EXHIBIT 10.1.2
SELLER'S WARRANTIES AND SERVICING AGREEMENT, DATED
AS OF AUGUST 1, 2001, BETWEEN ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
COMPANY AND ABN AMRO MORTGAGE GROUP, INC.
--------------------------------------------------------------
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY
Purchaser
and
ABN AMRO MORTGAGE GROUP, INC.
Company
--------------------------------------------------------------
SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of August 1, 2001
--------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS..................................................................1
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; DELIVERY OF DOCUMENTS.....................................9
Section 2.01 Conveyance of Mortgage Loans; Possession of
Mortgage Files; Maintenance of Servicing Files.............9
Section 2.02 Books and Records; Transfers of Mortgage Loans............10
Section 2.03 Delivery of Documents.....................................12
Section 2.04 Mortgage Schedule.........................................14
Section 2.05 Examination of Mortgage Files.............................14
Section 2.06 Representations, Warranties and Agreements of Company.....14
Section 2.07 Representation, Warranties and Agreement of Purchaser.....15
Section 2.08 Closing...................................................15
Section 2.09 Closing Documents.........................................16
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH..........................17
Section 3.01 Company Representations and Warranties....................17
Section 3.02 Representations and Warranties Regarding
Individual Mortgage Loans.................................20
Section 3.03 Repurchase................................................29
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS..............................31
Section 4.01 Company to Act as Servicer................................31
Section 4.02 Liquidation of Mortgage Loans.............................32
Section 4.03 Collection of Mortgage Loan Payments......................33
Section 4.04 Establishment of and Deposits to Custodial Account........33
Section 4.05 Permitted Withdrawals From Custodial Account..............35
Section 4.06 Establishment of and Deposits to Escrow Account...........37
Section 4.07 Permitted Withdrawals From Escrow Account.................37
Section 4.08 Payment of Taxes, Insurance and Other Charges.............38
Section 4.09 Protection of Accounts....................................39
Section 4.10 Maintenance of Hazard Insurance...........................39
Section 4.11 Maintenance of Mortgage Impairment Insurance..............40
Section 4.12 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.......................................41
Section 4.13 Inspections...............................................41
Section 4.14 Restoration of Mortgaged Property.........................41
Section 4.15 Claims....................................................42
Section 4.16 Title, Management and Disposition of REO Property.........42
Section 4.17 Real Estate Owned Reports.................................44
Section 4.18 Liquidation Reports.......................................44
Section 4.19 Reports of Foreclosures and Abandonments of
Mortgaged Property........................................44
ARTICLE V
PAYMENTS TO PURCHASER.......................................................45
Section 5.01 Remittances...............................................45
Section 5.02 Statements to Purchaser...................................45
Section 5.03 Monthly Advances by Company...............................45
ARTICLE VI
GENERAL SERVICING PROCEDURES................................................46
Section 6.01 Transfers of Mortgaged Property...........................46
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files...47
Section 6.03 Servicing Compensation....................................48
Section 6.04 Annual Statement as to Compliance.........................48
Section 6.05 Annual Independent Public Accountants' Servicing Report...48
Section 6.06 Right to Examine Company Records..........................49
Section 6.07 Compliance with REMIC Provisions..........................49
ARTICLE VII
COMPANY TO COOPERATE........................................................49
Section 7.01 Provision of Information..................................49
Section 7.02 Financial Statements; Servicing Facility..................50
ARTICLE VIII
THE COMPANY.................................................................50
Section 8.01 Indemnification; Third Party Claims.......................50
Section 8.02 Merger or Consolidation of the Company....................51
Section 8.03 Limitation on Liability of Company and Others.............51
Section 8.04 Limitation on Resignation and Assignment by Company.......52
ARTICLE IX
PASS-THROUGH TRANSFER.......................................................53
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Pass- Through Transfer...................53
ARTICLE X
DEFAULT.....................................................................55
Section 10.01 Events of Default.........................................55
Section 10.02 Waiver of Defaults........................................57
ARTICLE XI
TERMINATION.................................................................57
Section 11.01 Termination...............................................57
Section 11.02 Termination Without Cause.................................57
Section 11.03 Termination With Cause....................................57
ARTICLE XII
MISCELLANEOUS PROVISIONS....................................................58
Section 12.01 Successor to Company......................................58
Section 12.02 Amendment.................................................59
Section 12.03 Governing Law.............................................59
Section 12.04 Duration of Agreement.....................................60
Section 12.05 Notices...................................................60
Section 12.07 Relationship of Parties...................................61
Section 12.08 Execution; Successors and Assigns.........................61
Section 12.09 Recordation of Assignments of Mortgage....................62
Section 12.10 Assignment by Purchaser...................................62
Section 12.11 Solicitation of Mortgagor.................................62
DEFAULT REPORTS............................................................E-2
EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Contents of Each Mortgage Loan File
Exhibit C Form of Custodial Agreement
Exhibit D Form of Opinion of Counsel
Exhibit E Items to Be Included in Monthly Remittance Advice
Exhibit F Form of Assignment and Assumption Agreement
Exhibit G Form of Seller's Officer's Certificate
This is a Seller's Warranties and Servicing Agreement for various
residential first mortgage loans, dated and effective as of August 1, 2001,
and is executed between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as purchaser (the
"Purchaser"), and ABN AMRO Mortgage Group Inc., as seller and servicer (the
"Company").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Purchaser has agreed to purchase from the Company and
the Company has agreed to sell to the Purchaser certain 5/1 adjustable rate
Mortgage Loans which have an aggregate Scheduled Principal Balance as of the
close of business on the Cut-off Date (as defined below), of approximately
$72.8 million ( with a possible variance of up to 5.0%);
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a one-to-four
family residential dwelling located in the jurisdiction indicated on the
Mortgage Loan Schedule, which is annexed hereto as Exhibit A; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner
of purchase of the Mortgage Loans and the conveyance, servicing and control of
the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Purchaser and the Company agree
as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those customary mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located. The
servicing procedures set forth in FNMA or FHLMC servicing guides will be
considered Accepted Servicing Practices.
