COUNTRYWIDE HOME LOANS, INC., as Seller and CITIGROUP GLOBAL MARKETS REALTY CORP., as Purchaser AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT dated as of December 15, 2003 Conventional Residential Mortgage Loans (SERVICING...
COUNTRYWIDE
HOME LOANS, INC.,
as
Seller
and
CITIGROUP
GLOBAL MARKETS REALTY CORP.,
as
Purchaser
________________________________________
AMENDED
AND RESTATED
dated
as
of December 15, 2003
________________________________________
Conventional
Residential Mortgage Loans
(SERVICING
RETAINED)
|
ARTICLE
I.
DEFINITIONS
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ARTICLE
II.
PRE-CLOSING
AND CLOSING PROCEDURES
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Section
2.01
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Due
Diligence by the Purchaser.
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Section
2.02
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Identification
of Mortgage Loan Package.
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Section
2.03
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Post-Closing
Due Diligence.
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Section
2.04
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Credit
Document Deficiencies Identified During Due Diligence.
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Section
2.05
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Delivery
of Collateral Files.
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Section
2.06
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Purchase
Confirmation.
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Section
2.07
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Closing.
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Section
2.08
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Payment
of the Purchase Proceeds.
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Section
2.09
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Entitlement
to Payments on the Mortgage Loans.
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Section
2.10
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Payment
of Costs and Expenses.
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Section
2.11
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MERS
Mortgage Loans and the MERS System.
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ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
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Section
3.01
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Representations
and Warranties Respecting Countrywide.
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Section
3.02
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Representations
and Warranties Regarding Individual Mortgage Loans.
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Section
3.03
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Remedies
for Breach of Representations and Warranties.
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Section
3.04
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Repurchase
of Convertible Mortgage Loans.
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Section
3.05
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Representations
and Warranties Respecting the Purchaser.
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Section
3.06
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Indemnification
by the Purchaser.
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ARTICLE
IV.
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
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Section
4.01
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Countrywide
to Act as Servicer.
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Section
4.02
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Collection
of Mortgage Loan Payments.
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Section
4.03
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Realization
Upon Defaulted Mortgage Loans.
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Section
4.04
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Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
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Section
4.05
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Permitted
Withdrawals From the Custodial Account.
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Section
4.06
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Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
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Section
4.07
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Permitted
Withdrawals From Escrow Account.
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Section
4.08
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Transfer
of Accounts.
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Section
4.09
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Payment
of Taxes, Insurance and Other Charges; Maintenance of PMI Policies;
Collections Thereunder.
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Section
4.10
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Maintenance
of Hazard Insurance.
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Section
4.11
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[Reserved].
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Section
4.12
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Fidelity
Bond; Errors and Omissions Insurance.
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Section
4.13
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Title,
Management and Disposition of REO Property.
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Section
4.14
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Notification
of Adjustments.
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Section
4.15
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Notification
of Maturity Date.
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Section
4.16
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Assumption
Agreements.
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Section
4.17
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Satisfaction
of Mortgages and Release of Collateral Files.
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Section
4.18
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Servicing
Compensation.
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ARTICLE
V.
PROVISIONS
OF PAYMENTS AND REPORTS TO PURCHASER
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Section
5.01
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Distributions.
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Section
5.02
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Periodic
Reports to the Purchaser.
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Section
5.03
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Monthly
Advances by Countrywide.
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Section
5.04
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Annual
Statement as to Compliance.
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Section
5.05
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Annual
Independent Certified Public Accountants’ Servicing
Report.
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Section
5.06
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Annual
Statement as to Compliance.
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Section
5.07
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Purchaser's
Access to Countrywide's Records
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Section
5.08
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Compliance
with REMIC Provisions.
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ARTICLE
VI.
COVENANTS
BY COUNTRYWIDE
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Section
6.01
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Indemnification
by Countrywide.
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Section
6.02
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Third
Party Claims.
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Section
6.03
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Merger
or Consolidation of Countrywide.
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Section
6.04
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Limitation
on Liability of Countrywide and Others.
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Section
6.05
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No
Transfer of Servicing.
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ARTICLE
VII.
TERMINATION
OF COUNTRYWIDE AS SERVICER
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Section
7.01
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Termination
Due to an Event of Default.
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Section
7.02
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Termination
by Other Means.
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ARTICLE
VIII.
MISCELLANEOUS
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Section
8.01
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Notices.
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Section
8.02
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Sale
Treatment.
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Section
8.03
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Exhibits.
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Section
8.04
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General
Interpretive Principles.
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Section
8.05
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Reproduction
of Documents.
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Section
8.06
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Further
Agreements.
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Section
8.07
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Assignment
of Mortgage Loans by the Purchaser; Pass-Through
Transfers.
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Section
8.08
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Conflicts
between Transaction Documents.
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Section
8.09
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Governing
Law.
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Section
8.10
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Severability
Clause.
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Section
8.11
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Successors
and Assigns.
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Section
8.12
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Confidentiality.
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Section
8.13
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Entire
Agreement.
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Exhibit
A
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Schedule
of Collateral Documents
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Exhibit
B
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Form
of Purchase Confirmation
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Exhibit
C
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Form
of Custodial Agreement
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Exhibit
D
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Form
of Trade Confirmation
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AMENDED
AND RESTATED
This
Amended and Restated Master Mortgage Loan Purchase and Servicing Agreement
is
made and entered into as of December 15, 2003 (the “Agreement”), between
Countrywide Home Loans, Inc., having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Countrywide”), and Citigroup Global Markets Realty Corp.,
having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
“Purchaser”), and amends, restates and supersedes in its entirety that certain
Master Mortgage Loan Purchase and Servicing Agreement dated August 8, 2002
by
and between Countrywide and Purchaser’s predecessor-in-interest, Salomon
Brothers Realty Corp.
R
E C
I T A L S
The
Purchaser has agreed to purchase from Countrywide and Countrywide has agreed
to
sell from time to time to the Purchaser all of Countrywide’s right, title and
interest, excluding servicing rights, in and to those certain mortgage loans
identified in a Purchase Confirmation (as defined below) executed by Countrywide
and the Purchaser. This Agreement is intended to set forth the terms and
conditions by which Countrywide shall transfer and the Purchaser shall acquire
such mortgage loans.
In
consideration of the promises and mutual agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Countrywide and the Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
Unless
the context requires otherwise, all capitalized terms used herein shall have
the
meanings assigned to such terms in this Article I unless defined elsewhere
herein. Any capitalized term used or defined in a Purchase Confirmation that
conflicts with the corresponding definition set forth herein shall supersede
such term.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan in which the related Mortgage Note contains a provision whereby
the Mortgage Interest Rate is adjusted from time to time in accordance with
the
terms of such Mortgage Note.
Agency:
Either
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Agreement:
This
Master Mortgage Loan Purchase and Servicing Agreement, including all exhibits
and supplements hereto, and all amendments hereof.
Appraised
Value:
The
value of the related Mortgaged Property as set forth in an appraisal made in
connection with the origination of a Mortgage Loan or the sale price of the
related Mortgaged Property if the proceeds of such Mortgage Loan were used
to
purchase such Mortgaged Property, whichever is less.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan:
Any
Mortgage Loan wherein the Mortgage Note matures prior to full amortization
and
requires a final and accelerated payment of principal.
Balloon
Payment:
With
respect to any Balloon Mortgage Loan as of any date of determination, the
Monthly Payment payable on the maturity of such Mortgage Loan.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in either the State of California, the State of New York
or the State of Texas are authorized or obligated by law or executive order
to
be closed.
Cash
Liquidation:
Recovery of all cash proceeds by Countrywide with respect to the termination
of
any defaulted Mortgage Loan other than a Mortgage Loan which became an REO
Property, including all PMI Proceeds, Government Insurance Proceeds, Other
Insurance Proceeds, Liquidation Proceeds, Condemnation Proceeds and other
payments or recoveries whether made at one time or over a period of time which
Countrywide deems to be finally recoverable, in connection with the sale or
assignment of such Mortgage Loan, trustee’s sale, foreclosure sale or
otherwise.
Closing:
The
consummation of the sale and purchase of each Mortgage Loan
Package.
Closing
Date:
The
date on which the purchase and sale of the Mortgage Loans constituting a
Mortgage Loan Package is consummated, as set forth in the Trade Confirmation
or
Purchase Confirmation.
Collateral
Documents:
The
collateral documents pertaining to each Mortgage Loan as set forth in Exhibit
A
hereto.
Collateral
File:
With
respect to each Mortgage Loan, a file containing each of the Collateral
Documents.
Combined
Loan-to-Value Ratio:
As of
any date and as to any Mortgage Loan, the ratio, expressed as a percentage,
of
the (a) sum of (i) the Stated Principal Balance (or the original
principal balance, if so indicated) of such Mortgage Loan and (ii) the
Stated Principal Balance (or the original principal balance, if so indicated)
as
of such date of any mortgage loan or mortgage loans that are senior or equal
in
priority to the Mortgage Loan and which are secured by the same Mortgaged
Property to (b) the Appraised Value of the related Mortgaged Property.
Condemnation
Proceeds:
All
awards or settlements in respect of a taking of an entire Mortgaged Property
by
exercise of the power of eminent domain or condemnation.
Conventional
Mortgage Loan:
A
Mortgage Loan that is not insured by the FHA or guaranteed by the
VA.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan that contains a provision whereby the Mortgagor
is
permitted to convert the Mortgage Loan to a fixed-rate mortgage loan in
accordance with the terms of the related Mortgage Note.
Countrywide:
Countrywide Home Loans, Inc., or any successor or assign to Countrywide under
this Agreement as provided herein.
Credit
File:
The
file retained by Countrywide that includes the mortgage loan documents
pertaining to a Mortgage Loan including copies of the Collateral Documents
together with the credit documentation relating to the origination of such
Mortgage Loan, which Credit File may be maintained by Countrywide on microfilm
or any other comparable medium.
Custodial
Account:
The
account or accounts created and maintained pursuant to Section 4.04, each
of which shall be an Eligible Account.
Custodial
Agreement:
The
letter agreement, substantially in the form of Exhibit C (or such other form
as
Countrywide and Purchaser may mutually agree), that governs the temporary
retention of the Collateral Files by the Custodian with respect to a Closing
Date.
Custodian:
Such
custodian that may be designated by Countrywide and Purchaser from time to
time.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs or such other
date as may be set forth in the related Trade Confirmation or Purchase
Confirmation.
Cut-off
Date Balance:
The
aggregate scheduled unpaid principal balance of the Mortgage Loans in a Mortgage
Loan Package as of the Cut-off Date, after application of (i) scheduled payments
of principal due on such Mortgage Loans on or before such Cut-off Date, whether
or not collected, and (ii) any Principal Prepayments received from the
Mortgagor prior to the date on which the Mortgage Loan Schedule is prepared.
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan
(including
a Balloon Payment with respect to a Balloon Mortgage Loan), exclusive of any
days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending on the first day
of
the month of the Remittance Date.
Eligible
Account:
An
account or accounts (i) maintained with a depository institution the short
term
debt obligations of which are rated by a nationally recognized statistical
rating agency in one of its two (2) highest rating categories at the time of
any
deposit therein, (ii) the deposits of which are insured up to the maximum
permitted by the FDIC, or (iii) maintained with an institution and in a manner
acceptable to an Agency.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to Section
4.06, each of which shall be an Eligible Account.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water rates, mortgage
insurance premiums, fire and hazard insurance premiums and other payments
required to be escrowed by the Mortgagor with the Mortgagee pursuant to any
Mortgage Loan.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 7.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA:
The
Federal Housing Administration.
▇▇▇▇▇▇
▇▇▇:
The
Federal National Mortgage Association or any successor
organization.
Fidelity
Bond:
A
fidelity bond to be maintained by Countrywide pursuant to Section
4.12.
First
Lien Mortgage Loan:
Any
Mortgage Loan secured by a first lien on the related Mortgaged
Property.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan wherein the Mortgage Interest Rate set forth in the Mortgage
Note
is fixed for the term of such Mortgage Loan.
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation or any successor
organization.
Funding
Deadline:
With
respect to each Closing Date, one o’clock (1:00) p.m. New York time or such
other time as agreed to between the parties.
GNMA:
The
Government National Mortgage Association or any successor
organization.
Government
Insurance Proceeds:
With
respect to each Government Mortgage Loan, payments made pursuant to a MIC or
LGC.
Government
Mortgage Loan:
A
Mortgage Loan insured by the FHA or guaranteed by the VA.
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 Adjustment Date, the Mortgage Interest Rate for such Mortgage
Loan.
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.
Interest
Adjustment Date:
With
respect to an Adjustable Rate Mortgage Loan, the date on which an adjustment
to
the Mortgage Interest Rate on a Mortgage Note becomes effective.
LGC:
A loan
guarantee certificate issued by the VA.
LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of the
Stated Principal Balance (or the original principal balance, if so indicated)
of
such Mortgage Loan as of the date of determination to the Appraised Value of
the
related Mortgaged Property.
Late
Collections:
With
respect to any Mortgage Loan, all amounts received during any Due Period,
whether as late payments of Monthly Payments or as Liquidation Proceeds,
Condemnation Proceeds, PMI Proceeds, Government Insurance Proceeds, Other
Insurance Proceeds, proceeds of any REO Disposition or otherwise, which
represent late payments or collections of Monthly Payments due but delinquent
for a previous Due Period and not previously recovered.
Lifetime
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the absolute maximum Mortgage
Interest Rate payable, above which the Mortgage Interest Rate shall not be
adjusted, as set forth in the related Mortgage Note and Mortgage Loan Schedule.
Liquidation
Proceeds:
Amounts, other than PMI Proceeds, Government Insurance Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Countrywide in connection
with the liquidation of a defaulted Mortgage Loan through trustee’s sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 4.13.
LPMI
Fee:
The
portion of the Mortgage Interest Rate relating to an LPMI Loan, which is set
forth on the related Mortgage Loan Schedule, to be retained by Countrywide
to
pay the premium due on the PMI Policy with respect to such LPMI
Loan.
LPMI
Loan:
Any
Mortgage Loan with respect to which Countrywide is responsible for paying the
premium due on the related PMI Policy with the proceeds generated by the LPMI
Fee relating to such Mortgage Loan, as set forth on the related Mortgage Loan
Schedule.
MERS:
Mortgage Electronic Registration Systems, Inc. or any successor or assign
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
electronic system of recording transfers of mortgages maintained by
MERS.
MIC:
A
mortgage insurance certificate issued by HUD.
MIN:
The
Mortgage Identification Number of a MERS Mortgage Loan.
Missing
Credit Documents:
As
defined in Section 2.04 hereof.
Monthly
Advance:
The
advances made or required to be made by Countrywide on any Remittance Date
pursuant to Section 5.03.
Monthly
Payment:
The
scheduled monthly payment (including
any Balloon Payment) of
principal and interest on a Mortgage Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien, in the case of a First Lien Mortgage Loan, or a second
lien, in the case of a Second Lien Mortgage Loan, on an unsubordinated estate
in
fee simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely-accepted practice, the mortgage, deed
of
trust or other instrument securing the Mortgage Note may secure and create
a
first lien, in the case of a First Lien Mortgage Loan, or a second lien, in
the
case of a Second Lien Mortgage Loan, upon a leasehold estate of the Mortgagor,
as the case may be.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan and, with respect
to
an Adjustable Rate Mortgage Loan, as adjusted from time to time in accordance
with the provisions of the related Mortgage Note.
Mortgage
Loan:
Any
mortgage loan that is sold pursuant to this Agreement, as evidenced by such
mortgage loan’s inclusion on the related Mortgage Loan Schedule, which mortgage
loan includes the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, PMI Proceeds (if applicable), Government Insurance
Proceeds (if applicable), Other Insurance Proceeds, REO Disposition proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding the servicing rights relating
thereto. Unless the context requires otherwise, any reference to the Mortgage
Loans in this Agreement shall refer to the Mortgage Loans constituting a
Mortgage Loan Package.
