MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT MORGAN STANLEY MORTGAGE CAPITAL INC., Purchaser FLAGSTAR CAPITAL MARKETS CORPORATION, Seller Dated as of February 1, 2007 Conventional, Fixed and Adjustable Rate Residential Mortgage Loans
Exhibit
99.7b
EXECUTION
COPY
_________________
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
Purchaser
FLAGSTAR
CAPITAL MARKETS CORPORATION,
Seller
_________________
Dated
as
of February 1, 2007
Conventional,
Fixed
and
Adjustable Rate
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
Definitions.
|
1
|
|
SECTION
2.
|
Agreement
to Purchase.
|
15
|
|
SECTION
3.
|
Mortgage
Schedules.
|
16
|
|
SECTION
4.
|
Purchase
Price.
|
16
|
|
SECTION
5.
|
Examination
of Mortgage Files.
|
17
|
|
SECTION
6.
|
Conveyance
from Seller to Purchaser.
|
17
|
|
SECTION
7.
|
Servicing
of the Mortgage Loans.
|
20
|
|
SECTION
8.
|
[RESERVED].
|
21
|
|
SECTION
9.
|
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
21
|
|
SECTION
10.
|
Closing
|
42
|
|
SECTION
11.
|
Closing
Documents.
|
43
|
|
SECTION
12.
|
Costs.
|
44
|
|
SECTION
13.
|
Cooperation
of Seller with a Reconstitution.
|
44
|
|
SECTION
14.
|
The
Seller.
|
46
|
|
SECTION
15.
|
Financial
Statements.
|
47
|
|
SECTION
16.
|
Mandatory
Delivery; Grant of Security Interest.
|
48
|
|
SECTION
17.
|
Notices.
|
48
|
|
SECTION
18.
|
Severability
Clause.
|
49
|
|
SECTION
19.
|
Counterparts.
|
50
|
|
SECTION
20.
|
Intention
of the Parties.
|
50
|
|
SECTION
21.
|
Successors
and Assigns; Assignment of Purchase Agreement.
|
50
|
|
SECTION
22.
|
Waivers.
|
▇▇
|
-▇-
|
▇▇▇▇▇▇▇
▇▇.
|
Exhibits.
|
50
|
|
SECTION
24.
|
General
Interpretive Principles.
|
51
|
|
SECTION
25.
|
Reproduction
of Documents.
|
51
|
|
SECTION
26.
|
Further
Agreements.
|
51
|
|
SECTION
27.
|
Recordation
of Assignments of Mortgage.
|
52
|
|
SECTION
28.
|
No
Solicitation.
|
52
|
|
SECTION
29.
|
Waiver
of Trial by Jury.
|
52
|
|
SECTION
30.
|
Governing
Law Jurisdiction; Consent to Service of Process.
|
52
|
|
SECTION
31.
|
Amendment
|
53
|
|
SECTION
32.
|
Confidentiality
|
53
|
|
SECTION
33.
|
Entire
Agreement
|
53
|
|
SECTION
34.
|
Compliance
with Regulation AB
|
54
|
EXHIBITS
|
EXHIBIT
A-1
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
A-2
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF [SELLER’S] [GUARANTOR’S] OFFICER’S CERTIFICATE
|
|
EXHIBIT
D
|
FORM
OF OPINION OF COUNSEL TO THE SELLER AND THE GUARANTOR
|
|
EXHIBIT
E
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
|
|
EXHIBIT
I
|
FORM
OF GUARANTEE
|
-ii-
This
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (“Agreement”), dated as
of February 1, 2007, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., a
New
York corporation (the “Purchaser”), and Flagstar Capital Markets
Corporation, a Delaware corporation (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first-lien and second-lien
mortgage loans (the “Mortgage Loans”) on a servicing released basis as
described herein, and which shall be delivered in pools of whole loans (each,
a
“Mortgage Loan Package”) on various dates as provided herein (each, a
“Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien or second-lien on a residential dwelling
located in the jurisdiction indicated on the Mortgage Loan Schedule for the
related Mortgage Loan Package;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing by the Interim Servicer and control of the Mortgage
Loans;
WHEREAS,
the Guarantor will guarantee the obligations of the Seller hereunder pursuant
to
the Guarantee; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer or a public or private, rated or unrated mortgage
Securitization Transaction.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices which are in accordance with accepted mortgage
servicing practices of prudent mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located.
Act: The
National Housing Act, as amended from time to time.
Adjustable
Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement, the Mortgage Interest Rate of which is adjusted from time to time
in
accordance with the terms of the related Mortgage Note.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agency
Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac
Transfer.
Agreement: This
Mortgage Loan Purchase and Warranties Agreement including all exhibits,
schedules, amendments and supplements hereto.
ALTA: The
American Land Title Association or any successor thereto.
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
and Conveyance Agreement: As defined in
Subsection 6.01.
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.
Balloon
Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or
(b) for which Monthly Payments of principal (not including the payment due
on its stated maturity date) are based on an amortization schedule that would
be
insufficient to fully amortize the principal thereof by the stated maturity
date
of the Mortgage Loan.
Business
Day: Any day other than (i) a Saturday or Sunday,
(ii) a day on which banking and savings and loan institutions, in the State
of New York or the State in which the Interim Servicer’s servicing operations
are located or (iii) the state in which the Custodian’s operations are
located, 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
-2-
any
outstanding subordinate mortgages on the related Mortgaged Property and which
provided incidental cash to the related Mortgagor of more than the greater
of
(i) $2,000 or (ii) 2% of the original principal balance of such Mortgage
Loan.
Closing
Date: The date or dates on which the Purchaser from time to time
shall purchase, and the Seller from time to time shall sell, the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Closing
Documents: The documents required to be delivered on each Closing
Date pursuant to Section 11.
CLTV: As
of any date and as to any Second Lien Loan, the ratio, expressed as a
percentage, of (a) the sum of (i) the outstanding principal balance of the
Second Lien Loan and (ii) the outstanding principal balance as of such date
of
any mortgage loan or mortgage loans that are senior or equal in priority to
the
Second Lien Loan and which are secured by the same Mortgaged Property to (b)
the
Appraised Value as determined pursuant to the Underwriting Guidelines of the
related Mortgaged Property as of the origination of the Second Lien
Loan.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission: The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of condemnation or the right of
eminent domain, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor’s Glossary.
Custodial
Account: The separate trust account created and maintained
pursuant to Subsection 2.04 of the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
-3-
Custodial
Agreement: The agreement(s) 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: LaSalle
Bank, National Association, a national banking association, 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.
Deemed
Material and Adverse Representation: Each representation and
warranty identified as such in Section 9.02 of this
Agreement.
Deleted
Mortgage Loan: A Mortgage Loan that is repurchased or to be
repurchased or replaced or to be replaced with a Qualified Substitute Mortgage
Loan by the Seller in accordance with the terms of this Agreement.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: The date specified in the Interim Servicing Agreement (with
respect to each Mortgage Loan, for an interim period, as specified
therein).
Due
Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
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.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
▇▇▇▇▇▇
▇▇▇: The Federal National Mortgage Association, or any successor
thereto.
▇▇▇▇▇▇
Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ Mae
Servicers’ Guide, as amended or restated from time to time.
▇▇▇▇▇▇
▇▇▇ Transfer: As defined in Section 13.
FHA: The
Federal Housing Administration, an agency within the United States Department
of
Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development
where appropriate under the FHA Regulations.
-4-
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
First
Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
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 13.
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.
Guarantee: The
guarantee, in the form attached hereto as Exhibit I, to be dated as of the
initial Closing Date, pursuant to which the obligations of the Seller under
each
Purchase Price and Terms Agreement and the Purchase Agreement will be guaranteed
by the Guarantor in favor of the Purchaser.
Guarantor: Flagstar
Bank, FSB, a federally-chartered savings bank, and its successors in
interest.
High
Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 (“HOEPA”), (b) with an “annual
percentage rate” or total “points and fees” (as each such term is
calculated under HOEPA) payable by the related Mortgagor that exceed the
thresholds set forth by HOEPA and its implementing regulations, including 12
C.F.R. § 226.32(a)(1)(i) and (ii), (c) classified as a “high cost home,”
“threshold,” “covered,” (excluding New Jersey “Covered Home Loans” as that term
was defined in clause (1) of the definition of that term in the New Jersey
Home Ownership Security Act of 2002 that were originated between November 26,
2003 and July 7, 2004), “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 (d) 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
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes
of this Agreement, is also deemed to include subdivisions thereof such as the
FHA and Government National Mortgage Association.
-5-
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.
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.
Interim
Servicer: The servicer under the Interim Servicing Agreement, or
its successor in interest, or any successor to the Interim Servicer under the
Interim Servicing Agreement, as therein provided.
Interim
Servicing Agreement: The agreement to be entered into by the
Purchaser and the Interim Servicer, providing for the Interim Servicer to
service the Mortgage Loans as specified by the Interim Servicing
Agreement.
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 term
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, whether through the sale or assignment
of such Mortgage Loan, trustee’s sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, 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 the Mortgage Loan as of the related Cut-off
Date (unless otherwise indicated), and the denominator of which is the lesser
of
(a) the Appraised Value of the Mortgaged Property at origination and
(b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
-6-
LTV: Loan-to-Value
Ratio.
Manufactured
Home: A single family residential unit that is constructed in a
factory in sections in accordance with the Federal Manufactured Home
Construction and Safety Standards adopted on June 15, 1976, by the Department
of
Housing and Urban Development (“HUD Code”), as amended in 2000, which
preempts state and local building codes. Each unit is identified by
the presence of a HUD Plate/Compliance Certificate label. The
sections are then 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 Procedures Manual and (b) the
Seller has designated or will designate the Purchaser as the Investor on the
MERS System.
MERS
Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS
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
in
the
case of a First Lien Loan, or a second lien, in the case of a Second Lien Loan,
on the related Mortgaged Property. With respect to a Co-op Loan, the
Security Agreement.
Mortgage
File: With respect to any Mortgage Loan, the Mortgage Loan
Documents and the items listed in Exhibit A-2 hereto and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement.
-7-
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
Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in 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, Servicing Rights and all other rights, benefits, proceeds
and obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents: With respect to any Mortgage Loan, the documents
required to be delivered to the Custodian pursuant to
Subsection 6.03.