Agreement: This Seller's Warranties and Servicing Agreement and all
amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgage Loan, the lesser of (i)
the value set forth on the appraisal made in connection with the origination
of the related Mortgage Loan as the value of the related Mortgage Property, or
(ii) the purchase price paid for the Mortgage Property, provided, however, in
the case of a refinanced Mortgage Loan, such value shall be based solely on
the appraisal made in connection with the refinance of such Mortgage Loan.
Assignment of Mortgage or Assignment: 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 or its designated
assignee.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the states where the
parties are located are authorized or obligated by law or executive order to
be closed.
Closing Date: August 24, 2001.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department
of the Treasury regulations issued pursuant thereto.
Commitment Letter: The Commitment Letter from the Purchaser to the
Company, dated as of August 16, 2001.
Company: ABN AMRO Mortgage Group Inc., or its successor in interest
or assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Company Employee: The meaning assigned to such term in Section 4.12.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents, a form of which is annexed hereto as Exhibit C.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement as provided therein.
Cut-off Date: August 1, 2001.
Determination Date: The 15th day of every month, or if such day is
not a Business Day, the preceding Business Day.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month in which such
Remittance Date occurs and ending on (and including) the first day of the
month in which such Remittance Date occurs.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the mortgagee pursuant to the Mortgage or any other
related document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: Federal Home Loan Mortgage Corporation and its successors.
Fidelity Bond: A fidelity bond to be maintained by the Company
pursuant to Section 4.12.
First Remittance Date: September 18, 2001.
FNMA: Federal National Mortgage Association and its successors.
GNMA: Government National Mortgage Association and its successors.
Insurance Proceeds: Proceeds of any mortgage insurance, title policy,
hazard policy or other insurance policy covering a Mortgage Loan, 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 the Company would follow in servicing mortgage loans held for
its own account.
Liquidation Proceeds: Cash (other than Insurance Proceeds or
Condemnation Proceeds) received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale, sale of REO Property, or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of
the original loan amount of the Mortgage Loan at its origination or
refinancing, as applicable, to the Appraised Value of the Mortgaged Property.
Monthly Advance: The portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Company pursuant to Section
5.03 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Remittance Advice: The meaning assigned to such term in
Section 5.02.
Mortgage: The mortgage, deed of trust or other instrument and riders
thereto securing a Mortgage Note, which creates a first lien on an
unsubordinated estate in fee simple in real property securing the Mortgage
Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note in accordance with the provisions of the Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this
Agreement being identified on the Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
original related Mortgage Note with applicable addenda and riders, the
original related security instrument and the originals of any required addenda
and riders, the original related Assignment and any original intervening
related Assignments, the original related title insurance policy, and the
related appraisal report.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) the Company's Mortgage Loan number; (2) the
address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgaged Property is a single family residence, two-
family residence, three-family residence, four-family residence or planned
unit development; (4) the purpose of the Mortgage Loan; (5) the current
Mortgage Interest Rate; (6) the Mortgage Loan Remittance Rate; (7) the
Servicing Fee Rate; (8) the current Monthly Payment; (9) the original term to
maturity; (10) the scheduled maturity date (and, if different, the stated
maturity date indicated on the Mortgage Note on its date of origination); (11)
the principal balance of the Mortgage Loan as of the Cut-off Date after
deduction of payments of principal due on or before the Cut-off Date whether
or not collected; (12) the Loan-to-Value Ratio; (13) the due date of the
Mortgage Loan; (14) a code indicating whether the Mortgagor or the Mortgaged
Property is the subject of a bankruptcy case; (15) the amount of any
delinquencies and the due date of any delinquent payments and (16) the CPI
twelve month pay string.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage and riders thereto.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President, an
Assistant Vice President, the Treasurer, the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Company, and delivered to the
Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Company, reasonably acceptable to the Purchaser.
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.
Payaheads: Scheduled Monthly Payments on a Mortgage Loan made by a
Mortgagor that are due in a Due Period subsequent to the period in which
received by the Servicer, and which are not required to be applied as a
prepayment of principal on such Mortgage Loan.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 3.02(xxxii), or any
replacement policy therefor obtained by the Servicer pursuant to Section 4.08.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Balance: As to each Mortgage Loan, (i) the actual
outstanding 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 attributable to principal collected from
or on behalf of the Mortgagor, including the principal portion of Liquidation
Proceeds, Condemnation Proceeds, and Insurance Proceeds.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not
accompanied by an amount of interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment.
