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,
the Seller and the Servicer agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following capitalized terms shall have the respective meanings set forth
below.
Accepted Servicing Procedures: Procedures (including collection
procedures) that the Servicer customarily employs and exercises in servicing
and administering mortgage loans for its own account that are similar to the
Mortgage Loans and which are in accordance with accepted mortgage servicing
practices of prudent mortgage lending institutions which service mortgage
loans of the same type as the Mortgage Loans in the jurisdictions where the
related Mortgaged Properties are located.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant
to this Agreement, the Mortgage Interest Rate of which is adjusted from time
to time in accordance with the terms of the related Mortgage Note.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Servicer shall be
deemed an Affiliate of the Seller.
Agency Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac Transfer.
Agreement: This Second Amended and Restated Mortgage Loan Sale and
Servicing Agreement including all exhibits, schedules, amendments and
supplements hereto.
ALTA: The American Land Title Association.
Appraised Value: With respect to any Mortgaged Property, the
lesser of (i) the value thereof as determined by an appraisal made for the
originator of the Mortgage Loan at the time of origination of the Mortgage
Loan by a Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage Loan, such value
of the Mortgaged Property is based solely upon the value determined by an
appraisal made for such Refinanced Mortgage Loan at the time of origination of
such Refinanced Mortgage Loan by a Qualified Appraiser.
Assignment and Conveyance Agreement: As defined in Section 2.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form and in blank,
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to the
Purchaser.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the state in which (i) the
Servicer is located or (ii) the Custodial Account is maintained, are
authorized or obligated by law or executive order to be closed.
Cash-Out Refinance: A Refinanced Mortgage Loan in which the
proceeds received were in excess of the amount of funds required to repay the
principal balance of any existing first mortgage on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property and which provided incidental cash
to the related Mortgagor of more than the lesser $2,000 or 2% of the original
principal balance of such Mortgage Loan.
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 with respect to
the related Mortgage Loan Package.
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Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 9.
CLTA: The California Land Title Association.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property by exercise of the
power of condemnation or the right of eminent domain, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect
to a dwelling unit occupied by the Mortgagor and relating to the stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and a collateral assignment of the related Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Custodial Account: As defined in Subsection 11.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the individual Custodial Agreements shall collectively
be referred to as the "Custodial Agreement."
Custodian: The custodian under each Custodial Agreement, and its
successors in interest, or any successor to the Custodian under the Custodial
Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Cut-off Date Principal Balance: The aggregate Stated Principal
Balance of the Mortgage Loans as of the applicable Cut-off Date, which is
determined after the application, to the reduction of principal, of payments
of principal due on or before such Cut-off Date, whether or not collected, and
of partial principal prepayments received before such Cut-off Date.
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Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
with a Qualified Substitute Mortgage Loan in accordance with this Agreement.
Delinquent Mortgage Loans: As defined in Subsection 11.01.
Determination Date: With respect to each Remittance Date, the 15th
day (or, if such 15th day is not a Business Day, the following Business Day)
of the month in which such Remittance Date occurs.
Due Date: With respect to each Remittance Date, the first day of
the calendar month in which such Remittance Date occurs, which is the day on
which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
Due Period: With respect to each Remittance Date and any Mortgage
Loan, the period beginning on the second day of the month preceding such
Remittance Date through and including the first day of the month in which such
Remittance Date occurs.
Eligible Investments: Any one or more of the following obligations
or securities:
(a) obligations of or guaranteed as to principal and interest by
▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or any agency or instrumentality of the United States
when such obligations are backed by the full faith and credit of the United
States; provided, however, that such obligations of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇
shall be limited to senior debt obligations and mortgage participation
certificates except that investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages shall not constitute
Eligible Investments hereunder;
(b) repurchase agreements on obligations specified in clause (a)
maturing not more than one month from the date of acquisition thereof;
(c) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original maturity
of not more than ninety (90) days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or a
remaining maturity of more than thirty (30) days) denominated in United States
dollars of any United States depository institution or trust company
incorporated under the laws of the United States or any state thereof or of
any domestic branch of a foreign depository institution or trust company;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United States
or any state thereof which is rated not lower than "P-2" by ▇▇▇▇▇'▇ Investors
Service, Inc. and rated not lower than "A-2" by Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.; and
(e) a money market fund;
provided, however, that no instrument shall be an Eligible Investment if it
represents, either (1) the right to receive only interest payments with
respect to the underlying debt instrument or (2) the right to receive both
principal and interest payments derived from obligations underlying
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such instrument and the principal and interest with respect to such instrument
provide a yield to maturity greater than 120% of the yield to maturity at par
of such underlying obligations.
Escrow Account: As defined in Subsection 11.06.
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 (to the extent required under the related
condominium agreement), and any other payments required to be escrowed by the
Mortgagor with the Mortgagee pursuant to the Mortgage or any other document.
Event of Default: Any one of the conditions or circumstances
enumerated in Subsection 13.01.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association or any
successor thereto.
▇▇▇▇▇▇ ▇▇▇ Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇
▇▇▇ Servicers' Guide and all amendments or additions thereto.
▇▇▇▇▇▇ Mae Transfer: As defined in Section 15.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: The fidelity bond required to be obtained by the
Servicer pursuant to Subsection 11.11.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
▇▇▇▇▇▇▇ Mac Transfer: As defined in Section 15.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in accordance with the terms of the related
Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage
Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost"
loan under the Home Ownership and Equity Protection Act of 1994, (b) a "high
cost home," "threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term is defined in clause (1) of the definition of that term in the
New Jersey Home Ownership Security Act of 2002), "high risk home," "predatory"
or similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates,
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points and/or fees) or (c) a Mortgage Loan categorized as High Cost pursuant
to Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of the Standard & Poor's Glossary.
HUD: The United States Department of Housing and Urban
Development, or any successor thereto.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Only Mortgage Loan: A Mortgage Loan that requires
payments of interest only during its term and the entire original principal
balance at maturity, and that does not amortize during its term.
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date as specified in the related Mortgage Note with
respect to the initial Interest Rate Adjustment Date, or the related Mortgage
Loan Schedule, with respect to subsequent Interest Rate Adjustment Dates.
Interim Funder: With respect to each MERS Designated Mortgage
Loan, the Person named on the MERS System as the interim funder pursuant to
the MERS Procedures Manual.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS
Procedures Manual.
Liquidation Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of
REO Property, Insurance Proceeds and Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan as of any
date of determination, the ratio, expressed as a percentage, the numerator of
which is the outstanding principal balance of such Mortgage Loan at
origination (unless otherwise indicated) and the denominator of which is the
Appraised Value of the related Mortgaged Property.
LTV: Loan-to-Value Ratio.
Manufactured Home: A single family residential unit that is
constructed in a factory in sections in accordance with the Federal
Manufactured Home Construction and Safety Standards adopted on June 15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as amended in
2000, which preempts state and local building codes. Each unit is identified
by the presence of a HUD Plate/Compliance Certificate label. The sections are
then
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transported to the site and joined together and affixed to a pre-built
permanent foundation (which satisfies the manufacturer's requirements and all
state, county, and local building codes and regulations). The manufactured
home is built on a non-removable, permanent frame chassis that supports the
complete unit of walls, floors, and roof. The underneath part of the home may
have running gear (wheels, axles, and brakes) that enable it to be transported
to the permanent site. The wheels and hitch are removed prior to anchoring the
unit to the permanent foundation. The manufactured home must be classified as
real estate and taxed accordingly. The permanent foundation may be on land
owned by the mortgager or may be on leased land.
Maximum Mortgage Interest Rate: The provision of each Mortgage
Note related to an Adjustable Rate Mortgage Loan which provides for an
absolute maximum Mortgage Interest Rate thereunder. The Mortgage Interest Rate
during the term of each Adjustable Rate Mortgage Loan shall not at any time
exceed such maximum Mortgage Interest Rate set forth in the related Mortgage
Note.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the Seller, in accordance with the MERS Procedures Manual and (b)
the Seller has designated or will designate the Purchaser as the Investor on
the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: With respect to any Mortgage Loan, the scheduled
payment of principal and interest payable by a Mortgagor under the related
Mortgage Note on each Due Date.
Mortgage: With respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a first lien on the Mortgaged Property. With respect to a
Co-op Loan, the Security Agreement.
Mortgage File: With respect to any Mortgage Loan, the items listed
in Exhibit 2 hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time
in accordance with the provisions of the related Mortgage Note.
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Mortgage Loan: Each mortgage loan sold, assigned and transferred
pursuant to this Agreement and identified on the applicable Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such mortgage loan.
Mortgage Loan Documents: With respect to any Mortgage Loan, the
documents listed in Exhibit 1 hereto.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest payable to the Purchaser, which shall be equal to
the related Mortgage Interest Rate minus the related Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan in the
related Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating whether
the Mortgaged Property is owner-occupied, investment property or a second
home; (5) the number and type of residential units constituting the Mortgaged
Property (e.g. single family residence, a two- to four-family dwelling,
condominium, planned unit development or cooperative); (6) the original months
to maturity or the remaining months to maturity from the related Cut-off Date,
in any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (7) the Loan-to-Value Ratio at origination; (8) the Mortgage
Interest Rate as of the related Cut-off Date; (9) the date on which the first
Monthly Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, the Due Date; (10) the
stated maturity date; (11) the amount of the Monthly Payment as of the related
Cut-off Date; (12) payment current through date; (13) the original principal
amount of the Mortgage Loan; (14) 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 due and collected on or before the related Cut-off Date;
(15) with respect to Adjustable Rate Mortgage Loans, the Interest Rate
Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Maximum
Mortgage Interest Rate under the terms of the Mortgage Note; (18) with respect
to Adjustable Rate Mortgage Loans, a code indicating the type of Index; (19)
the type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate); (20) a code
indicating the purpose of the loan (i.e., purchase, Rate/Term Refinance or
Cash-Out Refinance); (21) a code indicating the documentation style (i.e. no
documents, full, alternative, reduced, no income/no asset, stated income, no
ration, reduced or NIV); (22) [Reserved]; (23) a code indicating whether such
Mortgage Loan provides for a Prepayment Penalty; (24) a code indicating the
prepayment penalty term of such Mortgage Loan, if applicable; (25) [Reserved];
(26) the Mortgage Interest Rate as of origination; (27) the credit risk score
(FICO score); (28) the date of origination; (29) with respect to Adjustable
Rate Mortgage Loans, the Mortgage Interest Rate adjustment period; (30) with
respect to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate
adjustment
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percentage; (31) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest Rate floor; (32) [Reserved]; (33) with respect to Adjustable Rate
Mortgage Loans, the Periodic Rate Cap as of the first Interest Rate Adjustment
Date; (34) the original Monthly Payment due; (35) the Appraised Value; (36) a
code indicating whether the Mortgage Loan is covered by a PMI Policy and, if
so, identifying the PMI Policy provider; (37) the amount of any PMI Policy
premiums, if any; (38) a code indicating whether the Mortgaged Property is a
leasehold estate (if available); (39) the MERS Identification Number, if
applicable; (40) a code indicating whether the Mortgage Loan is an Interest
Only Mortgage Loan; and (41) a code indicating whether the Mortgage Loan is a
Home Loan. With respect to the Mortgage Loans in the aggregate, the related
Mortgage Loan Schedule shall set forth the following information, as of the
related Cut-off Date: (1) the number of Mortgage Loans; (2) the current
aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the Mortgage Loans; (5) the average principal
balance of the Mortgage Loans; (6) the applicable Cut-off Date; and (7) the
applicable Closing Date.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property securing repayment of a related
Mortgage Note, consisting of an unsubordinated estate in fee simple or, with
respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice, a
leasehold estate, in a single parcel or multiple parcels of real property
improved by a Residential Dwelling. With respect to a Co-op Loan, the stock
allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of the
Mortgaged Property and the grantor or mortgagor named in the Mortgage and such
grantor's or mortgagor's successors in title to the Mortgaged Property.
NAIC: The National Association of Insurance Commissioners or any
successor thereto.
OCC: Office of the Comptroller of the Currency, or any successor
thereto.
Offering Materials: As defined in Section 15.
Officer's Certificate: A certificate signed by a Vice President or
a more senior officer, and by the Treasurer, the Secretary, or one of the
Assistant Treasurers or the Assistant Secretaries of the Person on behalf of
whom such certificate is being delivered.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Seller or the Servicer, reasonably acceptable to the
Purchaser, provided that any Opinion of
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Counsel relating to (a) the qualification of any account required to be
maintained pursuant to this Agreement as an eligible account, (b)
qualification of the Mortgage Loans in a REMIC or (c) compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion of Counsel)
an opinion of counsel who (i) is in fact independent of the Seller and any
servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Seller or Servicer or in an Affiliate of
either and (iii) is not connected with the Seller or Servicer as an officer,
employee, director or person performing similar functions.
Original Purchase Agreement: That certain Mortgage Loan Sale and
Servicing Agreement, dated as of May 1, 2004, as amended by that certain
Amendment No. 1 to Mortgage Loan Sale and Servicing Agreement, dated as of
August 1, 2004, and as amended and restated by that certain First Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of June 1, 2005,
each by an between the Seller and the Purchaser.
OTS: The Office of Thrift Supervision or any successor thereto.
Owner: As defined in Subsection 11.12.
P&I Advance: As defined in Subsection 11.16.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans to a trust or other entity as part of a publicly-offered or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
Payment Adjustment Date: As to each Adjustable Rate Mortgage Loan,
the date on which an adjustment to the Monthly Payment on a Mortgage Note
becomes effective.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may increase or
decrease on an Interest Rate Adjustment Date above or below the Mortgage
Interest Rate previously in effect.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: An individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Loan Schedule: The initial schedule of
Mortgage Loans delivered prior to the related Closing Date setting forth the
information described under the
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definition of Mortgage Loan Schedule with respect to each Mortgage Loan in the
related Mortgage Loan Package.
Prepayment Penalty: With respect to each Mortgage Loan, the
penalty if the Mortgagor prepays such Mortgage Loan as provided in the related
Mortgage Note or Mortgage.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment.
Principal Prepayment Period: With respect to each Remittance Date
and any Mortgage Loan, the period beginning on the second day of the month
preceding such Remittance Date through and including the first day of the
month in which such Remittance Date occurs.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller pursuant to this Agreement in exchange for the
Mortgage Loans purchased on such Closing Date, which shall be the percentage
of par (expressed as a decimal) set forth in the Purchase Price and Terms
Agreement times the applicable Cut-off Date Principal Balance.
Purchase Price Percentage: The percentage of par (expressed as
decimal) set forth in the related Purchase Price and Terms Agreement.
Purchase Price and Terms Agreement: Those certain agreements
setting forth the general terms and conditions of the transactions consummated
herein and identifying the Mortgage Loans to be purchased from time to time
hereunder and thereunder, between the Seller and the Purchaser.
Purchaser: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., a New York
corporation, and its successors in interest and assigns, or any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation was not affected by the approval or
disapproval of the Mortgage Loan, and such appraiser and the appraisal made by
such appraiser both satisfied all of the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac in effect from time to time, as in effect on the date the Mortgage Loan
was originated.
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, be approved by the Purchaser and (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 (the
amount of any shortfall will be deposited in the Custodial Account by the
Seller in the month of substitution);
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(ii) have a Mortgage Interest Rate not less than and not more than one percent
(1%) greater than the Mortgage Interest Rate of the Deleted Mortgage Loan;
(iii) have a remaining term to maturity not greater than and not more than one
(1) year less than that of the Deleted Mortgage Loan (iv) be of the same type
as the Deleted Mortgage Loan (i.e., fixed rate or adjustable rate with same
Mortgage Interest Rate Cap and Index); (v) comply as of the date of
substitution with each representation and warranty set forth in Subsection
7.01 of this Agreement; (vi) be current in the payment of principal and
interest; (vii) be secured by a Mortgaged Property of the same type and
occupancy status as secured the Deleted Mortgage Loan; and (viii) have payment
terms that do not vary in any material respect from those of the Deleted
Mortgage Loan.
Rate/Term Refinance: A Refinanced Mortgage Loan, in which the
proceeds received were not in excess of the amount of funds required to repay
the principal balance of any existing first mortgage loan on the related
Mortgaged Property, pay related closing costs and satisfy any outstanding
subordinate mortgages on the related Mortgaged Property and did not provide
incidental cash to the related Mortgagor of more than two percent (2%) of the
original principal balance of such Mortgage Loan.
Reconstitution Agreement: As defined in Section 15.
Record Date: The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regulation AB: Regulation AB under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, as such
Regulation is amended from time to time.
Remittance Date: The 18th day of any month (or, if such 18th day
is not a Business Day, the following Business Day).
REO Disposition: The final sale by the Servicer of an REO
Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Subsection 11.12.