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 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 social security number of the
Mortgagor; (4) a code indicating whether the Mortgagor’s race and/or
ethnicity is (i) native American or Alaskan native, (ii) Asian/Pacific
islander, (iii) African American, (iv) white, (v) Hispanic or
Latino, (vi) other minority, (vii) not provided by the Mortgagor,
(viii) not applicable (if the Mortgagor is an entity) and (ix) unknown
or missing; (5) the street address of the Mortgaged Property including the
city, state and zip code; (6) a code indicating whether the Mortgagor is
self-employed; (7) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (8) a code indicating
the number and type of residential units constituting the Mortgaged Property
(e.g. single family residence, two-family residence, three-family residence,
four-family residence, multifamily residence, condominium, manufactured housing,
mixed-use property, raw land and other non-residential properties, planned
unit
development or cooperative stock in a cooperative housing corporation);
(9) 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; (10) the LTV or CLTV, as applicable,
at origination; (11) the Mortgage Interest Rate as of the related Cut-off
Date; (12) 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; (13) the stated maturity date; (14) the amount of the
Monthly Payment as of the related Cut-off Date; (15) whether the Mortgage
Loan has Monthly Payments that are interest-only for a period of time, and
the
interest-only period, if applicable (and with respect to each Second Lien Loan,
whether the related first lien mortgage loan has monthly payments that are
interest-only for a period of time, and the interest-only period, if
applicable); (16) the last payment date on which a payment was actually
applied to the outstanding principal balance; (17) the schedule of the
payment delinquencies in the prior 12 months; (18) the Servicing Fee Rate;
(19) the original
-8-
principal
amount of the Mortgage Loan; (20) 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;
(21) with respect to each Mortgage Loan with a second lien behind it, the
combined principal balance of the Mortgage Loan and the applicable second lien
loan, at origination, (22) a code indicating whether there is a
simultaneous second; (23) with respect to Adjustable Rate Mortgage Loans,
the Interest Rate Adjustment Date; (24) with respect to Adjustable Rate
Mortgage Loans, the Gross Margin; (25) with respect to Adjustable Rate
Mortgage Loans, the Lifetime Rate Cap under the terms of the Mortgage Note;
(26) with respect to Adjustable Rate Mortgage Loans, a code indicating the
type of Index, including the methodology for rounding (e.g. rounded upward,
if
necessary, to the nearest ten thousandth (.0001)) and the applicable time frame
for determining the Index; (27) the product type of Mortgage Loan (i.e.,
Fixed Rate, Adjustable Rate, First Lien Loan or Second Lien Loan), and with
respect to each Second Lien Loan, the product type of the related first lien
loan; (28) a code indicating the purpose of the loan (i.e., purchase,
Rate/Term Refinance or Cash-Out Refinance); (29) a code indicating the
documentation style (i.e. no documents, full, alternative, reduced, no income/no
asset, stated income, no ration, reduced or NIV); (30) asset verification
(Y/N); (31) the loan credit classification (as described in the
Underwriting Guidelines); (32) whether such Mortgage Loan provides for a
Prepayment Penalty; (33) the Prepayment Penalty period of such Mortgage
Loan, if applicable; (34) a description of the Prepayment Penalty, if
applicable, including whether the applicable Prepayment Penalty provision is
“hard” or “soft”; (35) the Mortgage Interest Rate as of origination;
(36) the credit risk score (FICO score); (37) the date of origination;
(38) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment period; (39) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate adjustment percentage; (40) with respect
to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate floor;
(41) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (42) with respect to Adjustable Rate Mortgage Loans, the
Periodic Rate Cap as of the first Interest Rate Adjustment Date; (43) with
respect to each Adjustable Rate Mortgage Loan, a code indicating whether the
Mortgage Loan provides for negative amortization; (44) a code indicating
whether the Mortgage Loan has negative amortization and the maximum of such
negative amortization; (45) a code indicating whether the Mortgage Loan is
a Balloon Mortgage Loan; (46) a code indicating whether the Mortgage Loan
by its original terms or any modifications thereof provides for amortization
beyond its scheduled maturity date; (47) [reserved]; (48) the original
Monthly Payment due; (49) the Appraised Value; (50) appraisal type;
(51) appraisal date; (52) a code indicating whether the Mortgage Loan
is covered by a PMI Policy and, if so, identifying the PMI Policy provider;
(53) the certificate number of the PMI Policy, if applicable; (54) the
amount of coverage of the PMI Policy, if applicable; (55) in connection
with a condominium unit, a code indicating whether the condominium project
where
such unit is located is low-rise or high-rise; (56) a
code indicating whether the Mortgaged Property is a leasehold estate;
(57) with respect to the related Mortgagor, the debt-to-income ratio;
(58) sales price; (59) automated valuation model (AVM); (60) a
code indicating whether the Mortgage Loan is a MERS Designated Mortgage Loan
and
the MERS Identification Number, if applicable; (59) a field indicating
whether such Mortgage Loan is a Home Loan; and (61) the DU or LP number, if
applicable. 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
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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.
Nonrecoverable
Advance: Any advance previously made or proposed to be made in
respect of a Mortgage Loan which, in the good faith judgment of the Interim
Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable from related Insurance Proceeds, Liquidation Proceeds
or
otherwise. The determination by the Interim Servicer that it has made
a Nonrecoverable Advance or that any proposed advance of principal and interest,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officers’ Certificate delivered to the Purchaser.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or a President or a Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Seller, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Seller, reasonably acceptable to the Purchaser, provided that any Opinion
of
Counsel relating to (a) the qualification of any account required to be
maintained pursuant to the Interim Servicing Agreement
as an Eligible Account (as defined in the Interim Servicing Agreement),
(b) qualification of the Mortgage Loans in a REMIC or (c) compliance
with the REMIC Provisions, must be (unless otherwise stated in such Opinion
of
Counsel) an opinion of counsel who (i) is in fact independent of the Seller
and any servicer of the Mortgage Loans, (ii) does not have any material
direct or indirect financial interest in the Seller or any servicer of the
Mortgage Loans or in an Affiliate of either and (iii) is not connected with
the Seller or any servicer of the Mortgage Loans as an officer, employee,
director or person performing similar functions.
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. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan
is the rate set forth as such on the related Mortgage Loan
Schedule.
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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: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy: A policy of primary mortgage guaranty insurance issued by
an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is
located.
Preliminary
Mortgage Schedule: As defined in
Section 3.
Prepayment
Penalty: With respect to each Mortgage Loan, the amount of any
premium or penalty required to be paid by the Mortgagor if the Mortgagor prepays
such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
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 thereon, and 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 in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this
Agreement.
Purchase
Price and Terms Agreement: Each agreement setting forth the
general terms and conditions of the purchase and sale of the Mortgage Loans
to
be purchased from time to time under this Agreement.
Purchase
Price Percentage: The percentage of par (expressed as a decimal)
set forth in the related Purchase Price and Terms Agreement.
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,
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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
Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to
an agreement between the Seller and such Person that contemplated that such
Person would underwrite mortgage loans from time to time, for sale to the
Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact
underwritten as described in clause (i) above and were acquired by the
Seller within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Seller in origination of mortgage loans of the same type as the
Mortgage Loans for the Seller’s own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed, at the
time such Mortgage Loans were acquired by the Seller, pre-purchase or
post-purchase quality assurance procedures (which may involve, among other
things, review of a sample of mortgage loans purchased during a particular
time
period or through particular channels) designed to ensure that Persons from
which it purchased mortgage loans properly applied the underwriting criteria
designated by the Seller.
Qualified
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 unpaid
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 unpaid 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 Section 9 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 the lesser of (i) $2,000 or (ii) two
percent (2%) of the original principal balance of such Mortgage
Loan.
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Reconstitution: Any
Securitization Transaction or a Whole Loan Transfer.
Reconstitution
Agreements: The agreement or agreements entered into by the
Seller and the Purchaser and/or certain third parties on the Reconstitution
Date
or Dates with respect to any or all of the Mortgage Loans sold hereunder, in
connection with a Whole Loan Transfer, Agency Transfer or a Securitization
Transaction pursuant to Section 13, including, but not limited to, a
seller’s warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect
to a
Securitization Transaction.
Reconstitution
Date: As defined in Section 13.
Refinanced
Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506–1,631 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
REMIC: A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
Provisions: Provisions of the federal income tax law relating to
a REMIC, which appear at Section 860A through 860G of Subchapter M of
Chapter 1, Subtitle A of the Code, and related provisions and
regulations, rulings or pronouncements promulgated thereunder, as the foregoing
may be in effect from time to time.
Remittance
Date: The date specified in the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
REO
Property: A Mortgaged Property acquired by the Interim Servicer
through foreclosure or deed in lieu of foreclosure.
Repurchase
Price: With respect to any Mortgage Loan, a price equal to the
sum of: (i) the product of (a) par (or, with respect to any
Mortgage Loan required to be repurchased on or prior to the first anniversary
of
the related Closing Date, the greater of (x) par and (y) par plus the
excess of the applicable Purchase Price Percentage over par multiplied by a
fraction equal to (1) 360 minus the number of days from but excluding the
related Closing Date, up through and including the date of such repurchase,
divided by (2) 360) and (b) the outstanding principal balance of such
Mortgage Loan, (ii) accrued interest thereon at the applicable Mortgage
Interest Rate from the last “interest paid to” date through the date of such
repurchase, (iii) the amount of any outstanding advances owed to any
servicer, and (iv) 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.
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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.
RESPA: The
Real Estate Settlement Procedures Act, as amended from time to
time.
Second
Lien Loan: A Mortgage Loan secured by a second lien Mortgage on
the related Mortgaged Property.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly
to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
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 the Agreement, together with its successors
in interest.
Seller
Information: As defined in Subsection
34.04(a).
Servicing
Fee: As to each Mortgage Loan Package, the amount of the fee the
Purchaser shall pay to the Seller for servicing the Mortgage Loans in accordance
with the terms of this Agreement, which shall, with respect to each Mortgage
Loan, be equal to $7.00 per calendar month.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Interim Servicer consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies of
the
Mortgage Loan Documents set forth in Section 2 of the Custodial
Agreement.
Servicing
Rights: Any and all of the following: (a) any and
all rights to service the Mortgage Loans; (b) any payments to or monies
received by the Seller for servicing the Mortgage Loans; (c) any late fees,
penalties or similar payments with respect to the Mortgage Loans; (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights and all rights of
the
Seller thereunder; (e) Escrow Payments or other similar payments with
respect to the Mortgage Loans and any amounts actually collected by the Seller
with respect thereto; (f) all accounts and other rights to payment related
to any of the property described in this paragraph; and (g) any and
all
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documents,
files, records, servicing files, servicing documents, servicing records, data
tapes, computer records, or other information pertaining to the Mortgage Loans
or pertaining to the past, present or prospective servicing of the Mortgage
Loans.