Principal Prepayment Period: With respect to each Remittance Date,
the period commencing on the first day of the month preceding the month in
which such Remittance Date occurs, and ending on the last day of such month.
Purchase Price: The purchase price specified in the Purchase Price
and Terms Letter.
Purchase Price and Terms Letter: The purchase price and terms letter
between the Purchaser and the Company, dated August 16, 2001.
Purchaser: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, or its successor in
interest or any successor to the Purchaser under this Agreement as herein
provided.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Mortgage File, (b) the absence of a document in the
Mortgage File, or (c) the breach of any representation, warranty or covenant
with respect to the Mortgage Loan made by the Company, but, in each case, only
if the affected Mortgage Loan would cease to qualify as a "qualified mortgage"
for purposes of the REMIC Provisions.
Qualified Depository: A federal or state chartered depository
institution, which may be an affiliate of the Company, the deposits in which
are insured by the FDIC to the applicable limits and the short-term unsecured
debt obligations of which (or, in the case of a depository institution that is
a subsidiary of a holding company, the short-term unsecured debt obligations
of such holding company) are rated A-1 by Standard & Poor's Ratings Group or
Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Purchaser by written notice to the Company)
at the time any deposits are held on deposit therein.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by GNMA.
Rating Agency: ▇▇▇▇▇'▇ Investors Services, Inc., Standard & Poor's
Ratings Group, Fitch, Inc., or any other nationally recognized statistical
credit rating agency rating any security issued in connection with any
Pass-Through Transfer.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be reconstituted as part of a
Pass-Through Transfer or Whole Loan Transfer pursuant to Section 9.01 hereof.
The Reconstitution Date shall be such date the Purchaser shall designate in
writing to the Company. Such date shall be no later than December 1, 2001.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of
Chapter 1, Subtitle A of the Code, and related provisions, and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Advice Date: The 12th day of each month or, if such 12th
day is not a Business Day, the first Business Day immediately preceding such
day.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately preceding such date) of any month,
beginning with the First Remittance Date.
REO Disposition: The final sale by the Company of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on behalf
of the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Repurchase Price: Unless agreed otherwise by the Purchaser and the
Company (including without limitation as set forth in the Commitment Letter),
a price equal to (i) the Scheduled Principal Balance of the Mortgage Loan plus
(ii) interest on such Scheduled Principal Balance at the Mortgage Loan
Remittance Rate from the date on which interest has last been paid and
distributed to the Purchaser to the last day of the month of repurchase, less
amounts received or advanced in respect of such repurchased Mortgage Loan
which are being held in the Custodial Account for distribution in the month of
repurchase, to the extent such amounts are actually paid to the Purchaser upon
the repurchase of the related Mortgage Loan.
Scheduled Principal Balance: As to each Mortgage Loan, (i) the
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 collected by the Company as servicer
hereunder or advanced and distributed to the Purchaser with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances made in lieu thereof.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorney's fees and disbursements) incurred in the performance by the Company
of its servicing obligations, including, but not limited to, the cost of (a)
the preservation, restoration and protection of the Mortgaged Property, (b)
any enforcement or judicial proceedings, including foreclosures, (c) the
management and liquidation of any REO Property and (d) compliance with the
obligations under Section 4.08.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
per annum fee the Purchaser shall pay to the Company, which shall, for a
period of one full month, be equal to one-twelfth of the product of (a) the
Servicing Fee Rate and (b) the Scheduled Principal Balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal amount and same period for 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 (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by Section 4.05) of such Monthly
Payment collected by the Company, or as otherwise provided under Section 4.05.
Servicing Fee Rate: 0.50% per annum for each Mortgage Loan.
Servicing File: With respect to each Mortgage Loan, the file retained
by the Company consisting of originals of all documents in the Mortgage File
which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in the Custodial Agreement the originals of which are
delivered to the Custodian pursuant to Section 2.03.
Servicing Officer: Any officer of the Company involved in or
responsible for the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is
not a Pass-Through Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files.
The Company, simultaneously with the execution and delivery of this
Agreement, does hereby sell, transfer, assign, set over and convey to the
Purchaser, without recourse, but subject to the terms of this Agreement, all
the right, title and interest of the Company in and to the Mortgage Loans,
including all interest and principal accrued on or received by the Company on
or with respect to the related Mortgage Loans after the Cut-off Date (and
including Monthly Payments due after the Cut-off Date but received by the
Company on or before the Cut-off Date, but not including payments of principal
and interest due on the Mortgage Loans on or before the Cut-off Date).
The principal balance of each Mortgage Loan as of the Cut-off Date
shall be determined after application of payments of principal due on or
before the Cut-off Date whether or not collected. Therefore, payments of
scheduled principal and interest prepaid for a Due Date beyond the Cut-off
Date shall not be applied to the principal balance as of the Cut-off Date.