REO Property: A Mortgaged Property acquired by the Servicer
through foreclosure or deed in lieu of foreclosure, as described in Subsection
11.12.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to the unpaid principal balance as of the repurchase date, of the Mortgage
Loan to be repurchased, plus accrued interest thereon at the Mortgage Interest
Rate (minus the Servicing Fee Rate for any Mortgage Loan the Servicer is
servicing at the time of such repurchase) from and including the last date
through which interest had last been remitted through the date of such
repurchase, plus (for any Mortgage Loan the Servicer is no longer servicing)
the amount of any outstanding advances owed to any servicer, plus all costs
and expenses incurred by the Purchaser or any servicer (for any Mortgage Loan
the Servicer is no longer servicing) arising out of or based upon
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such breach, and with respect to any such Mortgage Loan included in a
Pass-Through Transfer, including without limitation costs and expenses
incurred in the enforcement of the Seller's repurchase obligation hereunder.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, or (iv) a one-family
dwelling in a planned unit development, none of which is a co-operative,
mobile or Manufactured Home.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of this Agreement,
together with its successors in interest.
Servicer: As defined in the initial paragraph of this Agreement,
together with its successors and assigns as permitted under the terms of this
Agreement.
Servicing Advances: All customary, reasonable and necessary
out-of-pocket costs and expenses incurred in the performance by the Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) payments made by the
Servicer with respect to a Mortgaged Property pursuant to Subsection 11.08.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the annual fee the Purchaser shall pay to the Servicer, which shall, for each
month, be equal to one-twelfth of (i) the product of the Servicing Fee Rate
and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed,
and shall be pro rated (based upon the number of days of the related month the
Servicer so acted as Servicer relative to the number of days in that month)
for each part thereof. The obligation of the Purchaser to pay the Servicing
Fee is limited to, and payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds and other
proceeds, to the extent permitted by Subsection 11.05) of related Monthly
Payments collected by the Servicer, or as otherwise provided under Subsection
11.05.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth in the applicable Purchase Price and Terms Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer, during the period in which the Servicer is acting as
servicer pursuant to this Agreement, consisting of originals of all documents
in the Mortgage File which are not delivered to the Purchaser, its designee or
the Custodian and copies of the Mortgage Loan Documents listed on Exhibit 1
hereto.
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Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Purchaser by the
Servicer, as such list may be amended from time to time.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan as to any date
of determination, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (without duplication) (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 on such Mortgage Loan.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Subsections 7.03 and 12.01.
Transfer Date: In the event the Servicer is terminated as servicer
of a Mortgage Loan pursuant to Subsections 12.04, 13.01, 14.01(c) or 14.02,
the date on which the Purchaser, or its designee, shall receive the transfer
of servicing responsibilities and begin to perform the servicing of such
Mortgage Loans, and the Servicer, shall cease all servicing responsibilities.
Underwriting Guidelines: The then-current underwriting guidelines
of the Seller applicable to the Mortgage Loans for the Mortgage Loan Package,
a copy of which shall be attached as an exhibit to the related Assignment and
Conveyance Agreement.
Whole Loan Transfer: The sale or transfer by the Purchaser of some
or all of the Mortgage Loans in a whole loan or participation format pursuant
to a Reconstitution Agreement.
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Section 2. Purchase and Conveyance. The Seller agrees to sell from
time to time, and the Purchaser agrees to purchase from time to time, Mortgage
Loans having an aggregate principal balance on the related Cut-off Date in an
amount as set forth in the related Purchase Price and Terms Agreement, or in
such other amount as agreed by the Purchaser and the Seller as evidenced by
the actual aggregate principal balance of the Mortgage Loans accepted by the
Purchaser on each Closing Date, together with the related Mortgage Files and
all rights and obligations arising under the documents contained therein. The
Seller, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in the
form attached hereto as Exhibit 14 (the "Assignment and Conveyance
Agreement").
With respect to each Mortgage Loan purchased, the Purchaser shall
own and be entitled to receive: (a) all scheduled principal due after the
related Cut-off Date, (b) all other payments and/or recoveries of principal
collected after the related Cut-off Date (provided, however, that all
scheduled payments of principal due on or before the related Cut-off Date and
collected by the Servicer after the related Cut-off Date shall belong to the
Seller), and (c) all payments of interest on the Mortgage Loans net of the
Servicing Fee (minus that portion of any such interest payment that is
allocable to the period prior to the related Cut-off Date).
For the purposes of this Agreement, payments of scheduled
principal and interest prepaid for a Due Date beyond the related Cut-off Date
shall not be applied to reduce the Stated Principal Balance as of the related
Cut-off Date. Such prepaid amounts (minus the applicable Servicing Fee) shall
be the property of the Purchaser. The Seller shall remit to the Servicer for
deposit any such prepaid amounts into the Custodial Account, which account is
established for the benefit of the Purchaser, for remittance by the Servicer
to the Purchaser on the appropriate Remittance Date. All payments of principal
and interest, less the applicable Servicing Fee, due on a Due Date following
the related Cut-off Date shall belong to the Purchaser.
Section 3. Mortgage Loan Schedule. The Seller from time to time
shall provide the Purchaser with a Preliminary Mortgage Loan Schedule setting
forth certain information constituting a preliminary listing of the Mortgage
Loans to be purchased on each Closing Date in accordance with the related
Purchase Price and Terms Agreement and this Agreement.
The Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans to be purchased on a particular Closing Date to the
Purchaser at least two (2) Business Days prior to the related Closing Date.
The related Mortgage Loan Schedule shall include all Mortgage Loans to be
purchased on the related Closing Date.
Section 4. Purchase Price. Subject to the conditions set forth
herein, the Purchaser shall pay the Purchase Price plus accrued interest on
the Stated Principal Balance of each Mortgage Loan as of the applicable
Cut-off Date at its Mortgage Loan Remittance Rate from the related Cut-off
Date through the day prior to the related Closing Date, both inclusive, to the
Seller on the related Closing Date. Such payment shall be made by wire
transfer of immediately available funds to the account designated by the
Seller.
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Section 5. Examination of Mortgage Files. At least five (5)
Business Days prior to the related Closing Date, the Seller shall either (a)
deliver to the Purchaser or its designee in escrow, for examination with
respect to each Mortgage Loan to be purchased, the related Mortgage File,
including a copy of the Assignment of Mortgage to the extent available (other
than with respect to MERS Designated Mortgage Loans), pertaining to each
Mortgage Loan, or (b) make the related Mortgage File available to the
Purchaser for examination at such other location as shall otherwise be
acceptable to the Purchaser. Such examination of the Mortgage Files may be
made by the Purchaser or its designee at any reasonable time before or after
the related Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans do not conform to any of the requirements set forth in the related
Purchase Price and Terms Agreement, or as an Exhibit annexed thereto, the
Purchaser may delete such Mortgage Loans from the related Mortgage Loan
Schedule, and such Deleted Mortgage Loan (or Loans) may be replaced by a
Qualified Substitute Mortgage Loan (or Loans) acceptable to the Purchaser. The
Purchaser may, at its option and without notice to the Seller, purchase some
or all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not impair in any way the Purchaser's (or any of its successor's) rights
to demand repurchase, substitution or other remedy as provided in this
Agreement. In the event that the Seller fails to deliver the Mortgage File
with respect to any Mortgage Loan, the Seller shall, upon the request of the
Purchaser, repurchase such Mortgage Loan as the price and in the manner
specified in Subsection 7.03.
Section 6. Delivery of Mortgage Loan Documents.
Subsection 6.01 Possession of Mortgage Files. The contents of each
Mortgage File required to be retained by or delivered to the Servicer to
service the Mortgage Loans pursuant to this Agreement and thus not delivered
to the Purchaser, or its designee, are and shall be held in trust by the
Servicer for the benefit of the Purchaser as the owner thereof. The Servicer's
possession of any portion of each such Mortgage File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the Mortgage Loans
pursuant to this Agreement, and such retention and possession by the Servicer
shall be in a custodial capacity only. The ownership of each Mortgage Note,
each 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
Servicer shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Servicer at the will of the Purchaser in such
custodial capacity only. The Mortgage File retained by the Servicer with
respect to each Mortgage Loan pursuant to this Agreement shall be
appropriately identified in the Servicer's computer system to reflect clearly
the sale of such related Mortgage Loan to the Purchaser. The Servicer shall
release from its custody the contents of any Mortgage File retained by it only
in accordance with this Agreement, except when such release is required in
connection with a repurchase of any such Mortgage Loan pursuant to Subsection
7.03 or if required under applicable law or court order.
Subsection 6.02 Books and Records. Record title to each Mortgage
and the related Mortgage Note as of the related Closing Date shall be in the
name of the Seller, or of an
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Affiliate of the Seller; provided, however, that if a Mortgage has been
recorded in the name of MERS or its designee, the Seller is shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by
MERS. Notwithstanding the foregoing, ownership of each Mortgage and the
related Mortgage Note shall be vested solely in the Purchaser or the
appropriate designee of the Purchaser, as the case may be. All rights arising
out of the Mortgage Loans including, but not limited to, all funds received by
the Servicer after the related Cut-off Date and due on or after such Cut-off
Date on or in connection with a Mortgage Loan as provided in Section 2 shall
be vested in the Purchaser; provided, however, that all such funds received on
or in connection with a Mortgage Loan as provided in Section 2 shall be
received and held by the Servicer in trust for the benefit of the Purchaser as
the owner of the Mortgage Loans pursuant to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the related
Mortgage Loans by the Seller and not a pledge of such Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
Consequently, the sale of each Mortgage Loan shall be reflected as a purchase
on the Purchaser's business records, tax returns and financial statements, and
as a sale of assets on the Seller's business records, tax returns and
financial statements.
Subsection 6.03 Delivery of Mortgage Loan Documents. The Seller
shall (i) at least two (2) Business Days prior to the related Closing Date
(with respect to any Mortgage Loan Package for up to 250 Mortgage Loans), or
(ii) at least three (3) Business Days prior to the related Closing Date (with
respect to any Mortgage Loan Package for more than 250 Mortgage Loans), or, in
either case, such later date as the Purchaser may reasonably request, deliver
and release to the Purchaser, or its designee, the Mortgage Loan Documents
with respect to each Mortgage Loan pursuant to a bailee letter agreement.
To the extent received by it, the Servicer shall forward to the
Purchaser, or its designee, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into in
accordance with this Agreement within two (2) weeks after their execution;
provided, however, that the Servicer shall provide the Purchaser, or its
designee, with a copy, certified by the Servicer as a true copy, of any such
document submitted for recordation within two (2) weeks after 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 two (2) weeks following
receipt of the original document by the Servicer; provided, however, that such
original recorded document or certified copy thereof shall be delivered to the
Purchaser no later than 180 days following the related Closing Date, unless
there has been a delay at the applicable recording office.
If the original or copy of any document submitted for recordation
to the appropriate public recording office is not delivered to the Purchaser
or its designee within 180 days following the related Closing Date, the
related Mortgage Loan shall, upon the request of the Purchaser, be repurchased
by the Seller at the price and in the manner specified in Subsection 7.03. The
foregoing repurchase obligation shall not apply if the Seller cannot cause the
Servicer to deliver such original or copy of any document submitted for
recordation to the
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appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided that
(i) the Servicer shall instead deliver a recording receipt of such recording
office or, if such recording receipt is not available, an officer's
certificate of a servicing officer of the Servicer, confirming that such
document has been accepted for recording, and (ii) such document is delivered
within twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
Assignments of Mortgage and any other fees or costs in transferring all
original documents to the Custodian or, upon written request of the Purchaser,
to the Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's
designee shall be responsible for recording the Assignments of Mortgage and
shall be reimbursed by the Seller for the costs associated therewith pursuant
to the preceding sentence.
Subsection 6.04 MERS Designated Loans. With respect to each MERS
Designated Mortgage Loan, the Seller shall, on the related Closing Date or the
next Business Day, designate the Purchaser as the Investor and the Custodian
as custodian, and no Person shall be listed as Interim Funder on the MERS
System, such listing to be effected within 2 Business Days of the related
Closing Date. In addition, within two (2) Business Days of the related Closing
Date, Seller shall provide the Custodian and the Purchaser with a MERS Report
listing the Purchaser as the Investor, the Custodian as custodian and no
Person listed as Interim Funder with respect to each MERS Designated Mortgage
Loan.
Section 7. Representations, Warranties and Covenants; Remedies for
Breach.
Subsection 7.01 Representations and Warranties Regarding
Individual Mortgage Loans. The Seller hereby represents and warrants to the
Purchaser that, as to each Mortgage Loan, as of the related Closing Date:
(a) Mortgage Loans as Described. The information set forth in the
related 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. There has been no delinquency of more than
30 days on any payment by the Mortgagor thereunder during the 12 months prior
to the related Cut-off Date.
(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
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the day which precedes by one month the related 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,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which
has been delivered to the Custodian or to such other Person as the Purchaser
shall designate in writing, and the terms of which are reflected in the
related Mortgage Loan Schedule. The substance of any such waiver, alteration
or modification has been approved by the issuer of any related PMI Policy and
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the related Mortgage Loan Schedule, if applicable. 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 Custodian or to
such other Person as the Purchaser shall designate in writing and the terms of
which are reflected in the related 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 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;
(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 provided for in the Underwriting
Guidelines. If required by the National Flood Insurance Act of 1968, as
amended, each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect which policy conforms with the Underwriting Guidelines. All
individual insurance policies contain a standard mortgagee clause naming the
Seller and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
the hazard insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering a condominium, or any 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 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
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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;
(g) Compliance with Applicable Laws. At the time of origination,
any and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, predatory and abusive lending, equal credit
opportunity and disclosure laws applicable to the Mortgage Loan, including,
without limitation, any provisions relating to a Prepayment Penalty, have been
complied with, the consummation of the transactions contemplated hereby will
not involve the violation of any such laws or regulations, and the Seller
shall maintain in its possession, to the extent required by applicable law,
available for the Purchaser's inspection, and shall deliver to the Purchaser
upon demand, 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) Type of Mortgaged Property. With respect to a Mortgage Loan
that is not a Co-op Loan and is not secured by an interest in a leasehold
estate, the Mortgaged Property is a fee simple estate that 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 residential
condominium unit in a condominium project, or an individual unit in a planned
unit development, or an individual unit in a residential cooperative housing
corporation); provided, however, that any condominium unit, planned unit
development or residential cooperative housing corporation shall conform with
the Underwriting Guidelines. As of the date of origination, no portion of the
Mortgaged Property was being used for commercial purposes, and to the best of
Seller's knowledge, no portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is being used for commercial
purposes; provided, that Mortgaged Properties which contain a home office
shall not be considered as being used for commercial purposes as long as the
Mortgaged Property has not been altered for commercial purposes and is not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes. None of the Mortgaged
Properties are Manufactured Homes, log homes, mobile homes, geodesic domes or
other unique property types;
(j) Valid First Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property. The lien of the Mortgage
is subject only to:
(i) the lien of current real property taxes and assessments not
yet due and payable;
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(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions generally
and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (a) specifically
referred to or otherwise considered in the appraisal made for the
originator of the Mortgage Loan or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such appraisal;
and
(iii) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected 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.
With respect to any Co-op Loan, the related Mortgage is a valid,
subsisting and enforceable first priority security interest on the related
cooperative shares securing the Mortgage Note, subject only to (a) liens of
the related residential cooperative housing corporation for unpaid assessments
representing the Mortgagor's pro rata share of the related residential
cooperative housing corporation's payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security interest intended to be provided by the
related Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement,
and the Mortgage Note, the Mortgage and any other such related agreement have
been duly and properly executed by other such related parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to the origination of the Mortgage Loan or in the application of any
insurance in relation to such Mortgage Loan has taken place on the part of the
Seller or to the best of the Seller's knowledge, the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination of
such Mortgage Loan or in the application of any insurance in relation to such
Mortgage Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein;
(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
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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. Immediately prior to the payment of the purchase
price, the Seller is the sole owner of record and holder of the Mortgage Loan
and the indebtedness evidenced by each Mortgage Note and upon the sale of the
Mortgage Loans to the Purchaser, the Seller will retain the Mortgage Files or
any part thereof with respect thereto not delivered to the Custodian, the
Purchaser or the Purchaser's designee, in trust only for the purpose of
servicing and supervising the servicing of each Mortgage Loan. The Mortgage
Loan is not assigned or pledged, and the Seller has good, indefeasible and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan to the Purchaser free and clear of any encumbrance, equity, 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 and following the sale of each Mortgage Loan, the Purchaser will own
such Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest. The Seller intends
to relinquish all rights to possess, control and monitor the Mortgage Loan.
After the related Closing Date, the Seller will have no right to modify or
alter the terms of the sale of the Mortgage Loan and the Seller will have no
obligation or right to repurchase the Mortgage Loan or substitute another
Mortgage Loan, except as provided in 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) either (i)
organized under the laws of such state, or (ii) qualified to do business in
such state, or (iii) a federal savings and loan association, a savings bank or
a national bank having a principal office in such state, or (3) not doing
business in such state;
(o) LTV, PMI Policy. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in excess
of 80% is insured as to payment defaults by a PMI Policy. Any PMI Policy in
effect covers the related Mortgage Loan for the life of such Mortgage Loan.
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.