Mortgage
Loan Package:
The
Mortgage Loans sold to the Purchaser pursuant to a Purchase
Confirmation.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the interest rate payable to the Purchaser on
each Remittance Date which shall equal the Mortgage Interest Rate less the
Servicing Fee and the LPMI Fee, if applicable.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans included
therein and made a part of the related Purchase Confirmation, which schedule
shall include, the following information with respect to each Mortgage Loan:
(i) information sufficient to uniquely identify such Mortgage Loan,
including the mortgage loan number, the Mortgagor’s name and the street address
of the Mortgaged Property (including city, state and zip code); (ii) the
Mortgage Interest Rate as of the Cut-off Date; (iii) with respect to any
Adjustable Rate Mortgage Loan, the Gross Margin, the Periodic Rate Cap, the
Lifetime Rate Cap, the next Interest Adjustment Date and whether such Adjustable
Rate Mortgage Loan is a Convertible Mortgage Loan, (iv) with respect to a LPMI
Loan, the LPMI Fee, (v) with respect to each First Lien Mortgage Loan, the
LTV
at origination and, with respect to each Second Lien Mortgage Loan, the Combined
LTV at origination; (vi) the remaining term as of the Cut-off Date and the
original term of such Mortgage Loan, (vii) whether such Mortgage Loan is a
First
Lien Mortgage Loan or a Second Lien Mortgage Loan, (viii) the original balance
of the Mortgage Loan, (ix) the unpaid principal balance on the Mortgage Loan
as
of the Cut-off Date, (x) the related Monthly Payment as of the origination
of
such Mortgage Loan, (xi) the related Monthly Payment as of the Cut-off Date,
(xii) the maturity date, (xiii) a code indicating whether the Mortgage Loan
is
subject to a Prepayment Charge or penalty, (xiv) the term of any Prepayment
Charge or penalty, (xv) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan, (xvi) with respect to each MERS Mortgage Loan, the MIN, (xvii)
a
code indicating whether the Mortgage Loan is a Balloon Mortgage Loan and, if
so,
the term of the Balloon Loan and the amount of the Balloon Payment scheduled
to
be due at maturity assuming no Principal Prepayments; (xviii) a code indicating
whether the Mortgage Loan is an interest-only Mortgage Loan; and, if so, the
term of the interest-only period of such Mortgage Loan and (xiv) any other
information pertaining to such Mortgage Loan as may be reasonably requested
by
the Purchaser. The information set forth in the Mortgage Loan Schedule relating
to the Mortgage Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with
respect to any LPMI Loan, as applicable, is exclusive of the LPMI
Fee.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property (or leasehold estate, if applicable) securing repayment of the
debt evidenced by a Mortgage Note.
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.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given.
Other
Insurance Proceeds:
Proceeds of any title policy, hazard policy, pool policy or other insurance
policy covering a Mortgage Loan, other than the PMI Policy, if any, to the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that Countrywide would follow in servicing mortgage loans held for
its own account.
Pass-Through
Transfer:
The
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
trust to be formed as part of a publicly issued or privately placed
mortgage-backed securities transaction.
Payment
Adjustment Date:
As to
each Mortgage Loan, the date on which an adjustment to the Monthly Payment
on a
Mortgage Note becomes effective.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may increase or decrease on an Adjustment Date above
or
below the Mortgage Interest Rate previously in effect, equal to the rate set
forth on the Mortgage Loan Schedule per adjustment.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
PMI
Policy:
A
policy of private mortgage guaranty insurance relating to a Mortgage Loan and
issued by a Qualified Insurer.
PMI
Proceeds:
Proceeds of any PMI Policy.
Prepayment
Charge:
With
respect to any Mortgage Loan, any prepayment penalty or premium thereon payable
in connection with a principal prepayment on such Mortgage Loan pursuant to
the
terms of the related Mortgage Note.
Prepayment
Interest Shortfall Amount:
With
respect to any Remittance Date and Mortgage Loan that was subject to a Principal
Prepayment in full or in part during the related Principal Prepayment Period,
which Principal Prepayment was applied to such Mortgage Loan prior to such
Mortgage Loan’s Due Date with respect to such Remittance Date, the amount of
interest (at the Mortgage Loan Remittance Rate) that would have accrued on
the
amount of such Principal Prepayment during the period commencing on the date
as
of which such Principal Prepayment was applied to such Mortgage Loan and ending
on the day immediately preceding such Due Date, inclusive.
Preliminary
Mortgage Loan Package:
The
mortgage loans identified or described in a Trade Confirmation, which, subject
to the Purchaser’s due diligence as contemplated in Section 2.01, are intended
to be sold under this Agreement as a Mortgage Loan Package.
Preliminary
Mortgage Loans:
The
mortgage loans constituting a Preliminary Mortgage Loan Package.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, excluding any prepayment penalty or premium
thereon (unless the Purchase Confirmation provides otherwise), which is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
Principal
Prepayment Period:
As to
any Remittance Date, the second day of the calendar month preceding the month
of
distribution through and including the first day of the month of
distribution.
Purchase
Confirmation:
A
letter agreement, substantially in the form of Exhibit B hereto, executed by
Countrywide and the Purchaser in connection with the purchase and sale of each
Mortgage Loan Package, which sets forth the terms relating thereto including
a
description of the related Mortgage Loans (including the Mortgage Loan
Schedule), the purchase price for such Mortgage Loans, the Closing Date and
the
Servicing Fee Rate.
Purchase
Proceeds:
The
amount paid on the related Closing Date by the Purchaser to Countrywide in
exchange for the Mortgage Loan Package purchased on such Closing Date as set
forth in the applicable Purchase Confirmation.
Purchaser:
The
Person identified as the “Purchaser” in the preamble to this Agreement or its
successor in interest or any successor or assign to the Purchaser under this
Agreement as herein provided. Any reference to “Purchaser” as used herein shall
be deemed to include any designee of the Purchaser, so long as such designation
was made in accordance with the limitations set forth in Section
8.07.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, which insurer is approved in such capacity by an Agency.
Qualified
Substitute Mortgage Loan:
A
mortgage loan that must, on the date of such substitution, (i) have an unpaid
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or if more than one (1) mortgage loan is being substituted, an
aggregate principal balance), not in excess of the unpaid principal balance
of
the repurchased Mortgage Loan (the amount of any shortfall will be deposited
in
the Custodial Account by Countrywide in the month of substitution); (ii) have
a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining
term to maturity not greater than, and not more than one year less than, the
maturity date of the repurchased Mortgage Loan; (iv) comply with each
representation and warranty (respecting individual Mortgage Loans) set forth
in
Section 3.02 hereof; (v) shall be the same type of Mortgage Loan (i.e., a
Convertible Mortgage Loan or a Fixed Rate Mortgage Loan); and (vi) to the extent
such mortgage loan is an Adjustable Rate Mortgage Loan, shall have the same
Gross Margin and index (to the extent available) as the repurchased Mortgage
Loan.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
shall be removed from this Agreement and reconstituted as part of a whole loan
transfer, agency transfer or Pass-Through Transfer pursuant to Section 8.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate. On such date, the Mortgage Loans transferred shall cease to be
covered by this Agreement and Countrywide’s servicing responsibilities shall
cease under this Agreement with respect to the related transferred Mortgage
Loans.
Remittance
Date:
The
eighteenth (18th)
day of
any month, beginning with the month next following the month in which the
related Cut-off Date occurs, or if such eighteenth (18th)
day is
not a Business Day, the first Business Day immediately following.
REO
Disposition:
The
final sale by Countrywide of any REO Property or the transfer of the management
of such REO Property to the Purchaser as set forth in Section 4.13.
REO
Property:
A
Mortgaged Property acquired by Countrywide on behalf of the Purchaser as
described in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of the Mortgage Loan plus (ii) interest on such Stated Principal Balance at
the
Mortgage Loan Remittance Rate from the last date through which interest has
been
paid and distributed to the Purchaser to the date of repurchase, less amounts
received or advanced in respect of such repurchased Mortgage Loan which such
amounts are being held in the Custodial Account for distribution in the month
of
repurchase.
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by a second lien on the related Mortgaged
Property.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses incurred
in the performance by Countrywide of its servicing obligations, including the
cost of (i) the preservation, restoration and protection of the Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures,
(iii) the management and liquidation of the REO Property, (iv) with respect
to
Government Mortgage Loans, amounts advanced to the Purchaser for which
Countrywide may be entitled to receive reimbursement from a government agency
and (v) compliance with the obligations under this Agreement including
Section 4.09.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to Countrywide, which shall, for a period of one full month, be equal to
one-twelfth of the product of (i) the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion of such Monthly Payment collected
by
Countrywide, or as otherwise provided herein. Subject to the foregoing, and
with
respect to each Mortgage Loan, Countrywide shall be entitled to receive its
Servicing Fee through the disposition of any related REO Property and the
Servicing Fee payable with respect to any REO Property shall be based on the
Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing
Fee Rate:
With
respect to any Mortgage Loan, the rate per annum set forth in the applicable
Trade Confirmation or Purchase Confirmation.
Servicing
LP:
Countrywide Home Loans Servicing LP, a Texas limited partnership, and its
successors and assigns, in its capacity as servicer hereunder.
Servicing
Officer:
Any
officer of Countrywide involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by Countrywide to Purchaser upon request, as such list may
from time to time be amended.
Stated
Principal Balance:
With
respect to each Mortgage Loan as of any date of determination: (i) the unpaid
principal balance of the Mortgage Loan at the Cut-off Date after giving effect
to payments of principal due on or before such date, whether or not received,
minus (ii) all amounts previously distributed to the Purchaser with respect
to
the related Mortgage Loan representing payments or recoveries of principal
or
advances in lieu thereof.
Trade
Confirmation:
A
letter agreement substantially in the form of Exhibit D hereto executed by
Countrywide and the Purchaser prior to the applicable Closing Date confirming
the terms of a prospective purchase and sale of a Mortgage Loan
Package.
Transaction
Documents:
With
respect to any Mortgage Loan, the related Trade Confirmation, the related
Purchase Confirmation and this Agreement.
Updated
LTV:
With
respect to any Mortgage Loan, the outstanding principal balance of such Mortgage
Loan as of the date of determination divided by the value of the related
Mortgaged Property as determined by a recent appraisal of the Mortgaged
Property.
VA:
The
Department of Veterans Affairs.
ARTICLE
II.
PRE-CLOSING
AND CLOSING PROCEDURES
Section
2.01 Due
Diligence by the Purchaser.
(a) Review
of Credit File.
Prior
to the Closing Date, Countrywide shall make available to the Purchaser the
Credit File for each Preliminary Mortgage Loan in the related Preliminary
Mortgage Loan Package. The Purchaser shall have the right to review the Credit
File for each such Preliminary Mortgage Loan, at Countrywide’s offices or such
other location agreed upon by the Purchaser and Countrywide, for the purpose
of
determining whether each Preliminary Mortgage Loan conforms in all material
respects to the applicable terms contained in the Transaction Documents, which
determination shall be made in the Purchaser’s reasonable and good faith
discretion. In the event that the Purchaser rejects any Preliminary Mortgage
Loan based on such review, Countrywide shall have the right, in its sole
discretion, to substitute replacement Preliminary Mortgage Loans satisfying
the
requirements set forth above, and the Purchaser shall have the right to review
any such replacement Preliminary Mortgage Loan(s) in the manner contemplated
above. The Purchaser shall use reasonable efforts to conduct its due diligence,
and to convey the results thereof to Countrywide, within the time and in the
manner necessary to permit Countrywide to rebut or cure any Preliminary Mortgage
Loan or to substitute replacement Preliminary Mortgage Loans as permitted
herein. The fact that the Purchaser has conducted or determined not to conduct
any partial or complete examination of the Credit Files shall not affect the
right of the Purchaser, or any successor thereto, to demand repurchase or other
relief as provided for in this Agreement.
(b) Rejection
of Preliminary Mortgage Loans.
Without
limiting the generality of the foregoing, in the event that the Purchaser
rejects Preliminary Mortgage Loans (i) comprising more than ten percent (10%)
of
the related Preliminary Mortgage Loan Package (as measured by unpaid principal
balance), or (ii) for reasons other than as permitted under this Agreement
or
the Trade Confirmation, Countrywide may, in its sole discretion, rescind its
offer to sell any of the Preliminary Mortgage Loans relating thereto to the
Purchaser and Countrywide shall have no liability
Section
2.02 Identification
of Mortgage Loan Package.
At
least
three (3) Business Days prior to the Closing Date, the Purchaser shall identify
those Preliminary Mortgage Loans that the Purchaser intends to be included
in
the Mortgage Loan Package.
Section
2.03 Post-Closing
Due Diligence.
In
the
event that the Purchaser does not complete its due diligence, as contemplated
in
Section 2.01, with respect to any Preliminary Mortgage Loan, the Purchaser
and
Countrywide may nonetheless mutually agree to the purchase and sale of such
Mortgage Loan as contemplated hereunder, and upon such mutual agreement, if
the
Purchaser provides notice to Countrywide of such Mortgage Loan and such Mortgage
Loan is identified as such in the Purchase Confirmation (as used therein, the
“Pending Mortgage Loans”), the Purchaser shall have the right to review the
related Credit File for such Mortgage Loan within ten (10) Business Days after
the Closing Date and, based on such review and within such ten (10) Business
Days period, request that Countrywide repurchase any Pending Mortgage Loan
that
the Purchaser reasonably and in good faith contends does not conform in all
material respects to the applicable terms of the Transaction Documents.
Countrywide shall have ten (10) Business Days from the date of its receipt
of
such request to either (a) repurchase such Mortgage Loan at the purchase price
for such Mortgage Loan (as calculated under the related Transaction Documents,
as applicable) plus accrued and unpaid interest, or (b) provide evidence
reasonably satisfactory to the Purchaser that such Mortgage Loan does in fact
conform to the terms of the Transaction Documents, as applicable. In the event
that Countrywide must repurchase any Mortgage Loan in accordance with this
Section 2.03 or pursuant to any other applicable term contained in the
Transaction Documents, Countrywide may, upon mutual agreement of the parties,
substitute replacement Mortgage Loans conforming in all material respects to
the
applicable terms contained in the related Transaction Documents. The rights
and
remedies set forth in this Section 2.03 are in addition to those set forth
in
Section 3.03.
Section
2.04 Credit
Document Deficiencies Identified During Due Diligence.
If,
with
respect to a Mortgage Loan Package, the related Purchase Confirmation identifies
any Mortgage Loan for which the related Credit File is missing material
documentation (as used therein, the “Missing Credit Documents”), Countrywide
agrees to use its best efforts to procure each such Missing Credit Document
within sixty (60) days following the related Closing Date. In the event of
a
default by a Mortgagor or any material impairment of the Mortgaged Property,
as
determined by the Purchaser in its reasonable discretion, in either case
directly arising from a breach of Countrywide’s obligation to deliver the
Missing Credit Document within the time specified above, Countrywide shall
repurchase such Mortgage Loan at the Repurchase Price.
Section
2.05 Delivery
of Collateral Files.
(a) Custodial
Agreement.
Countrywide shall, on or before the Business Day prior to the related Closing
Date, deliver and release to the Custodian the Collateral File for each Mortgage
Loan in the Mortgage Loan Package and shall execute, and cause the Custodian
to
execute, the Custodial Agreement. Countrywide shall pay all fees and expenses
of
the Custodian; provided, however, that it is understood that the Custodial
Agreement shall terminate ten (10) Business Days after the related Closing
Date
and the Purchaser shall be solely responsible for arranging for the retention
of
the Collateral Files thereafter.
(b) Missing
Collateral Documents.
In the
event that any of the original Collateral Documents set forth in clauses (3)
through (9) of Exhibit A hereto are not delivered to the Custodian on or before
the Closing Date (each, a “Missing Collateral Document”), then Countrywide shall
have (i) with respect to any Missing Collateral Document sent for recording,
twelve (12) months from the related Closing Date, or (ii) with respect to
all other Missing Collateral Documents, one-hundred twenty (120) days from
the
Closing Date, to deliver to the Purchaser such Missing Collateral Documents;
provided, however, that with respect to any Government Mortgage Loan,
Countrywide agrees to procure each such Missing Collateral Document within
sixty
(60) days following the FHA’s or the VA’s, as applicable, deadline for procuring
such documents. Notwithstanding the foregoing, Countrywide shall not be deemed
to be in breach of this Agreement if its failure to deliver to the Purchaser
any
Missing Collateral Document within the time specified above is due solely to
(i)
the failure of the applicable recorder’s office to return a Missing Collateral
Document that was sent for recording or (ii) the failure of the title insurer
to
issue and deliver the original mortgagee title policy, except where such refusal
to issue the policy is based on a claim that the title insurer is under no
obligation to issue such policy.
(c) Other
Documents.
Countrywide shall forward to the Purchaser in a timely manner any original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with this Agreement upon execution
and, if applicable, recordation thereof.
Section
2.06 Purchase
Confirmation.
Upon
confirmation with the Purchaser of a Mortgage Loan Package, Countrywide shall
prepare and deliver to the Purchaser for execution the related Purchase
Confirmation, executed by an authorized signatory of Countrywide.