Such prepaid amounts (minus interest at the Servicing Fee Rate) shall be the
property of the Purchaser. The Company shall deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of
the Purchaser for subsequent remittance by the Company to the Purchaser, and
shall remit such amounts as provided in Section 5.01.
Pursuant to Section 2.03, the Company has delivered the Mortgage Loan
Documents to the Custodian. The contents of each Mortgage File not delivered
to the Custodian are and shall be held in trust by the Company for the benefit
of the Purchaser as the owner thereof. The Company shall maintain a Servicing
File consisting of a copy of the contents of each Mortgage File and the
originals of the documents in each Mortgage File not delivered to the
Custodian. The possession of each Servicing File by the Company is for the
sole purpose of servicing the related Mortgage Loan, and such retention and
possession by the Company is in a custodial capacity only. Upon the sale of
the Mortgage Loans the ownership of each Mortgage Note, the related Mortgage
and the related Mortgage File and Servicing File shall vest immediately in the
Purchaser, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only in
such custodial capacity. The Company shall release its custody of the contents
of any Servicing File only in accordance with written instructions from the
Purchaser, unless such release is required as incidental to the Company's
servicing of the Mortgage Loans or is in connection with a repurchase of any
Mortgage Loan pursuant to Sections 2.03, 3.03 or 6.02.
Section 2.02 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser all
rights arising out of the Mortgage Loans including but not limited to all
funds received on or in connection with the Mortgage Loans on account of
interest and principal due after the Cut-off Date, shall be received and held
by the Company in trust for the benefit of the Purchaser as owner of the
Mortgage Loans, and the Company shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the
supervision of the servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the
Company. The Company shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be
marked clearly to reflect the ownership of each Mortgage Loan by the
Purchaser. To the extent that original documents are not required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Company may be in the form of microfilm or microfiche or
such other reliable means of recreating original documents, including but not
limited to, optical imagery techniques so long as the Company complies with
the requirements of the FNMA or FHLMC Selling and Servicing Guide, as amended
from time to time.
The Company shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Purchaser or its designee the
related Servicing File during the time the Purchaser retains ownership of a
Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Company shall be under no obligation to deal
with any person with respect to this Agreement or the Mortgage Loans unless
the books and records show such person as the owner of the Mortgage Loan. The
Purchaser may, subject to the terms of this Agreement, sell and transfer one
or more of the Mortgage Loans, provided, however, that in no event shall there
be more than five Persons (including ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company) in the
aggregate having the status of "Purchaser" hereunder, subject to Section 9.01
hereof. The Purchaser also shall advise the Company of the transfer in
writing. Upon receipt of notice of the transfer, the Company shall ▇▇▇▇ its
books and records to reflect the ownership of the Mortgage Loans of such
assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. If the
Company receives notification of a transfer less than five (5) Business Days
before the monthly Determination Date, the Company's duties to remit and
report to the new purchaser(s) as required by Section 5 shall begin with the
first Determination Date after the Reconstitution Date.
Section 2.03 Delivery of Documents.
Pursuant to the Custodial Agreement delivered to the Purchaser prior
to or contemporaneously with the delivery of this Agreement, the Company has
delivered and released to the Custodian those Mortgage Loan Documents as
required by the Custodial Agreement and by this Agreement with respect to each
Mortgage Loan. Purchaser will pay any costs or expenses of Custodian
associated with the initial inventory and maintenance of the loan files.
The Custodian has certified its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement. The
Company will be responsible for the delivery of those Mortgage Loan Documents
required to be delivered pursuant to the Custodial Agreement. The Company will
be responsible for the fees and expenses related to the recording of the
initial Assignments of Mortgage (including any fees and expenses related to
any preparation and recording of any intervening or prior assignments of the
Mortgage Loans to the Company or to any prior owners of or mortgagees with
respect to the Mortgage Loans). The Purchaser will be responsible for the
Custodian's fees and expenses with respect to the initial inventory and
maintenance of the Mortgage Loans on or before the Closing Date. The Purchaser
will be responsible for the ongoing fees of the Custodian.
Within 90 days after the Closing Date, the Company shall deliver to
the Custodian each of the documents described in Exhibit B not delivered
pursuant to the Agreement.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within two
weeks of their execution, provided, however, that the Company shall provide
the Custodian with a certified true copy of any such document submitted for
recordation within ten (10) days of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within 60 days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, the Company shall deliver to the Custodian within 240 days
of its submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that
the recorded document has not been delivered to the Custodian due solely to a
delay by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above. An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.03 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
the Company in accordance with Section 3.03 hereof; provided, however, that
the foregoing repurchase obligation shall not apply in the event the Company
cannot deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that the Company shall deliver instead a
recording receipt of such recording office or, if such recording receipt is
not available, an Officer's Certificate from the Company confirming that such
documents have been accepted for recording. Any such document shall be
delivered to the Purchaser or its designee promptly upon receipt thereof from
the related recording office.