(p) Title Insurance. With respect to a Mortgage Loan which is not
a Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy or other generally acceptable form of policy or insurance acceptable
under the Underwriting Guidelines and each such title insurance policy is
issued by a title insurer acceptable under the Underwriting Guidelines 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
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in the original principal amount of the Mortgage Loan (or to the extent a
Mortgage Note provides for negative amortization, the maximum amount of
negative amortization in accordance with the Mortgage), subject only to the
exceptions contained in clauses (i) and (ii) of paragraph (j) of this
Subsection 7.02, and in the case of Adjustable Rate 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 to the Mortgage
Interest Rate and Monthly Payment. 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, its
successor and assigns, are the sole insureds of such lender's title insurance
policy, and such lender's title insurance policy is valid and remains 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 related
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. Other than payments due but not yet 30 days or
more delinquent, there is no default, breach, violation or event which would
permit 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
which would permit acceleration, and neither the Seller nor any of its
Affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit 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 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 Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and
loan association, a savings bank, a commercial bank, credit union, insurance
company or other similar institution which is supervised and examined by a
federal or state authority. Principal payments on the Mortgage Loan commenced
no more than seventy days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate
-23-
Mortgage Loan, the Maximum Mortgage Interest Rate and the
Periodic Rate Cap and the Periodic Rate Floor are as set forth on the related
Mortgage Loan Schedule. As stated in the related Mortgage Note, the Mortgage
Interest Rate is adjusted, with respect to Adjustable Rate Mortgage Loans, on
each Interest Rate Adjustment Date to equal the Index plus the Gross Margin
(generally rounded up or down to the nearest 0.125%), subject to the Periodic
Rate Cap. Except with respect to Interest Only Mortgage Loans, the Mortgage
Note is payable in equal monthly installments of principal and interest, which
installments of interest, with respect to Adjustable Rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, 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 (30) years from
commencement of amortization. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan by its original terms or any modification thereof,
does not provide for amortization beyond its scheduled maturity date;
(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 a Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or
similar law;
(v) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
(a copy of which is attached to the related Assignment and Conveyance
Agreement as Exhibit C). The Mortgage Note and Mortgage are on forms
acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae;
(w) Occupancy of the Mortgaged Property. As of the origination of
the Mortgage Loan, the related 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. Unless otherwise specified
on the related Mortgage Loan Schedule, the Mortgagor represented at the time
of origination of the Mortgage Loan that the Mortgagor would occupy the
Mortgaged Property as the Mortgagor's primary residence;
(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 clause (j) above;
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(y) Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, authorized and 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. There are no circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the
Mortgagor, the Mortgage File or the Mortgagor's credit standing that can
reasonably be expected to cause private institutional investors who invest in
prime mortgage loans similar to the Mortgage Loan to regard the Mortgage Loan
as an unacceptable investment;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under this Agreement for each Mortgage Loan have been delivered to
the Custodian;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage
(except with respect to any Mortgage that has been recorded in the name of
MERS or its designee) with respect to each Mortgage Loan is in recordable form
and is acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(cc) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan,
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) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first
Interest Rate Adjustment Date, a related Mortgage Loan may only be assumed if
the party assuming such Mortgage Loan meets certain credit requirements stated
in the Mortgage Loan Documents;
(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 Mortgagor nor does it
contain any other similar provisions 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 to
the Mortgagor prior to the applicable 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;
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(gg) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or, to the best of Seller's knowledge,
threatened for the total or partial condemnation of the Mortgaged Property. At
the time of origination and, to the best of Seller's knowledge as of the
Closing Date, the related Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so
as to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and each
Mortgaged Property is in good repair. There have not been any condemnation
proceedings with respect to the Mortgaged Property and the Seller has no
knowledge of any such proceedings in the future;
(hh) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow
deposits and Escrow Payments, all such payments are in the possession of, or
under the control of, the Seller and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All Escrow Payments have been collected in full compliance with state
and federal law and the provisions of the related Mortgage Note and Mortgage.
An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that remains unpaid
and has been assessed but is not yet due and payable. No escrow deposits or
Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate adjustments have been made in strict compliance with state and federal
law and the terms of the related Mortgage and Mortgage Note on the related
Interest Rate Adjustment Date. If, pursuant to the terms of the Mortgage Note,
another index was selected for determining the Mortgage Interest Rate, the
same index was used with respect to each Mortgage Note which required a new
index to be selected, and such selection did not conflict with the terms of
the related Mortgage Note. The Seller executed and delivered any and all
notices required under applicable law and the terms of the related Mortgage
Note and Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state, federal and
local law has been properly paid and credited;
(ii) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(jj) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on
or prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability
of the timely payment of the full amount of the loss otherwise due thereunder
to the insured), irrespective of the cause of such failure of coverage. The
Seller has caused or will cause to be performed any and all acts required to
preserve the rights and remedies of the Purchaser in such policies or bonds
including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. In connection
with the placement of any such
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insurance, 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, or, to the best
of Seller's knowledge, by any third party;
(kk) No Violation of Environmental Laws. At the time of
origination and to the best of the Seller's knowledge as of the Closing Date,
there is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property, and nothing further remains to be done
to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemembers Civil Relief Act, as
amended, or other similar state statute;
(mm) Appraisal. Unless the Mortgage Loan was underwritten in
accordance with one of the Seller's streamline documentation programs (as
described in the Underwriting Guidelines) and identified on the Mortgage Loan
Schedule, the Mortgage File contains an appraisal of the related Mortgaged
Property signed prior to the approval of the Mortgage Loan application by a
Qualified Appraiser, 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 the
appraisal and appraiser both satisfy the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac and Title XI of the Financial 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;
(nn) Disclosure Materials. The Mortgagor has received all
disclosure materials required by, and the Seller has complied with, all
applicable law with respect to the making of the Mortgage Loans;
(oo) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow Analysis. If applicable, with respect to each Mortgage
Loan, the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from
-27-
furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of such Mortgage. The Seller has in its capacity as servicer, for each
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and Trans Union Credit Information Company (three of the credit repositories),
on a monthly basis;
(rr) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground
lease will not terminate earlier than five years after the maturity date of
the Mortgage Loan; (3) the ground lease does not provide for termination of
the lease in the event of lessee's default without the Mortgagee being
entitled to receive written notice of, and a reasonable opportunity to cure
the default; (4) the ground lease permits the mortgaging of the related
Mortgaged Property; (5) the ground lease protects the Mortgagee's interests in
the event of a property condemnation; (6) all ground lease rents, other
payments, or assessments that have become due have been paid; and (7) the use
of leasehold estates for residential properties is a widely accepted practice
in the jurisdiction in which the Mortgaged Property is located.
(ss) Prepayment Penalty. Each Mortgage Loan that is subject to a
Prepayment Penalty as provided in the related Mortgage Note is identified on
the related Mortgage Loan Schedule. With respect to Mortgage Loans originated
prior to October 1, 2002, no such Prepayment Penalty may be imposed for a term
in excess of five (5) years following origination;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable. No Mortgage Loan is covered by the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable state or local law;
(uu) Single-premium credit life insurance policy. No Mortgagor was
required to purchase any single premium credit insurance policy (e.g., life,
disability, property, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit insurance policy
(e.g., life, disability, property, accident, unemployment, mortgage or health
insurance) in connection with the origination of the Mortgage Loan;
(vv) Qualified Mortgage. The Mortgage Loan is a qualified mortgage
under Section 860G(a)(3) of the Code;
(ww) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by a provider acceptable to
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and such contract is transferable;
(xx) [Reserved].
(yy) Recordation. Each original Mortgage and all subsequent
assignments of the original Mortgage (other than the assignment to the
Purchaser) have been recorded or have been sent to the appropriate office for
recordation in the jurisdictions wherein such recordation is necessary to
perfect the lien thereof as against creditors of the Seller;
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(zz) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, the stock that is pledged as security for the Mortgage Loan is held by a
person as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor Bankruptcy. On or prior to the related Closing
Date, the Mortgagor has not filed a bankruptcy petition or has not become the
subject of involuntary bankruptcy proceedings or has not consented to the
filing of a bankruptcy proceeding against it or to a receiver being appointed
in respect of the related Mortgaged Property;
(bbb) [Reserved];
(ccc) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and before March 7, 2003 which is
secured by property located in the State of Georgia. There is no Mortgage Loan
that was originated on or after March 7, 2003 that is a "high cost home loan"
as defined under the Georgia Fair Lending Act; and
(ddd) No Arbitration. Solely with respect to each Mortgage Loan
that (i) has an original Stated Principal Balance that meets ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac limits for conforming mortgage loans, and (ii) is subsequently
sold to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, no Mortgagor with respect to any such
Mortgage Loan originated on or after August 1, 2004 agreed to submit to
arbitration to resolve any dispute arising out of or relating in any way to
the mortgage loan transaction.
Subsection 7.02 Seller and Servicer Representations. Each of the
Seller and Servicer hereby represents and warrants to the Purchaser that, as
of the related Closing Date:
(a) Due Organization and Authority. The Seller and the Servicer
are each validly existing, and in good standing under the laws of their
jurisdiction of incorporation or formation and have all licenses necessary to
carry on their business as now being conducted and are licensed, qualified and
in good standing in the states where the 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 or the Servicer. Each of the
Seller and the Servicer have the power and authority to execute and deliver
this Agreement and to perform their obligations hereunder; 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
Servicer and the consummation of the transactions contemplated hereby have
been duly and validly authorized; this Agreement has been duly executed and
delivered and constitutes the valid, legal, binding and enforceable obligation
of the Seller and the Servicer, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of the rights of creditors and
(ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law. All requisite action has been taken by the
Seller and the Servicer to make this Agreement valid and binding upon the
Seller and the Servicer in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental
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agency or body, or federal or state regulatory authority having jurisdiction
over the Seller or the Servicer is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related
Closing Date, be obtained;
(c) 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 Servicer, 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;
(d) No Conflicts. Neither the execution and delivery of this
Agreement by the Seller and the Servicer, the acquisition or origination of
the Mortgage Loans by the Seller, the sale of the Mortgage Loans to the
Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Seller's charter or by-laws or the Servicer's partnership
agreement or any legal restriction or any agreement or instrument to which the
Seller or the Servicer are now a party or by which they are 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, the Servicer or their property is subject, or
result in the creation or imposition of any lien, charge or encumbrance that
would have an adverse effect upon any of their properties pursuant to the
terms of any mortgage, contract, deed of trust or other instrument, or impair
the ability of the Purchaser to realize on the Mortgage Loans, impair the
value of the Mortgage Loans, or impair the ability of the Purchaser to realize
the full amount of any insurance benefits accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to best of knowledge of the Seller or the Servicer,
threatened against the Seller or the Servicer, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may reasonably result in any material adverse change in the
business, operations, financial condition, properties or assets of the Seller
or the Servicer, or in any material impairment of the right or ability of the
Seller and the Servicer to carry on their business substantially as now
conducted, or in any material liability on the part of the Seller or the
Servicer, 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 and the Servicer contemplated herein, or which
would be likely to impair materially the ability of the Seller or the Servicer
to perform under the terms of this Agreement;
(f) Ability to Perform; Solvency. Neither the Seller nor the
Servicer believes, nor do they have any reason or cause to believe, that they
cannot perform each and every covenant contained in this Agreement. The Seller
and the Servicer are 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 Seller's
creditors;
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(g) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money
Laundering Laws");
(i) Servicer's Ability to Service. The Servicer is an approved
seller/servicer for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac in good standing and is a
mortgagee approved by the Secretary of HUD. No event has occurred, including a
change in insurance coverage, which would make the Servicer unable to comply
with ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or HUD eligibility requirements;
(j) Reasonable Servicing Fee. The Servicer acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Servicer,
for accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(k) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio
at the related Closing Date as to which the representations and warranties set
forth in Subsection 7.01 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(l) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the pool
characteristics for the applicable Mortgage Loan Package delivered pursuant to
Section 9 on the related Closing Date in the form attached as Exhibit B to
each related Assignment and Conveyance Agreement;
(m) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby
(including any Pass-Through Transfer or Whole Loan Transfer) contains or will
contain any untrue statement of fact or omits or will omit to state a fact
necessary to make the statements contained herein or therein not misleading;
(n) No Brokers. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
(o) Sale Treatment. The Seller expects to be advised by its
independent certified public accountants that under generally accepted
accounting principles the transfer of the Mortgage Loans will be treated as a
sale on the books and records of the Seller and the Seller has determined that
the disposition of the Mortgage Loans pursuant to this Agreement will be
afforded sale treatment for tax and accounting purposes;
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(p) Reasonable Purchase Price. 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; and
(q) Financial Statements. The Seller has delivered to the
Purchaser financial statements as to its last three complete fiscal years and
any later quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent results
of operations and changes in financial position for each of such periods and
the 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. In addition, the Seller has
delivered information as to its loan gain and loss experience in respect of
foreclosures and its loan delinquency 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 shall be 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.
Subsection 7.03 Remedies for Breach of Representations and
Warranties. It is understood and agreed that the representations and
warranties set forth in Subsections 7.01 and 7.02 shall survive the sale of
the Mortgage Loans to the Purchaser and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination or lack of
examination of any Mortgage File. Upon discovery by the Seller, the Servicer
or the Purchaser of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other relevant parties.
Within sixty (60) days after the earlier of either discovery by or
notice to the Seller and the Servicer of any breach of a representation or
warranty which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser therein (or which materially and
adversely affects the value of the applicable Mortgage Loan or the interest of
the Purchaser therein in the case of a representation and warranty relating to
a particular Mortgage Loan), 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 repurchase such Mortgage Loan or Mortgage Loans at the
Repurchase Price. Notwithstanding the above sentence, within sixty (60) days
after the earlier of either discovery by, or notice to, the Seller of any
breach of the representations or warranties set forth in clauses (qq), (ss),
(tt), (uu), (vv), or (ccc) or (ddd) of Subsection 7.01, the Seller shall
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Subsection
7.02, and such breach cannot be cured in sixty (60) days of the earlier of
either discovery by or notice to the Seller of such breach, all of the
Mortgage Loans affected by such breach 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 Subsection 7.01
(except as provided in the second sentence of this paragraph with respect to
certain breaches for which no substitution is permitted) and the Seller
discovers or receives notice of any such breach within one hundred twenty
(120) days of the related Closing Date, the Seller shall, at the Purchaser's
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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 and substitute in its place a Qualified Substitute Mortgage Loan
or Qualified Substitute Mortgage Loans; provided, however, that any such
substitution shall be effected not later than one hundred twenty (120) days
after the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the
Repurchase Price. Any repurchase of a Mortgage Loan pursuant to the foregoing
provisions of this Subsection 7.03 shall occur on a date designated by the
Purchaser, and acceptable to the Seller, and shall be accomplished by the
Seller remitting to the Servicer for deposit the amount of the Repurchase
Price in the Custodial Account for distribution to the Purchaser on the next
scheduled Remittance Date.
At the time of repurchase of any deficient Mortgage Loan (or
removal of any Deleted Mortgage Loan), the Purchaser and the Seller shall
arrange for the assignment of the repurchased Mortgage Loan (or Deleted
Mortgage Loan) to the Seller or its designee and the delivery to the Seller of
any documents held by the Purchaser relating to the repurchased Mortgage Loan
in the manner required by this Agreement with respect to the purchase and sale
of such Mortgage Loan on the related Closing Date. In the event the Repurchase
Price is deposited in the Custodial Account, the Seller shall, simultaneously
with its remittance to the Servicer of such Repurchase Price for deposit, give
written notice to the Purchaser that such deposit has taken place. Upon such
repurchase, the related Mortgage Loan Schedule shall be amended to reflect the
withdrawal of the repurchased Mortgage Loan from this Agreement.
As to any Deleted Mortgage Loan for which the Seller substitutes
one or more Qualified Substitute Mortgage Loans, the Seller shall be deemed to
have made 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. No
substitution will be made in any calendar month after the Determination Date
for such month. The Seller shall effect such substitution by delivering to the
Purchaser for each Qualified Substitute Mortgage Loan the Mortgage Note, the
Mortgage, the Assignment of Mortgage and such other documents and agreements
as are required by Subsection 6.03. The Seller shall remit to the Servicer for
deposit in the Custodial Account the Monthly Payment less the Servicing Fee
due on each Qualified Substitute Mortgage Loan 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 the Purchaser
shall include the Monthly Payment due on such 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. The Seller shall give written notice to the Purchaser that such
substitution has taken place and shall amend the related Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms
of this Agreement and the substitution of the Qualified Substitute Mortgage
Loan. Upon such substitution, each Qualified Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Seller shall
be deemed to have made with respect to such Qualified Substitute Mortgage
Loan, as of the date of substitution, the covenants, representations and
warranties set forth in Subsections 7.01 and 7.02.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Seller will determine the amount
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(if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate unpaid Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be remitted to the Servicer by the Seller
for distribution by the Servicer in the month of substitution pursuant to
Subsection 11.04. Accordingly, on the date of such substitution, the Seller
will remit to the Servicer from its own funds for deposit into the Custodial
Account an amount equal to the amount of such shortfall plus one month's
interest thereon at the Mortgage Loan Remittance Rate.
