FIRST AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT between GREENPOINT MORTGAGE FUNDING, INC., as Seller and as Servicer and MORGAN STANLEY MORTGAGE CAPITAL INC., as Purchaser Dated as of March 15, 2005 Conventional, Fixed and...
Exhibit
99.9b
EXECUTION
COPY
FIRST
AMENDED AND RESTATED
between
GREENPOINT
MORTGAGE FUNDING, INC.,
as
Seller
and as Servicer
and
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
as
Purchaser
Dated
as
of March 15, 2005
Conventional,
Fixed
and
Adjustable Rate,
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
DEFINITIONS
|
1
|
|
|
SECTION
2.
|
PURCHASE
AND CONVEYANCE
|
14
|
|
|
SECTION
3.
|
MORTGAGE
LOAN SCHEDULE
|
14
|
|
|
SECTION
4.
|
PURCHASE
PRICE
|
15
|
|
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES
|
15
|
|
|
SECTION
6.
|
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
|
15
|
|
|
Subsection
6.01
|
Possession
of Mortgage Files
|
15
|
|
|
Subsection
6.02
|
Books
and Records
|
16
|
|
|
Subsection
6.03
|
Delivery
of Mortgage Loan Documents
|
16
|
|
|
SECTION
7.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS; REMEDIES FOR BREACH
|
17
|
|
|
Subsection
7.01
|
Representations
and Warranties Regarding Individual Mortgage Loans
|
17
|
|
|
Subsection
7.02
|
Seller
Representations
|
29
|
|
|
Subsection
7.03
|
Remedies
for Breach of Representations and Warranties
|
32
|
|
|
SECTION
8.
|
CLOSING
|
34
|
|
|
SECTION
9.
|
CLOSING
DOCUMENTS
|
34
|
|
|
SECTION
10.
|
COSTS
|
36
|
|
|
SECTION
11.
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
36
|
|
|
Subsection
11.01
|
Servicer
to Act as Servicer
|
36
|
|
|
Subsection
11.02
|
Liquidation
of Mortgage Loans
|
37
|
|
|
Subsection
11.03
|
Collection
of Mortgage Loan Payments
|
37
|
|
|
Subsection
11.04
|
Establishment
of Custodial Account; Deposits in Custodial
|
37
|
|
|
Subsection
11.05
|
Withdrawals
From the Custodial Account
|
39
|
|
|
Subsection
11.06
|
Establishment
of Escrow Account; Deposits in Escrow Account
|
40
|
|
|
Subsection
11.07
|
Withdrawals
From Escrow Account
|
40
|
|
-i-
|
Subsection
11.08
|
Payment
of Taxes, Insurance and Other Charges; Collections
Thereunder
|
40
|
|
|
Subsection
11.09
|
Transfer
of Accounts
|
42
|
|
|
Subsection
11.10
|
Maintenance
of Hazard Insurance
|
42
|
|
|
Subsection
11.11
|
Fidelity
Bond; Errors and Omissions Insurance
|
42
|
|
|
Subsection
11.12
|
Title,
Management and Disposition of REO Property
|
43
|
|
|
Subsection
11.13
|
Servicing
Compensation
|
44
|
|
|
Subsection
11.14
|
Distributions
|
44
|
|
|
Subsection
11.15
|
Statements
to the Purchaser
|
45
|
|
|
Subsection
11.16
|
Advances
by the Servicer
|
46
|
|
|
Subsection
11.17
|
Assumption
Agreements
|
46
|
|
|
Subsection
11.18
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
46
|
|
|
Subsection
11.19
|
Annual
Statement as to Compliance
|
47
|
|
|
Subsection
11.20
|
Annual
Independent Public Accountants’ Servicing Report
|
47
|
|
|
Subsection
11.21
|
Servicer
Shall Provide Access and Information as Reasonably
Required
|
47
|
|
|
Subsection
11.22
|
Transfer
of Servicing
|
48
|
|
|
SECTION
12.
|
THE
SERVICER
|
50
|
|
|
Subsection
12.01
|
Indemnification;
Third Party Claims
|
50
|
|
|
Subsection
12.02
|
Merger
or Consolidation of the Servicer
|
51
|
|
|
Subsection
12.03
|
Limitation
on Liability of the Servicer and Others
|
51
|
|
|
Subsection
12.04
|
Seller
and Servicer Not to Resign
|
52
|
|
|
SECTION
13.
|
DEFAULT
|
52
|
|
|
Subsection
13.01
|
Events
of Default
|
52
|
|
|
Subsection
13.02
|
Waiver
of Defaults
|
53
|
|
|
SECTION
14.
|
TERMINATION
|
54
|
|
|
Subsection
14.01
|
Termination
|
54
|
|
|
Subsection
14.02
|
Termination
of the Servicer Without Cause
|
54
|
|
|
Subsection
14.03
|
Successors
to the Servicer
|
54
|
|
|
SECTION
15.
|
COOPERATION
OF SELLER WITH A RECONSTITUTION
|
55
|
|
|
SECTION
16.
|
NOTICES
|
57
|
|
|
SECTION
17.
|
SEVERABILITY
CLAUSE
|
59
|
|
|
SECTION
18.
|
NO
PARTNERSHIP
|
||
-ii-
|
SECTION
19.
|
COUNTERPARTS
|
59
|
|
|
SECTION
20.
|
GOVERNING
LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS
|
59
|
|
|
SECTION
21.
|
MANDATORY
DELIVERY; GRANT OF SECURITY INTEREST
|
59
|
|
|
SECTION
22.
|
INTENTION
OF THE PARTIES
|
60
|
|
|
SECTION
23.
|
SUCCESSORS
AND ASSIGNS
|
60
|
|
|
SECTION
24.
|
WAIVERS
|
61
|
|
|
SECTION
25.
|
EXHIBITS
|
61
|
|
|
SECTION
26.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
61
|
|
|
SECTION
27.
|
REPRODUCTION
OF DOCUMENTS
|
61
|
|
|
SECTION
28.
|
AMENDMENT
|
62
|
|
|
SECTION
29.
|
CONFIDENTIALITY
|
62
|
|
|
SECTION
30.
|
ENTIRE
AGREEMENT
|
62
|
|
|
SECTION
31.
|
FURTHER
AGREEMENTS
|
62
|
|
|
SECTION
32.
|
NO
SOLICITATION
|
62
|
|
|
SECTION
33.
|
WAIVER
OF JURY TRIAL
|
63
|
|
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
EXHIBIT
6 FORM
OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT
7 FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT
8 SELLER’S
UNDERWRITING GUIDELINES
-iii-
EXHIBIT
9 FORM
OF MONTHLY REMITTANCE REPORT
EXHIBIT
10 FORM
OF SELLER’S OFFICER’S CERTIFICATE
EXHIBIT
11 FORM
OF OPINION OF COUNSEL TO SELLER
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
-iv-
FIRST
AMENDED AND RESTATED
THIS
FIRST AMENDED AND RESTATED MORTGAGE LOAN SALE AND SERVICING AGREEMENT (the
“Agreement”),
dated as of March 15, 2005, is hereby executed by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
MORTGAGE CAPITAL INC., a New York corporation (the “Purchaser”), and
GREENPOINT MORTGAGE FUNDING, INC., a New York corporation, in its capacity
as
seller (the “Seller”) and in
its
capacity as servicer (the “Servicer”).