Section
2.07 Closing.
The
Closing of each Mortgage Loan Package shall take place on the related Closing
Date and shall be subject to the satisfaction of each of the following
conditions, unless otherwise waived by the prejudiced party(ies):
(a) All
of
the representations and warranties of Countrywide under this Agreement shall
be
true and correct in all material respects as of the Closing Date and no event
shall have occurred that, with notice or the passage of time, would constitute
a
default under this Agreement;
(b) All
of
the representations and warranties of the Purchaser under this Agreement shall
be true and correct in all material respects as of the Closing Date and no
event
shall have occurred that, with notice or the passage of time, would constitute
a
default under this Agreement; and
(c) Both
parties shall have executed the related Purchase Confirmation and Custodial
Agreement.
Section
2.08 Payment
of the Purchase Proceeds.
Subject
to the conditions set forth in Section 2.07, and in consideration for the
Mortgage Loan Package to be purchased by the Purchaser on the related Closing
Date, the Purchaser shall pay to Countrywide on such Closing Date the Purchase
Proceeds by wire transfer of immediately available funds to the account
designated by Countrywide on or before the Funding Deadline.
Section
2.09 Entitlement
to Payments on the Mortgage Loans.
With
respect to any Mortgage Loan purchased hereunder, the Purchaser shall be
entitled to (a) all scheduled principal due after the related Cut-off Date;
(b)
all other recoveries of principal collected after the related Cut-off Date,
except for (i) recoveries of principal collected after the Cut-off Date and
prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and
(ii) all scheduled payments of principal due on or before the related Cut-off
Date; and (c) all payments of interest on such Mortgage Loan net of interest
at
the Servicing Fee Rate and the LPMI Fee, if applicable (minus that portion
of
any such payment that is allocable to the period prior to the related Cut-off
Date).
Section
2.10 Payment
of Costs and Expenses.
The
Purchaser and Countrywide shall each bear its own costs and expenses in
connection with the purchase and sale of the Mortgage Loans including any
commissions due its sales personnel, the legal fees and expenses of its
attorneys and any due diligence expenses. Without limiting the generality of
the
foregoing, any costs and expenses incurred in connection with recording the
Assignment of Mortgage or any subsequent assignment thereof shall be paid for
by
the Purchaser other than one-time recording fees, which shall be paid by
Countrywide.
Section
2.11 MERS
Mortgage Loans and the MERS System.
(a) Notwithstanding
anything contained in this Agreement to the contrary, with respect to any MERS
Mortgage Loan sold to the Purchaser by Countrywide pursuant to this Agreement,
Countrywide shall cause the registration of such MERS Mortgage Loan to be
changed on the MERS System to reflect the Purchaser as the beneficial owner
of
such MERS Mortgage Loan. The foregoing obligation of Countrywide shall be in
lieu of Countrywide delivering to the Purchaser an Assignment of Mortgage for
such MERS Mortgage Loan. With respect to the Mortgage and intervening
assignments related to any MERS Mortgage Loan, Countrywide shall, in accordance
with Section 2.05, provide the Purchaser with the original Mortgage with
evidence of registration with MERS and, as applicable, the originals of all
intervening assignments of the Mortgage with evidence of recording thereon
prior
to the registration of the Mortgage Loan with the MERS System.
(b) In
connection with the MERS System, Countrywide is hereby authorized and empowered,
in its own name, to register, or change the registration of any MERS Mortgage
Loan to effectuate such registration. Further, Countrywide is authorized upon
the direction of the Purchaser to cause the removal of any MERS Mortgage Loan
from such registration, and to execute and deliver on behalf of itself and
the
Purchaser, any and all instruments of assignment and comparable instruments
with
respect to any registration and/or removal of such MERS Mortgage Loan on or
from
the MERS System.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Representations
and Warranties Respecting Countrywide.
Countrywide
represents, warrants and covenants to the Purchaser that, as of each Closing
Date:
(a) Organization
and Standing.
Countrywide is duly organized, validly existing and in good standing under
the
laws of the jurisdiction in which it is organized and is qualified and licensed
to transact business in and is in good standing under the laws of each state
where each Mortgaged Property is located to the extent necessary to ensure
the
enforceability of each Mortgage Loan and the servicing of the Mortgage Loan
in
accordance with the terms of this Agreement. No licenses or approvals obtained
by Countrywide have been suspended or revoked by any court, administrative
agency, arbitrator or governmental body, and no proceedings are pending that
might result in such suspension or revocation;
(b) Due
Authority.
Countrywide has the full power and authority to (i) perform and enter into
and
consummate all transactions contemplated by this Agreement and (ii) to sell
each
Mortgage Loan. Countrywide
has duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of Countrywide, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency or reorganization;
(c) No
Conflict.
Neither
the acquisition or origination of the Mortgage Loans by Countrywide, 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 Countrywide’s certificate of
incorporation or by-laws or result in a breach of any legal restriction or
any
material breach of a material agreement or instrument to which Countrywide
is
now a party or by which it is bound, or constitute a material 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 Countrywide or its
property is subject;
(d) Approved
Seller.
Countrywide is an approved seller/servicer for each Agency in good standing
and
is a mortgagee approved by the Secretary of HUD. No event has occurred,
including a change in insurance coverage, which would make Countrywide unable
to
comply with ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or HUD eligibility
requirements;
(e) No
Pending Litigation.
There
is no action, suit, proceeding, investigation or litigation pending or, to
Countrywide’s knowledge, threatened, which either in any one instance or in the
aggregate, if determined adversely to Countrywide would materially and adversely
affect the sale of the Mortgage Loans to the Purchaser, the ability of
Countrywide to service the Mortgage Loans hereunder in accordance with the
terms
hereof, or Countrywide’s ability to perform its obligations under this
Agreement;
(f) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide,
of
or compliance by Countrywide with, this Agreement or the consummation of the
transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date;
(g) No
Violations.
Countrywide is not in violation of, and the execution and delivery of this
Agreement by Countrywide and its performance and compliance with the terms
of
this Agreement will not constitute a violation with respect to, any order or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over Countrywide or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of Countrywide or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(h) Ability
to Perform.
Countrywide
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;
(i) No
Bulk Transfer.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of Countrywide, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by Countrywide pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(j) Accounting
Sale.
The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of Countrywide, and Countrywide has determined that, and will treat,
the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale. Countrywide shall maintain a complete set of
books and records for each Mortgage Loan which shall be clearly marked to
reflect the ownership of each Mortgage Loan by Purchaser;
(k) Fair
Consideration.
Countrywide reasonably believes that the consideration received by it upon
the
sale of the Mortgage loans constitutes fair consideration and reasonably
equivalent value for such Mortgage Loans;
(l) No
Insolvency.
Countrywide is solvent and will not be rendered insolvent by the consummation
of
the transactions contemplated hereby. Countrywide is not transferring any
Mortgage Loan with any intent to hinder, delay or defraud any of its creditors;
and
(m) MERS
Good Standing.
To the
extent any Mortgage Loan is a MERS Mortgage Loan, Countrywide is a member of
MERS in good standing.
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
With
respect to each Mortgage Loan (unless otherwise specified below), Countrywide
represents and warrants to the Purchaser as of the related Closing Date
that:
(a) Mortgage
Loan Schedule.
The
information contained in the Mortgage Loan Schedule is complete, true and
correct in all material respects;
(b) No
Delinquencies or Advances.
All
payments required to be made prior to the related Cut-off Date for such Mortgage
Loan under the terms of the Mortgage Note have been made; Countrywide has not
advanced funds, or induced, solicited or knowingly received any advance of
funds
from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by
the
Mortgage Loan; and there has been no delinquency of more than thirty (30) days
in any payment by the Mortgagor thereunder during the last twelve (12)
months;
(c) Taxes,
Assessments, Insurance Premiums and Other Charges.
There
are no delinquent taxes, ground rents, or insurance premiums, and Countrywide
has no knowledge of any delinquent water charges, sewer rents, assessments,
leasehold payments, including assessments payable in future installments or
other outstanding charges affecting the related Mortgaged Property;
(d) No
Modifications.
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments that have
been
or will be recorded or registered with the MERS System, if necessary to protect
the interests of the Purchaser, and that have been or will be delivered to
the
Purchaser, all in accordance with this Agreement. The substance of any such
waiver, alteration or modification has been approved by the primary mortgage
guaranty insurer, if any, and by the title insurer, to the extent required
by
the related policy and its terms are reflected on the Mortgage Loan Schedule.
No
Mortgagor has been released, in whole or in part, except in connection with
an
assumption agreement approved by the primary mortgage insurer, if any, and
the
title insurer, to the extent required by the policy, and which assumption
agreement is part of the Collateral File and the terms of which are reflected
in
the Mortgage Loan Schedule if executed prior to the Closing Date;
(e) No
Defenses.
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Hazard
and Flood Insurance.
All
buildings upon the Mortgaged Property are insured by an insurer acceptable
to an
Agency against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area where the Mortgaged Property is located, and such
insurer is licensed to do business in the state where the Mortgaged Property
is
located. All such insurance policies contain a standard mortgagee clause naming
Countrywide, its successors and assigns as mortgagee, and all premiums thereon
have been paid. If, upon the origination of the Mortgage Loan, the Mortgaged
Property was, or was subsequently deemed to be, in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a flood
insurance policy that meets the requirements of the current guidelines of the
Federal Insurance Administration (or any successor thereto) and conforms to
the
requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor’s expense and to seek reimbursement
(g) Compliance
with Applicable Law.
Each
Mortgage Loan, including any Prepayment Charge or penalty in connection
therewith, at the time of origination complied in all material respects with
applicable local, state and federal laws, and any applicable ordinances,
including truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity, predatory and abusive lending and
disclosure laws applicable to the Mortgage Loan;
(h) No
Release 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;
(i) Enforceability
of Mortgage Documents.
The
Mortgage Note and the related Mortgage are genuine and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws;
(j) Valid
First or Second Lien.
Each
related Mortgage is a valid, subsisting and enforceable First Lien (with respect
to a First Lien Mortgage Loan) or Second Lien (with respect to a Second Lien
Mortgage Loan) on the related Mortgaged Property, including all improvements
on
the Mortgaged Property. The lien of the Mortgage is subject only
to:
(i) the
lien
of current real property taxes and assessments not yet due and
payable;
(ii) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording that are acceptable to mortgage
lending institutions generally and specifically referred to in the lender’s
title insurance policy delivered to the originator of the Mortgage Loan and
that
do not adversely affect the Appraised Value (as evidenced by an appraisal
referred to in such definition) of the Mortgaged Property set forth in such
appraisal;
(iii) with
respect to a Second Lien Mortgage Loan only, the lien of the first mortgage
on
the Mortgaged Property; and
(iv) 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;
(k) Disbursements
of Proceeds.
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
(l) Sole
Owner.
Countrywide is the sole owner and holder of the Mortgage Loan. The Mortgage
Loan
is not assigned or pledged, and Countrywide has good 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, 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 the terms of this Agreement;
(m) Title
Insurance.
Each
Mortgage Loan that is a First Lien Mortgage Loan and each Mortgage Loan that
is
a Second Lien Mortgage Loan with an original principal balance greater than
$100,000, in either case, is covered by a lender’s title insurance policy
acceptable to an Agency, issued by a title insurer acceptable to an Agency
and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Countrywide, its successors and assigns as
to
the first or second priority lien of the Mortgage, as applicable. 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. With respect to any Adjustable Rate Mortgage Loan, such title insurance
policy insures against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage Note providing for
adjustment of the Mortgage Interest Rate and Monthly Payment. Countrywide is
the
sole insured of such lender’s title insurance policy, and such lender’s title
insurance policy is in full force and effect and will be in full 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 Countrywide, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy;
(n) No
Default.
There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and Countrywide has not
waived any default, breach, violation or event of acceleration, and with respect
to any Second Lien Mortgage Loan, Countrywide has not received a written notice
of default of any senior mortgage loan related to the Mortgaged Property which
has not been cured;
(o) 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 lien) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(p) Origination,
Servicing and Collection Practices.
The
origination, servicing and collection practices used by Countrywide with respect
to each Mortgage Note and Mortgage have been in all respects legal, proper,
prudent and customary in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments, if any, all such payments are
in
the possession of, or under the control of, Countrywide and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due Countrywide have been capitalized under any
Mortgage or the related Mortgage Note. With respect to Adjustable Rate Mortgage
Loans, all Mortgage Interest Rate adjustments have been made in strict
compliance with state and federal law and the terms of the related Mortgage
Note. Any interest required to be paid pursuant to state and local law has
been
properly paid and credited;
(q) No
Condemnation or Damage.
The
Mortgaged Property is free of material damage and waste and there is no
proceeding pending for the total or partial condemnation thereof;
(r) Customary
and Enforceable 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 (a) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (b) otherwise by judicial foreclosure;
(s) Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage;
(t) Appraisal.
Unless
the Mortgage Loan was underwritten pursuant to one of Countrywide’s streamline
documentation programs, the Credit File contains an appraisal of the related
Mortgaged Property signed prior to the approval of the Mortgage Loan application
by an appraiser who meets the minimum requisite qualifications of an Agency
for
appraisers, duly appointed by the originator, that had no interest, direct
or
indirect in the Mortgaged Property, and whose compensation is not affected
by
the approval or disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to an Agency, with such riders as are acceptable to such Agency.
All
improvements which were considered in determining the Appraised Value of the
related 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. Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act
of 1989;
(u) Trustee
for Deed of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(v) Private
Mortgage Insurance, FHA Insurance and VA Guarantees.
Each
Mortgage Loan, except a Second Lien Mortgage Loan or a Mortgage Loan
underwritten in accordance with sub-prime credit underwriting guidelines (as
any
such Mortgage Loans may be identified in the Mortgage Loan Schedule), with
an
LTV at origination in excess of eighty percent (80%) is and will be subject
to a
PMI Policy, which insures that portion of the Mortgage Loan over seventy-five
percent (75%) of the Appraised Value of the related Mortgaged Property. 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.
Any
Mortgage subject to any such PMI Policy obligates the Mortgagor thereunder
to
maintain such insurance and to pay all premiums and charges in connection
therewith or, in the case of a lender paid mortgage insurance policy, the
premiums and charges are included in the Mortgage Interest Rate for the Mortgage
Loan. Each Government Mortgage Loan either has, or will have in due course,
a
valid and enforceable MIC or LGC, as applicable and, in each case, all premiums
due thereunder have been paid;
(w) Lawfully
Occupied.
At
origination, to the best of Countrywide’s knowledge as of the Closing Date, the
Mortgaged Property is lawfully occupied under applicable law. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same including certificates of occupancy, have been made or
obtained from the appropriate authorities;
(x) Assignment
of Mortgage.
Except
for the absence of recording information, the Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located. The original Mortgage
was or is being recorded and, unless the Mortgage Loan is subject to the MERS
System, all subsequent assignments of the original Mortgage (other than the
assignment to Purchaser) have been recorded in the appropriate jurisdiction
wherein such recordation is necessary to perfect the lien thereof against
creditors of Countrywide, or is in the process of being recorded;
(y) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
(z) Form
of Mortgage Note and Mortgage.
The
Mortgage Note and Mortgage are on forms acceptable to an Agency;
(aa) Section
32 Loans.
No
Mortgage Loan is (a) subject to the provisions of the Homeownership and Equity
Protection Act of 1994 as amended (“HOEPA”), (b) a “high cost” mortgage loan,
“high risk” mortgage loan; “covered” mortgage loan or “predatory” mortgage loan
or a similarly classified mortgage 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,
no
matter how defined, under any federal, state or local law or ordinance,
including, without limitation, Section 6-L of the New York Banking Law or (c)
subject to any comparable federal, state or local statutes or regulations,
including, without limitation, the provisions of the Georgia Fair Lending Act
or
any other statute or regulation providing assignee liability to holders of
such
mortgage loans;
(bb) Originator
Supervision.
The
Mortgage Loan was originated by Countrywide or by a savings bank, a commercial
bank or similar banking institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved as such by the Secretary
of HUD;
(cc) Foreclosure;
Bankruptcy.
The
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee’s sale or the right to foreclose the Mortgage. Countrywide
has no knowledge of any relief requested or allowed to the Mortgagor under
the
Soldiers and Sailors Civil Relief Act of 1940;
(dd) Payment
Source; Buydown.