In addition to such repurchase or substitution obligation, the
Seller and the Servicer, jointly and severally, shall indemnify the Purchaser
and its present and former directors, officers, employees and agents and any
Successor Servicer and its present and former directors, officers, employees
and agents and hold such parties harmless against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Seller or of the Servicer of the representations and warranties contained
in this Agreement or any Reconstitution Agreement. For purposes of this
paragraph, "Purchaser" shall mean the Person then acting as the Purchaser
under this Agreement and any and all Persons who previously were "Purchasers"
under this Agreement and "Successor Servicer" shall mean any Person designated
as the Successor Servicer pursuant to this Agreement and any and all Persons
who previously were "Successor Servicers" pursuant to this Agreement. It is
understood and agreed that the obligations of the Seller or the Servicer set
forth in this Subsection 7.03 to cure, repurchase or substitute for a
defective Mortgage Loan, and to indemnify the Purchaser and Successor Servicer
under Subsection 12.01 constitute the sole remedies of the Purchaser and the
Successor Servicer respecting a breach of the representations and warranties
set forth in Subsections 7.01 and 7.02.
Any cause of action against the Seller or the Servicer relating to
or arising out of the breach of any representations and warranties made in
Subsections 7.01 and 7.02 shall accrue as to any Mortgage Loan upon (i)
discovery of such breach by the Purchaser or notice thereof by the Seller or
the Servicer to the Purchaser, (ii) failure by the Seller or the Servicer to
cure such breach, substitute a Qualified Substitute Mortgage Loan, or
repurchase such Mortgage Loan as specified above and (iii) demand upon the
Seller or the Servicer by the Purchaser for compliance with this Agreement.
Subsection 7.04 Repurchase of Mortgage Loans with First Payment
Defaults. If the related Mortgagor is delinquent with respect to the Mortgage
Loan's first Monthly Payment either (i) after origination of such Mortgage
Loan, or (ii) after the related Closing Date, the Seller, at the Purchaser's
option, shall repurchase such Mortgage Loan from the Purchaser at a price
equal to the Repurchase Price. The Seller shall repurchase such delinquent
Mortgage Loan within thirty (30) days of such request.
Subsection 7.05 [Reserved].
Subsection 7.06 Representations and Warranties Regarding the
Purchaser.
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The Purchaser represents, warrants and covenants to the Seller and
the Servicer that as of each Closing Date:
(a) Due Organization and Authority. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
state of New York and has all licenses necessary to carry on its business as
now being conducted. The execution, delivery and performance of this Agreement
by the Purchaser and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized; this Agreement and all
agreements contemplated hereby have been duly executed and delivered and
constitute the valid, legal, binding and enforceable obligations of the
Purchaser, regardless of whether such enforcement is sought in a proceeding in
equity or at law; and all requisite corporate action has been taken by the
Purchaser to make this Agreement and all agreements contemplated hereby valid
and binding upon the Purchaser in accordance with their terms;
(b) No Conflicts. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and
thereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Purchaser's charter or by-laws or any legal
restriction or any agreement or instrument to which the Purchaser is now a
party or by which it is bound;
(c) No Litigation Pending. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is currently
pending or to the knowledge of the Purchaser threatened, against the Purchaser
or with respect to this Agreement, which if adversely determined would have a
material adverse effect on the transactions contemplated by this Agreement;
and
(d) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or
governmental agency or body is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the
related Closing Date;
Section 8. Closing. The closing for the purchase and sale of each
Mortgage Loan Package 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 and
the Servicer in this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with notice or the
passage of time, would constitute an Event of Default under this Agreement;
(b) the Purchaser's attorneys shall have received in escrow, all
Closing Documents as specified in Section 9, in such forms as are agreed upon
and acceptable to the Purchaser, duly executed by all signatories as required
pursuant to the terms hereof; and
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(c) all other terms and conditions of this Agreement shall have
been complied with.
Section 9. Closing Documents. On the related Closing Date (or,
with respect to Section 9(p) below, within the time period specified therein),
the Purchaser, the Seller and the Servicer, as applicable, shall deliver, or
the Purchaser shall cause the Custodian to deliver, to the Purchaser's
attorneys in escrow fully executed originals of:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) the related Purchase Price and Terms Agreement, executed in
four (4) counterparts;
(c) with respect to the initial Closing Date, a Custodial Account
Certification in the form attached as Exhibit 4 hereto or a Custodial Account
Letter Agreement in the form attached as Exhibit 5 hereto;
(d) with respect to the initial Closing Date, an Escrow Account
Certification in the form attached as Exhibit 6 hereto or an Escrow Account
Letter Agreement in the form attached as Exhibit 7 hereto;
(e) the related Mortgage Loan Schedule, segregated by Mortgage
Loan Package, one copy to be attached to the Custodian's counterpart of the
Custodial Agreement, and one copy to be attached to the related Assignment and
Conveyance Agreement as the Mortgage Loan Schedule thereto;
(f) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit 10-1 hereto with respect to the Seller,
including all attachments thereto and with respect to subsequent Closing
Dates, an Officer's Certificate upon reasonable request of the Purchaser;
(g) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit 10-2 hereto with respect to the Servicer,
including all attachments thereto and with respect to subsequent Closing
Dates, an Officer's Certificate upon reasonable request of the Purchaser;
(h) with respect to the initial Closing Date, an Opinion of
Counsel of the Seller and the Servicer (who may be an employee of the Seller
or the Servicer), in a form reasonably acceptable to the Purchaser and with
respect to subsequent Closing Dates, an Opinion of Counsel of the Seller upon
reasonable request of the Purchaser;
(i) with respect to the initial Closing Date, an Opinion of
Counsel of the Custodian (who may be an employee of the Custodian), in the
form of an exhibit to the Custodial Agreement;
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(j) a Security Release Certification, in the form of Exhibit 12 or
Exhibit 13, as applicable, hereto executed by any person, as requested by the
Purchaser, with respect to any Mortgage Loan which, as of the related Closing
Date, is subject to any security interest, pledge or hypothecation for the
benefit of such person;
(k) 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 acquired or originated
by the Seller while conducting business under a name other than its present
name, if applicable;
(l) with respect to each Closing Date, the Underwriting Guidelines
to be attached to the related Assignment and Conveyance Agreement;
(m) Assignment and Conveyance Agreement in the form of Exhibit 14
hereto, including all exhibits thereto;
(n) a Custodian's Certification, as required under the Custodial
Agreement, in the form required by the Custodial Agreement; and
(o) no later than 2 Business Days after the related Closing Date,
a MERS Report listing the Purchaser as Investor, the Custodian as custodian
and no Person as Interim Funder for each MERS Designated Mortgage Loan.
The Seller and Servicer shall bear the risk of loss of their
respective closing documents until such time as they are received by the
Purchaser or its attorneys.
Section 10. Costs. The Purchaser shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys and custodial fees.
All other costs and expenses incurred in connection with the transfer and
delivery of the Mortgage including recording fees, fees for title policy
endorsements and continuations, fees for recording the initial Assignments of
Mortgage, and the Seller's and Servicer's attorney's fees, shall be paid by
the Seller and the Servicer, respectively.
Section 11. Administration and Servicing of the Mortgage Loans.
Subsection 11.01 Servicer to Act as Servicer. The Servicer shall
service and administer the Mortgage Loans in accordance with this Agreement
and Accepted Servicing Procedures and the terms of the Mortgage Notes and
Mortgages, and shall have full power and authority, acting alone or through
sub-servicers or agents, to do or cause to be done any and all things in
connection with such servicing and administration which the Servicer may deem
necessary or desirable and consistent with the terms of this Agreement. The
Servicer may perform its servicing responsibilities through agents or
independent contractors, but shall not thereby be released from any of its
responsibilities hereunder.
Consistent with the terms of this Agreement, the Servicer may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor; provided, however, that
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(unless the Mortgagor is in default with respect to the Mortgage Loan, or such
default is, in the judgment of the Servicer, imminent, and the Servicer has
the consent of the Purchaser) the Servicer shall not permit any modification
with respect to any Mortgage Loan which materially and adversely affects the
Mortgage Loan, including without limitation, any modification that would defer
or forgive the payment of any principal or interest, change the outstanding
principal amount (except for actual payments of principal), make any future
advances, extend the final maturity date or change the Mortgage Interest Rate,
as the case may be, with respect to such Mortgage Loan. Without limiting the
generality of the foregoing, the Servicer in its own name or acting through
sub-servicers or agents is hereby authorized and empowered by the Purchaser
when the Servicer believes it appropriate and reasonable in its best judgment,
to execute and deliver, on behalf of itself and the Purchaser, all instruments
of satisfaction or cancellation, or of partial or full release, discharge and
all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Purchaser pursuant to the provisions of Subsection 11.12. The Servicer shall
make all required Servicing Advances and shall service and administer the
Mortgage Loans in accordance with applicable state and federal law and shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Purchaser shall furnish to the Servicer any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties under this Agreement.
Subsection 11.02 Liquidation of Mortgage Loans. If any payment due
under any Mortgage Loan is not paid when the same becomes due and payable, or
in the event the Mortgagor fails to perform any other covenant or obligation
under the Mortgage Loan and such failure continues beyond any applicable grace
period, the Servicer shall take such action as it shall deem to be in the best
interest of the Purchaser. If any payment due under any Mortgage Loan remains
delinquent for a period of one hundred twenty (120) days or more, the Servicer
shall commence foreclosure proceedings in accordance with the guidelines set
forth by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. In such event, the Servicer shall from its
own funds and to the extent deemed recoverable make all necessary and proper
Servicing Advances.
Subsection 11.03 Collection of Mortgage Loan Payments. Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are paid in full, the Servicer will proceed diligently, in accordance with
this Agreement, to collect all payments due under each of the Mortgage Loans
when the same shall become due and payable. Further, the Servicer will in
accordance with Accepted Servicing Procedures ascertain and estimate taxes,
assessments, fire and hazard insurance premiums, and all other charges that,
as provided in any Mortgage, will become due and payable to the end that the
installments payable by the Mortgagors, if applicable, will be sufficient to
pay such charges as and when they become due and payable.
Subsection 11.04 Establishment of Custodial Account; Deposits in
Custodial Account. The Servicer shall segregate and hold all funds collected
and received pursuant to each Mortgage Loan separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
Custodial Accounts (collectively, the "Custodial Account"), titled
"[SERVICER], in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. as Purchaser
of
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Mortgage Loans and various Mortgagors." Such Custodial Account shall be
established with a commercial bank, a savings bank or a savings and loan
association (which may be a depository Affiliate of the Servicer) which meets
the guidelines set forth by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac as an eligible
depository institution for custodial accounts. In any case, the Custodial
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance thereunder and which may be drawn on by the Servicer. The
creation of any Custodial Account shall be evidenced by (i) a certification in
the form of Exhibit 4 hereto, in the case of an account established with a
depository Affiliate of the Servicer, or (ii) a letter agreement in the form
of Exhibit 5 hereto, in the case of an account held by a depository other than
an Affiliate of the Servicer. In either case, a copy of such certification or
letter agreement shall be furnished to the Purchaser upon request.
The Servicer shall deposit in the Custodial Account within two (2)
Business Days following receipt thereof, and retain therein the following
payments and collections received or made by it subsequent to the related
Cut-off Date (other than in respect of principal and interest on the Mortgage
Loans due on or before the related Cut-off Date):
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(c) all Liquidation Proceeds;
(d) all proceeds received by the Servicer under any title
insurance policy, hazard insurance policy, or other insurance policy other
than proceeds to be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in accordance
with Accepted Servicing Procedures;
(e) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged Property which are not
released to the Mortgagor in accordance with Accepted Servicing Procedures;
(f) any amount required to be deposited in the Custodial Account
pursuant to Subsections 11.14, 11.16 and 11.18;
(g) any amount required to be deposited by the Servicer in
connection with any REO Property pursuant to Subsection 11.12;
(h) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Subsection 7.03, and all amounts required to be
deposited by the Servicer in connection with shortfalls in principal amount of
Qualified Substitute Mortgage Loans pursuant to Subsection 7.03; and
(i) with respect to each Principal Prepayment in full, an amount
(to be paid by the Servicer out of its own funds) which, when added to all
amounts allocable to interest received in connection with the Principal
Prepayment in full, equals one month's interest on the
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amount of principal so prepaid for the month of prepayment at the applicable
Mortgage Loan Remittance Rate; provided, however, that the Servicer's
aggregate obligations under this paragraph for any month shall be limited to
the total amount of Servicing Fees actually received with respect to the
Mortgage Loans by the Servicer during such month.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
assumption fees, prepayment penalties and other ancillary fees need not be
deposited by the Servicer in the Custodial Account.
The Servicer may invest the funds in the Custodial Account in
Eligible Investments designated in the name of the Servicer for the benefit of
the Purchaser, which shall mature not later than the Business Day next
preceding the Remittance Date next following the date of such investment
(except that (A) any investment in the institution with which the Custodial
Account is maintained may mature on such Remittance Date and (B) any other
investment may mature on such Remittance Date if the Servicer shall advance
funds on such Remittance Date, pending receipt thereof to the extent necessary
to make distributions to the Owner) and shall not be sold or disposed of prior
to maturity. Notwithstanding anything to the contrary herein and above, all
income and gain realized from any such investment shall be for the benefit of
the Servicer and shall be subject to withdrawal by the Servicer. The amount of
any losses incurred in respect of any such investments shall be deposited in
the Custodial Account by the Servicer out of its own funds immediately as
realized.
Subsection 11.05 Withdrawals From the Custodial Account. The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Subsection 11.14;
(b) to reimburse itself for P&I Advances, the Servicer's right to
reimburse itself pursuant to this subclause (b) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights of
the Purchaser, except that, where the Seller is required to repurchase a
Mortgage Loan, pursuant to Subsection 7.03, the Servicer's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03, and all other amounts required
to be paid to the Purchaser with respect to such Mortgage Loan;
(c) to reimburse itself for any unpaid Servicing Fees and for
unreimbursed Servicing Advances, the Servicer's right to reimburse itself
pursuant to this subclause (c) with respect to any Mortgage Loan being limited
to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of the Purchaser unless the Seller
is required to repurchase a Mortgage Loan
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pursuant to Subsection 7.03, in which case the Servicer's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03 and all other amounts required to
be paid to the Purchaser with respect to such Mortgage Loan;
(d) to reimburse itself for unreimbursed Servicing Advances and
for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, in accordance with Subsection 11.16, to the
extent that such amounts are nonrecoverable by the Servicer pursuant to
subclause (b) or (c) above, provided that the Mortgage Loan for which such
advances were made is not required to be repurchased by the Seller pursuant to
Subsection 7.03;
(e) to reimburse itself for expenses incurred by and reimbursable
to it pursuant to Subsection 12.01;
(f) to withdraw amounts to make P&I Advances in accordance with
Subsection 11.16;
(g) to pay to itself any interest earned or any investment
earnings on funds deposited in the Custodial Account;
(h) to withdraw any amounts inadvertently deposited in the
Custodial Account; and
(i) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Subsection 11.06 Establishment of Escrow Account; Deposits in
Escrow Account. The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, the "Escrow
Account"), titled "[SERVICER], in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc. as Purchaser of Mortgage Loans and various Mortgagors." The Escrow
Account shall be established with a commercial bank, a savings bank or a
savings and loan association (which may be a depository Affiliate of
Servicer), which meets the guidelines set forth by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
as an eligible institution for escrow accounts. In any case, the Escrow
Account shall be insured by the FDIC in a manner which shall provide maximum
available insurance thereunder and which may be drawn on by the Servicer. The
creation of any Escrow Account shall be evidenced by a certification in the
form of Exhibit 6 hereto, in the case of an account established with a
depository Affiliate of the Servicer, or by a letter agreement in the form of
Exhibit 7 hereto, in the case of an account held by a depository. In either
case, a copy of such certification or letter agreement shall be furnished to
the Purchaser upon request.
The Servicer shall deposit in the Escrow Account within two (2)
Business Days, and retain therein: (a) all Escrow Payments collected on
account of the Mortgage Loans, for the purpose of effecting timely payment of
any such items as required under the terms of this Agreement, and (b) all
amounts representing proceeds of any hazard insurance policy which are to be
applied to the restoration or repair of any Mortgaged Property. The Servicer
shall make withdrawals therefrom only in accordance with Subsection 11.07. As
part of its servicing duties,
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the Servicer shall pay to the Mortgagors interest on funds in the Escrow
Account, to the extent required by law.
Subsection 11.07 Withdrawals From Escrow Account. Withdrawals from
the Escrow Account shall be made by the Servicer only (a) to effect timely
payments of ground rents, taxes, assessments, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage,
(b) to reimburse the Servicer for any Servicing Advance made by Servicer
pursuant to Subsection 11.08 with respect to a related Mortgage Loan, (c) to
refund to any Mortgagor any funds found to be in excess of the amounts
required under the terms of the related Mortgage Loan, (d) for transfer to the
Custodial Account upon default of a Mortgagor or in accordance with the terms
of the related Mortgage Loan and if permitted by applicable law, (e) for
application to restore or repair of the Mortgaged Property, (f) to pay to the
Mortgagor, to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (g) to pay to itself any interest earned on
funds deposited in the Escrow Account (and not required to be paid to the
Mortgagor), (h) to the extent permitted under the terms of the related
Mortgage Note and applicable law, to pay late fees with respect to any Monthly
Payment which is received after the applicable grace period, (i) to withdraw
suspense payments that are deposited into the Escrow Account, (j) to withdraw
any amounts inadvertently deposited in the Escrow Account or (k) to clear and
terminate the Escrow Account upon the termination of this Agreement.