Sponsor: The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
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 on any date of
determination, (i) the principal balance of such Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, to the extent actually received, minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal on such Mortgage
Loan.
Static
Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor
Servicer: Any servicer of one or more Mortgage Loans designated
by the Purchaser as being entitled to the benefits of the indemnifications
set
forth in Subsections 9.03 and 14.01.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Transfer
Date: In the event the Interim Servicer is terminated as servicer
of a Mortgage Loan pursuant to the Interim Servicing Agreement, 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 Interim Servicer shall cease all servicing responsibilities.
Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy of
which is attached hereto as Exhibit G and a then-current copy of which is
attached as an exhibit to the related Assignment and Conveyance.
Whole
Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate actual unpaid principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by
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the
actual aggregate unpaid 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.
SECTION
3. Mortgage
Schedules.
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 Agreement
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 related 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.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan and the related Servicing Rights shall
be
the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein), multiplied by the
aggregate actual unpaid principal balance, as of the related Cut-off Date,
of
the Mortgage Loans listed on the related Mortgage Loan Schedule, after
application of scheduled payments of principal due on or before the related
Cut-off Date, but only to the extent such payments were actually
received. The initial principal amount of the related Mortgage Loans
shall be the aggregate actual unpaid principal balance of the Mortgage Loans,
so
computed as of the related Cut-off Date. If so provided in the
related Purchase Price and Terms Agreement, portions of the Mortgage Loans
and/or the Servicing Rights shall be priced and paid for
separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest from the last “interest paid to” date
through the day immediately preceding the related Closing Date, inclusive,
on
the aggregate actual unpaid principal amount of the related Mortgage Loans
as of
the related Cut-off Date at the weighted average
Mortgage Interest Rate of those Mortgage Loans. The Purchase Price
plus accrued interest as set forth in the preceding paragraph shall be paid
to
the Seller by wire transfer of immediately available funds to an account
designated by the Seller in writing.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans net of applicable Servicing Fees (minus that portion of any
such
payment which is allocable to the period prior to the related Cut-off
Date). The outstanding principal balance of each Mortgage Loan as of
the related Cut-off Date is determined after application of payments of
principal due on or before the related Cut-off Date, to the extent actually
collected, together with any unscheduled principal prepayments collected prior
to such Cut-off Date; provided, however, that payments of
scheduled principal and interest paid prior to such Cut-off date, but to be
applied on a Due Date beyond the related
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Cut-off
Date shall not be applied to the principal balance as of the related Cut-off
Date. Such prepaid amounts shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the
Custodial Account, which account is established for the benefit of the Purchaser
for subsequent remittance by the Seller to the Purchaser.
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, pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available to the
Purchaser for examination at such other location as shall otherwise be
acceptable to the Purchaser. Such examination of the Mortgage Files
may be made by the Purchaser or its designee at any reasonable time before
or
after the related Closing Date. If the Purchaser makes such
examination prior to the related Closing Date and determines, in its sole
discretion, that any Mortgage Loans do not conform to any of the requirements
set forth in the related Purchase Price and Terms Agreement, or as an Exhibit
annexed thereto, the Purchaser may delete such Mortgage Loans from the related
Mortgage Loan Schedule, and such Deleted Mortgage Loan (or Loans) may be
replaced by a Qualified Substitute Mortgage Loan (or Loans) acceptable to the
Purchaser. The Purchaser may, at its option and without notice to the
Seller, purchase some or all of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or its
designee has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not impair in any way the Purchaser’s
(or any of its successor’s) rights to demand repurchase, substitution or other
relief 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 9.03.
SECTION
6. Conveyance
from Seller to Purchaser.
Subsection
6.01 Conveyance
of Mortgage Loans.
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 H (the “Assignment and Conveyance
Agreement”). The Seller shall ensure that the contents of each
Servicing File, which required to be retained by or delivered to the Interim
Servicer to service the Mortgage Loans pursuant to the Interim Servicing
Agreement and thus not delivered to the Purchaser, or its designee, are and
shall be held in trust by the Interim Servicer for the benefit of the Purchaser
as the owner thereof. The Seller agrees that the Interim 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 Interim
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
Interim Servicer shall immediately vest in the Purchaser and shall be retained
and maintained, in trust, by the
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Interim
Servicer at the will of the Purchaser in such custodial capacity
only. The Seller shall cause the Servicing File retained by the
Interim Servicer pursuant to this Agreement to be appropriately identified
in
the Seller’s computer system and/or books and records, as appropriate, to
clearly reflect the sale of the related Mortgage Loan to the
Purchaser. The Seller shall cause the Interim Servicer to release
from its custody the contents of any Servicing File retained by it only in
accordance with this Agreement or the Interim Servicing Agreement, except when
such release is required in connection with a repurchase of any such Mortgage
Loan pursuant to Subsection 9.03 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, an Affiliate of the Seller, the
Purchaser or one or more designees of the Purchaser, as the Purchaser shall
select; 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
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
Seller or the Interim Servicer after the related Cut-off Date on or in
connection with a Mortgage Loan shall be vested in the Purchaser or one or
more
designees of the Purchaser; provided, however, that all funds
received on or in connection with a Mortgage Loan shall be received and held
by
the Seller or the Interim Servicer in trust for the benefit of the Purchaser
or
the appropriate designee of the Purchaser, as the case may be, as the owner
of
the Mortgage Loans pursuant to the terms of this Agreement.
The
Seller shall be or shall cause the Interim Servicer to be responsible for
maintaining, and shall maintain, a complete set of books and records for each
Mortgage Loan which shall be marked clearly to reflect the ownership of each
Mortgage Loan by the Purchaser. In particular, the Seller shall or
shall cause the Interim Servicer to maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the National Flood Insurance Act of 1968, as amended,
to
the Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the ▇▇▇▇▇▇ Mae Guides. To the
extent that original documents are not required for purposes of realization
of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Seller
or the Interim Servicer may be in the form of microfilm or microfiche so long
as
the Seller or the Interim Servicer complies with the requirements of the ▇▇▇▇▇▇
▇▇▇ Guides.
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
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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 deliver and release to the Custodian no later than two (2) Business
Days prior to the related Closing Date those Mortgage Loan Documents set forth
on Exhibit A-1 hereto as required by the Custodial Agreement with
respect to each Mortgage Loan set forth on the related Mortgage Loan
Schedule.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Initial Certification of the Custodian in the form
annexed to the Custodial Agreement. The Purchaser shall pay all fees
and expenses of the Custodian.
The
Seller shall or shall cause the Interim Servicer to forward to the Custodian,
or
to such other Person as the Purchaser shall designate in writing, original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with this Agreement within two
weeks of their execution, provided, however, that the Seller
shall provide the Custodian, or to such other Person as the Purchaser shall
designate in writing, with a certified true copy of any such document submitted
for recordation within two weeks of its execution, and shall promptly 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 Interim 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 9.03. The
foregoing repurchase obligation shall not apply if the Seller cannot cause
the
Interim 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 Seller 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 Seller,
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.
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Subsection
6.04 Quality
Control Procedures.
The
Seller shall, or shall cause the Interim Servicer to, have an internal quality
control program that verifies, on a regular basis, the existence and accuracy
of
the legal documents, credit documents, property appraisals, and underwriting
decisions. The program shall include evaluating and monitoring the
overall quality of the Seller’s loan production and the servicing activities of
the Interim Servicer. The program is to ensure that the Mortgage
Loans are originated in accordance with the Underwriting Guidelines; guard
against dishonest, fraudulent, or negligent acts; and guard against errors
and
omissions by officers, employees, or other authorized persons.
Subsection
6.05 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 as
Interim Funder with respect to each MERS Designated Mortgage Loan.
SECTION
7. Servicing
of the Mortgage Loans.
The
Mortgage Loans have been sold by the Seller to the Purchaser on a servicing
released basis. Subject to and upon the terms and conditions of this
Agreement and the Interim Servicing Agreement (with respect to each Mortgage
Loan, for an interim period, as specified therein), the Seller hereby sells,
transfers, assigns, conveys and delivers to the Purchaser the Servicing
Rights.
The
Purchaser shall retain the Interim Servicer as contract servicer of the Mortgage
Loans for an interim period pursuant to and in accordance with the terms and
conditions contained in the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein). The
Seller shall cause the Interim Servicer to execute the Interim Servicing
Agreement on the initial Closing Date.
The
Seller shall cause the Interim Servicer to transfer the servicing of the
Mortgage Loans on each Transfer Date in accordance with the terms of the Interim
Servicing Agreement.
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SECTION
8. [RESERVED].
SECTION
9. Representations,
Warranties and Covenants of the Seller; Remedies for Breach.
Subsection
9.01 Representations
and Warranties Regarding the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of the date
hereof and as of each Closing Date:
(a) Due
Organization and Authority. The Seller is a Delaware 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, executive orders 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) Financial
Statements. The Seller has delivered to the Purchaser financial
statements of the Guarantor and its subsidiaries (on a consolidated basis)
as to
its last three complete fiscal years and any later quarter ended more than
60
days prior to the execution of this Agreement. All such financial
statements fairly present the pertinent results of operations and changes in
financial position for each of such periods and the financial position at the
end of each such period of the Guarantor and its subsidiaries and have been
prepared in accordance with
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generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto. In addition, the
Seller has delivered information as to its loan gain and loss experience in
respect of foreclosures and its loan delinquency experience for the immediately
preceding three-year period, in each case with respect to mortgage loans owned
by it and such mortgage loans serviced for others during such period, and all
such information so delivered shall be true and correct in all material
respects. There has been no change in the business, operations,
financial condition, properties or assets of the Guarantor since the date of
the
Guarantor’s financial statements that would have a material adverse effect on
its ability to perform its obligations under the Guarantee. The
Seller has completed any forms requested by the Purchaser in a timely manner
and
in accordance with the provided instructions;
(j) Selection
Process. The Mortgage Loans were selected from among the
outstanding one- to four-family mortgage loans in the Seller’s portfolio at the
related Closing Date as to which the representations and warranties set forth
in
Subsection 9.02 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(k) 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 A
hereto, except for such documents as will be delivered to the
Custodian;
(l) Mortgage
Loan Characteristics. The characteristics of the related Mortgage
Loan Package are as set forth on the description of the pool characteristics
for
the applicable Mortgage Loan Package delivered pursuant to
Section 11 on the related Closing Date in the form attached as
Exhibit B to each related Assignment and Conveyance Agreement;
(m) No
Untrue Information. Neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to
be
furnished pursuant to this Agreement or any Reconstitution Agreement or in
connection with the transactions contemplated hereby (including any
Securitization Transaction or Whole Loan Transfer) contains
or will contain any untrue statement of fact or omits or will omit to state
a
fact necessary to make the statements contained herein or therein not
misleading;
(n) No
Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(o) Sale
Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans will be treated as a sale on the books and
records of the Seller and the Seller has determined that the disposition of
the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes;
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(p) Reasonable
Purchase Price. The consideration received by the Seller upon the
sale of the Mortgage Loans under this Agreement constitutes fair consideration
and reasonably equivalent value for the Mortgage Loans; and
(q) Insured
Depository Institution Representations. Seller is an “insured depository
institution” as that term is defined in Section 1813(c)(2) of Title 12 of the
United States Code, as amended, and accordingly, Seller makes the following
additional representations and warranties:
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(i)
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this
Agreement between Purchaser and Seller conforms to all applicable
statutory and regulatory requirements;
and
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(ii)
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this
Agreement is (1) executed contemporaneously with the agreement
reached by
Purchaser and Seller, (2) approved by a specific corporate or banking
association resolution by the Seller’s board of directors, which approval
shall be reflected in the minutes of said board, and (3) an official
record of the Seller. A copy of such resolution, certified by a
vice
president or higher officer of Seller has been provided to
Purchaser.