No
Mortgage contains provisions pursuant to which Monthly Payments are (a) paid
or
partially paid with funds deposited in any separate account established by
the
Seller, the Mortgagor, or anyone on behalf of the Mortgagor, (b) paid by any
source other than the Mortgagor or (c) contains 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;
(ee) Construction;
Exchange.
No
Mortgage Loan was made solely in connection with (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the trade-in or
exchange of a Mortgaged Property.
(ff) Investment.
Countrywide has no knowledge of any circumstances or condition with respect
to
the Mortgage, the Mortgaged Property, the Mortgagor, or the Mortgagor’s credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
materially and adversely affect the value of the Mortgage Loan.
(gg) Accrual
Method.
Interest on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months; and
(hh) Lending
Practices.
No
predatory, abusive or deceptive lending practices, including, but not limited
to, the extension of credit to the Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to the Mortgagor
which has no apparent benefit to the Mortgagor, were employed by the originator
of the Mortgage Loan in connection with the origination of the Mortgage
Loan;
(ii) Prepayment
Charges.
Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(jj) No
Adverse Selection.
The
Mortgage Loans were not selected from the outstanding one to four-family
mortgage loans in Countrywide’s portfolio at the related Closing Date as to
which the representations and warranties set forth in this Agreement could
be
made in a manner so as to affect adversely the interests of the
Purchaser;
(kk) Due
on
Sale.
The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the Mortgagee thereunder;
(ll) Legal
Capacity.
To
the
best of Countrywide’s knowledge, all parties to the Mortgage Note and the
Mortgage had legal capacity to enter into the Mortgage Loan and to execute
and
deliver the Mortgage Note and the Mortgage, and the Mortgage Note and the
Mortgage have been duly and properly executed by such parties. The Mortgagor
is
a natural person;
(mm) Doing
Business.
Countrywide
is, and to the best of Countrywide’s knowledge, all parties which have had any
interest in the Mortgage Loan, whether as mortgagee, assignee,
(nn) Interest
Rates; Amortization.
Except
for a Mortgage Loan, the Monthly Payment of which consists of interest only
for
a specified period of time (and which Mortgage Loan is identified on the
Mortgage Loan Schedule), principal payments on the Mortgage Loan commenced
no
more than sixty days after the proceeds of the Mortgage Loan were disbursed.
The
Mortgage Loan bears interest at the Mortgage Interest Rate. With respect to
each
Mortgage Loan other than an interest-only Mortgage Loan or Balloon Mortgage
Loan, the Mortgage Note is payable on the first day of each month in Monthly
Payments, which, in the case of a Fixed Rate Mortgage Loan, is sufficient to
fully amortize the original principal balance over the original term thereof
and
to pay interest at the related Mortgage Interest Rate, and, in the case of
an
Adjustable Rate Mortgage Loan, is changed on each Adjustment Date and is
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate. With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as an
interest-only Mortgage Loan, the interest-only period shall not exceed the
period specified on the Mortgage Loan Schedule and, following the expiration
of
such interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of the
Mortgage Loan. With respect to each Balloon Mortgage Loan, the Mortgage Note
requires Monthly Payments sufficient to fully amortize the original principal
balance over the original term thereof and to pay interest at the related
Mortgage Interest Rate but requires a final Monthly Payment which is
substantially greater than the penultimate Monthly Payment and sufficient to
repay the remaining unpaid principal balance of the Balloon Mortgage Loan on
the
Due Date of such final Monthly Payment;
(oo) Underwriting
Standards.
The
Mortgage Loan was underwritten in accordance with the underwriting standards
of
Countrywide in effect at the time the Mortgage Loan was originated;
(pp) Disclosures.
The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of fixed rate mortgage loans in the case of Fixed Rate
Mortgage Loans, and adjustable rate mortgage loans in the case of Adjustable
Rate Mortgage Loans and rescission materials with respect to Refinanced Mortgage
Loans, and such statement is and will remain in the Mortgage File;
(qq) No
Fraud.
No
error,
omission, misrepresentation, fraud or similar occurrence with respect to a
Mortgage Loan has taken place on the part of Countrywide or, to the best of
Countrywide’s knowledge, any other 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 of any insurance
in relation to such Mortgage Loan;
(rr) Condominiums;
Planned Unit Developments.
If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of FNMA and FHLMC;
(ss) No
Credit Life.
No
Mortgagor was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension of credit.
No
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies as a condition to closing such Mortgage Loan;
(tt) Disclosure
of Fees and Charges.
All
fees and charges (including finance charges), whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
a Mortgage Loan, have been disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulation;
(uu) Compliance
with Consumer Credit Statutes.
The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Colorado, Idaho, Indiana, Iowa, Kansas, Maine,
Oklahoma, South Carolina, Utah and Wyoming, has been originated by a properly
licensed entity, and in all other respects, complies with all of the material
requirements of any such applicable laws;
(vv) No
Coops, Commercial Property or Mobile Homes.
No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property, and no Mortgage Loan is a manufactured or mobile
home;
(ww) Fair
Credit Reporting.
Countrywide has fully furnished and will continue to furnish, in accordance
with
the Fair Credit Reporting Act and its implementing regulations (the “FCRA”),
accurate and complete information (i.e., favorable and unfavorable) on its
Mortgagor credit files to Equifax, Experian, and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis, and will fully
furnish, in accordance with the FCRA, accurate and complete information (i.e.,
favorable and unfavorable) on its mortgagor credit files to Equifax, Experian,
and Trans Union Credit Information Company, on a monthly basis;
(xx) Privacy.
With
regard to each Mortgagor, Countrywide shall at all times comply with all laws
and regulations regarding use, disclosure and safeguarding of any and all
customer information, including without limitation the Gramm ▇▇▇▇▇ ▇▇▇▇▇▇ Act,
the Fair Credit Reporting Act and Regulation P. Countrywide has implemented
or
will implement appropriate measures designed to meet the objectives of the
Interagency Guidelines Establishing Standards for Safeguarding Customer
Information, 12 CFR Part 30 Appendix B, and has been and continues to be engaged
in reviewing its information security program, training of staff, and testing
of
controls, systems and procedures as required by those guidelines;
(yy) Anti-Money
Laundering Laws.
Countrywide has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); Countrywide 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;
(zz) OFAC.
No
Mortgage Loan is subject to nullification pursuant to Executive Order 13224,
an
no Mortgagor is subject to the provisions of such Executive Order;
(aaa) MOM
Loans; Assignments.
With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(bbb) MOM
Loans; No Notices of Liens.
With
respect to each MOM Loan, Countrywide has not received any notice of liens
or
legal actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(ccc) The
Mortgage Note (or lost note affidavit with market standard indemnification),
the
Mortgage, the assignment of Mortgage and any other documents required to be
delivered with respect to each Mortgage Loan have been delivered to the
Purchaser all in compliance with the specific requirements of this Agreement.
With respect to each Mortgage Loan, Countrywide is in possession of a complete
Credit File except for such documents as have been delivered to the Purchaser
or
as otherwise permitted under this Agreement. No more than 2% of the related
Mortgage Loan Package may consist of lost note affidavits in lieu of Mortgage
Notes; and
(ddd) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, Countrywide
was the owner of the related Mortgage and the indebtedness evidenced by the
related Mortgage Note and upon the payment of the Purchase Price by the
Purchaser, in the event that Countrywide or one of its affiliates retains record
title, Countrywide or such affiliate shall retain such record title to each
Mortgage, each related Mortgage Note and the related Mortgage Files with respect
thereto in trust for the Purchaser as the owner thereof and only for the purpose
of servicing and supervising or facilitating the servicing of each Mortgage
Loan.
Section
3.03 Remedies
for Breach of Representations and Warranties.
(a) Notice
of Breach.
The
representations and warranties set forth in Sections 3.01 and 3.02 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 Collateral Documents or Credit File. Upon discovery by either
Countrywide or the Purchaser of a breach of any of the foregoing representations
and warranties that materially and adversely affects the value of one or more
of
the related Mortgage Loans, the party discovering such breach shall give prompt
written notice to the other.
(b) Cure
or Repurchase.
Within
ninety (90) days from the earlier of either discovery by or notice to
Countrywide of a breach of a representation or warranty that materially and
adversely affects the value of a Mortgage Loan or the Mortgage Loans,
Countrywide shall use its best efforts to cure such breach in all material
respects, and, if such breach cannot be cured within such ninety (90) day
period, Countrywide shall, at the Purchaser’s option, repurchase such Mortgage
Loan at the Repurchase Price. In the event that a breach shall involve any
representation or warranty set forth in Section 3.01 and such breach cannot
be
cured within ninety (90) days of the earlier of either discovery by or notice
to
Countrywide of such breach, all of the Mortgage Loans shall, at the Purchaser’s
option, be repurchased by Countrywide at the Repurchase Price.
(c) Substitution
or Repurchase.
If the
breach shall involve a representation or warranty set forth in Section 3.02,
Countrywide may, with the consent of the Purchaser, rather than repurchase
the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute in
its
place a Qualified Substitute Mortgage Loan or Loans. If Countrywide has no
Qualified Substitute Mortgage Loan, it shall repurchase the deficient Mortgage
Loan. Any repurchase of a Mortgage Loan(s) pursuant to the provisions of this
Section 3.03 shall be accomplished by deposit in the Custodial Account of the
amount of the Repurchase Price for distribution to the Purchaser on the next
scheduled Remittance Date, after deducting therefrom any amount received in
respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution. At the time of repurchase or
substitution, the Purchaser and Countrywide shall arrange for the reassignment
of such Mortgage Loan and release of the related Collateral File to Countrywide
and the delivery to Countrywide of any documents held by the Purchaser or its
designee relating to such Mortgage Loan. In the event Countrywide substitutes
a
Qualified Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide
shall, simultaneously with such reassignment, give written notice to the
Purchaser that substitution has taken place and identify the Qualified
Substitute Mortgage Loan(s). In connection with any such substitution,
Countrywide shall be deemed to have made as to such Qualified Substitute
Mortgage Loan(s) the representations and warranties except that all such
representations and warranties set forth in this Agreement shall be deemed
made
as of the date of such substitution. Countrywide shall effect such substitution
by delivering to the Purchaser the Collateral Documents for such Qualified
Substitute Mortgage Loan(s). Countrywide shall deposit in the Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan(s) 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 Countrywide. For the month of substitution,
distributions to the Purchaser shall include the Monthly Payment due on any
substituted Mortgage Loan in the month of substitution, and Countrywide shall
thereafter be entitled to retain all amounts subsequently received by
Countrywide in respect of such substituted Mortgage Loan.
For
any
month in which Countrywide substitutes a Qualified Substitute Mortgage Loan
for
a repurchased Mortgage Loan, Countrywide shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all substituted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by Countrywide in the month of substitution
pursuant to Section 5.01. Accordingly, on the date of such substitution,
Countrywide shall deposit from its own funds into the Custodial Account an
amount equal to the amount of such shortfall.
(d) Indemnification;
Sole Remedies.
With
respect to the breach of a representation and warranty set forth in Section
3.02
with respect to a Mortgage Loan that materially and adversely affects the value
of any Mortgage Loan, Countrywide shall indemnify the Purchaser and hold it
harmless against any loss, damages, expenses, or costs (including reasonable
attorneys fees) resulting from such breach. The obligations under this Section
3.03 of Countrywide to cure, repurchase or replace such Mortgage Loan or to
indemnify the Purchaser shall constitute the sole remedies against Countrywide
respecting such breach available to the Purchaser.
(e) Accrual
of Cause of Action.
Any
cause of action against Countrywide relating to or arising out of the breach
of
any representations and warranties made in Sections 3.01 or 3.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by Countrywide to the Purchaser, (ii) failure by Countrywide
to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon Countrywide by the Purchaser for compliance with the relevant
provisions of this Agreement.
Section
3.04 Repurchase
of Convertible Mortgage Loans.
In
the
event a Mortgagor exercises the option to convert a Convertible Mortgage Loan
to
a Fixed Rate Mortgage Loan in accordance with the terms of the related Mortgage
Note, Countrywide shall repurchase such Convertible Mortgage Loan within thirty
(30) days of such conversion taking effect at a price equal to on hundred
percent (100%) of the unpaid principal balance of such Convertible Mortgage
Loan
at the time of such conversion plus accrued interest thereon through the last
day of the month of repurchase at the Mortgage Loan Remittance Rate; provided,
however, no interest shall be due and payable if a Convertible Mortgage Loan
is
repurchased on the first day of a month. Any repurchase of a Convertible
Mortgage Loan(s) pursuant to the foregoing provisions of this Section 3.04
shall
be accomplished by deposit in the Custodial Account of the amount of said
repurchase price for distribution to the Purchaser on the next scheduled
Remittance Date.
Section
3.05 Representations
and Warranties Respecting the Purchaser.
The
Purchaser represents, warrants and covenants to Countrywide that, as of each
Closing Date:
(a) Organization
and Standing.
The
Purchaser is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized and is qualified to transact
business in and is in good standing under the laws of each state in which the
nature of the business transacted by it or the character of the properties
owned
or leased by it requires such qualification (in
each
case, except where such failure would not have a material adverse effect on
the
ability of Purchaser to perform its obligations under the Agreement);
(b) Due
Authority.
The
Purchaser has the full power and authority to perform, and to enter into and
consummate, all transactions contemplated by this Agreement; the Purchaser
has
the full power and authority to purchase and hold each Mortgage
Loan;
(c) No
Conflict.
Neither
the acquisition of the Mortgage Loans by the Purchaser pursuant to this
Agreement, 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 Purchaser’s charter or by-laws or result in a material breach
of any legal restriction or any material agreement or instrument to which the
Purchaser is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result
in
the violation of any material law, rule, regulation, order, judgment or decree
to which the Purchaser or its property is subject (in
each
case, except for such breaches, violations, defaults or contraventions as would
not have a material adverse effect on the ability of Purchaser to perform its
obligations under the Agreement);
(d) No
Pending Litigation.
There
is no action, suit, proceeding, investigation or litigation pending or, to
the
Purchaser’s knowledge, threatened, which either in any one instance or in the
aggregate, if determined adversely to the Purchaser would materially and
adversely affect the purchase of the Mortgage Loans by the Purchaser hereunder,
or the Purchaser’s ability to perform its obligations under this Agreement;
and
(e) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Purchaser
of
or compliance by the Purchaser with this Agreement or the consummation of the
transactions contemplated by this Agreement (including, but not limited to,
any
approval from HUD), or if required, such consent, approval, authorization or
order has been obtained prior to the related Closing Date.
Section
3.06 Indemnification
by the Purchaser.
The
Purchaser shall indemnify Countrywide and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Purchaser’s representations and warranties contained in Section
3.05 above.
ARTICLE
IV.
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Countrywide
to Act as Servicer.
Countrywide,
as independent contract servicer, shall service and administer Mortgage Loans
sold pursuant to this Agreement in accordance with the terms of this Agreement
and shall have full power and authority, acting alone, to do or cause to be
done
any and all things, in connection with such servicing and administration, that
Countrywide may deem necessary or desirable and consistent with the terms of
this Agreement. In servicing and administering the Mortgage Loans, Countrywide
shall employ procedures in accordance with the customary and usual standards
of
practice of prudent mortgage servicers and shall comply with all applicable
laws
and regulations. Notwithstanding anything to the contrary contained herein,
in
servicing and administering Government Mortgage Loans, Countrywide shall not
take, or fail to take, any action that would result in the denial of coverage
under any LGC or MIC, as applicable. Without limiting the generality of the
foregoing, with respect to any Government Mortgage Loan, Countrywide shall
be
permitted to deviate from the servicing practices set forth herein if such
deviation would be consistent with the servicing practices required in
connection with any similar mortgage loan constituting a part of a GNMA
mortgage-backed security.
In
accordance with the terms of this Agreement, Countrywide may waive, modify
or
vary any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in Countrywide’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser; provided, however, that Countrywide shall not permit any modification
with respect to any Mortgage Loan that would decrease the Mortgage Interest
Rate
(other than by adjustments required by the terms of the Mortgage Note), result
in the denial of coverage under a PMI Policy, LGC or MIC, defer or forgive
the
payment of any principal or interest payments, reduce the outstanding principal
amount (except for actual payments of principal), make future advances or extend
the final maturity date on such Mortgage Loan without the Purchaser’s consent.