Subsection 11.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder. With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments and other charges which are or may become a lien upon the
Mortgaged Property and the status of fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. If a Mortgage does not provide for
Escrow Payments, the Servicer shall determine that any such payments are made
by the Mortgagor. The Servicer assumes full responsibility for the timely
payment of all such bills and shall effect timely payments of all such bills
irrespective of each Mortgagor's faithful performance in the payment of same
or the making of the Escrow Payments and shall make Servicing Advances to
effect such payments, subject to its ability to recover such Servicing
Advances pursuant to Subsection 11.07(b). With respect to each Mortgage Loan,
on or before January 31st of each year during the term of this Agreement,
beginning January 31, 2006, the Servicer shall ensure that all taxes due
during the prior calendar year have been paid on the related Mortgaged
Property.
Subsection 11.09 Transfer of Accounts. The Servicer may transfer
the Custodial Account or the Escrow Account to a different depository
institution. Such transfer shall be made only upon obtaining the prior written
consent of the Purchaser; such consent not to be unreasonably withheld.
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Subsection 11.10 Maintenance of Hazard Insurance. The Servicer
shall cause to be maintained for each Mortgage Loan fire and hazard insurance
with extended coverage customary in the area where the Mortgaged Property is
located that conforms to the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac. The Servicer shall also maintain on REO Property fire and hazard
insurance with extended coverage in an amount which meets the requirements of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Any amounts collected by the Servicer under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the property subject to the related
Mortgage or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor in accordance with Accepted Servicing Procedures)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Subsection 11.05. It is understood and agreed that no earthquake or other
additional insurance need be required by the Servicer of any Mortgagor or
maintained on REO Property other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to Servicer, and shall provide
for at least thirty (30) days prior written notice of any cancellation,
reduction in amount or material change in coverage to the Servicer. The
Servicer shall not interfere with the Mortgagor's freedom of choice in
selecting either its insurance carrier or agent; provided, however, that the
Servicer shall not accept any such insurance policies that do not conform to
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Subsection 11.11 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket Fidelity Bond and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans. These
policies shall insure the Servicer against losses resulting from dishonest or
fraudulent acts committed by the Servicer's personnel, any employees of
outside firms that provide data processing services for the Servicer, and
temporary contract employees or student interns. The Fidelity Bond shall also
protect and insure the Servicer against losses in connection with the release
or satisfaction of a Mortgage Loan without having obtained payment in full of
the indebtedness secured thereby. No provision of this Subsection 11.11
requiring such Fidelity Bond and errors and omissions insurance shall diminish
or relieve the Servicer of its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and insurance
policy shall be at least equal to the corresponding amounts required by ▇▇▇▇▇▇
Mae in the ▇▇▇▇▇▇ ▇▇▇ Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇' & Servicers' Guide, as amended or restated from time to time, or in
an amount as may be permitted to the Servicer by express waiver of ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac.
Subsection 11.12 Title, Management and Disposition of REO
Property. If title to the Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken in
the name of the Servicer or its nominee, in either case as nominee, for the
benefit of the Purchaser of record on the date of acquisition of title (the
"Owner"). If the Servicer is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or
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tax laws of such state by so holding title, the deed or certificate of sale
shall be taken in the name of such Person or Persons as shall be consistent
with an opinion of counsel obtained by the Servicer, at the expense of the
Purchaser, from an attorney duly licensed to practice law in the state where
the REO Property is located. The Person or Persons holding such title other
than the Owner shall acknowledge in writing that such title is being held as
nominee for the Owner.
The Servicer shall cause to be deposited within two (2) Business
Days in the Custodial Account all revenues received with respect to the
conservation and disposition of the related REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of the REO Property, including the cost of maintaining any hazard insurance
pursuant to Subsection 11.10 and the fees of any managing agent acting on
behalf of the Servicer. Any disbursement in excess of $5,000 shall be made
only with the written approval of the Purchaser. The Servicer shall make
distributions as required on each Remittance Date to the Purchaser of the net
cash flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described above and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
The disposition of REO Property shall be carried out by the
Servicer in accordance with the provisions of this Agreement and shall be made
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Owner. Upon the request of the Owner, and at the
Owner's expense, the Servicer shall cause an appraisal of the REO Property to
be performed for the Owner. The proceeds of sale of the REO Property shall be
promptly deposited in the Custodial Account and, as soon as practical
thereafter, the expenses of such sale shall be paid, the Servicer shall
reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees, unreimbursed advances made pursuant to Subsection 11.16 and
any appraisal performed pursuant to this paragraph and the net cash proceeds
of such sale remaining in the Custodial Account shall be distributed to the
Purchaser.
The Servicer shall either itself or through an agent selected by
the Servicer, manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt
to sell the same (and may temporarily rent the same) on such terms and
conditions as the Servicer deems to be in the best interest of the Owner.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held, the
Servicer shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by such REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income
from foreclosure property" within the meaning of Section 860G(c)(2) of the
Code.
Upon request, with respect to any REO Property, the Servicer shall
furnish to the Owner a statement covering the Servicer's efforts in connection
with the sale of that REO Property and any rental of the REO Property
incidental to the sale thereof for the previous month (together with an
operating statement).
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Subsection 11.13 Servicing Compensation. As compensation for its
services hereunder, the Servicer shall be entitled to retain the Servicing Fee
from interest payments on the Mortgage Loans. Additional servicing
compensation in the form of assumption fees, prepayment penalties, late
payment charges and other ancillary income shall be retained by the Servicer.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to reimbursement therefor except as specifically provided for herein.
Subsection 11.14 Distributions. On each Remittance Date the
Servicer shall remit by wire transfer of immediately available funds to the
account designated in writing by the Purchaser of record on the preceding
Record Date (a) all Monthly Payments due in the Due Period relating to such
Remittance Date and received by the Servicer prior to the related
Determination Date, plus (b) all amounts, if any, which the Servicer is
obligated to distribute pursuant to Subsection 11.16, plus (c) any amounts
attributable to Principal Prepayments received during the Principal Prepayment
Period relating to such Remittance Date, together with any additional interest
required to be deposited in the Custodial Account in connection with such
Principal Prepayments in accordance with Subsection 11.04(i), minus (d) all
amounts that may be withdrawn from the Custodial Account pursuant to
Subsections 11.05(b) through (e).
With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus three percent (3%),
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by the Servicer to the Purchaser on the date such
late payment is made and shall cover the period commencing with the Business
Day on which such payment was due and ending with the Business Day immediately
preceding the Business Day on which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension
of time for payment or a waiver of any Event of Default by the Servicer.
Subsection 11.15 Statements to the Purchaser. Not later than on
each Remittance Date, the Servicer shall forward to the Purchaser in hard copy
and electronic format mutually acceptable to the Purchaser and the Seller, a
statement, substantially in the form of Exhibit 9 and certified by a Servicing
Officer, setting forth (a) the amount of the distribution made on such
Remittance Date which is allocable to principal and allocable to interest; (b)
the amount of servicing compensation received by the Servicer during the prior
calendar month; (c) the aggregate Stated Principal Balance and the aggregate
unpaid principal balance of the Mortgage Loans as of the last day of the
preceding month; and (d) the paid through date for each Mortgage Loan. Such
statement shall also include information regarding delinquencies on Mortgage
Loans, indicating the number and aggregate principal amount of Mortgage Loans
which are either one (1), two (2) or three (3) or more months delinquent and
the book value of any REO Property. The Servicer shall submit to the Purchaser
monthly a liquidation report with respect to each Mortgaged Property sold in a
foreclosure sale as of the related Record Date and not previously reported.
Such liquidation report shall be incorporated into the remittance report
delivered to Purchaser in the form of Exhibit 9 hereto.
The Servicer shall furnish to the Purchaser an individual loan
accounting report in hard copy and electronic format mutually acceptable to
the Purchaser and the Seller, as of the
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last Business Day of each month, in the Purchaser's assigned loan number order
(provided that such loan numbers previously have been provided in writing by
the Purchaser to the Servicer) to document Mortgage Loan payment activity on
an individual Mortgage Loan basis. With respect to each month, the
corresponding individual loan accounting report shall be received by the
Purchaser no later than the 10th calendar day of the following month, which
report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, along with
a detailed report of interest on principal prepayment amounts remitted
in accordance with Subsection 11.14);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest; and
(iii) the next actual due date for each Mortgage Loan.
The Servicer shall provide the Purchaser with such information
concerning the Mortgage Loans as is necessary for such Purchaser to prepare
federal income tax returns as the Purchaser may reasonably request from time
to time.
Subsection 11.16 Advances by the Servicer. On the Business Day
immediately preceding each Remittance Date, the Servicer shall either (a)
deposit in the Custodial Account from its own funds an amount equal to the
aggregate amount of all Monthly Payments (with interest adjusted to the
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on
the immediately preceding Determination Date (each such advance, a "P&I
Advance"), (b) cause to be made an appropriate entry in the records of the
Custodial Account that amounts held for future distribution have been, as
permitted by this Subsection 11.16, used by the Servicer in discharge of any
such P&I Advance or (c) make P&I Advances in the form of any combination of
(a) or (b) aggregating the total amount of P&I Advances to be made. Any
amounts held for future distribution and so used shall be replaced by the
Servicer by deposit in the Custodial Account on or before any future
Remittance Date if funds in the Custodial Account on such Remittance Date
shall be less than payments to the Purchaser required to be made on such
Remittance Date. The Servicer's obligation to make P&I Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of a Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all other payments or
recoveries (including proceeds under any title, hazard or other insurance
policy, or condemnation awards) with respect to a Mortgage Loan; provided,
however, that such obligation shall cease (i) for any Mortgage Loan and on any
Remittance Date that the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) occurs with respect to such Mortgage Loan or (ii) if the Servicer,
in its good faith judgment, determines that P&I Advances would not be
recoverable pursuant to Subsection 11.05(d). The determination by the Servicer
that a P&I Advance, if made, would be nonrecoverable, shall be evidenced by an
Officer's Certificate of the Servicer, delivered to the Purchaser, which
details the reasons for such determination.
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Subsection 11.17 Assumption Agreements. The Servicer will use its
best efforts to enforce any "due-on-sale" provision contained in any Mortgage
or Mortgage Note, provided that the Servicer shall permit such assumption if
so required in accordance with the terms of the Mortgage or the Mortgage Note.
When the Mortgaged Property has been conveyed by the Mortgagor, the Servicer
will, to the extent it has knowledge of such conveyance, exercise its rights
to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause applicable thereto; provided, however, the Servicer will not exercise
such rights if prohibited by law from doing so. In connection with any such
assumption, the outstanding principal amount, the Monthly Payment or the
Mortgage Interest Rate of the related Mortgage Note shall not be changed, and
the term of the Mortgage Loan will not be increased or decreased. If an
assumption is allowed pursuant to this Subsection 11.17, the Servicer is
authorized to enter into a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Subsection 11.18 Satisfaction of Mortgages and Release of Mortgage
Files. Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will obtain the portion of the
Mortgage File that is in the possession of the Purchaser or its designee,
prepare and process any required satisfaction or release of the Mortgage and
notify the Purchaser in accordance with the provisions of this Agreement. The
Purchaser agrees to deliver to the Servicer the original Mortgage Note for any
Mortgage Loan not later than three (3) Business Days following its receipt of
a notice from the Servicer that such a payment in full has been received or
that a notification has been received that such a payment in full shall be
made. Such Mortgage Note shall be held by the Servicer, in trust, for the
purpose of canceling such Mortgage Note and delivering the cancelled Mortgage
Note to the Mortgagor in a timely manner as and to the extent provided under
applicable state law. If the Mortgage has been recorded in the name of MERS or
its designee, the Servicer shall take all necessary action to effect the
release of the Mortgage Loan on the records of MERS.
If the Servicer grants a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage or should the Servicer otherwise prejudice any right the Purchaser
may have under the mortgage instruments, the Servicer, upon written demand of
the Purchaser, shall remit to the Purchaser the Stated Principal Balance of
the related Mortgage Loan by deposit thereof in the Custodial Account. After
the Purchaser has received such remittance, the Servicer shall have the right
to pursue any course of action it may have against the Mortgagor with respect
to any such Mortgage. The Fidelity Bond shall insure the Servicer against any
loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Subsection 11.19 Annual Statement as to Compliance. The Servicer
shall deliver to the Purchaser, by March 15, 2006 and by March 15th of each
year thereafter (or if not a Business Day, the immediately preceding Business
Day), an Officer's Certificate stating that (A) a review of the activities of
the Servicer during the preceding calendar year and if performance under this
Agreement has been made under such officer's supervision, and (B) to the best
of such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such
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obligation, specifying each such default known to such officer and the nature
and status thereof and the action being taken by the Servicer to cure such
default.
Subsection 11.20 Annual Independent Public Accountants' Servicing
Report. On or before March 15, 2006 and by March 15th of each year thereafter,
the Servicer, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such
firm has examined certain documents and records relating to the Servicer's
servicing of mortgage loans of the same type as the Mortgage Loans pursuant to
servicing agreements substantially similar to this Agreement, which agreements
may include this Agreement, and that, on the basis of such an examination,
conducted substantially in accordance with the Uniform Single Attestation
Program for Mortgage Bankers, such firm is of the opinion that the Servicer's
servicing has been conducted in compliance with the agreements examined
pursuant to this Subsection 11.20, except for (i) such exceptions as such firm
shall believe to be immaterial, and (ii) such other exceptions as shall be set
forth in such statement. Copies of such statement shall be provided by the
Servicer to the Purchaser upon request.
Subsection 11.21 Servicer Shall Provide Access and Information as
Reasonably Required. The Servicer shall provide to the Purchaser, and for any
Purchaser insured by FDIC or NAIC, the supervisory agents and examiners of
FDIC and OTS or NAIC, access to any documentation regarding the Mortgage Loans
which may be required by applicable regulations. Such access shall be afforded
without charge, but only upon reasonable request, during normal business hours
and at the offices of the Servicer.
In addition, the Servicer shall furnish upon request by the
Purchaser, and at the reasonable expense of the Purchaser, during the term of
this Agreement, such periodic, special or other reports or information as are
standard in the securitization industry, whether or not provided for herein,
as shall be commercially reasonable and appropriate with respect to the
purposes of this Agreement and applicable regulations. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions the Purchaser may require. The Servicer agrees to
execute and deliver all such instruments and take all such action as the
Purchaser, from time to time, may reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
Subsection 11.22 Transfer of Servicing.
On the related Transfer Date, if any, the Purchaser, or its
designee, shall assume all servicing responsibilities related to, and the
Servicer cease all servicing responsibilities related to, the related Mortgage
Loans subject to such Transfer Date. On or prior to the related Transfer Date,
the Servicer shall, at its sole cost and expense in the Event of Default
hereunder, or at Purchaser's sole cost and expense in connection with any
termination under Subsection 14.02 hereof, take such steps as may be necessary
or appropriate to effectuate and evidence the transfer of the servicing of the
related Mortgage Loans to the Purchaser, or its designee, including but not
limited to the following:
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(a) Notice to Mortgagors. The Servicer shall mail to the Mortgagor
of each related Mortgage Loan a letter advising such Mortgagor of the transfer
of the servicing of the related Mortgage Loan to the Purchaser, or its
designee, in accordance with the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ National Affordable Housing
Act of 1990, as amended; provided, however, the content and format of the
letter shall have the prior approval of the Purchaser. The Servicer shall
provide the Purchaser with copies of all such related notices no later than
the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The
Seller shall transmit to the applicable taxing authorities and insurance
companies (including primary mortgage insurance policy 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 from and
after the related Transfer Date. The Seller shall provide the Purchaser with
copies of all such notices no later than the related Transfer Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in
the Seller's possession relating to each related Mortgage Loan.
(d) Escrow Payments. No later than five (5) Business Days after
the related transfer, the Seller 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 related Mortgage Loans. The Seller shall provide the Purchaser with
an accounting statement, in electronic format acceptable to the Purchaser in
its sole discretion, of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the Seller
shall wire transfer to the Purchaser the amount of any agency, trustee or
prepaid Mortgage Loan payments and all other similar amounts held by the
Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related 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 Seller on each related
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage Payments Received after Transfer Date. The amount of
any related Monthly Payments received by the Seller after the related Transfer
Date shall be forwarded to the Purchaser by overnight mail on the date of
receipt. The Seller shall notify the Purchaser of the particulars of the
payment, which notification requirement shall be satisfied if the Seller
forwards with its payment sufficient information to permit appropriate
processing of the payment by the Purchaser. The Seller shall assume full
responsibility for the necessary and appropriate legal application of such
Monthly Payments received by the Seller after the related Transfer Date with
respect to related 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
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Purchaser with the particulars of the payment such as the account number,
dollar amount, date received and any special Mortgagor application
instructions and the Seller shall comply with the foregoing requirements with
respect to all Monthly Payments received by the Seller after the related
Transfer Date.