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Subsection
9.02 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 for such Mortgage Loan:
(a) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
(b) Payments
Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. 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
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origination
except by a written instrument which has been recorded, if necessary to protect
the interests of the Purchaser, and which has been delivered to the Custodian
or
to such other Person as the Purchaser shall designate in writing, and the terms
of which are reflected in the related Mortgage Loan Schedule. The
substance of any such waiver, alteration or modification has been approved
by
the issuer of any related PMI Policy and the title insurer, if any, to the
extent required by the policy, and its terms are reflected on the related
Mortgage Loan Schedule, if applicable. No Mortgagor has been
released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement
is
part of the Mortgage Loan File delivered to the Custodian or to such other
Person as the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No
Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either
the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject
to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Underwriting Guidelines. If
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration as in effect which
policy conforms with the Underwriting Guidelines. All individual
insurance policies contain a standard mortgagee clause naming the Seller and
its
successors and assigns as mortgagee, and all premiums thereon have been
paid. The Mortgage obligates the Mortgagor thereunder to maintain the
hazard insurance policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor’s cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been given an opportunity
to choose the carrier of the required hazard insurance, provided the policy
is
not a “master” or “blanket” hazard insurance policy covering a
condominium, or any hazard insurance policy covering the common facilities
of a
planned unit development. The hazard insurance policy is the valid
and binding obligation of the insurer, is in full force and effect, and will
be
in full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement. The
Seller has not engaged in, and has no knowledge of the Mortgagor’s having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity
and
binding effect of either including, without limitation, no unlawful fee,
commission, kickback 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;
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(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, abusive
and
fair 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. This representation and
warranty is a Deemed Material and Adverse Representation;
(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,
with respect to each Co-op Loan, 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 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. This representation and
warranty is a Deemed Material and Adverse Representation;
(j) Valid
First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) 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:
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(i)
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with
respect to a Second Lien Loan only, the lien of the first mortgage
on the
Mortgaged Property;
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(ii)
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the
lien of current real property taxes and assessments not yet due
and
payable;
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(iii)
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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
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(iv)
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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.
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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 (with respect to a First Lien
Loan) or second lien (with respect to a Second Lien Loan) and first priority
(with respect to a First Lien Loan) or second priority (with respect to a Second
Lien Loan) security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related
residential cooperative housing corporation for unpaid assessments representing
the Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which
do
not materially interfere with the benefits of the security interest intended
to
be provided by the related Security Agreement;
(k) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage and any
other agreement executed and delivered by a Mortgagor in connection with a
Mortgage Loan are genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms (including,
without limitation, any provisions therein relating to Prepayment
Penalties). 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
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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,
except as may be required of the Seller in its capacity as Interim Servicer
of
such Mortgage Loan. After the related Closing Date, the Seller will
have no right to modify or alter the terms of the sale of the Mortgage Loan
and
the Seller will have no obligation or right to repurchase the Mortgage Loan
or
substitute another Mortgage Loan, except as provided in this
Agreement;
(n) Doing
Business. All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the
period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of
the
state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do
business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or
(3) not doing business in such state;
(o) CLTV,
LTV and PMI Policy. No Mortgage Loan that is a Second Lien Loan
has a CLTV greater than 100%. No Mortgage Loan has an LTV greater
than 100%. Except as otherwise disclosed on the related Mortgage Loan
Schedule, any Mortgage Loan that
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had
at
the time of origination an LTV in excess of 80% is insured as to payment
defaults by a PMI Policy. Any PMI Policy in effect covers the related
Mortgage Loan for the life of such Mortgage Loan. All provisions of
such PMI Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. No
action, inaction, or event has occurred and no state of facts exists that has,
or will result in the exclusion from, denial of, or defense to
coverage. Any Mortgage Loan subject to a PMI Policy obligates the
Mortgagor thereunder to maintain the PMI Policy and to pay all premiums and
charges in connection therewith. The Mortgage Interest Rate for the
Mortgage Loan as set forth on the related Mortgage Loan Schedule is net of
any
such insurance premium if the related PMI Policy is lender-paid;
(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 (with respect to a
First
Lien Loan) or second (with respect to a Second Lien Loan) 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), (ii), (iii) and (iv) of
paragraph (j) of this Subsection 9.02, 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 insured of such lender’s title insurance
policy, and such lender’s title insurance policy is valid and
remains in full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender’s title insurance policy, and no prior
holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No
Defaults. Other than payments due but not yet 30 days or
more delinquent, there is no default, breach, violation or event which would
permit acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration;
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(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. Unless specified on the related
Mortgage Loan Schedule as an interest-only loan or a Balloon Mortgage Loan,
the
Mortgage Note is payable in equal monthly installments of principal (except
for
Mortgage Loans that provide for a fixed period of interest-only payments at
the
beginning of their term) and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date,
with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an original
term of not more than thirty (30) years from commencement of
amortization. With respect to any Mortgage Loan that provides for a
fixed period of interest-only payments at the beginning of its term, at the
end
of such interest-only period, the Monthly Payment will be recalculated so as
to
require Monthly Payments sufficient to amortize the Mortgage Loan fully by
its
stated maturity date. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan, by its original terms or any modification
thereof, does not provide for amortization beyond its scheduled maturity
date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right
to
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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 Agreement). 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. 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. No Mortgaged Property is located in a state, city,
county or other local jurisdiction which the Purchaser has determined in its
sole good faith discretion would cause the related Mortgage Loan to be
ineligible for whole loan sale or securitization in a transaction consistent
with the prevailing sale and securitization industry (including, without
limitation, the practice of the rating agencies) with respect to substantially
similar mortgage loans;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered under
the Custodial 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 A attached hereto,
except for such documents the originals of which have been delivered to the
Custodian;
-31-
(bb) Transfer
of Mortgage Loans. The Assignment of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(cc) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagee
thereunder;
(dd) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant
to which Monthly Payments are paid or partially paid with funds deposited in
any
separate account established by the Seller, the Mortgagor, or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions which may constitute a “buydown”
provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(ff) Consolidation
of Future Advances. Any future advances made to the Mortgagor
prior to the applicable Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount,
as
consolidated, bears
a
single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly insured as
having first (with respect to a First Lien Loan) or second (with respect to
a
Second Lien Loan) 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 and the
Interim Servicer 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
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under
the
control of, the Seller or the Interim Servicer and there exist no deficiencies
in connection therewith for which customary arrangements for repayment thereof
have not been made. All Escrow Payments have been collected in full
compliance with state and federal law and the provisions of the related Mortgage
Note and Mortgage. An escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item
that
remains unpaid and has been assessed but is not yet due and
payable. No escrow deposits or Escrow Payments or other charges or
payments due the Seller have been capitalized under the Mortgage or the Mortgage
Note. All Mortgage Interest Rate adjustments have been made in strict
compliance with state and federal law and the terms of the related Mortgage
and
Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect
to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The
Seller or the Interim Servicer executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state,
federal and local law has been properly paid and credited;
(ii) Conversion
to Fixed Interest Rate. The Mortgage Loan does not contain a
provision whereby the Mortgagor is permitted to convert the Mortgage Interest
Rate from an adjustable rate to a fixed rate;
(jj) Other
Insurance Policies; No Defense to Coverage. No action, inaction
or event has occurred and no state of facts exists or has existed on or prior
to
the Closing Date that has resulted or will result in the exclusion from, denial
of, or defense to coverage under any applicable
hazard insurance policy, PMI Policy or bankruptcy bond (including, without
limitation, any exclusions, denials or defenses which would limit or reduce
the
availability of the timely payment of the full amount of the loss otherwise
due
thereunder to the insured), irrespective of the cause of such failure of
coverage. The Seller has caused or will cause to be performed any and
all acts required to preserve the rights and remedies of the Purchaser in 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;
-33-
(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 origination 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 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 FIRREA 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 Loan, the
Seller has within the last twelve months (unless such Mortgage was originated
within such twelve month period) analyzed the required Escrow Payments for
each
Mortgage and adjusted the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(qq) Credit
Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information furnished
by the Seller to the Purchaser, that Seller has full right and authority and
is
not precluded by law or contract from 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
and shall 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. This representation and warranty is a Deemed Material and
Adverse Representation;
(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
-34-
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 each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and
will
be enforced by the Seller during the period the Seller is acting as Interim
Servicer for the benefit of the Purchaser, and each Prepayment Penalty is
permitted pursuant to federal, state and local law. Each such
Prepayment Penalty is in an amount not more than the maximum amount permitted
under applicable law and no such Prepayment Penalty may provide for a term
in
excess of five (5) years with respect to Mortgage Loans originated prior to
October, 1, 2002. With respect to Mortgage Loans originated on or
after October 1, 2002, the duration of the Prepayment Penalty period shall
not
exceed three (3) years from the date of the Mortgage Note unless the Mortgage
Loan was modified to reduce the Prepayment Penalty period to no more than three
(3) years from the date of the related Mortgage Note and the Mortgagor was
notified in writing of such reduction in Prepayment Penalty
period. With respect to any Mortgage Loan that contains a provision
permitting imposition of a Prepayment Penalty upon a prepayment prior to