WITNESSETH:
WHEREAS,
the Purchaser and the Seller are parties to that certain Mortgage Loan Sale
and
Servicing Agreement, dated as of September 1, 2003, as amended by that certain
Amendment No. 1 to Mortgage Loan Sale and Servicing Agreement, dated as of
September 22, 2004 (together, the “Original Purchase
Agreement”), the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase from the Seller, certain
conventional fixed and adjustable rate residential first-lien mortgage loans
(the “Mortgage
Loans”) on a servicing-retained basis as described herein, 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 (as defined below) 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
lending institutions.
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.
Agency
Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac
Transfer.
Agreement: This
First 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 the
originator of such Refinanced Mortgage Loan at the time of origination of
such
Refinanced Mortgage Loan by a Qualified Appraiser.
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 1% 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.
CLTA: The
California Land Title Association.
Closing
Documents: The documents required to be delivered on each
Closing Date pursuant to Section
9.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
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
-2-
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: Deutsche
Bank Trust Company Americas, a New York banking corporation, 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.
Deleted
Mortgage
Loan: A Mortgage Loan replaced or to be replaced with a
Qualified Substitute Mortgage Loan in accordance with this
Agreement.
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:
-3-
(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; 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 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, 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.
▇▇▇▇▇▇
▇▇▇: The Federal National Mortgage Association or any
successor thereto.
▇▇▇▇▇▇
Mae
Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ Mae
Servicers’ Guide and all amendments or additions thereto.
-4-
▇▇▇▇▇▇
▇▇▇
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.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended
and in effect from time to time.
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 (a) covered by the Home Ownership and
Equity Protection Act of 1994, (b) classified as a “high cost home,”
“threshold,” “covered,” “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, points and/or fees) or (c) a Mortgage Loan categorized as
High
Cost pursuant to Appendix E of Standard & Poor’s Glossary. For
avoidance of doubt, the parties agree that this definition shall apply to
any
law regardless of whether such law is presently, or in the future becomes,
the
subject of judicial review or litigation.
Home
Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of 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
Rate Adjustment
Date: With respect to each Adjustable Rate Mortgage Loan, the
date, specified in the related Mortgage Note and the related Mortgage Loan
Schedule, on which the Mortgage Interest Rate is adjusted.
-5-
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.
Lifetime
Rate
Cap: 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 terms
of each Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage
Loan
by more than the amount per annum set forth on the related Mortgage Loan
Schedule.
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 and the denominator of which
is the
Appraised Value of the related Mortgaged Property.
LPMI
Fee: With
respect to each Mortgage Loan which has an LPMI Policy, the portion of the
Mortgage Interest Rate as set forth on the related Mortgage Loan Schedule
(which
shall be payable solely from the interest portion of Monthly Payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds), which, during such
period prior to the required cancellation of the LPMI Policy, shall be used
to
pay the premium due on the related LPMI Policy.
LPMI
Loan: Any
Mortgage Loan with respect to which Servicer is responsible for paying the
premium due on the related LPMI Policy with the proceeds generated by the
LPMI
Fee relating to such Mortgage Loan, as set forth on the related Mortgage
Loan
Schedule.
LPMI
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, pursuant to which the
related premium is to be paid by the Servicer of the related Mortgage Loan
from
payments of interest made by the Mortgagor in an amount as is set forth in
the
related Mortgage Loan Schedule.
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 July 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
-6-
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.
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 MERS Procedure Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS
System.
MERS
Procedure
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
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.
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,
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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) the last
payment date on which a payment was actually applied to the outstanding
principal balance; (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 Lifetime Rate Cap; (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) the loan credit classification (as described
in
the Underwriting Guidelines); (23) whether such Mortgage Loan provides for
a
Prepayment Penalty; (24) the Prepayment Penalty period of such Mortgage Loan,
if
applicable; (25) a description of the Prepayment Penalty, if applicable;
(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
percentage; (31) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest Rate floor; (32) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (33) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Cap as of the first Interest Rate
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Adjustment
Date; (34) a code indicating whether the Mortgage Loan by its original terms
or
any modifications thereof provides for amortization beyond its scheduled
maturity date; (35) the original Monthly Payment due; (36) the Appraised
Value;
(37) a code indicating whether the Mortgage Loan is covered by a PMI Policy
and,
if so, identifying the PMI Policy provider; (38) a code indicating whether
the
Mortgage Loan is covered by an LPMI Policy and, if so, identifying the LPMI
Policy provider; (39) in connection with a condominium unit, a code indicating
whether the condominium project where such unit is located is low-rise or
high-rise; (40) a code indicating whether the Mortgaged Property is a leasehold
estate; (41) the MERS Identification Number, if applicable; and (42) a field
indicating whether such 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.
Officer’s
Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, a President or a Vice President 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 an employee
of the Seller or the Servicer, reasonably acceptable to the
Purchaser.
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Original
Purchase
Agreement: That certain Mortgage Loan Sale and Servicing
Agreement, dated as of September 1, 2003, as amended by that certain Amendment
No. 1 to Mortgage Loan Sale and Servicing Agreement, dated as of September
22,
2004.
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.
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.
Premium
Percentage: With respect to any Mortgage Loan, a percentage
equal to the excess of the Purchase Price Percentage over 100%.
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, including
any prepayment penalty or premium thereon, which is not accompanied by an
amount
of interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the
Purchaser to the Seller pursuant to 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 Letter
times
the applicable Cut-off Date Principal Balance.
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Purchase
Price
Percentage: The percentage of par (expressed as decimal) set
forth in the related Purchase Price and Terms Letter.
Purchase
Price Terms and
Terms Letter: 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, duly appointed by the Seller, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation was not affected by the approval or disapproval of
the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfied the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all 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);
(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 one percent (1%) 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.
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Refinanced
Mortgage
Loan: A Mortgage Loan the proceeds of which were not used to
purchase the related Mortgaged Property.
Remittance
Date: No later than 1:00 p.m. New York time on 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 for which a breach of
a representation or warranty from the Agreement or the Interim Servicing
Agreement is found, a price equal to the then outstanding principal balance
of
the Mortgage Loan to be repurchased, plus accrued interest thereon at the
Mortgage Interest Rate from the date to which interest had last been paid
through the date of such repurchase, plus the amount of any outstanding advances
owed to any servicer, and plus all costs and expenses incurred by the Purchaser
or any servicer arising out of or based upon such breach, including without
limitation costs and expenses incurred in the enforcement of the Seller's
repurchase obligation hereunder, and plus, in the event a Mortgage Loan is
repurchased during the first twelve months following the related Closing
Date,
an amount equal to the Premium Percentage multiplied by the outstanding
principal balance of such Mortgage Loan as of the date of such
repurchase.
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.
Securitization
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.
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
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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 unpaid 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 Letter.
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® 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 (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.
Transfer
Date: In the event the Servicer is terminated as servicer of a
Mortgage Loan pursuant to Subsections 12.04,
13.01 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 Seller, as Servicer, shall cease all servicing
responsibilities.
Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy of which is
attached hereto as Exhibit 8 and a
then-current copy of which shall be attached as an exhibit to the related
Assignment and Conveyance.
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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.
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 Letter, or in such other amount
as
agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on 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 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 Letter and this Agreement (each, a “Preliminary Mortgage
Schedule”).
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 five
(5)
Business Days prior to the related Closing Date. The Mortgage Loan Schedule
shall be the related Preliminary Mortgage Schedule with those Mortgage Loans
which have not been funded prior to the related Closing Date
deleted.