Countrywide may permit forbearance or allow for suspension of Monthly Payments
for up to one hundred and eighty (180) days if the Mortgagor is in default
or
Countrywide determines in its reasonable discretion, that default is imminent
and if Countrywide determines that granting such forbearance or suspension
is in
the best interest of the Purchaser. If any modification, forbearance or
suspension permitted hereunder allows the deferral of interest or principal
payments on any Mortgage Loan, Countrywide shall include in each remittance
for
any month in which any such principal or interest payment has been deferred
(without giving effect to such modification, forbearance or suspension) an
amount equal to such month’s principal and one (1) month’s interest at the
Mortgage Loan Remittance Rate on the then unpaid principal balance of the
Mortgage Loan and shall be entitled to reimbursement for such advances only
to
the same extent as for Monthly Advances made pursuant to Section 5.03. Without
limiting the generality of the foregoing, Countrywide shall continue, and is
hereby authorized and empowered to execute and deliver on behalf of itself
and
the Purchaser, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Property. If reasonably
required by Countrywide, the Purchaser shall furnish Countrywide with any powers
of attorney and other documents necessary or appropriate to enable Countrywide
to carry out its servicing and administrative duties under this
Agreement.
Section
4.02 Collection
of Mortgage Loan Payments.
Countrywide
shall make reasonable efforts, in accordance with the customary and usual
standards of practice of prudent mortgage servicers, to collect all payments
due
under each Mortgage Loan to the extent such procedures shall be consistent
with
this Agreement, the terms and provisions of any related PMI Policy, MIC or
LGC,
and applicable law.
Section
4.03 Realization
Upon Defaulted Mortgage Loans.
(a) Foreclosure.
Countrywide shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. Countrywide
shall use reasonable efforts to realize upon defaulted Mortgage Loans, in such
manner as will maximize the receipt of principal and interest by the Purchaser,
taking into account, among other things, the timing of foreclosure proceedings.
The foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, Countrywide shall not be required to expend
its own funds toward the restoration of such property unless it shall determine
in its discretion (i) that such restoration will increase the proceeds of
liquidation of the related Mortgage Loan to the Purchaser after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable by
Countrywide through PMI Proceeds, Government Insurance Proceeds, Other Insurance
Proceeds or Liquidation Proceeds from the related Mortgaged Property.
Countrywide shall notify the Purchaser in writing of the commencement of
foreclosure proceedings. Such notice may be contained in the reports prepared
by
Countrywide and delivered to the Purchaser pursuant to the terms and conditions
of this Agreement. Countrywide shall be responsible for all costs and expenses
incurred by it in any foreclosure proceedings; provided, however, that it shall
be entitled to reimbursement thereof from proceeds from the related Mortgaged
Property.
Section
4.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
Countrywide
shall segregate and hold all funds collected and received pursuant to each
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one (1) or more Custodial Accounts, in the
form
of time deposit or demand accounts. Countrywide shall provide the Purchaser
with
written evidence of the creation of such Custodial Account(s) upon the request
of the Purchaser.
Countrywide
shall deposit in the Custodial Account within two (2) Business Days, and retain
therein, the following payments and collections received or made by it
subsequent to the Cut-off Date, or received by it prior to the Cut-off Date
but
allocable to a period subsequent thereto, other than in respect of principal
and
interest on the Mortgage Loans due on or before the Cut-off Date:
(a) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(b) all
payments on account of interest on the Mortgage Loans, adjusted to the Mortgage
Loan Remittance Rate;
(c) all
proceeds from a Cash Liquidation;
(d) all
PMI
Proceeds, Government Insurance Proceeds and Other Insurance Proceeds, including
amounts required to be deposited pursuant to Sections 4.08 and 4.10, other
than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with customary servicing procedures,
the
loan documents or applicable law;
(e) all
Condemnation Proceeds affecting any Mortgaged Property that are not released
to
the Mortgagor in accordance with Countrywide’s normal servicing procedures, the
loan documents or applicable law;
(f) all
Monthly Advances;
(g) all
proceeds of any Mortgage Loan repurchased in accordance with Section 3.03 or
3.04, and any amount required to be deposited by Countrywide in connection
with
any shortfall in principal amount of the Qualified Substitute Mortgage Loans
and
the repurchased Mortgage Loans as required pursuant to Section
3.03;
(h) any
amounts required to be deposited by Countrywide pursuant to Section 4.10 in
connection with the deductible clause in any blanket hazard insurance policy
(such deposit shall be made from Countrywide’s own funds, without reimbursement
(i) the
Prepayment Interest Shortfall Amount, if any, for the month of distribution
(such deposit shall be made from Countrywide’s own funds, without reimbursement
(j) any
amounts required to be deposited by Countrywide in connection with any REO
Property pursuant to Section 4.13.
The
foregoing requirements for deposit in the Custodial Account are exclusive.
The
Purchaser understands and agrees that, without limiting the generality of the
foregoing, payments in the nature of late payment charges, prepayment penalties
and assumption fees (to the extent permitted by Section 4.16) need not be
deposited by Countrywide in the Custodial Account. Any interest paid by the
depository institution on funds deposited in the Custodial Account shall accrue
to the benefit of Countrywide and Countrywide shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section
4.05(d).
Section
4.05 Permitted
Withdrawals From the Custodial Account.
Countrywide
may, from time to time, withdraw funds from the Custodial Account for the
following purposes:
(a) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Sections 5.01 and 5.03;
(b) to
reimburse itself for Monthly Advances (Countrywide’s reimbursement for Monthly
Advances shall be limited to amounts received on the related Mortgage Loan
or to
amounts received on the Mortgage Loans as a whole if the Monthly Advance is
made
due to a shortfall in a Monthly Payment made by a Mortgagor entitled to relief
under the Soldiers’ and Sailors’ Civil Relief Act of 1940) which represent Late
Collections, net of the related Servicing Fee and LPMI Fee, if applicable.
Notwithstanding the foregoing, Countrywide may reimburse itself for Monthly
Advances from any funds in the Custodial Account if it has determined that
such
Monthly Advances are nonrecoverable advances or if all funds, with respect
to
the related Mortgage Loan, have previously been remitted to the Purchaser).
Countrywide’s right to reimbursement hereunder shall be prior to the rights of
the Purchaser, except that, where Countrywide is required to repurchase a
Mortgage Loan pursuant to Section 3.03 or 3.04, Countrywide’s right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price and all other amounts required to be paid to the Purchaser
with
respect to such Mortgage Loans;
(c) to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees (Countrywide’s reimbursement for Servicing Advances and/or Servicing Fees
hereunder with respect to any Mortgage Loan shall be limited to proceeds from
Cash Liquidation, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds,
Government Insurance Proceeds and Other Insurance Proceeds; provided, however,
that Countrywide may reimburse itself for Servicing Advances and Servicing
Fees
from any funds in the Custodial Account if all funds, with respect to the
related Mortgage Loan, have previously been remitted to the Purchaser.
Notwithstanding the foregoing, with respect to each Government Mortgage Loan,
Countrywide shall not be entitled to reimbursement of any Servicing Advances
that constitute losses and expenses for which an issuer of GNMA securities
would
be responsible, pursuant to Chapter 4 of the GNMA Handbook 5500.2, if such
Government Mortgage Loan had been included in a GNMA security);
(d) to
pay to
itself as servicing compensation (i) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date), and (ii) the Servicing Fee and the LPMI Fee, if applicable,
from that portion of any payment or recovery of interest on a particular
Mortgage Loan;
(e) to
pay to
itself, with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 or 3.04, all amounts received but not distributed as of the date
on
which the related Repurchase Price is determined;
(f) to
reimburse itself for any amounts deposited in the Custodial Account in error;
and
(g) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
Countrywide
shall segregate and hold all funds collected and received pursuant to each
Mortgage Loan which constitute Escrow Payments separate and apart from any
of
its own funds and general assets and shall establish and maintain one (1) or
more Escrow Accounts in the form of time deposit or demand accounts, which
accounts shall be Eligible Accounts. Countrywide shall provide the Purchaser
with written evidence of the creation of such Escrow Account(s) upon the request
of the Purchaser.
Countrywide
shall deposit in the Escrow Account(s) within two (2) Business Days, and retain
therein, (a) all Escrow Payments collected on account of the Mortgage Loans,
and
(b) all Other Insurance Proceeds that are to be applied to the restoration
or
repair of any Mortgaged Property. Countrywide shall make withdrawals therefrom
only to effect such payments as are required under this Agreement, and for
such
other purposes in accordance with Section 4.07. Countrywide shall be entitled
to
retain any interest paid by the depository institution on funds deposited in
the
Escrow Account except interest on escrowed funds required by law to be paid
to
the Mortgagor. Countrywide shall pay Mortgagor interest on the escrowed funds
at
the rate required by law notwithstanding that the Escrow Account is non-interest
bearing or the interest paid by the depository institution thereon is
insufficient to pay the Mortgagor interest at the rate required by
law.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Countrywide
may, from time to time, withdraw funds from the Escrow Account(s) for the
following purposes: (a) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, PMI Policy premiums,
if
applicable, and comparable items; (b) to reimburse Countrywide for any Servicing
Advance made by Countrywide with respect to a related Mortgage Loan; provided,
however, that such reimbursement shall only be made from amounts received on
the
related Mortgage Loan that represent late payments or collections of Escrow
Payments thereunder; (c) to refund to the Mortgagor any funds as may be
determined to be overages; (d) for transfer to the Custodial Account in
accordance with the terms of this Agreement; (e) for application to restoration
or repair of the Mortgaged Property; (f) to pay to Countrywide, or to the
Mortgagors to the extent required by law, any interest paid on the funds
deposited in the Escrow Account; (g) to reimburse itself for any amounts
deposited in the Escrow Account in error; or (h) to clear and terminate the
Escrow Account on the termination of this Agreement.
Section
4.08 Transfer
of Accounts.
Countrywide
may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time provided that such Custodial Account
and Escrow Account shall at all times be Eligible Accounts and that notice
of
any such transfer shall be provided to the Purchaser.
Section
4.09 Payment
of Taxes, Insurance and Other Charges; Maintenance of PMI Policies; Collections
Thereunder.
With
respect to each Mortgage Loan, Countrywide shall maintain accurate records
reflecting the status of (a) ground rents, taxes, assessments, water rates
and
other charges that are or may become a lien upon the Mortgaged Property; (b)
primary mortgage insurance premiums; (c) with respect to Mortgage Loans insured
by the FHA, mortgage insurance premiums, and (d) fire and hazard insurance
premiums. Countrywide shall obtain, from time to time, all bills for the payment
of such charges, including renewal premiums, and shall effect payment thereof
prior to the applicable penalty or termination date and at a time appropriate
for securing maximum discounts allowable using Escrow Payments which shall
have
been estimated and accumulated by Countrywide in amounts sufficient for such
purposes. To the extent that the Mortgage does not provide for Escrow Payments,
Countrywide shall determine that any such payments are made by the Mortgagor
at
the time they first become due. Countrywide assumes full responsibility for
the
timely payment of all such bills and shall effect timely payments of all such
bills, irrespective of the Mortgagor’s faithful performance in the payment of
same or the making of the Escrow Payments, and shall make advances from its
own
funds to effect such payments.
Countrywide
will maintain in full force and effect, a PMI Policy conforming in all respects
to the description set forth in Section 3.02(v), issued by an insurer described
in that Section, with respect to each Mortgage Loan for which such coverage
is
herein required. Such coverage will be maintained until the LTV or the Updated
LTV of the related Mortgage Loan is reduced to 80% or less in the case of a
Mortgage Loan having a LTV at origination in excess of 80%. Countrywide will
not
cancel or refuse to renew any PMI Policy in effect on the Closing Date that
is
required to be kept in force under this Agreement unless a replacement PMI
Policy is obtained from and maintained with an insurer that is approved by
an
Agency. Countrywide shall not take any action that would result in non-coverage
under any applicable PMI Policy of any loss that, but for the actions of
Countrywide, would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 4.16, Countrywide shall promptly notify the insurer under the related
PMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions that may
be
required by such insurer as a condition to the continuation of coverage under
the PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, Countrywide shall obtain a replacement PMI Policy
as provided above.
Unless
otherwise provided in the related Purchase Confirmation, no Mortgage Loan has
in
effect as of the Closing Date any mortgage pool insurance policy or other credit
enhancement, except for any PMI Policy, MIC or LGC and the insurance or
guarantee relating thereto, as applicable (excluding such exception, the “Credit
Enhancement”), and Countrywide shall not be required to take into consideration
the existence of any such Credit Enhancement for the purposes of performing
its
servicing obligations hereunder. If the Purchaser shall at any time after the
related Closing Date notify Countrywide in writing of its desire to obtain
any
such Credit Enhancement, the Purchaser and Countrywide shall thereafter
negotiate in good faith for the procurement and servicing of such Credit
Enhancement.
Section
4.10
Maintenance of Hazard Insurance.
Countrywide
shall cause to be maintained, for each Mortgage Loan, fire and hazard insurance
with extended coverage as is customary in the area where the Mortgaged Property
is located in an amount that is equal to the lesser of (a) the maximum insurable
value of the improvements securing such Mortgage Loan or (b) the greater of
(i)
the unpaid principal balance of the Mortgage Loan, and (ii) the percentage
such
that the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the Mortgagee from becoming a co-insurer. If the Mortgaged Property is in an
area identified in the Federal Register by the Flood Emergency Management Agency
as having special flood hazards and such flood insurance has been made
available, Countrywide shall cause to be maintained a flood insurance policy
meeting the requirements of the current guidelines of the National Flood
Insurance Administration program (or any successor thereto) with a generally
acceptable insurance carrier and with coverage in an amount not less than the
lesser of (x) the unpaid principal balance of the Mortgage Loan; (y) the maximum
insurable value of the improvements securing such Mortgage Loan; or (z) the
maximum amount of insurance which is available under the National Flood
Insurance Reform Act of 1994. Countrywide shall also maintain on REO Property,
(1) fire and hazard insurance with extended coverage in an amount that is not
less than the maximum insurable value of the improvements that are a part of
such property; (2) liability insurance; and (3) to the extent required and
available under the National Flood Insurance Reform Act of 1994, flood insurance
in an amount as provided above. Countrywide shall deposit in the Custodial
Account all amounts collected under any such policies except (A) amounts to
be
deposited in the Escrow Account and applied to the restoration or repair of
the
Mortgaged Property or REO Property and (B) amounts to be released to the
Mortgagor in accordance with customary servicing procedures. The Purchaser
understands and agrees that no earthquake or other additional insurance on
property acquired in respect of the Mortgage Loan shall be maintained by
Countrywide or Mortgagor. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to Countrywide and shall provide for at
least thirty (30) days prior written notice to Countrywide of any cancellation,
reduction in the amount of coverage or material change in coverage. Countrywide
shall not interfere with the Mortgagor’s freedom of choice in selecting either
the insurance carrier or agent; provided, however, that Countrywide shall only
accept insurance policies from insurance companies acceptable to an Agency
and
licensed to do business in the state wherein the property subject to the policy
is located.
Section
4.11 [Reserved].
Section
4.12 Fidelity
Bond; Errors and Omissions Insurance.
Countrywide
shall maintain, at its own expense, a blanket Fidelity Bond and an errors and
omissions insurance policy with responsible companies, with broad coverage
of
all officers, employees or other persons acting in any capacity with regard
to
the Mortgage Loan who handle funds, money, documents or papers relating to
the
Mortgage Loan. The Fidelity Bond and errors and omissions insurance shall be
in
the form of the Mortgage Banker’s Blanket Bond and shall protect and insure
Countrywide against losses, including forgery, theft, embezzlement, fraud,
errors and omissions and negligent acts of its officers, employees and agents.
Such Fidelity Bond shall also protect and insure Countrywide against losses
in
connection with the failure to maintain any insurance policies required pursuant
to this Agreement and the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 shall diminish or relieve Countrywide from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such Fidelity Bond and errors and omissions insurance policy shall
be
at least equal to the corresponding amounts required by an Agency for an
approved seller/servicer.
Section
4.13 Title,
Management and Disposition of REO Property.
(a) Title.
In the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of Countrywide for the benefit of the Purchaser, or in the event the
Purchaser is not authorized or permitted to hold title to real property in
the
state where the REO Property is located, or would be adversely affected under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person(s) as shall be
consistent with an Opinion of Counsel obtained by Countrywide from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person(s) holding such title other than the Purchaser shall acknowledge
in
writing that such title is being held as nominee for the benefit of the
Purchaser.
(b) Management.