maturity: (i) the Mortgage Loan provides some benefit to the Mortgagor (e.g.,
a
rate or fee reduction) in exchange for accepting such Prepayment Penalty, (ii)
prior to the Mortgage Loan’s origination, the Mortgagor was offered the option
of obtaining a mortgage loan that did not require payment of such a penalty
and
(iii) the Prepayment Penalty was adequately disclosed to the Mortgagor in the
mortgage
loan documents pursuant to applicable state, local and federal
law. This representation and warranty is a Deemed Material and
Adverse Representation;
(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. This representation and warranty is a Deemed Material and
Adverse Representation;
(uu) Single-premium
credit life insurance policy. No Mortgagor was required to
purchase any single premium credit insurance policy (e.g., life, mortgage,
disability, property, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment, mortgage or health insurance) in connection with the origination
of the Mortgage Loan. No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan. This representation and warranty is a Deemed Material
and Adverse Representation;
-35-
(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 either (x) a First Lien Loan covered
by a paid in full, life of loan, tax service contract issued by First American
Real Estate Tax Service, and such contract is transferable, or (y) a Second
Lien
Loan subordinate to a First Lien Loan which, to the best of Seller’s knowledge,
is covered by a paid in full, life of loan, tax service contract issued by
First
American Real Estate Tax Service, and such contract is
transferable. On the related Closing Date, the Seller shall remit to
the Purchaser a transfer fee of seven dollars and fifty cents ($7.50) for each
Mortgage Loan covered by such a tax service contract. If such a tax
service contract with First American Real Estate Tax Service is not in place
then a placement fee of seventy-two dollars ($72.00) will apply for each such
Mortgage Loan;
(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
(or modified) on or after October 1, 2002 and before March 7, 2003 which is
secured by property located in the State of Georgia. There is no
Mortgage Loan that was originated on or after March 7, 2003 that is a “high cost
home loan” as defined under the Georgia Fair Lending Act. This
representation and warranty is a Deemed Material and Adverse
Representation;
(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. This representation and warranty is a Deemed Material
and Adverse Representation;
-36-
(eee) Flood
Service Contract. Each Mortgage Loan is covered by a paid in
full, life of loan, flood service contract issued by either First American
Flood
Data Services or Fidelity, and such contract is transferable. If no
such flood service contract is in place, or if such flood service contract
is
issued by an insurer other than First American Flood Data Services or Fidelity,
then on the related Closing Date, the Seller shall remit to the Purchaser a
placement fee of ten dollars ($10.00) for each such Mortgage Loan;
(fff) Negative
Amortization. Except with respect to each Mortgage Loan Package
identified in the related Purchase Price and Terms Agreement as relating to
“Option ARM” mortgage loans and as disclosed in the related Mortgage Loan
Schedule, no Mortgage Loan is subject to negative amortization;
(ggg) Origination
Practices/No Steering. The Mortgagor was not encouraged or required to
select a mortgage loan product offered by the Mortgage Loan’s originator which
is a higher cost product designed for less creditworthy borrowers, unless at
the
time of the Mortgage Loan’s origination, such Mortgagor did not qualify taking
into account such facts as, without limitation, the Mortgage Loan’s requirements
and the Mortgagor’s credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s
originator. If, at the time of loan application, the Mortgagor may
have qualified for a lower-cost credit product then offered by any mortgage
lending affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s
originator referred the Mortgagor’s application to such affiliate for
underwriting consideration. For
a Mortgagor who seeks financing through a Mortgage Loan originator’s
higher-priced subprime lending channel, the Mortgagor was directed towards
or
offered the Mortgage Loan originator’s standard mortgage line if the Mortgagor
was able to qualify for one of the standard products. This
representation and warranty is a Deemed Material and Adverse
Representation;
(hhh) Underwriting
Methodology. The methodology used in underwriting the extension
of credit for each Mortgage Loan does not rely solely on the extent of the
Mortgagor’s equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed
objective criteria such as the Mortgagor’s income, assets and liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the
time of origination (application/approval) the Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse
Representation;
(iii) Points
and Fees. No Mortgagor was charged “points and fees” (whether or
not financed) in an amount greater than (i) $1,000, or (ii) 5% of the
principal amount of such Mortgage Loan, whichever is greater. For
purposes of this representation, such 5% limitation is calculated in accordance
with ▇▇▇▇▇▇ Mae’s anti-predatory lending requirements as set forth in the ▇▇▇▇▇▇
▇▇▇ Guides and “points and fees” (x) include origination, underwriting,
broker and finder fees and charges that the mortgagee imposed as a condition
of
making the Mortgage Loan, whether they are paid to the mortgagee or a third
party; and (y) exclude bona fide discount points, fees paid for
actual services rendered in connection with the origination of the
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Mortgage
Loan (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections), the cost of mortgage insurance or
credit-risk price adjustments, the costs of title, hazard, and flood insurance
policies, state and local transfer taxes or fees, escrow deposits for the future
payment of taxes and insurance premiums, and other miscellaneous fees and
charges which miscellaneous fees and charges, in total, do not exceed 0.25%
of
the principal amount of such Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(jjj) Fees
Charges. All points, fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan have been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation. This representation and warranty is a
Deemed Material and Adverse Representation; and
(kkk) Balloon
Mortgage Loans. No Balloon Mortgage Loan has an original stated
maturity of less than seven (7) years; and
(lll) Second
Lien Loans. With respect to each Second Lien Loan:
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(i)
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No
Negative Amortization of Related First Lien Loan. The
related first lien loan does not permit negative
amortization;
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(ii)
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Request
for Notice; No Consent Required. Where required or
customary in the jurisdiction in which the Mortgaged Property is
located,
the original lender has filed for record a request for notice of
any
action by the related senior lienholder, and the Seller has notified
such
senior lienholder in writing of the existence of the Second Lien
Loan and
requested notification of any action to be taken against the Mortgagor
by
such senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien loan
or (b)
such consent has been obtained and is contained in the related Mortgage
File;
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(iii)
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No
Default Under First Lien. To the best of Seller’s
knowledge, the related first lien loan is in full force and effect,
and
there is no default lien, breach, violation or event which would
permit
acceleration existing under such first lien mortgage or mortgage
note, and
no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation
or event which would permit acceleration under such first lien
loan;
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(iv)
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Right
to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default
or breach
to the mortgagee under the Mortgage Loan and allows such mortgagee
to cure
any default under the related first lien mortgage;
and
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(v)
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Principal
Residence. The related Mortgaged Property is the
Mortgagor’s principal residence. This representation and
warranty is a Deemed Material and Adverse
Representation.
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Subsection
9.03 Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 9.01 and 9.02 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 failure to examine any Mortgage
File. With respect to any representation or warranty contained in
Subsections 9.01 or 9.02 hereof that is made to the Seller’s
knowledge, if it is discovered by the Purchaser that the substance of such
representation and warranty was inaccurate as of the related Closing Date and
such inaccuracy materially and adversely affect the value of the related
Mortgage Loan, then notwithstanding the Seller’s lack of knowledge with respect
to the inaccuracy at the time the representation or warranty was made, such
inaccuracy shall be deemed a breach of the applicable representation or
warranty. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other relevant
parties.
Within
sixty (60) days after the earlier of either discovery by or notice to the Seller
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, at the Purchaser’s option, repurchase such Mortgage Loan or
Mortgage Loans at the Repurchase Price. Notwithstanding the above
sentence, (i) within sixty (60) days after the earlier of either discovery
by, or notice to, the Seller of any breach of the representation and warranty
set forth in clause (vv) of Subsection 9.02, the Seller shall
repurchase such Mortgage Loan at the Repurchase Price and (ii) any breach
of a Deemed Material and Adverse Representation shall automatically be deemed
to
materially and adversely affect the value of the Mortgage Loan or the interest
of the Purchaser therein. In the event that a breach shall involve
any representation or warranty set forth in Subsection 9.01, and
such breach cannot be cured within 60 days of the earlier of either discovery
by
or notice to the Seller of such breach, all of the Mortgage Loans affected
by
such breach shall, at the Purchaser’s option, be repurchased by the Seller at
the Repurchase Price. However, if the breach shall involve a
representation or warranty set forth in Subsection 9.02 (except as
provided in the second sentence of this paragraph with respect to certain
breaches for which no substitution is permitted) and the Seller discovers or
receives notice of any such breach within 120 days of the related Closing
Date, the Seller shall, at the Purchaser’s option and provided that the
Seller has a Qualified Substitute Mortgage Loan, rather than repurchase the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute in
its
place a Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage
Loans, provided, however, that any such substitution shall be
effected within such one hundred twenty (120) days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it
shall repurchase the deficient Mortgage Loan at the Repurchase
Price. Any repurchase of a Mortgage Loan pursuant to the foregoing
provisions of this Subsection 9.03 shall occur on a date designated
by the Purchaser, and acceptable to Seller, and shall be accomplished by either
(a) if the Interim Servicing Agreement has been entered into and is in
effect, deposit in the Custodial Account of the amount of the Repurchase Price
for distribution to the Purchaser on the next scheduled Remittance Date,
after
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deducting
therefrom any amount received in respect of such repurchased Mortgage Loan
or
Loans and being held in the Custodial Account for future distribution or
(b) if the Interim Servicing Agreement has not been entered into or is no
longer in effect, by direct remittance of the Repurchase Price to the Purchaser
or its designee in accordance with the Purchaser’s instructions.
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 reassignment
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 Custodian
relating to the repurchased Mortgage Loan (or Deleted Mortgage
Loan). In the event of a repurchase or substitution, the Seller
shall, simultaneously with such reassignment, give written notice to the
Purchaser that such repurchase or substitution has taken place, amend the
Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan
from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to this
Agreement. In connection with any such substitution, the Seller shall
be deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement
except that all such representations and warranties set forth in this Agreement
shall be deemed made as of the date of such substitution. The Seller
shall effect such substitution by delivering to the Custodian or to such other
party as the Purchaser may designate in writing for such Qualified Substitute
Mortgage Loan the documents required by Subsection 6.03 and the
Custodial Agreement, with the Mortgage Note endorsed as required by
Subsection 6.03 and the Custodial Agreement. No
substitution will be made in any calendar month after the Determination Date
for
such month. The Seller shall cause the Interim Servicer to remit
directly to the Purchaser, or its designee in accordance with the Purchaser’s
instructions the Monthly Payment less the Servicing Fee due, if any, on such
Qualified Substitute Mortgage Loan or Loans in the month following the date
of
such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by
the
Seller. For the month of substitution, distributions to the Purchaser
shall include the Monthly Payment due on any Deleted Mortgage Loan in the month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received by the Seller in respect of such Deleted Mortgage
Loan. 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 9.01 and 9.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of
substitution). The amount of such shortfall shall be distributed by
the Seller directly to the
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Purchaser
or its designee in accordance with the Purchaser’s instructions within two (2)
Business Days of such substitution. Accordingly, on the date of such
substitution, the Seller will remit to the Purchaser from its own funds an
amount equal to the amount of such shortfall plus one month’s interest thereon
at the applicable Mortgage Interest Rate minus the related Servicing
Fee.