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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.
Section
5. Examination
of Mortgage
Files. At least ten (10) 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 (for
Mortgage Loans that are not 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 Purchase
Price
and Terms Letter, 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. Upon the consent of the Purchaser, the Seller shall make
available to the Purchaser in digital format on compact disks or DVDs, selected
Mortgage Loans and the related Mortgage File which shall include, without
limitation, imaged documents required by the Purchaser to conduct an examination
of the Mortgage File.
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
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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;
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 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, at least two (2) Business Days prior to the related Closing
Date (or 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. In connection with the foregoing, the Seller shall
indemnify the Purchaser 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 based on or grounded upon,
or
resulting from, the fact that no Mortgage Loan is covered by an ALTA or CLTA
lender’s title insurance policy. For purposes of the previous
sentence, “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.
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,
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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 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 or prior
to
the related Closing Date, designate the Purchaser as the Investor and the
Custodian as custodian, and no Person shall be listed as Interim Funder on
the
MERS System. In addition, on or prior to 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 or such other date specified herein:
(a) Mortgage
Loans as
Described. The information set forth in the related Mortgage
Loan Schedule is complete, true and correct;
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(b) Payments
Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the Mortgage Loan
been 30 days or more delinquent at any time since the origination of the
Mortgage Loan;
(c) No
Outstanding
Charges. There are no defaults in complying with the terms of
the Mortgage, and all taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or an escrow of funds has
been
established in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and
payable. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the Mortgage
Note
or date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to
the day which precedes by one month the 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
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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 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. 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, 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. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has
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been
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 and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or
annexed
to such buildings, and all additions, alterations and replacements made at
any
time with respect to the foregoing. The lien of the Mortgage is
subject only to:
(i) the
lien
of current real property taxes and assessments not yet due and
payable;
(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
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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 a Mortgage
Loan has taken place on the part of the Seller in connection with the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain
no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of any Person, including without limitation, the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application for 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 off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The
Seller is the sole owner of record and holder of the Mortgage Loan 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
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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, subject to applicable law. 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. The Mortgage Interest Rate for the Mortgage Loans as set
forth on the related Mortgage Loan Schedule is net of any PMI Policy insurance
premium or LPMI Fee;
(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 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,
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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 Mortgage Loan, the Lifetime Rate Cap and the Periodic
Rate
Cap and the Periodic Rate Floor are as set forth on the related Mortgage
Loan
Schedule. 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 (rounded up or down to the nearest 0.125%),
subject to the Periodic Rate Cap. 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 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 amoritization 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
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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 as Exhibit
C). The Mortgage Note and Mortgage are on forms acceptable to
▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae and no representations have been made to a Mortgagor
that are inconsistent with the mortgage instruments used;
(w) Occupancy
of the Mortgaged
Property. As of the related Closing Date the Mortgaged
Property is lawfully occupied under applicable law. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. 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;
(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,
cause the Mortgage Loan to become delinquent, or adversely affect the value
or
marketability of the Mortgage Loan, or cause the Mortgage Loan to prepay
during
any period materially faster or slower than the mortgage loans originated
by the
Seller generally;
(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. The
Seller is in possession of a complete, true and accurate Mortgage File in
compliance with Exhibit 2
attached hereto, except for such documents the originals of which 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;
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(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,
and
to the best of the Seller’s knowledge, such provision is
enforceable;
(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 ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇
Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(gg) Mortgaged
Property
Undamaged; No Condemnation Proceedings. There is no proceeding
pending or threatened for the total or partial condemnation of the Mortgaged
Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
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
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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, LPMI 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 any insurance policies applicable
to the
Mortgage Loans 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 insurance, no
commission, fee, or other compensation has been or will be received by the
Seller or by any officer, director, or employee of the Seller or any designee
of
the Seller or any corporation in which the Seller or any officer, director,
or
employee had a financial interest at the time of placement of such
insurance;
(kk) No
Violation of
Environmental Laws. To the best of the Seller’s knowledge,
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, or other similar state statute;
(mm) Appraisal. 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,
duly appointed by the Seller, who had no interest, direct or indirect in
the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not
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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 executed a statement to the
effect that 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. The Seller shall maintain such statement in the
Mortgage File;
(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, 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 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.
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With
respect to Mortgage Loans originated on or after October 1, 2002, no such
Prepayment Penalty may be imposed for a term in excess of three (3) 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. The Mortgaged Property is not
located in a jurisdiction where a breach of this representation with respect
to
the related Mortgage Loan may result in additional assignee liability to
the
Purchaser, as determined by Purchaser in its reasonable discretion;
(uu) Single-premium
credit life
insurance policy. In connection with the origination of the
Mortgage Loan, no proceeds from such Mortgage Loan were used to finance or
acquire a single-premium credit life insurance policy, credit disability,
credit
unemployment or credit property insurance policy;
(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 Lereta Corp., and such contract is transferable;
(xx) Origination. No
predatory or deceptive lending practices, including, without limitation,
the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
(yy) Recordation. Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded
in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of
being
recorded;
(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 date 60 days after the related
Closing Date, the Mortgagor has not filed and will not file a bankruptcy
petition or has not become the subject and will not become the subject of
involuntary bankruptcy proceedings or has not consented to or will not consent
to the filing of a bankruptcy proceeding against it or to a receiver being
appointed in respect of the related Mortgaged Property;
(bbb) No
Prior
Offer. The Mortgage Loan has not previously been offered for
sale;
(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
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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. No Mortgagor with respect to any 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
Representations. The Seller hereby represents and warrants to the
Purchaser that, as of the related Closing Date:
(a) Due
Organization and
Authority. The Seller is a New York corporation, validly existing, and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all licenses necessary to carry on its business as now being conducted
and is 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. The Seller has corporate power and authority to execute and
deliver this Agreement and to perform its 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
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, 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 corporate action has been taken by the Seller to
make this Agreement valid and binding upon the Seller 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 agency or body,
or
federal or state regulatory authority having jurisdiction over the Seller
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
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, 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 any legal restriction or any agreement or instrument to which the Seller
is
now a party or by which it is bound, or constitute a default or result in
an
acceleration under any of the foregoing, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Seller or
its
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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 its 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 threatened against the Seller, 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 result
in any material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the
right
or ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or the Mortgage Loans
or
of any action taken or to be taken in connection with the obligations of
the
Seller contemplated herein, or which would be likely to impair materially
the
ability of the Seller to perform under the terms of this Agreement;
(f) Ability
to Perform;
Solvency. The Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. The Seller is solvent and the sale of
the Mortgage Loans will not cause the Seller to become insolvent. The
sale of the Mortgage Loans is not undertaken with the intent to hinder, delay
or
defraud any of Seller’s creditors;
(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”); the Seller has established an anti-money laundering compliance
program as required by the Anti-Money Laundering Laws, has conducted the
requisite due diligence in connection with the origination of each Mortgage
Loan
for purposes of the Anti-Money Laundering Laws, including with respect to
the
legitimacy of the applicable Mortgagor and the origin of the assets used
by the
said Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws
(i) Ability
to
Service. Seller has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans
of the
same type as the Mortgage Loans. The Seller is duly qualified,
licensed, registered and otherwise authorized under all applicable federal,
state and local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by HUD, the OTS, the OCC or the FDIC, if applicable,
and
is in good standing to enforce, originate, sell mortgage loans to, and service
mortgage loans in the jurisdiction wherein the Mortgaged Properties are
located;
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(j) Reasonable
Servicing
Fee. The Seller 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 Seller, 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 criteria set forth in the related Purchase
Price and Terms Letter are satisfied and 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) Delivery
to the
Custodian. The Mortgage Note, the Mortgage, the Assignment of
Mortgage and any other documents required to be delivered with respect to
each
Mortgage Loan pursuant to the Custodial Agreement, shall be delivered to
the
Custodian all in compliance with the specific requirements of the Custodial
Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit 2 hereto,
except for such documents as will be delivered to the Custodian;
(m) 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;
(n) 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
Securitization 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;
(o) 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;
(p) 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 may 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;
(q) Owner
of
Record. The Seller is the owner of record of each Mortgage and
the indebtedness evidenced by each Mortgage Note, except for the Assignments
of
Mortgage which have been sent for recording, and upon recordation the Seller
will be the owner of record of each Mortgage 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 with respect
-31-
thereto
in trust only for the purpose of servicing and supervising the servicing
of each
Mortgage Loan;
(r) 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;
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 either 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 others.