Countrywide shall either itself or through an agent selected by Countrywide,
manage, conserve, protect and operate each REO Property in the same manner
that
it manages, conserves, protects and operates other foreclosed property for
its
own account. Countrywide shall cause each REO Property to be inspected promptly
upon the acquisition of title thereto and shall cause each REO Property to
be
inspected at least annually thereafter or more frequently as required by the
circumstances. Countrywide shall make or cause to be made a written report
of
each such inspection. Such reports shall be retained in the Credit File and
copies thereof shall be forwarded by Countrywide to the Purchaser within five
(5) days of the Purchaser’s request
(c) Disposition.
Subject
to the following paragraph, Countrywide shall use reasonable efforts to dispose
of each REO Property as soon as possible and shall sell each REO Property no
later than one (1) year after title to such REO Property has been obtained,
unless Countrywide determines, and gives an appropriate notice to the Purchaser,
that a longer period is necessary for the orderly disposition of any REO
Property. If a period longer than one (1) year is necessary to sell any REO
Property, Countrywide shall, if requested by the Purchaser, report monthly
to
the Purchaser as to the progress being made in selling such REO
Property.
If
a
REMIC election is or is to be made with respect to the arrangement under which
the Mortgage Loans and any REO Property are held, Countrywide shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC
of any “income from non-permitted assets” within the meaning of Section
860F(a)(2)(B) of the Code or any “net income from foreclosure property” within
the meaning of Section 860G(c)(2) of the Code. Notwithstanding
anything to the contrary set forth herein, if a REMIC election is made with
respect to the arrangement under which the Mortgage Loans and the REO Property
are held, such REO Property shall be disposed of within three years or such
other period as may be permitted under Section 860G(a)(8) of the
Code.
Each
REO
Disposition shall be carried out by Countrywide at such price and upon such
terms and conditions as Countrywide deems to be in a manner that maximizes
the
net present value of the recovery to the Purchaser. If, as of the date title
to
any REO Property was acquired by Countrywide, there were outstanding
unreimbursed Servicing Advances, Monthly Advances or Servicing Fees with respect
to the REO Property or the related Mortgage Loan, Countrywide, upon an REO
Disposition of such REO Property, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances, Monthly Advances and Servicing Fees
from proceeds received in connection with such REO Disposition. The proceeds
from the REO Disposition, net of any payment to Countrywide as provided above,
shall be deposited in the Custodial Account and distributed to the Purchaser
in
accordance with Section 5.01.
Section
4.14 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, Countrywide shall adjust the
Mortgage Interest Rate on the related Interest Adjustment Date and shall adjust
the Monthly Payment on the related Payment Adjustment Date in compliance with
the requirements of applicable law and the related Mortgage and Mortgage Note.
If, pursuant to the terms of the Mortgage Note, another index is selected for
determining the Mortgage Interest Rate because the original index is no longer
available, the same index will be used with respect to each Mortgage Note which
requires a new index to be selected, provided that such selection does not
conflict with the terms of the related Mortgage Note. Countrywide shall execute
and deliver any and all necessary 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. Countrywide shall promptly, upon
written request
Section
4.15 Notification
of Maturity Date.
With
respect to each Balloon Mortgage Loan, Countrywide shall execute and deliver
to
the Mortgagor any and all necessary notices required under applicable law and
the terms of the related Mortgage Note and Mortgage regarding the maturity
date
and final balloon payment.
Section
4.16 Assumption
Agreements.
Countrywide
shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause to the extent permitted by law; provided, however, that Countrywide
shall
not exercise any such right if prohibited from doing so by law or the terms
of
the Mortgage Note or if the exercise of such right would impair or threaten
to
impair any recovery under the related PMI Policy, if any. If Countrywide
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, Countrywide shall enter into an assumption agreement with
the Person to whom the Mortgaged Property has been conveyed or is proposed
to be
conveyed, pursuant to which such Person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 4.16,
the Purchaser authorizes Countrywide, with the prior written consent of the
primary mortgage insurer, if any, to enter into a substitution of liability
agreement with the Person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In
connection with any such assumption or substitution of liability, Countrywide
shall follow the underwriting practices and procedures employed by Countrywide
for mortgage loans originated by Countrywide for its own account in effect
at
the time such assumption or substitution is made. With respect to an assumption
or substitution of liability, the Mortgage Interest Rate borne by the related
Mortgage Note, the term of the Mortgage Loan and the outstanding principal
amount of the Mortgage Loan shall not be changed. Countrywide shall notify
the
Purchaser that any such substitution of liability or assumption agreement has
been completed by forwarding to the Purchaser or its designee the original
of
any such substitution of liability or assumption agreement, which document
shall
be added to the related Collateral File and shall, for all purposes, be
considered a part of such Collateral File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding
anything to the contrary contained herein, Countrywide shall not be deemed
to be
in default, breach or any other violation of its obligations hereunder by reason
of any assumption of a Mortgage Loan by operation of law or any assumption
that
Countrywide may be restricted by law from preventing, for any reason whatsoever.
For purposes of this Section 4.16, the term “assumption” is deemed to also
include a sale of the Mortgaged Property subject to the Mortgage that is not
accompanied by an assumption or substitution of liability
agreement.
Section
4.17 Satisfaction
of Mortgages and Release of Collateral Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by Countrywide of a
notification that payment in full will be escrowed in a manner customary for
such purposes, Countrywide shall immediately notify the Purchaser. Such notice
shall include a statement to the effect that all amounts received or to be
received in connection with such payment, which are required to be deposited
in
the Custodial Account pursuant to Section 4.04, have been or will be so
deposited and shall request delivery to it of the portion of the Collateral
File
held by the Purchaser. Upon receipt of such notice and request, the Purchaser,
or its designee, shall within five (5) Business Days release or cause to be
released to Countrywide the related Collateral Documents and Countrywide shall
prepare and process any satisfaction or release. In the event that the Purchaser
fails to release or cause to be released to Countrywide the related Collateral
Documents within five (5) Business Days of Countrywide’s request
In
the
event Countrywide satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, Countrywide, upon written demand, shall remit to the Purchaser
the
then unpaid principal balance of the related Mortgage Loan by deposit thereof
in
the Custodial Account. Countrywide shall maintain the Fidelity Bond insuring
Countrywide against any loss it may sustain with respect to any Mortgage Loan
not satisfied in accordance with the procedures set forth herein.
From
time
to time and as appropriate for the service or foreclosure of a Mortgage Loan,
including for the purpose of collection under any PMI Policy, the Purchaser
shall, within five (5) Business Days of Countrywide’s request and delivery to
the Purchaser, or the Purchaser’s designee, of a servicing receipt signed by a
Servicing Officer, release or cause to be released to Countrywide the portion
of
the Collateral File held by the Purchaser or its designee. Pursuant to the
servicing receipt, Countrywide shall be obligated to return to the Purchaser
the
related Collateral File when Countrywide no longer needs such file, unless
the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the
Mortgage Loan have been deposited in the Custodial Account or the Collateral
File or such document has been delivered to an attorney, or to a public trustee
or other public official as required by law, for purposes of initiating or
pursuing legal action or other proceedings for the foreclosure of the Mortgaged
Property either judicially or non-judicially. In the event that the Purchaser
fails to release or cause to be released to Countrywide the portion of the
Collateral File held by the Purchaser or its designee within five (5) Business
Days of Countrywide’s request
Section
4.18 Servicing
Compensation.
As
compensation for its services hereunder, Countrywide shall be entitled to
withdraw from the Custodial Account, or to retain from interest payments on
the
Mortgage Loans, the amounts provided for as Servicing Fees. Additional servicing
compensation in the form of assumption fees (as provided in Section 4.16),
late
payment charges, prepayment penalties or otherwise shall be retained by
Countrywide to the extent not required to be deposited in the Custodial Account.
Countrywide shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder and shall not be entitled to
reimbursement
ARTICLE
V.
PROVISIONS
OF PAYMENTS AND REPORTS TO PURCHASER
Section
5.01 Distributions.
On
each
Remittance Date, Countrywide shall distribute to the Purchaser (a) all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Section 4.05; plus (b) all Monthly Advances, if any, that
Countrywide is obligated to distribute pursuant to Section 5.03; minus (c)
any
amounts attributable to Principal Prepayments received after the related
Principal Prepayment Period; minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that, by operation of Section 4.04, the
remittance on the first Remittance Date is to include principal collected after
the Cut-off Date through the preceding Determination Date plus interest,
adjusted to the Mortgage Loan Remittance Rate, collected through such
Determination Date exclusive of any portion thereof allocable to the period
prior to the Cut-off Date, with the adjustments specified in (b), (c) and (d)
above.
Section
5.02 Periodic
Reports to the Purchaser.
(a) Monthly
Reports.
Not
later than each Remittance Date, Countrywide shall furnish to the Purchaser
via
any electronic medium a monthly report in a form reasonably acceptable to
institutional buyers of mortgage loans, which report shall include with respect
to each Mortgage Loan the following loan-level information: (i) the scheduled
balance as of the last day of the related Due Period, (ii) all Principal
Prepayments applied to the Mortgagor’s account during the related Principal
Prepayment Period, and (iii) the delinquency and bankruptcy status of the
Mortgage Loan, if applicable.
(b) Miscellaneous
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed-in-lieu of foreclosure, Countrywide shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property,
which report may be included with any other reports prepared by Countrywide
and
delivered to the Purchaser pursuant to the terms and conditions of this
Agreement. With respect to any REO Property, and upon the request of the
Purchaser, Countrywide shall furnish to the Purchaser a statement describing
Countrywide’s efforts during the previous month in connection with the sale of
such REO Property, including any rental of such REO Property incidental to
the
sale thereof and an operating statement. Countrywide shall also provide the
Purchaser with such information concerning the Mortgage Loans as is necessary
for the Purchaser to prepare its federal income tax return and as the Purchaser
may reasonably request from time to time. The Purchaser agrees to pay for all
reasonable out-of-pocket expenses incurred by Countrywide in connection with
complying with any request made by the Purchaser hereunder if such information
is not customarily provided by Countrywide in the ordinary course of servicing
mortgage loans similar to the Mortgage Loans.
Section
5.03 Monthly
Advances by Countrywide.
Not
later
than the close of business on the Determination Date preceding each Remittance
Date, Countrywide shall deposit in the Custodial Account an amount equal to
all
payments not previously advanced by Countrywide, whether or not deferred
pursuant to Section 5.01, of principal (due after the Cut-off Date) and interest
not allocable to the period prior to the Cut-off Date, adjusted to the Mortgage
Loan Remittance Rate, which were due on a Mortgage Loan and delinquent as of
the
close of business on the Business Day prior to the related Determination Date.
Notwithstanding anything to the contrary herein, Countrywide may use amounts
on
deposit in the Custodial Account for future distribution to the Purchaser to
satisfy its obligation, if any, to deposit delinquent amounts pursuant to the
preceding sentence. To the extent Countrywide uses any funds being held for
future distribution to the Purchaser to satisfy its obligations under this
Section 5.03, Countrywide shall deposit in the Custodial Account an amount
equal
to such used funds no later than the Determination Date prior to the following
Remittance Date to the extent that funds in the Custodial Account on such
Remittance Date are less than the amounts to be remitted to the Purchaser
pursuant to Section 5.01.
Countrywide’s
obligation to make such advances as to any Mortgage Loan will continue through
the earliest of: (a) the last Monthly Payment due prior to the payment in full
of the Mortgage Loan; (b) the Remittance Date prior to the Remittance Date
for
the distribution of any Liquidation Proceeds, Other Insurance Proceeds or
Condemnation Proceeds which, in the case of Other Insurance Proceeds and
Condemnation Proceeds, satisfy in full the indebtedness of such Mortgage Loan;
or (c) the Remittance Date prior to the date any REO Property is liquidated;
provided, however, with respect to any Government Mortgage Loan that is
converted to REO Property, Countrywide’s obligation to make such advances will
continue in accordance with the applicable governmental agency’s guidelines. In
no event shall Countrywide be obligated to make an advance under this Section
5.03 if at the time of such advance it reasonably determines that such advance
will be unrecoverable.
Section
5.04 Annual
Statement as to Compliance.
Countrywide
shall deliver to the Purchaser on or before March 15, 2004, and on or before
February 28 of each year thereafter, beginning February 28, 2005, an Officers’
Certificate stating, as to each signatory thereof, that (a) a review of the
activities of Countrywide during the preceding calendar year and of performance
under this Agreement has been made under such officers’ supervision, and (b) to
the best of such officers’ knowledge, based on such review, Countrywide has
fulfilled all of its obligations under this Agreement throughout such year,
or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof. Countrywide shall provide the Purchaser with copies of such statements
upon request.
Section
5.05 Annual
Independent Certified Public Accountants’ Servicing Report.
On
or
before March 15, 2004, and on or before February 28 of each year thereafter,
beginning February 28, 2005, Countrywide at its expense shall cause a firm
of
independent public accountants(which may also render other services to
Countrywide), which is a member of the American Institute of Certified Public
Accountants, to furnish a statement to the Purchaser to the effect that such
firm has examined certain documents and records relating to the servicing of
mortgage loans by Countrywide generally that include a sampling of the Mortgage
Loans, the provisions of Article II and Article IV have been complied with
and
that, on the basis of such examination, conducted substantially in accordance
with the Uniform Single Audit Program for Mortgage Bankers, such firm is of
the
opinion that Countrywide’s servicing has been conducted in compliance with this
Agreement, except for (a) such exceptions as such firm shall believe to be
immaterial, and (b) such other exceptions as shall be set forth in such
statement. Countrywide shall provide the Purchaser with copies of such
statements upon request.
Section
5.06 Annual
Statement as to Compliance
(a)
For
so
long as a Person is required by Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(the “Act”) to provide an annual certification, by March
15,
2004, and on or before February 28 of each year thereafter, beginning February
28, 2005, an
officer of Countrywide shall execute and deliver an officer’s certificate to
such Person for the benefit of such Person and such Person’s officers, directors
and affiliates (collectively, the “Beneficiary”), pursuant to which such officer
shall certify to those matters substantially as set forth in Exhibit
E.
| (ii) |
Countrywide
shall indemnify and hold harmless the Beneficiary from and against
any
losses, damages, penalties, fines, forfeitures, reasonable legal fees
and
related costs, judgments and other costs and expenses arising out of
or
based upon a breach by Countrywide or any of its officers, directors,
agents or affiliates of its obligations under this Section 5.07 or
the
negligence, bad faith or willful misconduct of Countrywide in connection
therewith. If the indemnification provided for herein is unavailable
or
insufficient to hold harmless the Beneficiary, then Countrywide agrees
that it shall contribute to the amount paid or payable by the Beneficiary
as a result of the losses, claims, damages or liabilities of the
Beneficiary in such proportion as is appropriate to reflect the relative
fault of Countrywide in connection with a breach of Countrywide’s
obligations under this Section 5.07 or Countrywide’s negligence, bad faith
or willful misconduct in connection
therewith.
|
Section
5.07 Purchaser’s
Access to Countrywide’s Records.
The
Purchaser shall have access upon reasonable notice to Countrywide, during
regular business hours or at such other times as might be reasonable under
applicable circumstances, to any and all of the books and records of Countrywide
that relate to the performance or observance by Countrywide of the terms,
covenants or conditions of this Agreement. Further, Countrywide hereby
authorizes the Purchaser, in connection with a sale of the Mortgage Loans,
to
make available to prospective purchasers a Consolidated Statement of Operations
of Countrywide, or its parent company, prepared by or at the request of
Countrywide for the most recently completed three (3) fiscal years for which
such a statement is available as well as a Consolidated Statement of Condition
at the end of the last two (2) fiscal years covered by such Consolidated
Statement of Operations. Countrywide also agrees to make available to any
prospective purchaser, upon reasonable notice and during normal business hours,
a knowledgeable financial or accounting officer for the purpose of answering
questions respecting Countrywide’s ability to perform under this Agreement. The
Purchaser agrees to reimburse Countrywide for any reasonable out-of-pocket
costs
incurred by Countrywide in connection with its obligations under this Section
5.06.
Section
5.08 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, Countrywide shall not take any action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contributions” to a REMIC set forth in Section 860G(d) of
the Code) unless Countrywide has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
ARTICLE
VI.
COVENANTS
BY COUNTRYWIDE
Section
6.01 Indemnification
by Countrywide.
Countrywide
shall indemnify the Purchaser and hold it harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary
attorneys’ fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain in any way related to the failure of
Countrywide to perform its obligations hereunder including its obligations
to
service and administer the Mortgage Loans in compliance with the terms of this
Agreement and in connection with the breach of representations and warranties
as
provided in Section 3.03 of this Agreement.
Section
6.02 Third
Party Claims.