(b) 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 such Transfer
Date shall immediately notify the other party;
(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
Seller shall be liable for the amount of such shortage. The Seller 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; and
(v) Any check issued under the provisions of this Section 11.22(h)
shall be accompanied by a statement indicating the corresponding Seller
and/or the Purchaser 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 Seller with respect to the related Mortgage Loans
shall conform in all material respects with all applicable Purchaser
requirements.
(j) Reconciliation. The Seller 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 Seller and the Purchaser as appropriate.
(k) IRS Forms. The Seller shall file or shall cause to be filed
all IRS forms 1099, 1099A or 1098 which are required to be filed on or before
the related Transfer Date in relation to the servicing and ownership of the
related Mortgage Loans. The Seller 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 Seller's failure to comply with
this paragraph.
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Section 12. The Servicer.
Subsection 12.01 Indemnification; Third Party Claims. The Servicer
agrees to indemnify and hold the Purchaser and any Successor Servicer and
their respective present and former directors, officers, employees and agents
harmless from any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including, without limitation, any legal
fees and expenses, judgments or expenses relating to such liability, claim,
loss or damage) and related costs, judgments, and any other costs, fees and
expenses that such parties may sustain in any way related to the Servicer's
failure:
(a) to observe and perform any or all of Servicer's duties,
obligations, covenants, agreements, warranties or representations contained in
this Agreement or in the related Purchase Price and Terms Agreement; or
(b) to comply with all applicable requirements contained in this
Agreement or the Purchase Price and Terms Agreement with respect to the
servicing of the Mortgage Loans and the transfer of servicing rights.
The Servicer immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement.
For purposes of this Section, "Purchaser" shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement and "Successor Servicer"
shall mean any Person designated as the Successor Servicer pursuant to this
Agreement and any and all Persons who previously were "Successor Servicers"
pursuant to this Agreement.
If any action is commenced for which indemnification may be
available under this Subsection 12.01 of which an indemnified party has
notice, promptly after receipt by such indemnified party under this Subsection
12.01 of notice of the commencement of such action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Subsection 12.01, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may have
to any indemnified party under this Subsection 12.01, except to the extent
that it has been prejudiced in any material respect, or from any liability
which it may have, otherwise than under this Subsection 12.01. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided that
if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party
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to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party for expenses incurred by
the indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with one local counsel, if applicable)), (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
Subsection 12.02 Merger or Consolidation of the Seller or
Servicer. The Seller and the Servicer will keep in full effect their
existence, rights and franchises under the laws of its jurisdiction of
incorporation or organization, and will obtain and preserve their
qualification to do business in each other 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 or the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller or the Servicer shall be a party, or any
Person succeeding to the business of the Seller or the Servicer, shall be the
successor of the Seller or the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor or surviving Person shall be an institution whose deposits
are insured by FDIC or a company whose business is the origination and
servicing of mortgage loans, unless otherwise consented to by the Purchaser,
which consent shall not be unreasonably withheld, and shall be qualified to
service mortgage loans on behalf of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Subsection 12.03 Limitation on Liability of the Servicer and
Others. The duties and obligations of the Servicer shall be determined solely
by the express provisions of this Agreement, the Servicer shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement and no implied covenants or obligations shall be
read into this Agreement against the Servicer. Neither the Servicer nor any of
the directors, officers, employees or agents of the Servicer shall be under
any liability to the Purchaser for any action taken or for refraining from the
taking of any action in accordance with Accepted Servicing Procedures and
otherwise in good faith pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Servicer against
any liability resulting from any breach of any representation or warranty made
herein, or from any liability specifically imposed on the Servicer herein;
and, provided, further, that this provision shall not protect the Servicer
against any liability that would otherwise be imposed by reason of the willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of the obligations or duties hereunder. The Servicer and
any director, officer, employee or agent of the Servicer may rely on any
document of any kind which
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it in good faith reasonably believes to be genuine and to have been adopted or
signed by the proper authorities respecting any matters arising hereunder.
Subject to the terms of Subsection 12.01, the Servicer shall have no
obligation to appear with respect to, prosecute or defend any legal action
which is not incidental to the Servicer's duty to service the Mortgage Loans
in accordance with this Agreement.
Subsection 12.04 Seller and Servicer Not to Resign. With respect
to the retention of the Servicer to service the Mortgage Loans hereunder, the
Seller and the Servicer acknowledge that the Purchaser has acted in reliance
upon the Seller and the Servicer's independent status, the adequacy of their
servicing facilities, plan, personnel, records and procedures, its integrity,
reputation and financial standing and the continuance thereof. Without in any
way limiting the generality of this Section, neither Seller nor Servicer shall
assign this Agreement or the servicing hereunder or delegate its rights or
duties hereunder or any portion thereof, or sell or otherwise dispose of all
or substantially all of its property or assets, without the prior written
approval of the Purchaser, which consent shall not be unreasonably withheld,
or upon the determination that the Servicer's duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the unilateral resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Purchaser, which Opinion of Counsel shall be in form and substance
reasonably acceptable to the Purchaser. No such resignation or assignment
shall become effective until a successor has assumed the Servicer's
responsibilities and obligations hereunder in accordance with Subsection
14.03.
Section 13. Default.
Subsection 13.01 Events of Default. In case one or more of the
following Events of Default by the Servicer shall occur and be continuing:
(a) any failure by the Servicer to remit to the Purchaser any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of one (1) Business Day after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Purchaser;
(b) failure by the Servicer to duly observe or perform, in any
material respect, any other covenants, obligations or agreements of the
Servicer as set forth in this Agreement which failure continues unremedied for
a period of sixty (60) days (or, in the case of (i) the annual statement of
compliance required under Subsection 11.19, (ii) the annual independent public
accountants' servicing report required under Subsection 11.20 or (iii) the
certification required under Section 15 in the form of Exhibit 16, ten (10)
days) after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Purchaser;
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
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such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or relating to all or substantially all of the Servicer's
property; or
(e) the Servicer shall admit in writing its inability to pay its
debts as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Purchaser, by notice in writing to the Servicer,
may, in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, commence
termination of all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof. Upon
receipt by the Servicer of such written notice from the Purchaser stating that
it intends to terminate the Servicer as a result of such Event of Default, all
authority and power of the Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the
successor appointed pursuant to Subsection 14.03. Upon written request from
the Purchaser, the Servicer shall, in accordance with Subsection 11.22
prepare, execute and deliver to a successor any and all documents and other
instruments, place in such successor's possession all Mortgage Files and do or
cause to be done all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, including, but not limited to, the
transfer and endorsement or assignment of the Mortgage Loans and related
documents to the successor at the Servicer's sole expense. The Servicer agrees
to cooperate with the Purchaser and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to such successor for
administration by it of all amounts which shall at the time be credited by the
Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Subsection 13.02 Waiver of Defaults. The Purchaser may waive any
default by the Servicer in the performance of its obligations hereunder and
its consequences. Upon any waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereto
except to the extent expressly so waived.
Section 14. Termination.
Subsection 14.01 Termination. The respective obligations and
responsibilities of the Servicer, as servicer, shall terminate upon (a) the
distribution to the Purchaser of the final payment or liquidation with respect
to the last Mortgage Loan (or advances of same by the Servicer); (b) the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure with respect to the last Mortgage Loan and the remittance of all
funds due
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hereunder or (c) by mutual consent of the Servicer and the Purchaser in
writing. Upon written request from the Purchaser in connection with any such
termination, the Servicer shall prepare, execute and deliver, any and all
documents and other instruments, place in the Purchaser's possession all
Mortgage Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Purchaser's sole expense. The Servicer
agrees to cooperate with the Purchaser and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder as
servicer, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
Subsection 14.02 Termination of the Servicer Without Cause.
Notwithstanding anything herein to the contrary, the Purchaser may terminate
the obligations and responsibilities of the Servicer in its capacity as
Servicer, without cause, upon payment to the Servicer of a termination fee
equal to two percent (2.0%) of the aggregate outstanding principal balance of
the Mortgage Loans as of the date of such termination, as well as any
reasonable and necessary costs to transfer servicing under Subsection 11.22.
The termination fee provided for in this Subsection 14.02 shall be paid by the
Purchaser within three (3) Business Days of any such termination without cause
by the Purchaser or as mutually agreed by Servicer and Purchaser.
Subsection 14.03 Successors to the Servicer. Prior to the
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Subsections 12.04, 13.01, 14.01 or 14.02, the Purchaser shall, (a)
succeed to and assume all of the Servicer's responsibilities, rights, duties
and obligations under this Agreement or (b) appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement upon such termination. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. If the Servicer's duties,
responsibilities and liabilities under this Agreement shall be terminated
pursuant to the aforementioned Subsections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned Subsections shall not become
effective until a successor shall be appointed pursuant to this Subsection
14.03 and shall in no event relieve the Seller of the representations and
warranties made pursuant to Subsections 7.01 and 7.02 and the remedies
available to the Purchaser under Subsection 7.03, it being understood and
agreed that the provisions of such Subsections 7.01 and 7.02 shall be
applicable to the Seller notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Purchaser an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named
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as a party to this Agreement. Any termination or resignation of the Servicer
or this Agreement pursuant to Subsections 12.04, 13.01, 14.01 or 14.02 shall
not affect any claims that the Purchaser may have against the Servicer arising
prior to any such termination or resignation.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Purchaser of such appointment.
Section 15. Cooperation of Seller and the Servicer with a
Reconstitution. The Seller, the Servicer and the Purchaser agree that with
respect to some or all of the Mortgage Loans, after the related 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:
(a) ▇▇▇▇▇▇ ▇▇▇ under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "▇▇▇▇▇▇ Mae Transfer");
(b) ▇▇▇▇▇▇▇ Mac (the "▇▇▇▇▇▇▇ Mac Transfer");
(c) one or more third party purchasers in one or more Whole Loan
Transfers; or
(d) one or more trusts or other entities to be formed as part of
one or more Pass-Through Transfers
provided that Purchaser shall not enter into more than five (5)
Reconstitutions of the Mortgage Loans in a Mortgage Loan Package.
The Seller and the Servicer agree to execute in connection with
any Agency Transfer, any and all pool purchase contracts, and/or agreements
reasonably acceptable among the Purchaser, the Seller, the Servicer, ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac (as the case may be), 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 a Pass-Through
Transfer, a pooling and servicing agreement in form and substance reasonably
acceptable to the parties or an Assignment and Recognition Agreement
substantially in the form attached hereto as Exhibit 15 (collectively, the
agreements referred to herein are designated, the "Reconstitution
Agreements"), together with an opinion of counsel with respect to such
Reconstitution Agreements if such opinion of counsel is reasonably required in
connection with such Reconstitution.
With respect to each Whole Loan Transfer and each Pass-Through
Transfer entered into by the Purchaser, the Seller and the Servicer agree (1)
to cooperate fully with the Purchaser and any prospective purchaser with
respect to all reasonable requests and due diligence procedures; (2) to
execute, deliver and perform all Reconstitution Agreements required by the
Purchaser and reasonably acceptable to Seller and the Servicer; and (3) to
restate the representations and warranties set forth in Subsection 7.02 of
this Agreement as of the settlement or closing date in connection with such
Reconstitution (each, a "Reconstitution Date"). The Seller and the Servicer
shall provide to such master servicer, the Depositor or the trustee, as the
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case may be, and any other participants or purchasers in such Reconstitution,
at the reasonable expense of the Purchaser: (i) any and all information and
appropriate verification of information which may be reasonably available to
the Seller or its Affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; and (ii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, and certificates of public
officials or officers of the Seller or the Servicer as are reasonably believed
necessary by the Purchaser or any such other participant and deemed reasonably
acceptable to the Seller or the Servicer, as applicable; and (iii) execute,
deliver and satisfy all conditions set forth in any indemnity agreement
required by the Purchaser or any such participant, including, without
limitation, an Indemnification and Contribution Agreement in substantially the
form attached hereto as Exhibit 3. Moreover, the Seller and the Servicer agree
to cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
In connection with any Pass-Through Transfer, Countrywide and
Servicer, jointly and severally, shall indemnify, defend and hold harmless the
Purchaser from and against any and all losses, claims, expenses, damages or
liabilities to which the Purchaser may be subject to as a result of any untrue
statement of any material fact contained in any information (such information,
the "Countrywide Information" or the Servicer Information", respectively)
prepared and furnished to the Purchaser or any Affiliate thereof by
Countrywide or the Servicer for inclusion in any related offering document or
prospectus (or incorporated by reference therein, as specified by the Seller)
(collectively, "Offering Materials"), necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse the Purchaser for damages or expenses
reasonably incurred by it; provided, however, that Countrywide and the
Servicer shall be liable only insofar as such untrue statement or omission
relates solely to the Countrywide Information or the Servicer Information in
the Offering Materials furnished to the Purchaser by Countrywide and the
Servicer specifically for inclusion in the Prospectus Supplement. The
Purchaser shall indemnify, defend and hold harmless Countrywide and the
Servicer from and against any and all losses, claims, expenses, damages or
liabilities to which Countrywide and the Servicer may be subject to as a
result of any untrue statement of any material fact contained in any Offering
Materials, or arise out of, or are based upon, any omission in any information
included in the Offering Materials necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
will reimburse Countrywide and the Servicer for damages or expenses reasonably
incurred by it; provided, however, that Purchaser shall be liable only insofar
as such untrue statement or omission does not relate to the Countrywide
Information or the Servicer Information in the Offering Materials furnished to
the Purchaser by Countrywide and the Servicer specifically for inclusion in
the Offering Materials.
With respect to any Mortgage Loans that are subject to a
Pass-Through Transfer or other securitization, to the extent that either of
the Purchaser, any master servicer which is master servicing loans in
connection with such transaction (a "Master Servicer"), any related depositor
(a "Depositor"), or any related trustee (a "Trustee") is required under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as may be amended and in effect from time to time
(the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") to prepare and file a certification pursuant to
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, on or before March 15, 2005, and March
15th of each year thereafter, an officer of Countrywide shall, prior to the
deadline for such certification, execute and deliver an
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Officer's Certificate, in the form attached hereto as Exhibit 16 (with such
changes as the Purchaser reasonably determines to be necessary or appropriate
as a result of changes promulgated under Regulation AB to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act certification required to be delivered by the party providing such
certification) to such Purchaser, Master Servicer, Depositor, or Trustee as
the case may be, for the benefit of such entity. For the purposes of this
subsection (e) only, the Master Servicer, Depositor or Trustee, as the case
may be, shall be deemed a third party beneficiary of this subsection and shall
be entitled to enforce the provisions of this subsection (e).
Countrywide and the Servicer, jointly and severally, shall
indemnify and hold harmless such Purchaser, Master Servicer, Depositor or
Trustee, as the case may be (any such party, an "Indemnified Party") from and
against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of
or based upon a breach by Countrywide or the Servicer or any of its officers,
directors, or agents of its obligations pursuant to the preceding paragraph;
provided, however, that Countrywide and the Servicer shall not be obligated to
indemnify or hold harmless any Indemnified Party from or against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments and other costs and expenses arising out of or based upon the
negligence, bad faith or willful misconduct of such Indemnified Party. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any Indemnified Party, then Countrywide and the Servicer agree that
they shall contribute to the amount paid or payable by the Indemnified Party
as a result of the losses, claims, damages or liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of
the Indemnified Party and Countrywide or the Servicer, as the case may be, in
the other in connection with a breach of Countrywide's or the Servicer's
obligations under this Section 15, or Countrywide's or the Servicer's gross
negligence or willful misconduct in connection therewith.
Notwithstanding any provision in this Agreement to the contrary,
in connection with each Pass-Through Transfer with a Reconstitution Date after
December 31, 2005, the Seller and the Servicer shall provide the Purchaser and
any prospective purchaser, in form and substance reasonably satisfactory, all
information (including without limitation, static pool information of the
Seller and the Servicer), statements, reports and certifications reasonably
necessary to comply with the final rules promulgated by the Commission related
to asset-backed securities (Release Nos. 33-8518; 34-50905) (as such rules may
be amended or modified from time to time). The Seller and the Servicer shall
provide the Purchaser and such prospective purchaser with such additional
opinions of counsel, letters from auditors, and certificates of public
officials or officers of the Seller or the Servicer as are reasonably
necessary to the Purchaser or any such other participant in such Pass-Through
Transfer (including, without limitation, such revisions to this Agreement
relating to the servicing of REO Property and the provision of remittance
reports reasonably necessary to enable such servicer to fulfill its servicing
obligations).
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and shall continue to be
serviced in accordance with the terms of this Agreement, and with respect
thereto this Agreement shall remain in full force and effect.
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Section 16. Notices. All demands, notices and communications
hereunder shall be in writing and shall be given via email, facsimile
transmission or registered or certified mail to the person at the address set
forth below:
(a) if to the Purchaser:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - Whole Loan Operations Manager
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copies to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - Servicing Oversight
▇▇▇▇ ▇-▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - RFPG
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b) if to the Servicer:
Countrywide Home Loans LP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(c) if to the Seller:
Countrywide Home Loans, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-59-
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 which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any provision hereof. If the invalidity of any part, provision, representation
or warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
Section 18. No Partnership. Nothing herein contained shall be
deemed or construed to create a co-partnership or joint venture between the
parties hereto and the services of the Servicer shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 19. 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 20. Governing Law Jurisdiction; Consent to Service of
Process. 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. THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE
PURCHASER, THE SELLER AND THE SERVICER IRREVOCABLY (I) SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II)
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT
FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL
JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT
BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR
NOTICES HEREUNDER.