If the Company, the Purchaser or the Custodian finds any document or
documents constituting a part of a Mortgage File pertaining to a Mortgage Loan
to be defective (or missing) in any material respect, and such defect or
missing document materially and adversely affects the value of the related
Mortgage Loan or the interests of the Purchaser therein, the party discovering
such defect shall promptly so notify the Company. The Company shall have a
period of 90 days after receipt of such written notice within which to correct
or cure any such defect. The Company hereby covenants and agrees that, if any
material defect cannot be corrected or cured, the Company will, upon the
expiration of the applicable cure period described above, repurchase the
related Mortgage Loan in the manner set forth in Section 3.03; provided,
however, that with respect to any Mortgage Loan, if such defect constitutes a
Qualification Defect, any such repurchase must take place within 75 days of
the date such defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, the Company delivers an Officer's
Certificate to the Purchaser certifying that the Company is using good faith
efforts to correct or cure such defect and identifying progress made, then the
Purchaser shall grant the Company an extension to correct or cure such defect.
The extension shall not extend beyond (1) the date that is 75 days after the
date the defect is discovered, or, (2) if the defect is not a Qualification
Defect (as evidenced by an Opinion of Counsel), the date that is 30 days
beyond the original 90-day cure period. If the defect is not a Qualification
Defect, additional 30-day extensions may be obtained pursuant to the same
procedure, as long as the Company demonstrates continued progress toward a
correction or cure; provided that no extension shall be granted beyond 180
days from the date on which the Company received the original notice of the
defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify the Company of any defective or missing
document in a Mortgage File within such 90-day period, or the failure of the
Purchaser to require the Company to cure or repurchase the related Mortgage
Loan upon expiration of such 90-day period, shall not constitute a waiver of
its rights hereunder, including the rights with respect to a Mortgage Loan, to
require the Company to repurchase the affected Mortgage Loan and the right to
indemnification pursuant to Section 3.03 hereof.
Notwithstanding the foregoing, to the extent that the
Custodian certifies any document as being delivered to it pursuant to the
Custodial Agreement in a non-defective state and such document subsequently
becomes missing or defective, the Seller shall not be obligated to repurchase
the related Mortgage Loan by reason of such missing or defective document, to
redeliver such document to the Custodian or to correct any such defect.
Section 2.04 Mortgage Schedule.
The Company has provided the Purchaser with certain information
constituting a listing of the Mortgage Loans to be purchased under this
Agreement (the "Mortgage Loan Schedule") substantially in the form attached
hereto as Exhibit A. The Mortgage Loan Schedule shall conform to the
definition of "Mortgage Loan Schedule" hereunder.
Section 2.05 Examination of Mortgage Files.
Prior to the Closing Date, the Company shall (a) deliver to the
Purchaser in escrow, for examination, the Mortgage File for each Mortgage
Loan, including a copy of the Assignment of Mortgage, pertaining to each
Mortgage Loan, or (b) make the Mortgage Files available to the Purchaser for
examination at the Company's offices or such other location as shall otherwise
be agreed upon by the Purchaser and the Company. Such examination may be made
by the Purchaser, or by any prospective purchaser of the Mortgage Loans from
the Purchaser, at any time before or after the Closing Date upon prior
reasonable notice to the Company. The fact that the Purchaser or any
prospective purchaser of the Mortgage Loans has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided under this Agreement.
Section 2.06 Reserved.
Section 2.07 Representation, Warranties and Agreement of Purchaser.
The Purchaser, without conceding that the Mortgage Loans are
securities, hereby makes the following representations, warranties and
agreements, which shall have been deemed to have been made as of the Closing
Date.
(i) the Purchaser understands that the Mortgage Loans
have not been registered under the 1933 Act or the
securities laws of any state;
(ii) the Purchaser is acquiring the Mortgage Loans for
its own account only and not for any other person;
(iii) the Purchaser considers itself a substantial,
sophisticated institutional investor having such
knowledge and experience in financial and business
matters that it is capable of evaluating the merits
and risks of investment in the Mortgage Loans;
(iv) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation and has all
licenses necessary to carry out its business as now
being conducted, and is licensed and qualified to
transact business in and is in good standing under
the laws of each state in which any Mortgaged
Property is located or is otherwise exempt under
applicable law from such licensing or
qualification or is otherwise not required under
applicable law to effect such licensing or
qualification and no demand for such licensing or
qualification has been made upon the Purchaser by
any such state, and in any event the Purchaser is
in compliance with the laws of any such state to
the extent necessary to ensure the enforceability
of each Mortgage Loan and the servicing of the
Mortgage Loans in accordance with the terms of this
Agreement;
(v) The Purchaser has the full power and authority
and legal right to hold, transfer and convey
each Mortgage Loan, to sell each Mortgage Loan
and to execute, deliver and perform, and to
enter into and consummate all transactions
contemplated by this Agreement and the related
Purchase Price and Terms Letter and to conduct
its business as presently conducted; the
Purchaser has duly authorized the execution,
delivery and performance of this Agreement and
any agreements contemplated hereby, has duly
executed and delivered this Agreement and the
related Purchase Price and Terms Letter, and any
agreements contemplated hereby, and this
Agreement and the related Purchase Price and
Terms Letter and any agreements contemplated
hereby, constitute the legal, valid and binding
obligations of the Purchaser, enforceable
against it in accordance with their respective
terms, except as such enforceability may be lim-
ited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by
equitable principles affecting the