Countrywide
and the Purchaser shall immediately notify the other if a claim is made upon
such party by a third party with respect to this Agreement or the Mortgage
Loans. Upon the prior written consent of the Purchaser, which consent shall
not
be unreasonably withheld, Countrywide shall assume the defense of any such
claim
and pay all expenses in connection therewith, including attorneys’ fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. The Purchaser shall
promptly reimburse Countrywide for all amounts advanced by it pursuant to the
preceding sentence except when as a result of such claim Countrywide is
otherwise required to indemnify the Purchaser pursuant to Section 6.01 hereof.
Section
6.03 Merger
or Consolidation of Countrywide.
Countrywide
shall keep in full effect its existence, rights and franchises as a corporation
under the laws of the United States or under the laws of one of the states
thereof, 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.
Notwithstanding
anything to the contrary contained herein, any Person into which Countrywide
may
be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which Countrywide shall be a party, or any Person
succeeding to the business of Countrywide, shall be the successor of Countrywide
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto; provided, however, that the successor
or
surviving Person shall be an institution whose deposits are insured by FDIC
or a
company whose business is the origination and servicing of mortgage loans,
unless otherwise consented to by the Purchaser, which consent shall not be
unreasonably withheld, and shall be qualified to service mortgage loans on
behalf of an Agency.
Section
6.04 Limitation
on Liability of Countrywide and Others.
Neither
Countrywide nor any of the officers, employees or agents of Countrywide shall
be
under any liability to the Purchaser for any action taken, or for refraining
from taking any action, in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect
Countrywide or any such person against any breach of warranties or
representations made herein, or the failure to perform its obligations in
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the terms
and conditions of this Agreement. Countrywide and any officer, employee or
agent
of Countrywide may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. To the extent the Purchaser records with the recording office as
permitted herein an Assignment of Mortgage which designates the Purchaser as
the
holder of record of the Mortgage, the Purchaser agrees that it shall (i) provide
Countrywide with prompt notice of any action with respect to the Mortgage or
the
related Mortgaged Property to the contact person set forth in this Agreement
or
such other person designated in writing by Countrywide to the Purchaser; (ii)
promptly complete, sign and return to Countrywide any document reasonably
requested and provided by Countrywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide; and indemnify Countrywide for any loss or costs
(including any reasonable legal fees and expenses) which arise as a result
of
such recordation. The Purchaser further agrees that Countrywide shall have
no
liability for the Purchaser’s failure to comply with the subsections (i) or (ii)
in the foregoing sentence. Countrywide shall have no liability to the Purchaser
and shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties to service the Mortgage
Loans
in accordance with this Agreement and which in its opinion may involve it in
any
expenses or liability; provided, however, that Countrywide may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable to protect the Purchaser’s interests in the Mortgage Loans. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities for which the Purchaser
will
be liable, and Countrywide shall be entitled to be reimbursed
Section
6.05 No
Transfer of Servicing.
Countrywide
acknowledges that the Purchaser acts in reliance upon Countrywide’s independent
status, the adequacy of its servicing facilities, plant, personnel, records
and
procedures, its integrity, reputation and financial standing and the continuance
thereof. Without in any way limiting the generality of this Section, Countrywide
shall not assign this Agreement or the servicing rights hereunder, without
the
prior written approval of the Purchaser, which consent may not be unreasonably
withheld; provided,
however,
that
nothing in this Agreement shall limit the right of Countrywide to assign the
servicing rights hereunder to Servicing LP.
ARTICLE
VII.
TERMINATION
OF COUNTRYWIDE AS SERVICER
Section
7.01 Termination
Due to an Event of Default.
(a) Each
of
the following shall be an Event of Default by Countrywide if it shall occur
and,
if applicable, be continuing for the period of time set forth
therein:
(i) any
failure by Countrywide to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which such failure continues unremedied for
a
period of two (2) Business Days after the date upon which written notice of
such
failure, requiring the same to be remedied, shall have been given to Countrywide
by the Purchaser; or
(ii) any
failure on the part of Countrywide to duly observe or perform in any material
respect any of the covenants or agreements on the part of Countrywide set forth
in this Agreement or in the Custodial Agreement, if any, which continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given
to Countrywide by the Purchaser; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against Countrywide and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days;
or
(iv) Countrywide
shall consent to the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to Countrywide or of or
relating to all or substantially all of its property; or
(v) Countrywide
shall admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) Countrywide
assigns the servicing or servicing compensation except as provided in Section
6.05 of this Agreement, without the consent of the Purchaser; or
(vii) in
the
event of a Pass-Through Transfer, any rating agency with respect to such
Pass-Through Transfer withholds or will not provide a rating reasonably
acceptable to the Purchaser for the pass-through certificates if Countrywide
or
Servicing LP is servicing the Mortgage Loans; or
(viii) to
the
extent any Mortgage Loan is a MERS Mortgage Loan, the Seller’s membership in
MERS is terminated for any reason
and such
membership shall not be reinstated within sixty (60) days;
or
(ix) the
Seller has its right to service temporarily or permanently suspended by ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac or otherwise ceases to be an approved seller/servicer of
conventional residential mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac
and such
suspension shall not be removed or such approval shall not be reinstated within
sixty (60) days.
In
case
one or more Events of Default by Countrywide shall occur and shall not have
been
remedied, the Purchaser, by notice in writing to Countrywide may, in addition
to
whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of Countrywide under this Agreement and in and to the Mortgage
Loans
and the proceeds thereof. On or after the receipt by Countrywide of such written
notice, all authority and power of Countrywide under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested
in
the Purchaser. Upon written request from the Purchaser, Countrywide shall
prepare, execute and deliver, any and all documents and other instruments and
do
or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at Countrywide’s sole expense. Countrywide agrees to cooperate with
the Purchaser in effecting the termination of Countrywide’s responsibilities and
rights hereunder, including the transfer to the Purchaser, for administration
by
it, of all cash amounts which shall at the time be credited by Countrywide
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
(b) Waiver
of Event of Default.
The
Purchaser may waive any default by Countrywide in the performance of
Countrywide’s obligations hereunder and its consequences. Upon any such waiver
of a past default, such default shall cease to exist, and any Events of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto except to the extent expressly so
waived.
Section
7.02 Termination
by Other Means.
The
respective obligations and responsibilities of Countrywide shall terminate
with
respect to any Mortgage Loan Package upon the first to occur of: (a) the later
of the final payment or other liquidation (or any advance with respect thereto)
of the last Mortgage Loan or the disposition of all REO Property in such
Mortgage Loan Package and the remittance of all funds due hereunder; (b) by
mutual consent of Countrywide and the Purchaser in writing; or (c) the
Pass-Through Transfer of the last Mortgage Loan in such Mortgage Loan
Package.
ARTICLE
VIII.
MISCELLANEOUS
Section
8.01 Notices.
All
demands, notices and communications required to be provided hereunder shall
be
in writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, postage prepaid, and return receipt requested, or, if by
other means, when received by the other party at the address as
follows:
|
(i)
|
to
Countrywide:
|
Countrywide
Home Loans, Inc.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President
With
copy
to: General Counsel
| (ii) |
the
Purchaser:
|
To
the
address and contact set forth in the related Purchase Confirmation
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
8.02 Sale
Treatment.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by Countrywide
and not a pledge of the Mortgage Loans by Countrywide to the Purchaser to secure
a debt or other obligation of Countrywide. Consequently, the sale of each
Mortgage Loan shall be reflected as a sale on Countrywide’s business records,
tax returns and financial statements. Accordingly, Countrywide and the Purchaser
shall each treat the transaction for federal income tax purposes as a sale
by
Countrywide, and a purchase by the Purchaser, of the Mortgage Loans.
Section
8.03 Exhibits.
The
Exhibits to this Agreement and each Trade Confirmation and Purchase Confirmation
executed by Countrywide and the Purchaser are hereby incorporated and made
a
part hereof and are an integral part of this Agreement.
Section
8.04 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;
(f) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(g) reference
to the Transaction Documents or any other document referenced herein shall
include all exhibits, schedules or other supplements thereto.
Section
8.05 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including (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
8.06 Further
Agreements.
Countrywide
shall execute and deliver to the Purchaser and the Purchaser shall be required
to execute and deliver to Countrywide such reasonable and appropriate additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Agreement.
Section
8.07 Assignment
of Mortgage Loans by the Purchaser; Pass-Through Transfers.
(a) The
Purchaser may, subject to the terms of this Agreement, sell and transfer one
or
more of the Mortgage Loans; provided, however, that the transferee will not
be
deemed to be the Purchaser hereunder unless such transferee shall agree in
writing to be bound by the terms of this Agreement and an original counterpart
of the document evidencing such agreement shall have been executed by the
Purchaser and the transferee and delivered to Countrywide. Notwithstanding
the
foregoing, no transfer shall be effective if such transfer would result in
there
being more than three (3) “Purchasers” outstanding hereunder with respect to any
Mortgage Loan Package. Any trust to which Mortgage Loans may be transferred
pursuant to Section 8.07(b) hereunder shall constitute a single Purchaser for
the purposes of the preceding sentence.
(b) The
Purchaser and Countrywide agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, but subject to the limitations set
forth in Section 8.07(a) hereof, may effect one or more whole loan transfers,
agency transfers or Pass-Through Transfers, retaining Countrywide as the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the “seller/servicer.” On the related Reconstitution Date, the
Mortgage Loans transferred shall cease to be covered by this Agreement;
provided, however, that, in the event that any Mortgage Loan transferred
pursuant to this Section 8.07 is rejected by the related transferee, Countrywide
shall continue to service such rejected Mortgage Loan on behalf of the Purchaser
in accordance with the terms and provisions of this Agreement. Countrywide
shall
cooperate with the Purchaser in connection with each Pass-Through Transfer
in
accordance with this Section 8.07. In connection therewith Countrywide
shall:
(i) negotiate
in good faith and execute any seller/servicer agreement reasonably required
to
effectuate the Pass-Through Transfer, provided such agreement creates no greater
obligation or cost on the part of Countrywide than otherwise set forth in this
Agreement, and provided further that Countrywide shall be entitled to a
servicing fee under that agreement at a rate per annum no less than the
Servicing Fee Rate; and
(ii) provide
as applicable:
(A) information
pertaining to Countrywide
and
Countrywide’s mortgage loan delinquency, foreclosure and loss experience and any
additional information requested by the Purchaser of the
of the
type and scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan originators
and
provide reasonable and appropriately reciprocal indemnity with respect to any
material misstatements, errors or omissions or alleged material misstatements,
errors or omissions with respect to such information; and
(B) such
opinions of counsel, letters from auditors, and certificates of public officials
or officers of Countrywide as are reasonably believed necessary by the trustee,
any rating agency or the Purchaser, as the case may be, in connection with
such
Pass-Through Transfer. The Purchaser shall pay all third party costs associated
with the preparation of the information described in clause (ii)(A) above and
the delivery of any opinions, letters or certificates described in this clause
(ii)(B). Countrywide shall not be required to execute any seller/servicer
agreement unless a draft of the agreement is provided to Countrywide at least
10
days before the Reconstitution Date, or such longer period as may reasonably
be
required for Countrywide and its counsel to review and comment on the
agreement.
(c) In
connection with any Pass-Through Transfer, Countrywide shall not be required
to
“bring down” any of the representations and warranties in Section 3.02 (i.e.,
the representations and warranties only speak as of the applicable date set
forth in this Agreement), or, except as provided in the following sentence,
to
make any other representations or warranties whatsoever. Upon request,
Countrywide will bring down the representations and warranties in Section 3.01
to a date no later than the related Reconstitution Date, or make new
representations and warranties comparable in all material respects to those
in
Section 3.01.
(d) All
Mortgage Loans not sold or transferred pursuant to whole loan transfers, agency
transfers or Pass-Through Transfers shall remain subject to this Agreement
and
shall continue to be serviced in accordance with the terms of this Agreement
and
with respect thereto this Agreement shall remain in full force and
effect.
Section
8.08 Conflicts
between Transaction Documents.
In
the
event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement and either the related Trade Confirmation or the
related Purchase Confirmation, the terms of the related Purchase Confirmation
shall control. In the event of any conflict, inconsistency or ambiguity between
the terms and conditions of the Trade Confirmation and the Purchase
Confirmation, the terms of the Purchase Confirmation shall control.
Section
8.09 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements entered into and wholly performed
within that state.
Section
8.10 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to an amendment to this Agreement which
places each party in the same or as economic position as each party would have
been in except for such invalidity.
Section
8.11 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by
Countrywide and the Purchaser and the respective permitted successors and
assigns of Countrywide and the Purchaser. Except as specifically set forth
in
Section 6.05 above, Countrywide may not assign this Agreement to any Person
without the Purchaser’s prior written consent. The Purchaser may not assign this
Agreement to any more than three (3) Persons without Countrywide’s prior written
consent
Section
8.12 Confidentiality.
Countrywide
and the Purchaser acknowledge and agree that the terms of the Transaction
Documents shall be kept confidential and their contents will not be divulged
to
any party without the other party’s consent, except to the extent that it is
appropriate for Countrywide and the Purchaser to do so in working with legal
counsel, auditors, taxing authorities, or other governmental agencies.
Section
8.13 Entire
Agreement.
This
Agreement and the related Trade Confirmation and Purchase Confirmation
constitute the entire understanding between the parties hereto with respect
to
each Mortgage Loan Package and supersede all prior or contemporaneous oral
or
written communications regarding same. Countrywide and the Purchaser understand
and agree that no employee, agent or other representative of Countrywide or
the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within
the
express terms of this Agreement or the related Trade Confirmation or Purchase
Confirmation. Neither this Agreement nor the related Trade Confirmation or
Purchase Confirmation shall be modified, amended or in any way altered except
by
an instrument in writing signed by both parties.
(SIGNATURE
PAGE TO FOLLOW)
IN
WITNESS WHEREOF, Countrywide 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.
COUNTRYWIDE
HOME LOANS, INC.,
the
Seller
By:
/s/
[Authorized Signatory]
Name:
Title:
CITIGROUP
GLOBAL MARKETS REALTY CORP.,
the
Purchaser
By:
/s/
[Authorized Signatory]
Name
Title:
EXHIBIT
A
COLLATERAL
DOCUMENTS
| 1. |
Mortgage
Note:
The original Mortgage Note (or a lost note affidavit in a form acceptable
to an Agency) bearing all intervening endorsements, endorsed “Pay to the
order of _____________, without recourse” and signed in the name of
Countrywide by an authorized officer.
|
| 2. |
Assignment
of Mortgage:
The original Assignment of Mortgage in
blank.
|
| 3. |
Guarantee:
The original of any guarantee executed in connection with the Mortgage
Note.
|
| 4. |
Mortgage:
The original Mortgage with evidence of recording thereon or, if such
original Mortgage has not been returned to Countrywide on or prior
to the
Closing Date by the public recording office where such Mortgage has
been
delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage
sent
for recordation.
|
| 5. |
Modifications:
The originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if
any.
|
| 6. |
Intervening
Assignments:
The originals of all intervening assignments of Mortgage with evidence
of
recording thereon, provided that such originals have been returned
to
Countrywide by the public recording office where such intervening
assignment of Mortgage has been delivered for
recordation.
|
| 7. |
Title
Policy:
The original mortgagee title insurance policy (or the equivalent thereof
with respect to any Mortgage Loan in which the related Mortgaged Property
is located in a jurisdiction where such title insurance is not customarily
provided) if such title insurance policy has been issued by the related
title company on or prior to the Closing
Date.
|
| 8. |
Loan
Guaranty Certificate:
The original Loan Guaranty Certificate, if
applicable.
|
| 9. |
Mortgage
Insurance Certificate:
The original Mortgage Insurance Certificate, if
applicable.
|
EXHIBIT
B
FORM
OF PURCHASE CONFIRMATION
[COUNTRYWIDE
LETTERHEAD]
[DATE]
CITIGROUP
GLOBAL MARKETS REALTY CORP.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
Re: Purchase
Confirmation ($x.xmm) (Deal No. Sxx-xx-xxx)
Ladies
and Gentlemen:
This
purchase confirmation (the "Purchase Confirmation") between Countrywide Home
Loans, Inc. (“Countrywide”) and Citigroup Global Markets Realty Corp.
("Purchaser") sets forth our agreement pursuant to which Purchaser is
purchasing, and Countrywide is selling, on a servicing-retained basis, those
certain mortgage loans identified in Exhibit
A
hereto
and more particularly described herein (the “Mortgage Loans”).