Within
sixty (60) days after the earlier of either discovery by or notice to the
Seller of any breach of a representation or warranty which materially and
adversely affects the value of 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 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 (tt), (uu), (vv), (ww),
(ccc) or (ddd) of Subsection 7.01,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price unless,
in the case of clause (ww), such breach was cured. However, the
Seller may, at its option and assuming that 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 ninety (90) days after
the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan 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
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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 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 will be retained by
the
Seller. For the month of substitution, distributions to the Purchaser
will 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 (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of
substitution). The amount of such shortfall shall be 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 shall
indemnify the Purchaser 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 representations and warranties contained in this Agreement or
any
Reconstitution Agreement. For purposes of the previous sentence,
“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.
It
is
understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03
to cure, repurchase or substitute for a defective Mortgage Loan, together
with
the rights and remedies of the Purchaser under Subsection 12.01
constitute the sole remedies of
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the
Purchaser respecting a breach of the representations and warranties set forth
in
Subsections 7.01
and 7.02.
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 Premium
Recapture. With respect to any Mortgage Loan without
prepayment penalties that prepays in full on or prior to the related Closing
Date or during the first ninety (90) days following the related Closing Date,
the Seller shall pay the Purchaser, within thirty (30) Business Days after
such
prepayment in full or repurchase, an amount equal to the excess of the Purchase
Price Percentage for such Mortgage Loan over par, multiplied by the outstanding
principal balance of such Mortgage Loan as of the related Cut-off
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 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
(c) all
other
terms and conditions of this Agreement shall have been complied
with.
Section
9. Closing
Documents. On the related Closing Date, the Seller shall 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
Purchase Price and Terms Letter, executed in four (4)
counterparts;
(c) with
respect to the initial Closing Date, the Custodial Agreement, dated as of
the
initial Cut-off Date;
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(d) 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;
(e) 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;
(f) the
related Mortgage Loan Schedule, segregated by Mortgage Loan Package, one
copy to
be attached hereto, 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 as the Mortgage Loan Schedule thereto;
(g) with
respect to the initial Closing Date, an Officer’s Certificate, in the form of
Exhibit 10
hereto with respect to the Seller, including all attachments thereto and
with
respect to subsequent Closing Dates, an Officer’s Certificate upon request of
the Purchaser; and
(h) with
respect to the initial Closing Date, an Opinion of Counsel of the Seller
(who
may be an employee of the Seller), generally in the form of Exhibit 11
hereto and with respect to subsequent Closing Dates, an Opinion of Counsel
of
the Seller upon 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;
(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,
if any
of the Mortgage Loans have at any time been subject to any security interest,
pledge or hypothecation for the benefit of such person;
(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 the initial Closing Date, the Underwriting Guidelines to be attached
hereto as Exhibit
8 and with respect to each subsequent Closing Date, the Underwriting
Guidelines to be attached to the related Assignment and Conveyance;
(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 of Exhibit 2 to the
Custodial Agreement; and
(o) a
MERS
Report reflecting the Purchaser as Investor, the Custodian as custodian and
no
Person as Interim Funder for each MERS Designated Mortgage Loan.
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The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
Section
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 Assignments of Mortgage, and the Seller’s attorney’s fees,
shall be paid by the Seller.
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
(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 or any penalty or premium on the
prepayment of principal, 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.
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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 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 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 “GreenPoint Mortgage Funding, Inc., in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. as Purchaser of 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 on a daily basis on the Business
Day 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;
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(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 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
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.
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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 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.
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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 “GreenPoint Mortgage Funding, Inc.,
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 on a daily basis, and retain
therein: (a) all Escrow Payments collected on account of the
Mortgage Loans, for the purpose of effecting timely payment of any such items
as
required under the terms of this Agreement, 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, 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
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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, 2004, the Servicer
shall ensure that all taxes due during the prior calendar year have been
paid on
the related Mortgaged Property.
With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as
an
LPMI Loan, Servicer shall maintain in full force and effect any LPMI Policy,
and
from time to time, withdraw the premium with respect to such Mortgage Loans
from
the Custodial Account in order to pay the premium thereon on a timely basis.
In
the event that the interest payments made with respect to the Mortgage Loan
are
less than the premium with respect to the LPMI Policy, Servicer shall advance
from its own funds the amount of any such shortfall in the LPMI Policy premiums,
in payment of such premium. Any such advance shall be a Servicing
Advance subject to reimbursement. In the event that such LPMI Policy
shall be terminated, Servicer shall obtain from another insurer acceptable
under
the Underwriting Guidelines, a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated LPMI Policy,
at
substantially the same fee level. If the insurer shall cease to be an
insurer acceptable under the Underwriting Guidelines, Servicer shall determine
whether recoveries under the LPMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that Servicer
shall
in no event have any responsibility or liability for any failure to recover
under the LPMI Policy for such reason. If Servicer determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another insurer acceptable under the Underwriting
Guidelines a replacement insurance policy. Servicer shall not take
any action which would result in noncoverage under any applicable LPMI Policy
of
any loss which, but for the actions of Servicer would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into Servicer shall promptly notify the insurer under
the
related LPMI Policy, if any, of such assumption or substitution of liability
in
accordance with the terms of such LPMI Policy and shall take all actions
which
may be required by such insurer as a condition to the continuation of coverage
under such LPMI Policy. If such LPMI Policy is terminated as a result
of such assumption or substitution of liability, Servicer shall obtain a
replacement LPMI Policy as provided above.
Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional
LPMI
Policy on any Mortgage Loan which already has an LPMI Policy in place, or
(ii)
obtain a LPMI Policy for any Mortgage Loan which does not already have a
LPMI
Policy in place. In
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any
event, Servicer agrees to administer such LPMI Policies in accordance with
the
Agreement or any Reconstitution Agreement.
In
connection with its activities as servicer, Servicer agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy or LPMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy and LPMI Policy and, in this regard, to take such action
as
shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by
Servicer under any PMI Policy shall be deposited in the Escrow
Account.
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.
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
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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 FV-I Inc., a Delaware
corporation, 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 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 on a daily basis 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
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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).
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, late payment charges and other ancillary income shall be
retained by the Servicer to the extent not required to be deposited in the
Custodial Account. 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 in the
calendar month preceding the month in which the Remittance Date occurs, 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.