enforceability of the rights of creditors; and
all requisite corporate action has been taken by
the Purchaser to make this Agreement, the
related Purchase Price and Terms Letter and all
agreements contemplated hereby valid and binding
upon the Purchaser in accordance with their
terms;
(vi) Neither the execution and delivery of this
Agreement, the related Purchase Price and Terms
Letter, the purchase of the Mortgage Loans by
the Purchaser, the consummation of the
transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and
conditions of this Agreement and the related
Purchase Price and Terms Letter will conflict
with any of the terms, conditions or provisions
of the Purchaser's charter or by-laws or materi-
ally conflict with or result in a material
breach of any of the terms, conditions or
provisions of any legal restriction or any
agreement or instrument to which the Purchaser
is now a party or by which it is bound, or
constitute a default or result in an
acceleration under any of the foregoing, or
result in the material violation of any law,
rule, regulation, order, judgment or decree to
which the Purchaser or its property is subject;
(vii) There is no litigation, suit, proceeding or
investigation pending or threatened, or any order
or decree outstanding, which is reasonably likely
to have a material adverse effect on the purchase
of the Mortgage Loans, the execution, delivery,
performance or enforceability of this Agreement or
the related Purchase Price and Terms Letter, or
which is reasonably likely to have a material
adverse effect on the financial condition of the
Purchaser;
(viii) 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 and the related Purchase Price and
Terms Letter, except for consents, approvals,
authorizations and orders which have been obtained;
(ix) The consummation of the transactions contemplated
by this Agreement and the related Purchase Price
and Terms Letter are in the ordinary course of
business of the Purchaser;
(x) The Purchaser does not believe, nor does it have
any cause or reason to believe, that it cannot
perform each and every covenant contained in this
Agreement and the related Purchase Price and Terms
Letter. The Purchaser is solvent and the purchase
of the Mortgage Loans will not cause the Purchaser
to become insolvent;
(xi) The Purchaser has not dealt with any broker,
investment banker, agent or other person that may
be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans.
Section 2.08 Closing.
The closing for the purchase and sale of the Mortgage Loans shall
take place on the Closing Date. At the Purchaser's option, the Closing shall
be either: by telephone, confirmed by letter or wire as the parties shall
agree; or conducted in person, at such place as the parties shall agree.
The closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the
Company under this Agreement shall be true and
correct as of the Closing Date and no event shall
have occurred which, with notice or the passage of
time, would constitute a default under this
Agreement;
(ii) the Purchaser shall have received, or the
Purchaser's attorneys shall have received in
escrow, all Closing Documents as specified in
Section 2.09 of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser,
duly executed by all signatories other than the
Purchaser as required pursuant to the respective
terms thereof;
(iii) the Company shall have delivered and released to
the Custodian all documents required pursuant to
this Agreement and the Custodial Agreement, and
(iv) all other terms and conditions of this Agreement
shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Company on the Closing Date the set forth in the Purchase Price and Term
Letter by wire transfer of immediately available funds to the account
designated by the Company.
Section 2.09 Closing Documents.
With respect to the Mortgage Loans, the Closing Documents shall
consist of fully executed originals of the following documents:
(i) this Agreement, dated as of the Cut-off Date, in
two counterparts;
(ii) the Custodial Agreement, dated as of the Cut-off
Date, in three counterparts, in the form attached
as Exhibit C to this Agreement;
(iii) the Mortgage Loan Schedule, one copy to be attached
to each counterpart of this Agreement, and to each
counterpart of the Custodial Agreement, as the
Mortgage Loan Schedule thereto;
(iv) a Receipt and Certification, as required under the
Custodial Agreement;
(v) an officer's certificate of the Seller
substantially in the form of Exhibit F attached
hereto; and
(vi) an Opinion of Counsel of the Company, in the form
of Exhibit D hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties.
The Company hereby represents and warrants to the Purchaser that, as
of the Closing Date:
(a) Due Organization and Authority.
The Company is a Delaware corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of
the type conducted by the Company, and in any event the Company is in
compliance with the laws of any such state to the extent necessary to
ensure the enforceability of the related Mortgage Loan and the
servicing of such Mortgage Loan in accordance with the terms of this
Agreement; the Company has the full corporate power and authority to
execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to
this Agreement) by the Company and the consummation of the
transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforce-
able obligation of the Company, except as enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization, or other similar laws affecting the
enforcement of the rights of creditors in a proceeding in equity or
at law; and all requisite corporate action has been taken by the
Company to make this Agreement valid and binding upon the Company in
accordance with its terms;
(b) Ordinary Course of Business.
The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Company, which is in
the business of selling and servicing loans, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages by
the Company pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
(c) No Conflicts.
Neither the execution and delivery of this Agreement, the acquisition
of the Mortgage Loans by the Company, the sale of the Mortgage Loans
to the Purchaser or 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, articles of incorporation or by-laws or any legal restriction
or any agreement or instrument to which the Company is now a party or
by which it is bound in any material respect, or constitute a default
or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject in
any material respect, or impair the ability of the Purchaser to
realize on the Mortgage Loans, or impair the value of the Mortgage
Loans;
(d) Ability to Service.