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 any Successor Servicer and its present and former
directors, officers, employees and agents and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Seller representations and warranties contained in this Agreement
or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection 9.03 to cure,
repurchase or substitute for a defective Mortgage Loan and to indemnify the
Purchaser and Successor Servicer as provided in this Subsection 9.03
and in Subsection 14.01 constitute the sole remedies of the
Purchaser and Successor Servicer respecting breach
of
the foregoing representations and warranties. For purposes of this
paragraph “Purchaser” shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were “Purchasers” under
this Agreement and “Successor Servicer” shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were “Successor Servicers” pursuant to this Agreement.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 9.01 and
9.02 shall accrue as to any Mortgage Loan upon (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser,
(ii) failure by the Seller to cure such breach, substitute a Qualified
Substitute Mortgage Loan, or repurchase such Mortgage Loan as specified above
and (iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
Subsection
9.04 Repurchase
of Mortgage Loans with First Payment Defaults.
If
any
Mortgagor is delinquent with respect to the related Mortgage Loan’s first two
(2) Monthly Payments at any time either (i) after the origination of such
Mortgage Loan, or (ii) after the related Closing Date, the Seller shall, at
the
Purchaser’s option, repurchase such Mortgage Loan from the Purchaser at the
Repurchase Price within thirty (30) days of request for repurchase.
Subsection
9.05 Premium
Recapture.
With
respect to any Mortgage Loan that prepays in full during the first sixty (60)
days following the related Closing Date, the Seller shall pay the Purchaser,
within three (3) 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, less the amount of any
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Prepayment
Penalties actually received by the Purchaser prior to the date the Seller makes
such payment to the Purchaser.
SECTION
10. 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.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
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(i)
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at
least two Business Days prior to the related Closing Date, the Seller
shall deliver to the Purchaser a magnetic diskette, or transmit by
modem,
a listing on a loan-level basis of the necessary information to compute
the Purchase
Price of the Mortgage Loans delivered on such Closing Date (including
accrued interest), and prepare a Mortgage Loan
Schedule;
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(ii)
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all
of the representations and warranties of the Seller under this Agreement
and of the Interim Servicer under the Interim Servicing Agreement
(with
respect to each Mortgage Loan for an interim period, as specified
therein)
shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement or an Event of Default
under the
Interim Servicing Agreement;
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(iii)
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the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents as specified in
Section 11 of this Agreement, in such forms as are agreed upon
and acceptable to the Purchaser, duly executed by all signatories
other
than the Purchaser as required pursuant to the terms
hereof;
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(iv)
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the
Seller shall have delivered and released to the Custodian all documents
required pursuant to the Custodial Agreement;
and
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(v)
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all
other terms and conditions of this Agreement and the related Purchase
Price and Terms Agreement shall have been complied
with.
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Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 4 of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
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SECTION
11. Closing
Documents.
The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
(A) this
Agreement (to be executed and delivered only for the initial Closing
Date);
(B) with
respect to the initial Closing Date, the Custodial Agreement, dated as of the
initial Cut-off Date;
(C) with
respect to the initial Closing Date, the Guarantee, in the form of Exhibit
I hereto, dated as of the initial Cut-off Date;
(D) the
related Mortgage Loan Schedule (one copy to be attached to the Custodian’s
counterpart of the Custodial Agreement in connection with the initial Closing
Date, and one copy to be attached to the related Assignment and Conveyance
as
the Mortgage Loan Schedule thereto);
(E) a
Custodian’s Certification, as required under the Custodial Agreement, in the
form of Exhibit 2 to the Custodial Agreement;
(F) with
respect to the initial Closing Date, an Officer’s Certificate, in the form of
Exhibit C hereto with respect to each of the Guarantor, the Seller
and the Interim Servicer, including all attachments thereto; with respect to
subsequent Closing Dates, an Officer’s Certificate upon request of the
Purchaser;
(G) with
respect to the initial Closing Date, an Opinion of Counsel of each of the
Guarantor, the Seller and the Interim Servicer (who may be an employee of the
Guarantor, the Seller or the Interim Servicer, as applicable), generally in
the
form of Exhibit D hereto (“Opinion of Counsel of the
Seller”); with respect to subsequent Closing Dates, an Opinion of Counsel of
the Seller upon request of the Purchaser;
(H) 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(s), if required;
(I) a
Security Release Certification, in the form of Exhibit E or
F, 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;
(J) 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;
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(K) with
respect to the initial Closing Date, the Underwriting Guidelines to be attached
hereto as Exhibit G and with respect to each subsequent Closing Date, the
Underwriting Guidelines to be attached to the related Assignment and
Conveyance;
(L) Assignment
and Conveyance Agreement in the form of Exhibit H hereto, and all
exhibits thereto; and
(M) a
MERS Report reflecting the Purchaser as Investor, the Custodian as custodian
and
no Person as Interim Funder for each MERS Designated Mortgage Loan.
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
12. 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
Loans and the Servicing Rights 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
13. 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:
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(i)
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▇▇▇▇▇▇
▇▇▇ under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each, a “▇▇▇▇▇▇ Mae Transfer”);
or
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(ii)
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▇▇▇▇▇▇▇
Mac (the “▇▇▇▇▇▇▇ Mac Transfer”);
or
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(iii)
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one
or more third party purchasers in one or more Whole Loan Transfers;
or
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(iv)
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one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
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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 Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties (collectively, the agreements
referred to herein are designated the “Reconstitution Agreements”),
together with an opinion of counsel with respect thereto.
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With
respect to each Whole Loan Transfer and each Securitization Transaction 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 required by the Purchaser; and (3) to restate the
representations and warranties set forth in Subsections 9.01 and
9.02 as of the settlement or closing date (or as of the related
Closing
Date with respect to the representations and warranties set forth in Subsections
9.02 (s), (w), (gg) and (kk)) in connection with such Reconstitution or make
the
representations and warranties set forth in the related selling/servicing guide
of the servicer or issuer, as the case may be, 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. 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 request;
(ii) such additional representations, warranties, covenants, opinions of
counsel, letters from auditors,
and certificates of public officials or officers of the Seller or the Interim
Servicer as are reasonably believed necessary by the Purchaser or any such
other
participant; and (iii) to 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 B. 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 in any way related to any information provided
by
or on behalf of the Seller regarding the Seller, the Mortgage Loans or the
Underwriting Guidelines set forth 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.
In
the
event the Purchaser has elected to have the Seller or the Interim Servicer
hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller or the Interim Servicer, as
applicable, acceptable to the prospective purchaser or trustee, as applicable,
for each Mortgage Loan that is part of the Reconstitution and shall pay all
preparation and recording costs associated therewith. In connection
with the Reconstitution, the Seller shall execute or shall cause the Interim
Servicer to execute each assignment of mortgage, track such Assignments of
Mortgage to ensure they have been recorded and deliver them as required by
the
prospective purchaser or trustee, as applicable, upon the Seller’s receipt
thereof. Additionally, the Seller shall prepare and execute or shall
cause the Interim Servicer to execute, at the direction of the Purchaser, any
note endorsement in connection with any and all seller/servicer
agreements.
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All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if the Interim Servicing Agreement shall remain
in effect with respect to the related Mortgage Loan Package, shall continue
to
be serviced in accordance with the terms of this Agreement and the Interim
Servicing Agreement and with respect thereto this Agreement shall remain in
full
force and effect.
SECTION
14. The
Seller.
Subsection
14.01 Additional
Indemnification by the Seller; Third Party Claims.
(a) The
Seller shall indemnify any Purchaser and its present and former directors,
officers, employees and agents and the Successor Servicer and its present and
former directors, officers, employees and agents, and hold such parties harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and expenses (including legal fees and expenses incurred in
connection with the enforcement of the Seller’s indemnification obligation
under this Subsection 14.01) and related costs, judgments, and any
other costs, fees and expenses that such parties may sustain in any way related
to the failure of the Seller to perform its duties and the Interim Servicer
to
service the Mortgage Loans in strict compliance with the terms of this Agreement
or any Reconstitution Agreement entered into pursuant to Section 13
or any breach of any of Seller’s representations, warranties and covenants set
forth in this Agreement. For purposes of this clause “Purchaser”
shall mean the Person then acting as the Purchaser under this Agreement and
any
and all Persons who previously were “Purchasers” under this Agreement and
“Successor Servicer” shall mean any Person designated as the Successor Servicer
pursuant to this Agreement and any and all Persons who previously were
“Successor Servicers” pursuant to this Agreement.
(b) Promptly
after receipt by an indemnified party under this Subsection 14.01 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 14.01, 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 14.01, except to the extent
that it has been prejudiced in any material respect, or from any liability
which
it may have, otherwise than under this
Subsection 14.01. 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
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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
14.02 Merger
or Consolidation of the Seller.
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least
$25,000,000.
SECTION
15. Financial
Statements.
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
audited financial statements of the Seller for the most recently completed
three
fiscal years respecting which such statements are available, as well as a
Consolidated Statement of Condition of the Seller at the end of the last two
fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable
interim statements to the extent any such statements have been prepared by
the
Seller (and are available upon request to members or stockholders of the Seller
or the public at large). The Seller, if it has not already done so,
agrees to furnish promptly to the Purchaser copies of the statements specified
above. The Seller shall also make available information on its
servicing performance with respect to loans serviced for others, including
delinquency ratios.
The
Seller also agrees to allow reasonable access to a knowledgeable financial
or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller or
the
financial statements of the Seller.