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Subsection
11.15 Statements
to the
Purchaser. Not later than the 10th
calendar day of
each month (or, if such 10th
day is not a
Business Day, the following Business Day), 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 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 fifth Business 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.
In
addition, within a reasonable period of time after the end of each calendar
year, the Servicer will furnish a report to each Person that was a Purchaser
at
any time during such calendar year. Such report shall state the
aggregate of amounts distributed to the Purchaser for such calendar
year. Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer pursuant to any requirements of the Code.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to the Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Purchaser with such information
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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.
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
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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. 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, on or
before March 10th
each year
beginning March 10, 2004, 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 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 10th
of each year
beginning March 10, 2004, 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, with respect to the Servicer’s overall servicing
operations, examined such operations in accordance with the requirements
of the
Uniform Single Attestation Program for Mortgage Bankers, stating such firm’s
conclusions relating thereto.
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, during
the
term of this Agreement, such periodic, special or other reports or information,
whether or not
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provided
for herein, as shall be necessary, 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 Seller cease all servicing
responsibilities related to, the related Mortgage Loans subject to such Transfer
Date. On or prior to the related Transfer Date, the Seller shall, at
its sole cost and expense, 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:
(a) Notice
to
Mortgagors. The Seller 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;
provided, however, the
content and format of the letter shall have the prior approval of the
Purchaser. The Seller 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. 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.
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(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 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.
(h) Misapplied
Payments. Misapplied payments shall be processed as
follows:
(i) All
parties shall cooperate in correcting misapplication errors;
(ii) The
party
receiving notice of a misapplied payment occurring prior to the related
Transfer
Date and discovered after 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.
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(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 be
in
accordance 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 or shall file all IRS forms 1099,
1099A, 1098 or 1041 and K-1 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.
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
Purchase Price and Terms Letter; or
(b) to
comply
with all applicable requirements contained in this Agreement or the Purchase
Price and Terms Letter with respect to the servicing of the Mortgage Loan
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.
Promptly
after receipt by an indemnified party under this Subsection 12.01
of notice of the commencement of any 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
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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 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 Servicer. The Seller will keep in full effect its existence,
rights and franchises under the laws of its jurisdiction of incorporation
or
organization, and will obtain and preserve its 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 may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall
be the
successor of the Seller hereunder, without the execution or filing of any
paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution 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, shall be qualified to service mortgage loans on behalf of FNMA
or
FHLMC.
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
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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 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 Seller to service the
Mortgage Loans hereunder, the Seller acknowledges that the Purchaser has
acted
in reliance upon the Seller’s independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any
way limiting the generality of this Section, 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 be granted or withheld in the Purchaser’s
sole discretion 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 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 14.02.
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 officer’s certificate required under Subsection
11.19, (ii) the annual independent public accountants’ servicing report required
under Subsection 11.20 or (iii) the certification required
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under
Section 15 in the form of Exhibit 16, five (5) 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 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 14.02. 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.
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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 hereunder, (c) by mutual consent
of the
Servicer and the Purchaser in writing or (d) pursuant to Subsection 14.02
by
providing written notice to the Servicer at least 30 days prior to the related
Transfer Date. 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 one and one half percent (1.5%) of the aggregate
outstanding principal balance of the Mortgage Loans as of the date of such
termination. The termination fee provided for in this Subsection 14.02
shall be paid by the Purchaser within ten (10) Business Days of any such
termination without cause by the 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
or 14.01, 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
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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 as a party to this Agreement. Any
termination or resignation of the Servicer or this Agreement pursuant to
Subsections 12.04,
13.01
or 14.01 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 with a
Reconstitution. The Seller 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”); or
(b) ▇▇▇▇▇▇▇
Mac (the “▇▇▇▇▇▇▇ Mac
Transfer”); or
(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 Securitization
Transfers.
The
Seller agrees to execute in connection with any Agency Transfer, any and
all
reasonably acceptable pool purchase contracts, and/or agreements among the
Purchaser, the Seller, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac (as the case may be) and
any
servicer in connection with a Whole Loan Transfer, a seller’s warranties and
servicing agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the parties, and in connection with a
Securitization 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.
With
respect to each Whole Loan Transfer and each Securitization Transfer entered
into by the Purchaser, the Seller agrees (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 reasonably required by the Purchaser; (3) to
restate the representations and warranties set forth in Section 7.02 as of
the
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Reconstitution
Date; (4) to restate the representations and warranties set forth in Section
7.01 as of the Reconstitution Date, modified to the extent necessary to
accurately reflect the pool statistics of the Mortgage Loans as of the
Reconstitution Date and any event or circumstances existing subsequent to
the
related Closing Date and (5) make the representations and warranties set
forth
in the related selling/servicing guide of the servicer, or such representations
or warranties as may be required by any rating agency or prospective purchaser
of the related securities or such Mortgage Loans, in connection with such
Reconstitution, in each case, as of the applicable Reconsitution Date modified
to the extent necessary to accurately reflect the pool statistics of the
Mortgage Loans as of the Reconstitution Date and any event or circumstances
existing subsequent to the related Closing Date. The Seller shall
provide to such servicer or issuer, as the case may be, and any other
participants or purchasers in such Reconstitution: (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 reasonably request; and (ii) such reasonable and
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. Seller shall also 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 agrees to cooperate with all
reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each affiliate
of the Purchaser participating in the Reconstitution and each Person who
controls the Purchaser or such affiliate and their respective present and
former
directors, officers, employees and agents, and hold each of them harmless
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that each of them may sustain arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the information
provided by the Seller regarding the Seller or the Servicer, the Seller’s or the
Servicer’s servicing practices or performance, the Mortgage Loans or the
Underwriting Guidelines for use in any offering document prepared in connection
with any Reconstitution. For purposes of the previous sentence,
“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.
With
respect to any Mortgage Loans sold in a Securitization Transfer where the
Servicer is the servicer, the Servicer agrees that on or before March 10th
of
each year beginning March 10, 2004, the Servicer shall deliver to the depositor,
the master servicer (if any) and the trustee for the securitization trust
in the
Securitization Transfer, and their officers, directors and affiliates, a
certification in the form attached as Exhibit 16 hereto,
executed by the senior officer in charge of servicing at the Servicer for
use in
connection with any Form 10-K to be filed with the Securities and Exchange
Commission with respect to the securitization trust. The Servicer
shall indemnify and hold harmless the depositor, the master servicer (if
any)
and the trustee, and their respective officers, directors and Affiliates,
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments and other costs and expenses arising
out
of or based upon any breach of the Servicer’s obligations under this paragraph
or any material misstatement or omission, negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the
indemnification provided for in the preceding
-56-
sentence
is unavailable or insufficient to hold harmless any indemnified party, then
the
Servicer agrees that it shall contribute to the amount paid or payable by
such
indemnified party as a result of the losses, claims, damages or liabilities
of
such indemnified party in such proportion as is appropriate to reflect the
relative fault of such indemnified party, on the one hand, and the Servicer,
on
the other, in connection with a breach of the Servicer’s obligations under this
paragraph or any material misstatement or omission, negligence, bad faith
or
willful misconduct of the Servicer in connection therewith.
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.
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
1221
Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-57-
|
|
(b)
|
if
to the Servicer:
|
|
|
GreenPoint
Mortgage Funding, Inc.,
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
| Attention: _________ |
| Fax: ______________ |
|
Email:
_____________
|
|
|
(c)
|
if
to the Seller:
|
|
|
GreenPoint
Mortgage Funding, Inc.,
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
| Attention: ▇▇▇▇▇ ▇▇▇▇▇ - Secondary Marketing Division |
| Fax: ______________ |
|
Email:
_____________
|
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).