The Company is an approved seller/servicer of residential mortgage
loans for FNMA and FHLMC, with the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage
loans of the same type as the Mortgage Loans. The Company is in good
standing to sell mortgage loans to and service mortgage loans for
FNMA and FHLMC, and no event has occurred, including but not limited
to a change in insurance coverage, which would make the Company
unable to comply with FNMA or FHLMC eligibility requirements or
which would require notification to FNMA or FHLMC;
(e) Reasonable Servicing Fee.
The Company acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the
entire Servicing Fee shall be treated by the Company, for accounting
and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(f) Ability to Perform.
The Company does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in
this Agreement. The Company is solvent and the sale of the Mortgage
Loans will not cause the Company to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of
the Company's creditors;
(g) No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
threatened against the Company which, either in any one instance or
in the aggregate, will likely result in any material adverse change
in the business, operations, financial condition, properties or
assets of the Company, or in any material impairment of the right or
ability of the Company to carry on its business substantially as now
conducted, or in any material liability on the part of the Company,
or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be contemplated
herein, or which would be likely to impair materially the ability of
the Company to perform under the terms of this Agreement;
(h) 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 Company of or compliance by the Company with
this Agreement or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or
if required, such approval has been obtained prior to the Closing
Date;
(i) No Untrue Information.
Neither this Agreement nor any report or other document furnished or
to be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of
fact or omits to state a fact necessary to make the statements
contained therein, in light of the circumstances under which such
statements are made, not misleading;
(j) Sale Treatment.
The Company has determined that the disposition of the Mortgage Loans
pursuant to this Agreement will be afforded sale treatment for
accounting and tax purposes;
(k) No Material Change.
There has been no material adverse change in the business,
operations, financial condition or assets of the Company since the
date of the Company's most recent financial statements; and
(l) No Brokers' Fees.
The Company has not dealt with any broker, investment banker, agent
or other Person that may be entitled to any commission or
compensation in the connection with the sale of the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
As to each Mortgage Loan, the Company hereby represents and warrants
to the Purchaser that as of the Closing Date (except as set forth in (i)
below):
(i) Mortgage Loans as Described.
The information set forth in the Mortgage Loan
Schedule attached hereto as Exhibit A is true and
correct in all material respects as of August 1,
2001.
(ii) Payment History.
As of the Cut-off Date, no Mortgage Loan shall be
30 days or more contractually delinquent, and no
Mortgage Loan shall have its first Scheduled
Payment due later than September 1, 2001. No
Mortgage Loan has previously been 30 days or more
delinquent more than once.
(iii) No Outstanding Charges.
There are no material defaults by the Company in
complying with the terms of the Mortgage Note or
Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal
charges, leasehold payments, ground rents, or other
charges which previously became due and owing have
been paid, or an escrow of funds has been
established for every such item which remains
unpaid and which has been assessed but is not yet
due and payable;
(iv) Original Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not
been impaired, waived, altered or modified in any
respect, except by a written instrument which has
been recorded, if necessary to maintain the lien
priority of the Mortgage, and which has been
delivered to the Purchaser. The substance of any
such waiver, alteration or modification has been
approved by the mortgage insurer, if the Mortgage
Loan is insured, the title insurer, to the extent
required by the policy, and its terms are reflected
on the Mortgage Loan Schedule. No Mortgagor has
been released, in whole or in part.
(v) No Defenses.
The Mortgage Note, the Mortgage, and any
modifications or other agreements adding thereto
to or modifying the terms thereof, are not subject
to any right of rescission, set-off, counterclaim
or defense, including without limitation the
defense of usury, nor will the operation of any of
the terms of the Mortgage Note or the Mortgage, or
the exercise of any right thereunder, render
either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or
defense, including without limitation the defense
of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with
respect thereto;
(vi) No Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part
(other than by Principal Payments in full which may
have been received prior to the Closing Date), 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 satisfaction, release, cancellation,
subordination or rescission;
(vii) Validity of Mortgage Documents.
The Mortgage Note, the Mortgage, and other
documents required to be in the Mortgage File,
which are listed as items (1) through (8) in
Exhibit B hereto, are genuine, and each is the
legal, valid and binding obligation of the maker
thereof enforceable in accordance with its terms,
except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization, or other similar laws
affecting the enforcement of the rights of
creditors, and (ii) general principles of equity,
whether enforcement is sought in a proceeding in
equity or at law. All 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;
(viii) No Fraud.
All the documents executed in connection with the
Mortgage Loan including, but not limited to, the
Mortgage Note and the Mortgage are free of fraud
and any misrepresentation, are signed by the
persons they purport to be signed by, and witnessed
or, as appropriate, notarized by the persons whose
signatures appear as witnesses or notaries, and
each such document constitutes the valid and
binding legal obligation of the signatories and is
enforceable in accordance with its terms;
(ix) Compliance with Applicable Laws.