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SECTION
16. 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 Agreement, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller’s failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. 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 Agreement,
and the Seller agrees that it shall hold such Mortgage Loans in custody for
the
Purchaser subject to the Purchaser’s (a) 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 (b) 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
17. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
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(i)
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if
to the Seller:
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Flagstar
Capital Markets Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Executive Vice President
Fax:▇▇▇-▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
with
a
copy to:
Flagstar
Capital Markets Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
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(ii)
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if
to the Purchaser:
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
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1221
Avenue of the ▇▇▇▇▇▇▇▇
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▇▇▇▇▇
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▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ - Whole Loan Operations
Manager
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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with
copies to:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ – Servicing Oversight
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▇-▇▇▇ ▇▇▇
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▇▇▇
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▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ - RFPG
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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).
SECTION
18. 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.
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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. 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
21. Successors and
Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective 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.
SECTION
22. 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
23. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
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SECTION
24. 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
25. Reproduction of
Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the
original itself in any judicial or administrative proceeding, whether or not
the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile
or
further reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
26. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
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SECTION
27. Recordation of
Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or their comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
SECTION
28. 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 (via electronic means
or
otherwise), 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, or any of its respective
affiliates:
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(i)
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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 and any of its
affiliates (those it owns as well as those serviced for others);
and
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(ii)
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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.
|
Promotions
undertaken by the Seller or by any affiliate of the Seller which are directed
to
the general public at large (including, without limitation, mass mailing based
on commercially acquired mailing lists, newspaper, radio and television
advertisements), shall not constitute solicitation under this
Section 28.
SECTION
29. Waiver of Trial by
Jury.
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.
SECTION
30. 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 ▇▇▇ ▇▇▇▇▇ ▇▇
-▇▇-
▇▇▇
▇▇▇▇
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
31. Amendment. This
Agreement may be amended from time to time by the Purchaser and the Seller
by
written agreement signed by the parties hereto.
SECTION
32. Confidentiality.
Each
of
the Purchaser and the Seller 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
and the Seller 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
33. 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.
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SECTION
34. Compliance with
Regulation AB
Subsection
34.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of
Section 34 of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed securities that are
registered under the Securities Act, the Seller acknowledges that investors
in
privately offered securities may require that the Purchaser or any Depositor
provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation
AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or
any
Depositor to be necessary in order to effect such compliance.
Subsection
34.02 Additional
Representations and Warranties of the Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Subsection 34.03 that, except as disclosed in writing to
the Purchaser or such Depositor prior to such date: (i) the
Seller is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Seller; (ii) the
Interim Servicer has not been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; (iii) no material noncompliance with
the applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Interim Servicer as servicer has been
disclosed or reported by the Seller; (iv) no material changes to the
Interim Servicer’s policies or procedures with respect to the servicing function
it will perform under the Interim Servicing Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the
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three-year
period immediately preceding the related Securitization Transaction;
(v) there are no aspects of the Interim Servicer’s financial condition that
could have a material adverse effect on the performance by the Interim Servicer
of its servicing obligations under the Interim Servicing Agreement or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller, Interim
Servicer, any Subservicer or any Third-Party Originator; and (vii) there
are no affiliations, relationships or transactions relating to the Seller,
Interim Servicer, any Subservicer or any Third-Party Originator with respect
to
any Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
(b) If
so requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Subsection 34.03, the Seller shall, within five Business Days following
such request, confirm in writing the accuracy of the representations and
warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
Subsection
34.03 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five Business Days following request by the Purchaser or any Depositor, provide
to the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a) and (b) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, as is requested for the purpose of
compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation
AB. Such information shall include, at a minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
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(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller and each Third-Party Originator;
and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator and any of the following parties to a Securitization
Transaction, as such parties are identified to the Seller by the Purchaser
or
any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information
shall be prepared in form and substance reasonably satisfactory to the Purchaser
by the Seller (or Third-Party Originator) on the basis of its reasonable, good
faith interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation
AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information provided,
such as a portable document format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
-56-
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of
such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example,
any Sponsor, any Depositor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved]
(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of (A)
any
material litigation or governmental proceedings pending against the Seller
or
any Third-Party Originator and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between
the
Seller or any Third-Party Originator and any of the parties specified in clause
(D) of paragraph (a) of this Section (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or relationships.
Subsection
34.04 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, the
Depositor and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall 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 any of them may sustain arising out of or based upon:
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(i)
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(A) any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants’ letter or other
material provided in written or electronic form under this
Section 34
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-57-
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by
or on behalf of any Third-Party Originator (collectively, the “Seller
Information”), or (B) the omission or alleged omission to state
in the Seller Information a material fact required to be stated in
the
Seller Information or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of
this
paragraph shall be construed solely by reference to the Seller Information
and not to any
other
information communicated in connection with a sale or purchase
of
securities, without regard to whether the Seller Information or
any
portion thereof is presented together with or separately from such
other
information;
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(ii)
|
any
failure by the Seller or any Third-Party Originator to deliver any
information, report, certification, accountants’ letter or other material
when and as required under this Section 34;
or
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(iii)
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any
breach by the Seller of a representation or warranty set forth in
Subsection 34.02(a) or in a writing furnished pursuant to
Subsection 34.02(b) and made as of a date prior to the closing date
of the related Securitization Transaction, to the extent that such
breach
is not cured by such closing date, or any breach by the Seller of
a
representation or warranty in a writing furnished pursuant to
Subsection 34.02(b) to the extent made as of a date subsequent to
such closing date.
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In
the
case of any failure of performance described in clause (a)(ii) of this
Section, the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
(b) Any
failure by the Seller or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Section 34, or any breach by the Seller of a
representation or warranty set forth in Subsection 34.02(a) or in a
writing furnished pursuant to Subsection 34.02(b) and made as of a date
prior to the closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Subsection 34.02(b) to the extent made as of a date subsequent to such
closing date, shall immediately and automatically, without notice or grace
period, constitute an Event of Default with respect to the Seller under this
Agreement and any applicable Reconstitution Agreement, and shall entitle the
Purchaser or Depositor, as applicable, in its sole discretion to terminate
the
rights and obligations of the Interim Servicer as servicer under the Interim
Servicing Agreement and/or any applicable Reconstitution Agreement without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution
-58-
Agreement
to the contrary) of any compensation to the Interim Servicer; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Interim Servicer as servicer, such
provision shall be given effect.
[Signature
Page Follows]
-59-
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
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By:
_____________________________________
Name:
Title:
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FLAGSTAR
CAPITAL MARKETS CORPORATION
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By:
_____________________________________
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Executive
Vice President
EXHIBIT
A-1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall include each
of
the following items, which shall be available for inspection by the Purchaser
and any prospective Purchaser, and which shall be delivered to the Custodian,
or
to such other Person as the Purchaser shall designate in writing, pursuant
to
Section 6 of the Mortgage Loan Purchase and Warranties Agreement to
which this Exhibit is attached (the “Agreement”):
(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
A-1-1
be
duly
recorded only if recordation is either necessary under applicable law or
commonly required by private institutional mortgage investors in the area where
the Mortgaged Property is located or on direction of the Purchaser as provided
in this Agreement. If the Assignment of Mortgage is to be recorded,
the Mortgage shall be assigned to the Purchaser. If the Assignment of
Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered
in
blank. If the Mortgage Loan was acquired by the Seller in a merger,
the Assignment of Mortgage must be made by “[Seller], successor by merger to
[name of predecessor]”. If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by “[Seller], formerly known as [previous
name]”;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, a photocopy of such intervening assignment, together
with (i) in the case of a delay caused by the public recording office, an
Officer’s Certificate of the Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy
of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance 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
financing statement filed by the originator as secured party and, if applicable,
a filed UCC-3 assignment of the subject security interest showing a complete
chain
of
title, together with an executed UCC-3 assignment of such security interest
by
the Seller in a form sufficient for filing; and
A-1-2
(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 holder of
the
original power of attorney to be a true and correct copy of the
original.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within 90 days
of
the related Closing Date, an Officer’s Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered to
the Custodian; provided, however, that any recorded document shall in
no event be delivered later than one year following the related Closing
Date. An extension of the date specified in clause (iv) above
may be requested from the Purchaser, which consent shall not be unreasonably
withheld.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
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 Interim 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 ▇▇▇▇▇▇ ▇▇▇ 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.
Evidence
of electronic notation of the hazard insurance policy, and, if required by
law,
evidence of the flood insurance policy.
A-2-1
EXHIBIT
B
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 [_____________], a
[_______________] (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], and
[_______________] (the “Initial Purchaser[s]”) to enter into the
Certificate Purchase Agreement, dated [____________] (the “Certificate
Purchase Agreement”) between the Depositor and the Initial Purchaser[s],
Seller has agreed to provide for indemnification and contribution on the terms
and conditions hereinafter set forth;
WHEREAS,
▇▇▇▇▇▇ purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”) pursuant to a Mortgage Loan Purchase
and Warranties Agreement, dated as of February 1, 2007 (the “Purchase
Agreement”), by and between ▇▇▇▇▇▇ and Seller; and
WHEREAS,
pursuant to Section 13 of the Purchase Agreement, the Seller has agreed to
indemnify the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s]
and their respective affiliates, present and former directors, officers,
employees and agents.
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], the Initial Purchaser[s] and their respective affiliates and
their respective
B-1
present
and former directors, officers, employees and agents and each person, if any,
who controls the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s]
or such affiliate 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, the Offering Circular, the ABS Informational and Computational
Materials or in the Free Writing Prospectus or any omission or alleged omission
to state in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or in the Free Writing Prospectus
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,
the Offering Circular, the ABS Informational and Computational Materials or
the
Free Writing Prospectus and agrees to reimburse the Depositor, ▇▇▇▇▇▇, the
Underwriter[s], the Initial Purchaser[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, (i) any breach of the representation and warranty set forth in Section
2(vii) below or (ii) 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], the Initial Purchaser[s] their affiliates or any such director,
officer, employee, agent or controlling person of the Depositor, ▇▇▇▇▇▇, the
Underwriter[s], the Initial Purchaser[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 set forth
in
the Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus [and static pool
information regarding mortgage loans originated or acquired by the Seller [and
included in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or the Free Writing Prospectus]
[incorporated by reference from the website located at
______________].
“Free
Writing Prospectus” means any written communication that constitutes a “free
writing prospectus,” as defined in Rule 405 under the 1933 Act.
“ABS
Informational and Computational Material” means any written communication as
defined in Item 1101(a) of Regulation AB under the 1933 Act and the 1934 Act,
as
may be amended from time to time.
B-2
“Offering
Circular” means the offering circular, dated [__________] relating to the
private offering of the [_______________] Certificates.