-58-
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 AND THE SELLER 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.
Section
21. Mandatory
Delivery; Grant of
Security Interest.
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 Letter, it being specifically
understood and
-59-
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. The Seller hereby grants to the Purchaser a lien on and a
continuing security interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by
the
Seller of its obligations under the related Purchase Price and Terms Letter,
and
the Seller agrees that it shall hold such Mortgage Loans in custody for the
Purchaser subject to the Purchaser’s (i) right to reject any Mortgage Loan
(or Qualified Substitute Mortgage Loan) under the terms of this Agreement
and to
require another Mortgage Loan (or Qualified Substitute Mortgage Loan) to
be
substituted therefor, and (ii) obligation to pay the Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this
Agreement are distinct from, and cumulative with, any other rights or remedies
under this Agreement or afforded by law or equity and all such rights and
remedies may be exercised concurrently, independently or
successively.
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 shall cooperate
with
all reasonable requests made by the Purchaser in the course of such
review.
Section
23. Successors
and
Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller to
a
third party without the prior written consent of the Purchaser, which consent
may be withheld by the Purchaser in its sole discretion. 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. There shall be no limitation on the number of
assignments or transfers allowable by the Purchaser with respect to the Mortgage
Loans and this Agreement. In the event the Purchaser assigns this
Agreement, and the assignee assumes any of the Purchaser’s obligations
hereunder, the Seller acknowledges and agrees 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 with respect
thereto.
-60-
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.
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.
-61-
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 related Closing Date, the Seller
agrees that it will not take any action or permit or cause any action to
be
taken by any of its agents or affiliates, or by any independent contractors
on
the Seller’s behalf, to personally, by telephone or mail, solicit a Mortgagor
under any Mortgage Loan for the purpose of refinancing a Mortgage Loan, in
whole
or in part, without the prior written consent of the
Purchaser. Notwithstanding the foregoing, it is understood and agreed
that the Seller, the Servicer or any of their respective
affiliates:
-62-
(a) may
advertise its availability for handling refinancings of mortgages in its
portfolio, including the promotion of terms it has available for such
refinancings, through the sending of letters or promotional material, so
long as
it does not specifically target Mortgagors and so long as such promotional
material either is sent to the mortgagors for all of the mortgages in the
servicing portfolio of the Seller, the Servicer and any of their affiliates
(those it owns as well as those serviced for others);
(b) may
provide pay-off information and otherwise cooperate with individual mortgagors
who contact it about prepaying their mortgages by advising them of refinancing
terms and streamlined origination arrangements that are available;
and
(c) may
offer
to refinance a Mortgage Loan made within thirty (30) days following receipt
by it of a pay-off request from the related Mortgagor.
Promotions
undertaken by the Seller or the Servicer or by any affiliate of the Seller
or
the Servicer which are directed to the general public at large (including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 32.
Section
33. Waiver
of Jury
Trial. THE SELLER 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]
-63-
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.
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
|
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By:
____________________
Name: Title: |
|
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GREENPOINT
MORTGAGE FUNDING, INC.,
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By:
____________________
Name: Title: |
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]”;
(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;
(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
EXH.
1-1
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
Officers 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 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;
(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 financial statement filed by the
originator as secured party and, if applicable, a filed UCC-3 assignment
of the
subject security interest showing a complete chain of title, together with
an
executed UCC-3 assignment of such security interest by the Seller in a form
sufficient for filing; 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.
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.
(f) Credit
report on Mortgagor, in a form acceptable to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac.
(g) Residential
appraisal report.
(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 (“▇▇▇▇▇▇”) and
GreenPoint Mortgage Funding, Inc., a New York corporation (the
“Seller”).
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], 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”)
pursuant to a First Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of March 15, 2005 (the “Sale and Servicing
Agreement”), by and between ▇▇▇▇▇▇ and Seller; and
WHEREAS,
pursuant to Section 15 of the Sale and Servicing Agreement, the Seller has
agreed to provide indemnification for certain information.
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, ▇▇▇▇▇▇ and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, ▇▇▇▇▇▇, the
Underwriter[s] and their respective affiliates and their respective present
and
former directors, officers, employees and agents and each person, if any,
who
controls the Depositor, ▇▇▇▇▇▇, the
EXH.
3-1
Underwriter[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 or liabilities, joint or several, to
which
they or any of them may become subject under the 1933 Act, the 1934 Act or
other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement or in the Comp Materials or any omission or alleged omission to
state
in the Prospectus Supplement or in the Comp Materials 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, or any such untrue
statement or omission or alleged untrue statement or alleged omission made
in
any amendment of or supplement to the Prospectus Supplement or the Comp
Materials and agrees to reimburse the Depositor, ▇▇▇▇▇▇, the Underwriter[s]
or
such affiliates and each such officer, director, employee, agent and controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by any of them in connection with investigating or defending or preparing
to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided,however,
that Seller
shall be liable in any such case only to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in
reliance upon and in conformity with the Seller Information. The
foregoing indemnity agreement is in addition to any liability which Seller
may
otherwise have to the Depositor, ▇▇▇▇▇▇, the Underwriter[s], their affiliates
or
any such director, officer, employee, agent or controlling person of the
Depositor, ▇▇▇▇▇▇, the Underwriter[s] or their respective
affiliates.
As
used
herein:
“Seller
Information”
means any information relating to Seller, the Mortgage Loans and/or
the
underwriting guidelines relating to the Mortgage Loans submitted by the Servicer
for use in the Prospectus Supplement or the Comp Materials.
The
terms
“Collateral Term
Sheet” and “Structural
Term
Sheet” shall have the respective meanings assigned to them in the
February 13, 1995 letter (the “PSA Letter”) of
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public Securities
Association (which letter, and the SEC staff’s response thereto, were publicly
available February 17, 1995). The term “Collateral Term Sheet” as
used herein includes any subsequent Collateral Term Sheet that reflects a
substantive change in the information presented. The term “Computational
Materials” has the meaning assigned to it in the May 17, 1994 letter (the
“▇▇▇▇▇▇
letter”
and, together with the PSA Letter, the “No-Action
Letters”)
of ▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇, Peabody & Co., Inc. (which letter,
and the SEC staff’s response thereto, were publicly available May 20,
1994). The term “Comp Materials”
as
used herein means collectively Collateral Term Sheets, Structural Term Sheet
and
Computational Materials relating to the Certificates or the transaction
contemplated by the Prospectus Supplement.
(b) 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 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.
(c) 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
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.
(d) 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], their respective affiliates, directors,
officers, employees or agents or any person controlling the Depositor, ▇▇▇▇▇▇,
the Underwriter[s] or any such affiliate, and (iii) acceptance of and
payment for any of the Offered Certificates.
2. Representations
and
Warranties. Seller represents and warrants that:
(i) Seller
is
validly existing and in good standing under the laws of its jurisdiction
of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently
engaged. Seller is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business transacted
by it or any properties owned or leased by it requires such qualification
and in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of
Seller;
(ii) Seller
is
not required to obtain the consent of any other person or any consent, license,
approval or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller will not
violate
any provision of any existing law or regulation or any order decree of any
court
applicable to Seller or any provision of the charter or bylaws of Seller,
or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of
its
properties or with respect to this Agreement or the Offered Certificates,
in
either case, which would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
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. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of each of Seller 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;
and
(vi) this
Agreement has been duly executed and delivered by Seller.
3. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or telegraphed and confirmed
to
GreenPoint Mortgage Funding, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Attention: ________________; if sent to ▇▇▇▇▇▇, ▇▇▇▇ be mailed,
delivered or telegraphed and confirmed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Whole
Loans Operations Manager; 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
[_____________________].
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]
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
[_____________].
|
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[DEPOSITOR]
|
|
|
By:
____________________
Name: Title: |
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|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
|
|
|
By:
____________________
Name: Title: |
|
|
GREENPOINT
MORTGAGE FUNDING, INC.,
|
|
|
By:
____________________
Name: Title: |
EXHIBIT
4
CUSTODIAL
ACCOUNT CERTIFICATION
_________
__, 200__
[_____________________]
hereby certifies that it has established the account described below as a
Custodial Account pursuant to Subsection 11.04 of the First Amended and
Restated Mortgage Loan Sale and Servicing Agreement, dated as of March 15,
2005,
Fixed and Adjustable Rate Mortgage Loans.
|
Title
of Account:
Account
Number:
Address
of office or branch
of [_____________________] at
which the Custodial Account
is maintained:
|
“GreenPoint
Mortgage Funding, Inc., in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc.
as Purchaser of Mortgage Loans and various
Mortgagors.”
__________________________ _______________________
_______________________ _______________________ _______________________ |
|
|
GREENPOINT
MORTGAGE FUNDING, INC.,
|
|
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By:
____________________
Name: Title: |
EXH.
4-1
EXHIBIT
5
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the First Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of March 15, 2005, we hereby authorize and request you
to
establish an account, as a Custodial Account, to be designated as “GreenPoint
Mortgage Funding, Inc., 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.
|
|
GREENPOINT
MORTGAGE FUNDING, INC.,
|
|
|
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 to the maximum amount
permitted under applicable law by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund (“BIF”) or the
Savings
Association Insurance Fund (“SAIF”).
|
|
[_______________________________],
as
Depositary
By: ____________________ Name: Title: Date: |
EXH.
5-2
EXHIBIT
6
ESCROW
ACCOUNT CERTIFICATION
_________
__, 200__
[_____________________]
hereby certifies that it has established the account described below as an
Escrow Account pursuant to Subsection 11.06 of the First Amended and Restated
Mortgage Loan Sale and Servicing Agreement, dated as of March 15, 2005, Fixed
and Adjustable Rate Mortgage Loans.
|
Title
of Account:
Account
Number:
Address
of office or branch
of [_____________________] at
which the Custodial Account
is maintained:
|
“GreenPoint
Mortgage Funding, Inc., in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc.
as Purchaser of Mortgage Loans and various
Mortgagors.”
__________________________ _______________________
_______________________ _______________________ _______________________ |
|
|
GREENPOINT
MORTGAGE FUNDING, INC.,
|
|
|
By:
____________________
Name: Title: |
EXH.
6-1
EXHIBIT
7
ESCROW
ACCOUNT LETTER AGREEMENT
_________
__, 200__
To:
(the
“Depository”)
As
Servicer under the First Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of March 15, 2005, we hereby authorize and request you
to
establish an account, as an Escrow Account, to be designated as “GreenPoint
Mortgage Funding, Inc., 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.
|
|
GREENPOINT
MORTGAGE FUNDING, INC.,
|
|
|
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 to the maximum amount
permitted under applicable law by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund (“BIF”) or the
Savings
Association Insurance Fund (“SAIF”).
|
|
[_______________________________],
as
Depositary
|
|
|
By:
____________________
Name: Title: Date:
|
▇▇▇.
▇▇-▇
▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇.
8-1
EXHIBIT
9
FORM
OF
MONTHLY REMITTANCE REPORT
(Available
upon request to the Seller.)
EXH.
9-1
EXHIBIT
10
FORM
OF
SELLER’S OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of GreenPoint Mortgage Funding, Inc., a corporation organized under the laws
of
the State of New York (the “Company”) and further
as follows:
1. Attached
hereto as Exhibit 1 is a
true, correct and complete copy of the charter of the Company which is in
full
force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since ___________.
2. Attached
hereto as Exhibit 2 is a
true, correct and complete copy of the bylaws of the Company which are in
effect
on the date hereof and which have been in effect without amendment, waiver,
rescission or modification since ___________.
3. Attached
hereto as Exhibit 3 is an
original certificate of good standing of the Company issued within ten days
of
the date hereof, and no event has occurred since the date thereof which would
impair such standing.
4. Attached
hereto as Exhibit 4 is a
true, correct and complete copy of the corporate resolutions of the Board
of
Directors of the Company authorizing the Company to execute and deliver each
of
the First Amended and Restated Mortgage Loan Sale and Servicing Agreement,
dated
as of March 15, 2005, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
(the
“Purchaser”) and the Company (the “Sale and Servicing
Agreement”) and the Custodial Agreement, dated as of September 1, 2003,
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 and have been in effect without
amendment, waiver, rescission or modification since ____________.
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,
EXH.
10-1
writ, injunction or decree of any court, governmental authority or regulatory body to which the Company is subject or by which it is bound.
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 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 the
mortgage loans or of any action taken or to be taken in connection with the
transactions contemplated hereby, or which would be likely to impair materially
the ability of the Company to perform under the terms of the 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.
10-2
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 GreenPoint Mortgage
Funding, 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
[Assistant] Secretary
EXH.
10-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
||
EXH.
10-4
EXHIBIT
11
FORM
OF
OPINION OF COUNSEL TO SELLER
(date)
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to GreenPoint
Mortgage Funding, Inc., (the “Company”), with
respect to certain matters in connection with the sale by the Company of
the
Mortgage Loans pursuant to that certain First Amended and Restated Mortgage
Loan
Sale and Servicing Agreement, by and between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. (the “Purchaser”), dated
as
of March 15, 2005 (the “Sale and Servicing
Agreement”) which sale is in the form of whole loans, delivered pursuant
to a Custodial Agreement dated as of September 1, 2003 among the Purchaser,
the
Company, and ______________________[CUSTODIAN] (the “Custodial Agreement”
and, collectively with the Sale and Servicing Agreement, the “Agreements”). Capitalized
terms not otherwise defined herein have the meanings set forth in the Sale
and
Servicing Agreement.
[We]
[I]
have examined the following documents:
1. the
Sale
and Servicing Agreement;
2. the
Custodial Agreement;
3. the
form
of Assignment of Mortgage;
4. the
form
of endorsement of the Mortgage Notes; and
5. such
other documents, records and papers as we have deemed necessary and relevant
as
a basis for this opinion.
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Sale and
Servicing Agreement. [We] [I] have assumed the authenticity of all
documents submitted to [us] [me] as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all documents.
Based
upon the foregoing, it is [our] [my] opinion that:
▇▇▇.
▇▇-▇
▇. The
Company is a [type of entity] duly organized, validly existing and in good
standing under the laws of the [United States] and is qualified to transact
business in, and is in good standing under, the laws of [the state of
incorporation/formation].
2. The
Seller has the power to engage in the transactions contemplated by the
Agreements and all requisite power, authority and legal right to execute
and
deliver the Agreements and to perform and observe the terms and conditions
of
the Agreements.