The
purchase, sale and servicing of the Mortgage Loans as contemplated herein shall
be governed by that certain Master Mortgage Loan Purchase and Servicing
Agreement dated as of August 8, 2002, between Countrywide and Purchaser (as
amended herein and otherwise, the “Agreement”). By executing this Purchase
Confirmation, each of Countrywide and Purchaser again makes, with respect to
itself and each Mortgage Loan, as applicable, all of the covenants,
representations and warranties made by each such party in the Agreement, except
as the same may be amended by this Purchase Confirmation.
All
exhibits hereto are incorporated herein in their entirety. In the event there
exists any inconsistency between the Agreement and this Purchase Confirmation,
the latter shall be controlling notwithstanding anything contained in the
Agreement to the contrary. All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment
and Conveyance of Mortgage Loans.
Upon
Purchaser’s payment of the Purchase Proceeds in accordance with Section 2.08 of
the Agreement, Countrywide hereby sells, transfers, assigns and conveys to
Purchaser, without recourse, but subject to the terms of the Purchase
Confirmation and the Agreement, all of the right, title and interest of
Countrywide in and to the Mortgage Loans, excluding the servicing rights
relating thereto. Each Mortgage Loan shall be serviced by Countrywide pursuant
to the terms of the Agreement.
2. Defined
Terms.
As used
in the Agreement, the following defined terms shall have meanings set forth
below with respect to the related Mortgage Loan Package.
a.
Closing
Date:
[DATE].
b.
Cut-off
Date:
[DATE].
c.
Cut-off
Date Balance:
[d.
Index:
On each
Interest Adjustment Date, the applicable index rate shall be a rate per annum
equal to [the weekly average yield on U.S. Treasury securities adjusted to
a
constant maturity of one year, as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15] [the average of
interbank offered rates for six-month U.S. dollar denominated deposits in the
London market (LIBOR), as published [in The Wall Street Journal] [by ▇▇▇▇▇▇
Mae]
[the 11th District Cost of Funds as made available by the Federal Home Loan
Bank] [the weekly average yield on certificates of deposit adjusted to a
constant maturity of six months as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e.
Missing
Credit Documents:
As set
forth in Exhibit
[C]
hereto.
Notwithstanding
anything contained in Section 2.04 of the Agreement to the contrary,
Countrywide’s obligation to repurchase from the Purchaser the Mortgage Loan
related to a Missing Credit Document shall occur only in the event of a default
by a Mortgagor or any material impairment of the Mortgaged Property, as
determined by the Purchaser in its reasonable discretion, directly arising
from
a breach of Countrywide’s obligation to deliver the Missing Credit Document
within the time specified in Section 2.04 of the Agreement.
[f.
Pending
Mortgage Loans:
As set
forth in Exhibit [C] hereto.]
g.
Purchase
Proceeds:
With
respect to [the Mortgage Loans] [each Mortgage Loan], and as set forth in
Exhibit
[A]
and
Exhibit
[B]
hereto,
the sum of (a) the product of (i) the Cut-off Date Balance of [such Mortgage
Loan] [such Mortgage Loans], and (ii) the purchase price percentage set forth
in
Exhibit
[A]
hereto
for such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from the
Cut-off Date through the day prior to the Closing Date, inclusive.
h.
Servicing
Fee Rate:
[0.25%]
[0.375%] [With respect to the period prior to the initial Interest Adjustment
Date, [0.25]% and, thereafter, [0.375]%].
3. Description
of Mortgage Loans.
Each
Mortgage Loan complies with the specifications set forth below in all material
respects.
a.
Loan
Type:
Each
Mortgage Loan is a [Conventional] [Government] Mortgage Loan and a [Adjustable
Rate] [Balloon] [Convertible] [Fixed Rate] Mortgage Loan.
▇.
▇▇▇▇
Position:
Each
Mortgage Loan is secured by a perfected [first] [second] lien
Mortgage.
c.
Underwriting
Criteria:
Each
Mortgage Loan [was underwritten generally in accordance with Countrywide’s
credit underwriting guidelines in effect at the time such Mortgage Loan was
originated] [conforms to the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac mortgage eligibility
criteria (as such criteria applies to Countrywide) and is eligible for sale
to,
and securitization by, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac] [conforms in all material
respects to the GNMA mortgage eligibility criteria and is eligible for sale
and
securitization into a GNMA mortgage-backed security] [at the time of origination
was underwritten to guidelines which are consistent with an institutional
investor-quality mortgage loan].
Kindly
acknowledge your agreement to the terms of this Purchase Confirmation by signing
in the appropriate space below and returning this Purchase Confirmation to
the
undersigned. Telecopy signatures shall be deemed valid and binding to the same
extent as the original.
|
Sincerely,
|
Agreed
to and Accepted by:
|
|
COUNTRYWIDE
HOME LOANS, INC.
By:
__________________________________
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Executive Vice President
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
By:
__________________________________
Name:
Title:
|
EXHIBIT
A
to
PURCHASE
CONFIRMATION
MORTGAGE
LOAN SCHEDULE
(attached)
EXHIBIT
B
to
PURCHASE
CONFIRMATION
CALCULATION
OF PURCHASE PROCEEDS
(attached)
EXHIBIT
C
to
PURCHASE
CONFIRMATION
MISSING
CREDIT DOCUMENTS
|
LOAN
COUNT
|
LOAN
NUMBER
|
DOCUMENT
|
|
1.
|
||
|
2.
|
||
|
3.
|
||
|
4.
|
||
|
5.
|
EXHIBIT
D
to
PURCHASE
CONFIRMATION
PENDING
MORTGAGE LOANS
|
LOAN
COUNT
|
LOAN
NUMBER
|
DOCUMENT
|
|
1.
|
||
|
2.
|
||
|
3.
|
||
|
4.
|
||
|
5.
|
EXHIBIT
C
FORM
OF CUSTODIAL AGREEMENT
[CUSTODIAN’S
LETTERHEAD]
_______________,
(YEAR)
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice
President
Citigroup
Global Markets Realty Corp.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇
▇▇▇▇▇▇▇
Executive
Vice President
Countrywide
Home Loans Inc.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE:
Sale
of
Mortgage Loans pursuant to that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of August 8, 2002 and Purchase Confirmation dated
August 8, 2002, (collectively the “Agreement”) between Countrywide Home Loans
Inc. (“SELLER”) and Citigroup Global Markets Realty Corp.
(“PURCHASER”).
Ladies
and Gentlemen:
[ ],
a
nationally chartered bank [and an affiliate of SELLER] (the “Custodian”), has
been advised of an impending sale by SELLER to PURCHASER, of certain mortgage
loans described on Exhibit “A” attached hereto (the “Mortgage Loans”), which
sale is expected to occur on [SALE DATE], (YEAR). The Mortgage Loans are
currently held by the Custodian as custodian for SELLER. SELLER has requested
that upon the Custodian’s receipt of written confirmation from SELLER that it
has received the Purchase Price, the Custodian (i) hold such Mortgage Loans
in
custody for the exclusive benefit of PURCHASER; (ii) by its execution hereof,
certify to PURCHASER its possession of the Mortgage Note, Assignment of Mortgage
and a certified copy of the Mortgage for each Mortgage Loan except as the
Custodian may separately notify PURCHASER in writing; (iii) segregate and
maintain continuous custody of all Mortgage Files in secure and fire-resistant
facilities in accordance with customary standards for such custody: and (iv)
ship the Mortgage Loans to such address as PURCHASER may instruct the Custodian
in writing upon consummation of the sale. Except as specifically required to
be
stated herein, the Custodian makes no representation or warranty with respect
to
any of the Mortgage Loans or Mortgage Files. This is to advise SELLER and
PURCHASER that the Custodian hereby agrees to perform the services stated in
the
immediately preceding sentence, subject to the terms and conditions set forth
herein. All capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to such terms in the Agreement.
The
Custodian shall charge such fees for its custodial services under this letter
agreement as are set forth in a separate agreement between the Custodian and
SELLER, the payment of which fees, together with the Custodian’s expenses in
connection herewith, shall be solely the obligation of SELLER.
The
sole
obligation of the Custodian with respect to the Mortgage Loans shall be to
perform the services expressly described herein, there being no implied duties
hereunder. It is expressly agreed that in no event shall the Custodian have
any
(i) responsibility for documents which it has delivered to a shipper in
accordance with the terms hereof while such documents are not in its possession
or (ii) liability for any losses or damages to any person, including without
limitation SELLER or PURCHASER, arising out of action taken by the Custodian
consistent with instructions given hereunder (including without limitation,
losses or damages arising out of non-performance or faulty performance by a
shipper). SELLER agrees to reimburse, indemnify and hold harmless the Custodian,
its directors, officers, employees and agents from and against any and all
liability, loss, cost and expense, including reasonable fees and expenses of
counsel arising from or connected with the Custodian’s execution and performance
of this letter agreement, including but not limited to claims of any third
parties, including PURCHASER, except in the case of loss, liability or expense
resulting from gross negligence or willful misconduct on the part of the
Custodian. The Custodian agrees to reimburse, indemnify and hold harmless
PURCHASER, its directors, officers, employees, and agents from and against
any
and all liability, loss, cost and expense, including reasonable fees and
expenses of counsel arising from or connected with PURCHASER’s execution of this
letter agreement, including but not limited to, claims of any third parties
resulting from gross negligence or willful misconduct on the part of the
Custodian. In no event shall the Custodian, its directors, officers, employees
or agents be liable for any indirect, special or consequential damages, even
if
such party has been advised of the possibility of such damages.
For
the
purpose of facilitating the execution of this letter agreement, this letter
agreement may be executed simultaneously in any number of counterparts, each
of
which counterpart shall be deemed to be an original and all of which shall
constitute one and the same instrument. By execution of this letter agreement,
the Custodian represents and warrants that as of the consummation of the
referenced transaction it holds and thereafter during the existence of this
letter agreement shall hold, no adverse interest, by way of security or
otherwise, in any Mortgage Loan and hereby waives and releases any such interest
which it may have in any Mortgage Loan as of the consummation of the referenced
transaction. All notices and communications hereunder shall be in writing and
shall be deemed to have been duly given when received by the recipient party
at
the address shown in this letter. This letter agreement shall inure to the
benefit of the successors and assigns of the parties hereto. The Custodian
agrees that its rights and obligations hereunder shall not be assigned without
the prior written consent of PURCHASER. PURCHASER shall provide written
instructions as to the method of shipment and shippers The Custodian is to
utilize in connection with the transmission the Mortgage Files and Loan
Documents. Each individual executing this letter agreement is authorized to
give
and receive notices and is authorized to execute this letter agreement on behalf
of and bind the respective party. This letter agreement may be amended from
time
to time by written agreement only signed by PURCHASER, THE CUSTODIAN and
SELLER.
This
letter agreement shall (i) become effective as of the date hereof upon execution
by SELLER, PURCHASER, and THE CUSTODIAN and (ii) will expire on [EXPIRATION
DATE], (YEAR), if the sale described herein is not consummated by such date,
unless the parties otherwise agree in writing.
Very
truly yours,
[INSERT
NAME OF CUSTODIAN]
[Name]
[Title]
[Address]
|
Accepted
and Agreed
|
Acknowledge:
|
|
COUNTRYWIDE
HOME LOANS, INC.
By:
__________________________________
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Executive Vice President
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
By:
__________________________________
Name:
Title:
|
EXHIBIT
D
FORM
OF TRADE CONFIRMATION
[COUNTRYWIDE
LETTERHEAD]
[DATE]
CITIGROUP
GLOBAL MARKETS REALTY CORP.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
Re: Sale
of
$[AMOUNT] Million of Mortgage Loans to [PURCHASER] (Deal
No.
Syr-mm-xxx)
Ladies
and Gentlemen:
This
Trade Confirmation confirms the agreement between [PURCHASER] ("Purchaser")
and
Countrywide Home Loans, Inc. (“Countrywide") pursuant to which Purchaser has
agreed to purchase, and Countrywide has agreed to sell, those certain mortgage
loans [identified][summarized] in Exhibit A hereto (the “Mortgage Loans”),
subject to the terms set forth herein.
Closing
Date: _________
__, [year][, provided, however, that the parties shall use their best efforts
to
consummate the transaction prior to [DATE].
Cut-Off
Date:
_________ __, [year]
Commitment
Amount:
$______________.
Purchase
Price:
$______________.
Percentage: ____%,
subject to adjustment as set forth in Exhibit A. [Loan-level pricing as set
forth in Exhibit A.]
Product: [Jumbo][“A”][A-“][“Alt
A”] [Sub-prime] [Conforming] [Conventional] [Government] [Second Lien/HELOC]
[[fixed][(x/1) Index adjustable] rate mortgage loans]. (undefined terms should
not be capitalized)
Underwriting
Criteria:
Servicing
Rights: RETAINED:
Retained by Countrywide and serviced on a [scheduled/scheduled] [actual/actual]
[scheduled][actual] basis for the servicing fee rate [equal to FEE% per
annum][set forth in Exhibit A [for each Mortgage Loan]]. [ With respect to
the
period prior to the initial Interest Adjustment Date, 0.25% and, thereafter,
0.375%].
Prepayment
Penalties: Countrywide
shall be entitled to any penalties resulting from the prepayment of any Mortgage
Loans by the related mortgagor(s).
Documentation:
[Assignment
of a [type of agreement]] [Industry standard purchase and servicing
agreement.]
Conditions: [Review
of Mortgage Loans by Purchaser to confirm conformance with this Trade
Confirmation. Countrywide may, at its option, elect to substitute comparable
mortgage loans for any Mortgage Loans rejected by Purchaser pursuant to the
preceding sentence.]
[Countrywide’s
sale of the Mortgage Loans is expressly subject to (a) the review of the
Mortgage Loans by Purchaser to confirm conformance with the Trade Confirmation,
and (b) purchase of the Mortgage Loans by Countrywide on or before the Closing
Date from the current owner of the Mortgage Loans (the “Current Owner”). If
either of the foregoing conditions are not satisfied, Countrywide shall have
no
liability to Purchaser.]
[Non-Circumvent: Countrywide
and Purchaser understand and agree that Countrywide may introduce the owner
of
the Mortgage Loans to Purchaser, that the Current Owner is a customer of
Countrywide and that such relationship of Countrywide is confidential. Purchaser
agrees, with respect to the Current Owner, Purchaser will not, for the purpose
of purchasing other mortgage loans [for a period of one year from the Closing
Date], communicate with or purchase such other mortgage loans from the Current
Owner unless the Current Owner has had previous business dealings (other than
any transactions involving Countrywide) with the Current Owner in a similar
context.]
Please
acknowledge your agreement to the terms and conditions of this Trade
Confirmation by signing in the appropriate space below and returning a copy
of
the same to the undersigned. Telecopy signatures shall be deemed valid and
binding to the same extent as the original.
|
Sincerely,
|
Agreed
to and Accepted by:
|
|
COUNTRYWIDE
HOME LOANS, INC.
By:
__________________________________
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Executive Vice President
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
By:
__________________________________
Name:
Title:
|
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE AND PRICING INFORMATION
(attached)
EXHIBIT
B
UNDERWRITING
GUIDELINES
(attached)
EXHIBIT
E
FORM
OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
I,
[identify certifying individual], certify to the [Name of Beneficiary] and
its
officers,
directors and affiliates (collectively,
the “Beneficiary”) with respect to the calendar year immediately preceding the
date of this certification, as follows:
(i) Based
on
my knowledge, the information in the Annual Statement of Compliance, the Annual
Independent Public Accountant's Servicing Report and all servicing reports,
officer's certificates and other information delivered to the Beneficiary and
relating to the servicing of the Mortgage Loans taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading as of the date of this
certification;
(ii) Based
on
my knowledge, the servicing information required to be provided to the
Beneficiary by Countrywide under the Master Mortgage Loan Purchase and Servicing
Agreement, dated as of December 1, 2003 between the Purchaser and Countrywide
(the “Agreement”), has been provided to the Beneficiary;
(iii) I
am
responsible for reviewing the activities performed by Countrywide under the
Agreement and based upon my knowledge and the review required by the Agreement,
and except as disclosed in the Annual Statement of Compliance or the Annual
Independent Public Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the servicing of the
Mortgage Loans submitted to the Beneficiary, Countrywide has, as of the date
of
this certification fulfilled its obligations under the Agreement;
and
(iv) I
have
disclosed to the Beneficiary all significant deficiencies relating to
Countrywide’s compliance with the minimum servicing standards in accordance with
a review conducted in compliance with the Uniform Single Attestation Program
for
Mortgage Bankers or similar standard as set forth in the Servicing
Agreement.