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506–1,631 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
(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.
B-3
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], the Initial Purchaser[s] their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s] or any
such
affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates or the Private 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;
B-4
(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;
(vi) this
Agreement has been duly executed and delivered by Seller; and
(vii) the
Seller represents that the Seller Information satisfies the requirements of
the
applicable provisions of Regulation AB.
3. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or faxed or emailed and confirmed
by mail [______________________]; if sent to ▇▇▇▇▇▇, ▇▇▇▇ be mailed, delivered
or faxed or emailed and confirmed by mail to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - Whole Loans Operations
Manager, Fax: [_______],
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with copies to
(i) ▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – Legal Counsel, Securities, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____],
Email: ▇▇▇▇▇.▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – SPG Finance, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____],
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; if to the Depositor, will be
mailed, delivered or telegraphed and confirmed to [____________________]; or
if
to the Underwriter[s], will be mailed, delivered or telegraphed and confirmed
to
[_____________________]; or if to the Initial Purchaser[s], will be mailed,
delivered or telegraphed and confirmed to [_____________________].
B-5
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]
B-6
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this __th day
of
[_____________].
|
|
[DEPOSITOR]
|
By:
______________________________
Name:
Title:
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
|
By:
______________________________
Name:
Title:
|
|
FLAGSTAR
CAPITAL MARKETS CORPORATION
|
By:
______________________________
Name:
Title:
B-7
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected
[Vice] President of ________________[COMPANY], a [state] [federally]
chartered institution organized under the laws of the [state of ____________]
[United States] (the “Company”) and further as follows:
1. Attached
hereto as Exhibit 1 is a true, correct and complete copy of the charter
of the Company which is in full force and effect on the date hereof 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 (a) the Mortgage Loan Purchase and Warranties
Agreement, dated as of _______ __, 200_ (the “Purchase Agreement”), by
and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the “Purchaser”) and
the Company and (b) the Custodial Agreement, dated as of _______ __, 200_
(the “Custodial Agreement”), by and between the Purchaser and [CUSTODIAN]
(the “Custodian”), [the Guarantee, dated as of [______], 2007 by Flagstar
Bank, FSB (the “Guarantee”)] [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 [Purchase
Agreement] [Guarantee] [the sale of the mortgage loans] or the consummation
of
the transactions contemplated by the agreement[s]; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the [Purchase Agreement and the Interim Servicing Agreement]
[Guarantee] 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,
C-1
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.
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 [Purchase Agreement and the Interim Servicing Agreement]
[Guarantee], or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be likely
to impair materially the ability of the Company to perform under the terms
of
the [Purchase Agreement and the Interim Servicing Agreement]
[Guarantee].
8. Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Company, signed (a) the Purchase Agreement,
(b) the Interim Servicing Agreement, (c) [the Guarantee] and (d) 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 [Purchase Agreement and the Interim Servicing Agreement]
[the Guarantee].
C-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
|
Dated:
________________________________
[Seal]
|
By: ________________________________
Name:
Title: [Vice]
President
|
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
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:
________________________________
[Seal]
|
By: ________________________________
Name:
Title: [Assistant]
Secretary
|
C-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
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||||
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||||
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C-4
EXHIBIT
D
FORM
OF
OPINION OF COUNSEL TO THE GUARANTOR AND THE SELLER
(date)
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to
___________________ (the “Company”), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans pursuant to that
certain Mortgage Loan Purchase and Warranties Agreement by and between the
Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the “Purchaser”), dated
as of February 1, 2007 (the “Purchase Agreement”) which sale is in the
form of whole loans, delivered pursuant to a Custodial Agreement dated as of
_____ __, ____, by and between the Purchaser and ______________________
[CUSTODIAN] (the “Custodial Agreement”, and collectively with the
Purchase Agreement, the “Agreements”). Capitalized terms not
otherwise defined herein have the meanings set forth in the Purchase
Agreement.
[We]
[I]
have examined the following documents:
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|
1.
|
the
Purchase Agreement;
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|
|
2.
|
the
Custodial Agreement;
|
|
|
3.
|
the
form of Assignment of Mortgage;
|
|
|
4.
|
the
form of endorsement of the Mortgage
Notes;
|
|
|
5.
|
the
Guarantee; and
|
|
|
6.
|
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 each of the Guarantor, the Company and the
Interim Servicer contained in the Guarantee, in the Purchase Agreement and
in
the Interim 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.
D-1
Based
upon the foregoing, it is [our] [my] opinion that:
|
|
1.
|
The
Company and the Interim Servicer 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
Guarantor is a federally-chartered savings bank 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 United States.
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|
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3.
|
Each
of the Company, the Guarantor and the Interim Servicer has the power
to
engage in the transactions contemplated by the Agreements to which
it is a
party 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.
|
|
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4.
|
Each
of the Agreements to which it is a party has been duly authorized,
executed and delivered by the Company, the Guarantor and/or the Interim
Servicer and is a legal, valid and binding agreement enforceable
in
accordance with its respective terms against the Company, the Guarantor,
and/or the Interim Servicer 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.
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|
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5.
|
Each
of the Company, the Guarantor and the Interim Servicer 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.
|
|
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6.
|
Each
of the Company, the Guarantor and the Interim Servicer 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.
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|
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7.
|
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, the Guarantor or the Interim Servicer
of or
compliance by the Company with the Agreements to which it is a party
and
the sale of the Mortgage Loans by the Company or the
consummation
|
D-2
|
|
of
the transactions contemplated by the Agreements or (ii) any required
consent, approval, authorization or order has been obtained by the
Company, the Guarantor or the Interim
Servicer.
|
|
|
8.
|
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 Guarantor or the
Interim
Servicer, as applicable, the terms of any indenture or other agreement
or
instrument to which the Company, the Guarantor or the Interim Servicer
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,
the
Guarantor or the Interim Servicer is subject or by which it is
bound.
|
|
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9.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
[our] [my] knowledge, threatened against the Company, the Guarantor
or the
Interim Servicer 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, the Guarantor or the Interim Servicer or in any material
impairment of the right or ability of the Company, the Guarantor
or the
Interim Servicer to carry on its business substantially as now conducted
or in any material liability on the part of the Company, the Guarantor
or
the Interim Servicer which would draw into 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, the Guarantor
or
the Interim Servicer to perform under the terms of the Agreements
to which
it is a party.
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|
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10.
|
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Agreements is sufficient to fully transfer to the Purchaser
all
right, title and interest of the Company thereto as noteholder and
mortgagee.
|
|
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11.
|
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
|
D-3
|
|
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 the date of this opinion.
Very
truly yours,
_______________________________
[Name]
[Assistant]
General Counsel
D-4
EXHIBIT
E
FORM
OF
SECURITY RELEASE CERTIFICATION
___________________,
200__
[Federal
Home Loan Bank of
______(the
“Association”)]
___________________________
___________________________
___________________________
Attention:
___________________
___________________
|
|
Re:
|
Notice
of Sale and Release of Collateral
|
Dear
Sirs:
This
letter serves as notice that ________________________[COMPANY] a [type of
entity], organized pursuant to the laws of [the State of incorporation] (the
“Company”) has committed to sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
under a Mortgage Loan Purchase and Warranties Agreement, dated as of February
1,
2007, certain mortgage loans originated by the Association. 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 the Association 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 the Association. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 the
Association, and confirms that it has no interest therein.
Execution
of this letter by the Association shall constitute a full and complete release
of any security interest, claim, or lien which the Association may have against
the mortgage loans to be sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc.
E-1
Very
truly yours,
____________________
By:
____________________
Name:
__________________
Title:
___________________
Date:
___________________
Acknowledged
and approved:
|
|
[FEDERAL
HOME LOAN BANK OF]
|
By:
___________________________
Name:
_________________________
Title:
__________________________
Date:
__________________________
E-2
EXHIBIT
F
FORM
OF
SECURITY RELEASE CERTIFICATION
I.
Release of Security Interest
The
financial institution named below hereby relinquishes any and all right, title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule A (the “Mortgage Loans”), to be purchased
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. from the company named on the next
page
(the “Company”) pursuant to that certain Mortgage Loan Purchase and
Warranties Agreement, dated as of February 1, 2007, 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 or its
designees, as of the date and time of the sale of such Mortgage Loans to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. Such release shall be effective
automatically without any further action by any party upon payment in one or
more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name,
Address and Wire Instructions of Financial Institution
____________________________
(Name)
____________________________
(Address)
____________________________
____________________________
____________________________
By:
_________________________
F-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:
___________________________________
F-2
EXHIBIT
G
UNDERWRITING
GUIDELINES
G-1
EXHIBIT
H
FORM
OF
ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this
___ day of _______, 200_, [____________] (“Seller”), as the Seller under
(i) that certain Purchase Price and Terms Agreement, dated as of _________,
200__ (the “PPTA”), and (ii) that certain Mortgage Loan Purchase and
Warranties Agreement, dated as of February 1, 2007 (the “Purchase
Agreement”), does hereby sell, transfer, assign, set over and convey to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (“Purchaser”) as the Purchaser under
the Agreements (as defined below) 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 the related
Servicing Rights 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 Purchase Agreement, the Seller has delivered to the
Custodian the documents for each Mortgage Loan to be purchased as set forth
in
the Purchase Agreement. The contents of each Servicing File required
to be retained by the Interim Servicer to service the Mortgage Loans pursuant
to
the Interim Servicing Agreement and thus not delivered to the Purchaser are
and
shall be held in trust by the Interim Servicer in its capacity as Interim
Servicer for the benefit of the Purchaser as the owner thereof. The
Interim 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 Interim Servicing Agreement, and such
retention and possession by the Interim 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 shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Seller at the will of the Purchaser in a custodial capacity
only. The PPTA and the Purchase Agreement shall collectively be
referred to as the “Agreements” herein.
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 Purchase 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 Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
H-1
FLAGSTAR
CAPITAL MARKETS CORPORATION
By:
______________________________________
Name:
______________________________
Title:
_______________________________
Accepted
and Agreed:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:
_____________________________________
Name: ______________________________
Name: ______________________________
Title:
______________________________
H-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
H-3
EXHIBIT
B
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) a CLTV of greater than ____%; (4) a FICO
Score of less than ___; or (5) a debt-to-income ratio of more than
___%. Each Mortgage Loan has a Mortgage Interest Rate of at least
___% per annum and an outstanding principal balance of less than
$______. Each Adjustable Rate Mortgage Loan has an Index of
[______].
H-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
H-5