3. Each
of
the Agreements has been duly authorized, executed and delivered by the Company,
and is a legal, valid and binding agreement enforceable in accordance with
its
respective terms against the Company, subject to bankruptcy laws and other
similar laws of general application affecting rights of creditors and subject
to
the application of the rules of equity, including those respecting the
availability of specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or with the Purchaser’s
ownership of the Mortgage Loans.
4. The
Seller has been duly authorized to allow any of its officers to execute any
and
all documents by original signature in order to complete the transactions
contemplated by the Agreements.
5. [[The
Company has been duly authorized to allow any of its officers to execute
by
original [or facsimile] signature the endorsements to the Mortgage Notes
and the
Assignments of Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the Mortgage Notes and
the
Assignments of Mortgages represents the legal and valid signature of said
officer of the Company]].
6. 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 Agreements
and the sale of the Mortgage Loans by the Company 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.
7. Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the
terms of, the Agreements conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under the
charter or by-laws of the Company, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or
to
which it is subject, or violates any statute or order, rule, regulations,
writ,
injunction or decree of any court, governmental authority or regulatory body
to
which the Company is subject or by which it is bound.
8. There
is
no action, suit, proceeding or investigation pending or, to the best of [our]
[my] knowledge, threatened against the Company which, in [our] [my] judgment,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or
assets of the Company or in any material impairment of the right or ability
of
the Company to carry on its business substantially as now conducted or in
any
material liability on the part of the Company or which would draw
into
EXH.
11-2
question
the validity of the Agreements or the Mortgage Loans or of any action taken
or
to be taken in connection with the transactions contemplated thereby, or
which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Agreements.
9. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Sale
and Servicing Agreement, the Purchase Price and Terms Letter and the Custodial
Agreement is sufficient to fully transfer to the Purchaser all right, title
and
interest of the Company thereto as noteholder and mortgagee.
10. The
Mortgages have been duly assigned and the Mortgage Notes have been duly endorsed
as provided in the Custodial Agreement. The Assignments of Mortgage
are in recordable form, except for the insertion of the name of the assignee,
and upon the name of the assignee being inserted, are acceptable for recording
under the laws of the state where each related Mortgaged Property is
located. The endorsement of the Mortgage Notes, the delivery to the
Purchaser, or its designee, of the Assignments of Mortgage, and the delivery
of
the original endorsed Mortgage Notes to the Purchaser, or its designee, are
sufficient to permit the Purchaser to avail itself of all protection available
under applicable law against the claims of any present or future creditors
of
the Company, and are sufficient to prevent any other sale, transfer, assignment,
pledge or hypothecation of the Mortgages and the Mortgage Notes by the Company
from being enforceable.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which
you
initially and directly resell the Mortgage Loans may rely on this opinion
as if
it were addressed to them as of its date.
Very
truly yours,
________________________
________________________
________________________
[Name]
________________________
________________________
[Assistant]
General Counsel
EXH.
11-3
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 a First Amended
and Restated Mortgage Loan Sale and Servicing Agreement, dated as of December
1,
2003, 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
Exhibit
E
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:_________________________________
By: __________________________________
Name:_________________________________
Title:
_________________________________
Date:
_________________________________
Acknowledged
and approved:
______________________________________
By: __________________________________
Name:_________________________________
By: __________________________________
Name:_________________________________
Title:
_________________________________
Date:
_________________________________
EXH.
12-2
EXHIBIT
13
FORM
OF SECURITY RELEASE
CERTIFICATION
I. Release
of Security
Interest
The
financial institution named below hereby relinquishes any and all right,
title
and interest it may have in all Mortgage Loans to be purchased by ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Mortgage Capital Inc. from the Company named below pursuant to that certain
First Amended and Restated Mortgage Loan Sale and Servicing Agreement, dated
as
of December 1, 2003 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 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
On
this
___ day of __________, ____, GreenPoint Mortgage Funding, Inc. (“Seller”), as
(i) the Seller and Servicer under that certain Purchase Price and Terms
Letter, dated as of ___________, _____ (the “PPTL”), (ii)
the
Seller and Servicer under that certain First Amended and Restated Mortgage
Loan
Sale and Servicing Agreement, dated as of March 15, 2005 (the “Sale and Servicing
Agreement”) and, together with the PPTL, 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 Seller 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]
▇▇▇.
▇▇-▇
|
|
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ FUNDING, INC.,
|
|
|
By:
____________________
Name: Title: |
|
Accepted
and Agreed:
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
|
By:
____________________
Name:
Title:
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 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 First Amended and Restated Mortgage
Loan Sale and Servicing Agreement (the “Sale and Servicing
Agreement”), dated as of March 15, 2005 between the Assignor, as
purchaser (the “Purchaser”), and
the
Company, as seller, 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 (a) Subsection 7.05 of
the Sale and Servicing Agreement or (b) 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 [__________, 2003]
(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 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.
▇▇▇.
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▇. ▇▇▇▇▇▇▇▇
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 7.01 and 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 Sections
3 and 4
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. The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and the Purchase Agreement is:
[Assignee]
[Address]
Attention: [_______]
Telephone: [________]
Telecopy: [________]
7. 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.
8. No
term or provision of this Agreement may be waived or modified unless such
waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced, with the prior written consent
of the
Trustee.
9. 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.
10. 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.
▇▇▇.
▇▇-▇
▇▇. 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.
12. 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.
13. 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.
|
|
GREENPOINT
MORTGAGE FUNDING, INC.,
By: Name: ________________ Its: __________________ |
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By: Name: ________________ Its: __________________ |
▇▇▇.
▇▇-▇
▇▇▇▇▇▇▇
▇▇
ANNUAL
CERTIFICATION
| Re: |
[_______________]
(the “Trust”),
Mortgage Pass-Through Certificates, Series [_____], issued pursuant
to the
Pooling and Servicing Agreement, dated as of [_____], 200_ (the
“Pooling
and Servicing
Agreement”), among [_____], as depositor (the “Depositor”),
[_____], as trustee (the “Trustee”),
[_____], as servicer (the “Servicer”),
and
[_____], as responsible party
|
I,
[identify the certifying individual], certify to the Depositor and the Trustee,
and their officers, directors and affiliates, and with the knowledge and
intent
that they will rely upon this certification, that:
| 1. |
Based
on our knowledge, the information prepared by the Servicer and
relating to
the mortgage loans serviced by the Servicer pursuant to the Pooling
And
Servicing Agreement and provided by the Servicer to the Trustee
in its
reports to the Trustee is accurate and complete in all material
respects
as of the last day of the period covered by such
report;
|
|
| 2. |
Based
on our knowledge, the servicing information required to be provided
to the
Trustee by the Servicer pursuant to the Pooling and Servicing Agreement
has been provided to the Trustee;
|
|
| 3. |
Based
upon the review required under the Pooling and Servicing Agreement,
and
except as disclosed in its annual compliance statement required
to be
delivered pursuant to the Pooling and Servicing Agreement, the
Servicer as
of the last day of the period covered by such annual compliance
statement
has fulfilled its obligations under the Pooling and Servicing Agreement;
and
|
|
| 4. | The Servicer has disclosed to its independent auditor, who issues the independent auditor’s report on the Uniform Single Attestation Program for Mortgage Bankers for the Servicer, any significant deficiencies relating to the Servicer’s compliance with minimum servicing standards. |
Date: _________________________
_______________________________
[Signature]
[Title]
_______________________________
[Signature]
[Title]
▇▇▇.
▇▇-▇