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Section 21. Mandatory Delivery. The sale and delivery on the
related Closing Date of the Mortgage Loans described on the related Mortgage
Loan Schedule is mandatory from and after the date of the execution of the
related Purchase Price and Terms Agreement, it being specifically understood
and agreed that each Mortgage Loan is unique and identifiable on the date
hereof and that an award of money damages would be insufficient to compensate
the Purchaser for the losses and damages incurred by the Purchaser (including
damages to prospective purchasers of the Mortgage Loans) in the event of the
Seller's failure to deliver (i) each of the related Mortgage Loans or (ii) one
or more Qualified Substitute Mortgage Loans or (iii) one or more Mortgage
Loans otherwise acceptable to the Purchaser on or before the related Closing
Date. All rights and remedies of the Purchaser under this Agreement are
distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
Section 22. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling the
Mortgage Loans and not a debt instrument of the Seller or another security.
Accordingly, the parties hereto each intend to treat the transaction for
federal income tax purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Mortgage Loans. 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 and the Servicer
shall cooperate with all reasonable requests made by the Purchaser in the
course of such review.
Section 23. Successors and Assigns. Subject to Section 15, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Servicer and the Purchaser and the respective permitted successors
and assigns of the Seller, the Servicer and assigns of the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller or the
Servicer to a third party without the prior written consent of the Purchaser,
which consent may not be unreasonably withheld by the Purchaser. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole
or in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. The number of assignments or transfers allowable by the
Purchaser with respect to the Mortgage Loans and this Agreement shall be
subject to Section 15. In the event the Purchaser assigns this Agreement, and
the assignee assumes any of the Purchaser's obligations hereunder, the Seller
and the Servicer acknowledge and agree to look solely to such assignee, and
not to the Purchaser, for performance of the obligations so assumed and the
Purchaser shall be relieved from any liability to the Seller or the Servicer
with respect thereto.
Section 24. Waivers. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be
enforced.
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Section 25. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this
Agreement.
Section 26. General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
Section 27. 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 hereto 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 hereto in
the regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
-62-
Section 28. Amendment. This Agreement may be amended from time to
time by the Purchaser, the Seller and the Servicer by written agreement signed
by the parties hereto.
Section 29. Confidentiality. Each of the Purchaser, the Seller and
the Servicer shall employ proper procedures and standards designed to maintain
the confidential nature of the terms of this Agreement, except to the extent:
(a) the disclosure of which is reasonably believed by such party to be
required in connection with regulatory requirements or other legal
requirements relating to its affairs; (b) disclosed to any one or more of such
party's employees, officers, directors, agents, attorneys or accountants who
would have access to the contents of this Agreement and such data and
information in the normal course of the performance of such Person's duties
for such party, to the extent such party has procedures in effect to inform
such Person of the confidential nature thereof; (c) that is disclosed in a
prospectus, prospectus supplement or private placement memorandum relating to
a securitization of the Mortgage Loans by the Purchaser (or an Affiliate
assignee thereof) or to any Person in connection with the resale or proposed
resale of all or a portion of the Mortgage Loans by such party in accordance
with the terms of this Agreement; and (d) that is reasonably believed by such
party to be necessary for the enforcement of such party's rights under this
Agreement.
Notwithstanding any other express or implied agreement to the
contrary, each of the Purchaser, the Seller and the Servicer agree and
acknowledge that each of them and each of their employees, representatives,
and other agents may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transaction and all
materials of any kind (including opinions or other tax analyses) that are
provided to any of them relating to such tax treatment and tax structure,
except to the extent that confidentiality is reasonably necessary to comply
with U.S. federal or state securities laws. For purposes of this paragraph,
the terms "tax treatment" and "tax structure" have the meanings specified in
Treasury Regulation section 1.6011-4(c).
Section 30. Entire Agreement. This Agreement constitutes the
entire agreement and understanding relating to the subject matter hereof
between the parties hereto and any prior oral or written agreements between
them shall be deemed to have merged herewith.
Section 31. Further Agreements. The Seller, the Servicer and
the Purchaser each agree to execute and deliver to the other such reasonable
and appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Section 32. No Solicitation. From and after the Closing Date, the
Servicer hereby agrees that it will not take any action or permit or cause any
action to be taken by any of its agents or Affiliates, or by any independent
contractors or independent mortgage brokerage companies on the Servicer's
behalf, to personally, by telephone or mail, solicit the Mortgagor under any
Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided,
that the Servicer may solicit any Mortgagor for whom the Servicer or its
Affiliates has received a request for verification of mortgage, a request for
demand for payoff, a Mortgagor initiated written or verbal communication
indicating a desire to prepay the related Mortgage Loan, or the Mortgagor
-63-
initiates a title search, provided further, it is understood and agreed that
promotions undertaken by the Servicer or any of its Affiliates which (i)
concern optional insurance products or other additional products or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspaper, radio and
television advertisements shall not constitute solicitation nor is the
Servicer prohibited from responding to unsolicited requests or inquiries made
by a Mortgagor or an agent of a Mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by the Servicer or any Affiliate of the
Servicer, shall not be prohibited: (i) solicitations that are directed to the
general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) Mortgagor messages included on, and
statement inserts provided with, the monthly statements sent to Mortgagors;
provided, however, that similar messages and inserts are sent to the
mortgagors of other mortgage loans serviced by the Servicer.
Section 33. Waiver of Jury Trial. THE SELLER, THE SERVICER, AND
THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Purchaser, the Seller and the Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized on the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
COUNTRYWIDE HOME LOANS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
EXHIBIT 1
MORTGAGE LOAN DOCUMENTS
With respect to each Mortgage Loan, the Mortgage Loan Documents
shall consist of the following:
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse" and
signed in the name of the last endorsee (the "Last Endorsee") by an authorized
officer. To the extent that there is no room on the face of the Mortgage Notes
for endorsements, the endorsement may be contained on an allonge, if state law
so allows and the Custodian is so advised by the Seller that state law so
allows. If the Mortgage Loan was acquired by the Seller in a merger, the
endorsement must be by "[Last Endorsee], successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be by
"[Last Endorsee], formerly known as [previous name]." If the original Mortgage
Note is not available, the Seller shall provide a lost note affidavit in a
form acceptable to the Purchaser, with a copy of the Mortgage Note attached
thereto;
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any
Co-op Loan, an original or copy of the Security Agreement. 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
Closing Date because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon, or if any
such instrument has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original recorded
instruments, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such instrument, together with (i) in the case of a
delay caused by the public recording office, an Officers Certificate of the
Seller (or certified by the title company,
EXH. 1-1
escrow agent, or closing attorney) stating that such instrument has been
dispatched to the appropriate public recording office for recordation and that
such original recorded instrument or a copy of such instrument certified by
the appropriate public recording office to be a true and complete copy of the
original recorded instrument will be promptly delivered to the Custodian upon
receipt thereof by the Seller; or (ii) in the case of an instrument where a
public recording office retains the original recorded instrument or in the
case where an instrument is lost after recordation in a public recording
office, a copy of such instrument certified by such public recording office to
be a true and complete copy of the original recorded instrument;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser.
If the Assignment of Mortgage is not to be recorded, the Assignment of
Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the
Seller in a merger, the Assignment of Mortgage must be made by "[Seller],
successor by merger to [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the Assignment of Mortgage must be by "[Seller], formerly known as [previous
name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) 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 Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) 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 Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office,
a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance (upon receipt thereof by the
Seller) or, in the event such original title policy is unavailable, a
certified true copy of the related policy binder or commitment for title
certified to be true and complete by the title insurance company;
EXH. 1-2
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease
and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii)
the stock certificate together with an undated stock power relating to such
stock certificate executed in blank; (iii) the recognition agreement of the
interests of the Mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financing statement filed by the originator as secured party and, if
applicable, a filed UCC-3 assignment of the subject security interest showing
a complete chain of title, together with an executed UCC-3 assignment of such
security interest by the Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified
by the Seller to be a true and correct copy of the original.
EXH-1-3
EXHIBIT 2
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, unless otherwise disclosed to the
Purchaser on the data tape, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to the
Purchaser:
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of
downpayment, if applicable.
(f) Credit report on Mortgagor, in a form acceptable to either
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
(g) Residential appraisal report (except the case of a
stream-lined refinancing).
(h) Photograph of the Mortgaged Property and photographs of
comparable properties.
(i) Survey of the Mortgaged Property, unless a survey is not
required by the title insurer.
(j) Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, home owner association
declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales Contract, if applicable.
(n) Copy of the owner's title insurance policy or attorney's
opinion of title and abstract of title, as applicable.
(o) Evidence of electronic notation of the hazard insurance
policy, and, if required by law, evidence of the flood insurance policy.
EXH. 2-1
EXHIBIT 3
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"),
dated as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc., a New York corporation ("▇▇▇▇▇▇"), [_____________], a
[_______________] (the "Seller") and [_____], a [______] (the "Servicer").
W I T N E S S E T H:
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus
Supplement"), relating to [________________] Certificates (the "Certificates")
to be issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the "P&S"), among the Depositor, as depositor,
[________________], as servicer (the "Servicer"), and [________________], as
trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] (the "Underwriter[s]") to enter into the
Underwriting Agreement, dated [____________________] (the "Underwriting
Agreement"), between the Depositor and the Underwriter[s], and
[_______________] (the "Initial Purchaser[s]") to enter into the Certificate
Purchase Agreement, dated [____________] (the "Certificate Purchase
Agreement"), between the Depositor and the Initial Purchaser[s], Seller has
agreed to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
WHEREAS, ▇▇▇▇▇▇ purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") serviced by the
Servicer pursuant to the Second Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of September 1, 2005 (the "Sale and Servicing
Agreement"), by and among ▇▇▇▇▇▇, Seller and Servicer; and
WHEREAS, pursuant to Section 15 of the Sale and Servicing
Agreement, the Seller and the Servicer have agreed to indemnify the Depositor,
▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s] and their respective
Affiliates, present and former directors, officers, employees and agents, and
▇▇▇▇▇▇ has agreed to indemnify Seller, the Servicer and their respective
Affiliates, present and former directors, officers, employees and agents.
EXH. 3-1
NOW THEREFORE, in consideration of the agreements contained
herein, and other valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the Depositor, ▇▇▇▇▇▇, the Seller and the Servicer
agree as follows:
1. Indemnification and Contribution.
The Seller and the Servicer, jointly and severally, shall
indemnify and hold harmless the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the
Initial Purchaser[s], their respective Affiliates and their respective present
and former directors, officers, employees and agents and each Person, if any,
who controls the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial
Purchaser[s], or such Affiliates, within the meaning of either Section 15 of
the Securities Act of 1933, as amended (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and expenses to which the Depositor, ▇▇▇▇▇▇, the Underwriter[s] or the Initial
Purchaser[s], or their respective Affiliates or any present and former
director, officer, employee and agent or controlling Person may become
subject, under the 1933 Act, the 1934 Act or otherwise, to the extent that
such losses, claims, damages, penalties, fines, forfeitures, fees, costs,
judgments or expenses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Prospectus
Supplement, the Offering Circular or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission relates to information set forth in
the Seller Information or the Servicer Information and Seller and Servicer
shall in each case reimburse the Depositor, ▇▇▇▇▇▇, the Underwriter[s] and the
Initial Purchaser[s], their respective Affiliates and each present and former
director, officer, employee and agent or controlling Person for any legal or
other expenses reasonably incurred by the Depositor, ▇▇▇▇▇▇, the
Underwriter[s] and the Initial Purchaser[s], their respective Affiliates and
each present and former director, officer, employee and agent or controlling
Person, in connection with investigating or defending any such loss, claim,
damage, liability, penalty, fine, forfeiture, or action. The foregoing
indemnity is in addition to any liability which Seller or Servicer may
otherwise have to the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial
Purchaser[s] and their respective Affiliates and each present and former
director, officer, employee and agent or controlling Person.
▇▇▇▇▇▇ shall indemnify and hold harmless Seller and the Servicer,
their respective Affiliates and their respective present and former directors,
officers, employees and agents and each Person, if any, who controls Seller or
the Servicer or such Affiliates within the meaning of either the 1933 Act or
the 1934 Act, against any and all losses, claims, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other cost, fees and expenses to which Seller, Servicer or their
respective Affiliates or any present and former director, officer, employee
and agent or controlling Person may become subject, under the 1933 Act, the
1934 Act or otherwise, to the extent that such losses, claims, damages,
penalties, fines, forfeitures, fees, costs, judgments or expenses arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement, the Offering Circular or
any amendment or supplement thereto, or arise
EXH. 3-2
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission relates to information set forth in
the ▇▇▇▇▇▇ Information in the Prospectus Supplement or the Offering Circular,
and ▇▇▇▇▇▇ shall in each case reimburse Seller, Servicer, their respective
Affiliates and each present and former director, officer, employee and agent
or controlling Person for any legal or other expenses reasonably incurred by
Seller, Servicer, their respective Affiliates and each present and former
director, officer, employee and agent or controlling Person, in connection
with investigating or defending any such loss, claim, damage, liability,
penalty, fine, forfeiture or action.
Notwithstanding the foregoing, nothing in this Agreement shall
amend, modify or supercede the obligations of Seller, the Servicer and ▇▇▇▇▇▇
under the terms of the Sale and Servicing Agreement between the Servicer and
▇▇▇▇▇▇.
As used herein:
"▇▇▇▇▇▇ Information" means any information set forth in the
Prospectus Supplement other than Seller Information or Servicer Information.
"Offering Circular" means the offering circular, dated
[__________] relating to the private offering of the [_______________]
Certificates.
"Seller Information" means any information relating to Seller, the
Mortgage Loans and/or the underwriting guidelines relating to the Mortgage
Loans provided by the Seller for inclusion in the Prospectus Supplement or the
Offering Circular [and static pool information regarding mortgage loans
originated or acquired by the Seller and included in the Prospectus Supplement
or Offering Circular][or incorporated by reference from the website located at
________].
"Servicer Information" means any information relating to Servicer,
the Mortgage Loans and/or the servicing of the Mortgage Loans provided by the
Servicer for inclusion in the Prospectus Supplement or the Offering Circular.
(a) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however,
that the failure to notify any indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 1.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified
EXH. 3-3
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, except as provided
in the following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 1 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate
counsel; or (iii) the indemnifying party has failed to assume the defense of
such action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, it
being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to local counsel) at any time for
all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement.
(b) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party, respectively, in
connection with the statements or omissions that result in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and
EXH. 3-4
indemnifying party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(c) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor,
▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s] or their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s] or any
such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates.
2. Representations and Warranties. The Depositor, ▇▇▇▇▇▇, Seller and
Servicer each represent and warrant that:
(i) it has full power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated
hereunder, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(ii) this Agreement has been duly executed and delivered by such
party; and; and
(iii) assuming the due authorization, execution and delivery by
each other party hereto, this Agreement will constitute the legal, valid
and binding obligation of the party making this representation,
enforceable in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, by the availability of equitable remedies, and by limitations
of public policy under applicable securities law as to rights of
indemnity and contribution thereunder.
3. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to Seller, will be mailed, delivered or
faxed or emailed and confirmed by mail to [______________________]; if
sent to ▇▇▇▇▇▇, ▇▇▇▇ be mailed, delivered or faxed or emailed and
confirmed by mail to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - Whole
Loans Operations Manager, Fax: [_____], Email:
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with copies to (i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - Legal Counsel, Securities, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____], Email:
▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ - SPG Finance, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____], Email:
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; if to the Depositor, will be mailed,
delivered or telegraphed and confirmed to [____________________]; or if
to the Underwriter[s], will be mailed, delivered or telegraphed and
confirmed to
EXH. 3-5
[_____________________]; or if to the Initial Purchaser[s], will be
mailed, delivered or telegraphed and confirmed to
[_____________________].
4. Miscellaneous. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect
to the conflict of laws provisions thereof. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
successors and assigns and the controlling persons referred to herein,
and no other person shall have any right or obligation hereunder.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be
considered an original, and all such counterparts shall constitute one
and the same instrument. Capitalized terms used but not defined herein
shall have the meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
EXH. 3-6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized,
this __th day of [_____________].
[DEPOSITOR]
By: ___________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By: ___________________________________
Name:
Title:
[SELLER]
By: ___________________________________
Name:
Title:
[SERVICER]
By: ___________________________________
Name:
Title:
EXH. 3-7
EXHIBIT 4
CUSTODIAL ACCOUNT CERTIFICATION
[_________], 2005
Countrywide Home Loans Servicing LP hereby certifies that it has
established the account described below as a Custodial Account pursuant to
Subsection 11.04 of the Second Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of September 1, 2005, Conventional Fixed and
Adjustable Rate Residential Mortgage Loans.
Title of Account: "Countrywide Home Loans Servicing LP in trust for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. as Purchaser of Mortgage Loans and
various Mortgagors."
Account Number: __________________________
Address of office or
branch of [_____________________]
at which the Custodial
Account is maintained: ______________________
______________________
______________________
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc.,
its general partner
By:____________________________________
Name:
Title:
EXH. 4-1
EXHIBIT 5
CUSTODIAL ACCOUNT LETTER AGREEMENT
[_________], 2005
To:
(the "Depository")
As Servicer under the Second Amended and Restated Mortgage Loan
Sale and Servicing Agreement, dated as of September 1, 2005, we hereby
authorize and request you to establish an account, as a Custodial Account, to
be designated as "Countrywide Home Loans Servicing LP in trust for ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. as Purchaser of Mortgage Loans and various
Mortgagors." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. You may refuse any deposit which
would result in violation of the requirement that the account be fully insured
as described below. This letter is submitted to you in duplicate. Please
execute and return one original to us.
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc.,
its general partner
By:____________________________________
Name:
Title:
EXH. 5-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number
____________________ at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above. The account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
[___________________________],
as Depository
By:____________________________________
Name:
Title:
Date:
EXH. 5-2
EXHIBIT 6
ESCROW ACCOUNT CERTIFICATION
[_________], 2005
[_____________________] hereby certifies that it has established
the account described below as an Escrow Account pursuant to Subsection 11.06
of the Second Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated as of September 1, 2005 Conventional, Fixed and Adjustable Rate
Residential Mortgage Loans.
Title of Account: "Countrywide Home Loans Servicing LP, in trust for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. as Purchaser of Mortgage Loans and
various Mortgagors."
Account Number: __________________________
Address of office or
branch of [_____________________]
at which the Escrow
Account is maintained: ______________________
______________________
______________________
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc.,
its general partner
By:____________________________________
Name:
Title:
EXH. 6-1
EXHIBIT 7
ESCROW ACCOUNT LETTER AGREEMENT
June [__], 2005
To:
(the "Depository")
As Servicer under the Second Amended and Restated Mortgage Loan
Sale and Servicing Agreement, dated as of September 1, 2005, we hereby
authorize and request you to establish an account, as an Escrow Account, to be
designated as "Countrywide Home Loans Servicing LP in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. as Purchaser of Mortgage Loans and various Mortgagors."
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc.,
its general partner
By:____________________________________
Name:
Title:
EXH.7.1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number
____________________ at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above. The account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
[____________________],
as Depository
By:____________________________________
Name:
Title:
Date:
▇▇▇. ▇-▇
▇▇▇▇▇▇▇ ▇
[▇▇▇▇▇▇▇▇]
▇▇▇. 8-1
EXHIBIT 9
FORM OF MONTHLY REMITTANCE REPORT
[SERVICER TO PROVIDE]
EXH. 9-1
EXHIBIT 10-1
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Countrywide Home Loans, Inc. [COMPANY], a [state]
[federally] chartered institution organized under the laws of the [state of
____________] [United States] (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.
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.
3. Attached hereto as Exhibit 3 is a [copy of the][for the initial
Closing Date: 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 each of the
Second Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated as of September 1, 2005, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. (the "Purchaser"), Countrywide Home Loans Servicing LP and
the Company (the "Sale and Servicing Agreement") and the Custodial
Agreement, dated as of June 1, 2005, by and among the Company, the
Purchaser and ______________ [CUSTODIAN] (the "Custodial Agreement")
[and to endorse the Mortgage Notes and execute the Assignments of
Mortgages by original [or facsimile] signature], and such resolutions
are in effect on the date hereof.
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 Sale and Servicing Agreement, the Custodial 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 Sale and Servicing Agreement and
the Custodial 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.
EXH. 10-1-1
7. To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Company
which, in my judgment, either in any one instance or in the aggregate,
may reasonably 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 Sale and Servicing Agreement and the Custodial
Agreement 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
Sale and Servicing Agreement and the Custodial Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Sale and
Servicing Agreement, (b) the Custodial Agreement and (c) any other
document delivered 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 Sale and Servicing Agreement and the
Custodial Agreement.
EXH. 10-1-2
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
Countrywide Home Loans, 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: __________________________
Title: _________________________
[Assistant] Secretary
EXH. 10-1-3
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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EXHIBIT 10-2
FORM OF SERVICER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Countrywide Home Loans Servicing LP, a partnership
organized under the laws of the [state of ____________] [United States] (the
"Servicer") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the partnership agreement of the Servicer which is in full force
and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a [copy of the][for the initial
Closing Date: an original] certificate of good standing of the Servicer
issued within ten days of the date hereof.
3. The execution and delivery of the Second Amended and Restated
Mortgage Loan Sale and Servicing Agreement, dated as of September 1,
2005, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the
"Purchaser"), Countrywide Home Loans, Inc. and the Servicer (the "Sale
and Servicing Agreement") and any other documents or certificates
related to and in furtherance of the transactions contemplated by the
foregoing, are in the ordinary course for the Servicer and therefore do
not require specific resolutions.
4. 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 Servicer of or compliance by the
Servicer with the Sale and Servicing Agreement, or the consummation of
the transactions contemplated thereby; or (ii) any required consent,
approval, authorization or order has been obtained by the Servicer.
5. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of the Sale and Servicing Agreement
conflicts or will conflict with or results or will result in a breach of
or constitutes or will constitute a default under the partnership
agreement of the Servicer, the terms of any indenture or other agreement
or instrument to which the Servicer 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 Servicer is subject or by which it is
bound.
6. To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Servicer
which, in my judgment, either in any one instance or in the aggregate,
may reasonably result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer or
in any material impairment of the right or ability of the Servicer to
carry on its business substantially as now conducted or in any material
liability on the part of the Servicer or which would draw into question
the validity of the Sale and Servicing Agreement, or of any action taken
or to be taken in connection with the transactions
EXH. 10-2-1
contemplated hereby, or which would be likely to impair materially the
ability of the Servicer to perform under the terms of the Sale and
Servicing Agreement.
7. Each person listed on Exhibit 4 attached hereto who, as an
officer or representative of the Servicer, signed (a) the Sale and
Servicing Agreement, and (b) any other document delivered 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 Servicer, who holds the office set forth opposite
his or her name on Exhibit 4, and the signatures of such persons
appearing on such documents are their genuine signatures.
8. The Servicer is duly authorized to engage in the transactions
described and contemplated in the Sale and Servicing Agreement.
EXH. 10-2-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Servicer.
Dated: _________________________
By: ____________________________
Name: __________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
Countrywide Home Loans Servicing LP, hereby certify that ____________ is the
duly elected, qualified and acting [Vice] President of the Servicer and that
the signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
[Assistant] Secretary
EXH. 10-2-3
EXHIBIT 4 to
Servicer's Officer's Certificate
NAME TITLE SIGNATURE
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▇▇▇▇▇▇▇ ▇▇
[▇▇▇▇▇▇▇▇.]
▇▇▇. 11.1
EXHIBIT 12
FORM OF SECURITY RELEASE CERTIFICATION
___________________, _____
________________________
________________________
________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that Countrywide Home Loans, Inc. a
corporation organized pursuant to the laws of the state of [___________] (the
"Company") has committed to sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. under
the Second Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated as of September 1, 2005, certain mortgage loans originated by the
Company. The Company warrants that the mortgage loans to be sold to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. are in addition to and beyond any collateral
required to secure advances made by you to the Company.
The Company acknowledges that the mortgage loans to be sold to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. shall not be used as additional or
substitute collateral for advances made by [____________]. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. understands that the balance of the Company's mortgage
loan portfolio may be used as collateral or additional collateral for advances
made by [___________], and confirms that it has no interest therein.
EXH. 12-1
Execution of this letter by [___________] shall constitute a full
and complete release of any security interest, claim, or lien which
[___________] may have against the mortgage loans to be sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc.
Very truly yours,
_______________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
Acknowledged and approved:
__________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
EXH. 12-2
EXHIBIT 13
FORM OF SECURITY RELEASE CERTIFICATION AGREEMENT
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. from the Company named below
pursuant to that certain Second Amended and Restated Mortgage Loan Sale and
Servicing Agreement, dated as of September 1, 2005 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
Name and Address and Wire Instructions of Financial Institution
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
By:_____________________________
EXH. 13-1
II. Certification of Release
The Company named below hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. that, as of the date and time of the sale of the
above-mentioned Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital 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.
___________________________
By:___________________________
Title:________________________
Date:_________________________
EXH. 13-2
EXHIBIT 14
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On this ___ day of __________, ____, ___________________
("Seller"), as (i) the Seller under that certain Purchase Price and Terms
Agreement, dated as of ___________, _____ (the "PPTA"), (ii) the Seller under
that certain Second Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of September 1, 2005 (the "Sale and Servicing Agreement")
and, together with the PPTA, the "Agreements") does hereby sell, transfer,
assign, set over and convey to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
("Purchaser") as the Purchaser under the Agreements, without recourse, but
subject to the terms of the Agreements, all right, title and interest of, in
and to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto
as Exhibit A (the "Mortgage Loans"), together with the Mortgage Files and all
rights and obligations arising under the documents contained therein. Each
Mortgage Loan subject to the Agreements was underwritten in accordance with,
and conforms to, the Underwriting Guidelines attached hereto as Exhibit C.
Pursuant to Section 6 of the Sale and Servicing Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be
purchased as set forth in the Custodial Agreement. The contents of each
Servicing File required to be retained by the Servicer to service the Mortgage
Loans pursuant to the Sale and Servicing Agreement and thus not delivered to
the Purchaser are and shall be held in trust by the Servicer in its capacity
as Servicer for the benefit of the Purchaser as the owner thereof. The
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 Sale and Servicing Agreement, and such retention
and possession by the 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 the Servicer shall immediately
vest in the Purchaser and shall be retained and maintained, in trust, by the
Servicer at the will of the Purchaser in such custodial capacity only.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B hereto.
In accordance with Section 6 of the Sale and Servicing Agreement,
the Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Sale and Servicing Agreement.
[Signature Page Follows]
▇▇▇. ▇▇-▇
[SELLER]
By:____________________________________
Name:
Title:
Accepted and Agreed:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:_____________________________
Name:
Title:
EXH. 14-2
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
▇▇▇. ▇▇-▇
▇▇▇▇▇▇▇ ▇
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF
EACH MORTGAGE LOAN PACKAGE
Pool Characteristics of the Mortgage Loan Package as delivered on
the related Closing Date:
No Mortgage Loan has: (1) an outstanding principal balance less
than $_________; (2) an origination date earlier than _ months prior to the
related Cut-off Date; (3) an LTV of greater than _____%; (4) a FICO Score of
less than ___; or (5) a debt-to-income ratio of more than __%. Each Mortgage
Loan has a Mortgage Interest Rate of at least ___% per annum and an
outstanding principal balance of less than $_________. Each Adjustable Rate
Mortgage Loan has an Index of [_______].
EXH. 14-4
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
EXH. 14-5
EXHIBIT 15
FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __,
20__] ("Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. ("Assignor"),
[____________________] ("Assignee") and [SELLER] (the "Company"):
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:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and
assigns to the Assignee all of the right, title and interest of the Assignor,
as purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Second
Amended and Restated Mortgage Loan Sale and Servicing Agreement (the "Sale and
Servicing Agreement"), dated as of September 1, 2005, among the Assignor, as
purchaser (the "Purchaser"), the Company, as seller, and Countrywide Home
Loans Servicing LP, as servicer, solely insofar as the Sale and Servicing
Agreement relates to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreement which are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Sale and Servicing
Agreement (solely to the extent set forth herein) and this Agreement to
[__________________] (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of [__________, 200_] (the "Pooling Agreement"), among the
Assignee, the Assignor, [___________________], as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the "Trustee"), [____________________], as servicer (including its successors
in interest and any successor servicer under the Pooling Agreement, the
"Servicer"). The Company hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans, (ii)
the Company shall look solely to the Trust for performance of any obligations
of the Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust's behalf) shall
have all the rights and remedies available to the Assignor, insofar as they
relate to the Mortgage Loans, under the Sale and Servicing Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Section 6 of the Sale and Servicing Agreement, and
shall be entitled to enforce all of the
EXH. 15-1
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, and (iv) all references to the Purchaser, the Custodian or the Bailee
under the Sale and Servicing Agreement insofar as they relate to the Mortgage
Loans, shall be deemed to refer to the Trust (including the Trustee and the
Servicer acting on the Trust's behalf). Neither the Company nor the Assignor
shall amend or agree to amend, modify, waiver, or otherwise alter any of the
terms or provisions of the Sale and Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans or the Company's performance under the Sale and Servicing Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to the Assignor, the
Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) The Company has full power and authority to execute, deliver
and perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Sale and Servicing
Agreement. The execution by the Company of this Agreement is in the
ordinary course of the Company's business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Company's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Company is now a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Company or its property is
subject. The execution, delivery and performance by the Company of this
Agreement have been duly authorized by all necessary corporate action on
part of the Company. This Agreement has been duly executed and delivered
by the Company, and, upon the due authorization, execution and delivery
by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and
by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Company in connection with the
execution, delivery or performance by the Company of this Agreement; and
(d) There is no action, suit, proceeding or investigation pending
or to the best of the Company's knowledge threatened against the
Company, before any court, administrative agency or other tribunal,
which would draw into question the validity of this Agreement or the
Sale and Servicing Agreement, or which, either in any one instance or in
the aggregate, would result in any material adverse change in the
ability of the Company to
▇▇▇. ▇▇-▇
perform its obligations under this Agreement or the Sale and Servicing
Agreement, and the Company is solvent.
4. Pursuant to Section 15 of the Sale and Servicing Agreement, the
Company hereby represents and warrants, for the benefit of the Assignor,
the Assignee and the Trust, that the representations and warranties set
forth in Section 7.02 of the Sale and Servicing Agreement are true and
correct as of the date hereof as if such representations and warranties
were made on the date hereof unless otherwise specifically stated in
such representations and warranties.
Remedies for Breach of Representations and Warranties
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee
and the Servicer acting on the Trust's behalf) in connection with any breach
of the representations and warranties made by the Company set forth in Section
3 hereof shall be as set forth in Subsection 7.03 of the Sale and Servicing
Agreement as if they were set forth herein (including without limitation the
repurchase and indemnity obligations set forth therein).
Miscellaneous
6. This Agreement shall be construed in accordance with the
laws of the State of New York, without regard to conflicts of law principles,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
7. 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, with
the prior written consent of the Trustee.
8. This Agreement shall inure to the benefit of (i) the
successors and assigns of the parties hereto and (ii) the Trust (including the
Trustee and the Servicer acting on the Trust's behalf). Any entity into which
Assignor, Assignee or Company may be merged or consolidated shall, without the
requirement for any further writing, be deemed Assignor, Assignee or Company,
respectively, hereunder.
9. Each of this Agreement and the Sale and Servicing Agreement
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreement (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreement.
10. 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.
11. In the event that any provision of this Agreement conflicts
with any provision of the Sale and Servicing Agreement with respect to the
Mortgage Loans, the terms of this Agreement shall control.
▇▇▇. ▇▇-▇
▇▇. Capitalized terms used in this Agreement (including the
exhibits hereto) but not defined in this Agreement shall have the meanings
given to such terms in the Sale and Servicing Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
[SELLER]
By: ____________________________________
Name:_______________________________
Its:________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By: ____________________________________
Name:_______________________________
Its:________________________________
[ASSIGNEE]
By: ____________________________________
Name:_______________________________
Its:________________________________
EXH. 15-4
EXHIBIT 16
ANNUAL CERTIFICATION
Re: [_______________] (the "Trust"), Mortgage Pass-Through Certificates,
Series [_____], issued pursuant to the Pooling and Servicing Agreement,
dated as of [_____], 2004 (the "Pooling and Servicing Agreement"), among
[_____], as depositor (the "Depositor"), [_____], as trustee (the
"Trustee"), [_____], as master servicer (the "Master Servicer"), and
[_____], as responsible party
I, [identify the certifying individual], certify to the
[Purchaser]/[Depositor]/[Master Servicer]/[Trustee], and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely upon this certification, that:
1. The servicing information required to be provided to the
[Purchaser]/[Depositor]/[Master Servicer]/[Trustee] by Countrywide
Home Loans Servicing LP under the Pooling and Servicing Agreement
has been so provided;
2. I am responsible for reviewing the activities performed
by Countrywide Home Loans Servicing LP under the Pooling and
Servicing Agreement and based upon my knowledge and the annual
compliance review required under the Pooling and Servicing
Agreement, and except as disclosed in the annual compliance
statement required to be delivered to the
[Purchaser]/[Depositor]/[Master Servicer]/[Trustee] in accordance
with the terms of the Pooling and Servicing Agreement (which has
been so delivered to the [Purchaser]/[Depositor]/[Master
Servicer]/[Trustee]), Countrywide Home Loans Servicing LP has
fulfilled its obligations under the Pooling and Servicing
Agreement; and
3. All significant deficiencies relating to the Countrywide
Home Loans Servicing LP's compliance with the minimum servicing
standards for purposes of the report provided by an independent
public accountant, after conducting a review conducted in
compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Pooling
and Servicing Agreement, have been disclosed to such accountant
and are included in such report.
Date: _________________________
_______________________________
[Signature]
[Title]
▇▇▇. ▇▇-▇