Any and all requirements of any federal, state or
local law including, without limitation, usury,
truth-in-lending, real estate settlement proce-
dures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the
origination, servicing, modification of the
Mortgage Loan have been complied with in all
material respects, and the Company shall maintain
in its possession, available for the Purchaser's
inspection in connection with any litigation, legal
proceedings or threatened legal proceedings, and
shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements.
All inspections, licenses and certificates required
to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with
respect to the use and occupancy of the same,
including but not limited to certificates of occu-
pancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities;
(x) Location and Type of Mortgaged Property.
The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and
consists of a single parcel (or more than one
contiguous parcel) of real property with a
detached single family residence erected thereon,
or a two- to four-family dwelling, or an individual
condominium unit in a condominium project, or an
individual unit in a planned unit development or a
townhouse.
(xi) Valid First Lien.
The Mortgage is a valid, subsisting and enforceable
first lien on the Mortgaged Property, including all
buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or
annexed to such buildings, and all additions,
alterations and replacements made at any time with
respect to the foregoing. The lien of the Mortgage
is subject only to:
1. the lien of current real property
taxes and assessments not yet due
and payable;
2. covenants, conditions and
restrictions, rights of way, ease-
ments and other matters of the
public record as of the date of
recording acceptable to mortgage
lending institutions generally and
specifically referred to in the
lender's title insurance policy
delivered to the originator of the
Mortgage Loan and (i) referred to
or otherwise considered in the
appraisal made for the originator
of the Mortgage Loan and (ii)
which do not adversely affect the
Appraised Value of the Mortgaged
Property set forth in such
appraisal; and
3. other matters to which like
properties are commonly subject
which do not materially interfere
with the benefits of the security
intended to be provided by the
mortgage or the use, enjoyment,
value or marketability of the
related Mortgaged Property.
Any security agreement, chattel mortgage or
equivalent document related to and delivered in
connection with the Mortgage Loan establishes and
creates a valid, subsisting and enforceable first
lien on the property described therein and the
Company has full right to sell and assign the same
to the Purchaser;
(xii) Full Disbursement of Proceeds.
The proceeds of the Mortgage Loan have been fully
disbursed, except for escrows established or
created due to seasonal weather conditions, and
there is no requirement for future advances
thereunder. All costs, fees and expenses incurred
in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the
Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or
Mortgage;
(xiii) Ownership.
The Company is the sole owner of record and holder
of the Mortgage Loan and the related Mortgage Note
and the Mortgage are not assigned or pledged, and
the Company has good and marketable title thereto
and has full right and authority to transfer and
sell the Mortgage Loan to the Purchaser. The
Company is transferring the Mortgage Loan free and
clear of any and all encumbrances, liens, pledges,
equities, participation interests, claims, charges
or security interests of any nature encumbering
such Mortgage Loan;
(xiv) Origination/Doing Business.
The Mortgage Loan was originated directly by or
closed in the name of a savings and loan
association, a savings bank, a commercial bank, a
credit union, an insurance company, or by a state
licensed mortgage broker or banker or similar
institution which is supervised and examined by a
federal or state authority or a mortgagee approved
by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 or the National
Housing Act. All parties which have had any
interest in the Mortgage Loan, whether as
mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed
of such interest, were) (1) in compliance with any
and all applicable licensing requirements of the
laws of the state wherein the Mortgaged Property is
located, and any qualification requirements of FNMA
or FHLMC, and (2) organized under the laws of such
state, or (3) qualified to do business in such
state, or (4) federal savings and loan associations
or national banks having principal offices in such
state, or (5) not doing business in such state;
(xv) Title Insurance.
The Mortgage Loan is covered by an ALTA lender's
title insurance policy or other generally
acceptable form of policy of insurance acceptable
to FNMA and FHLMC, issued by a title insurer
acceptable to FNMA and FHLMC and qualified to do
business in the jurisdiction where the Mortgaged
Property is located, insuring the Company, its
successors and assigns, as to the first priority
lien of the Mortgage in the original principal
amount of the Mortgage Loan, subject only to the
exceptions contained in clauses (1), (2) and (3) of
paragraph (xi) of this Section 3.02; provided,
however, that in the case of any Mortgage Loan
secured by a Mortgaged Property located in a
jurisdiction where such policies are generally not
available, the Mortgage Loan is the subject of an
opinion of counsel of the type customarily rendered
in such jurisdiction in lieu of title insurance.
The Company is the sole insured of such lender's
title insurance policy, and such lender's title
insurance policy is in full force and effect and
will be in force and effect upon the consummation
of the transactions contemplated by this
Agreement. No claims have been made under such
lender's title insurance policy, and no prior
holder of the Mortgage, including the Company, has
done, by act or omission, anything which would
impair the coverage of such lender's title
insurance policy;
(xvi) No Mechanics' Liens.
There are no mechanics' or similar liens or claims
which have been filed for work, labor or material
(and no rights are outstanding that under the law
could give rise to such liens) affecting the
related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the
lien of the related Mortgage which are not insured
against by the title insurance policy referenced in
Section (xv) above;
(xvii) Location of Improvements; No Encroachments.
Except as insured against by the title insurance
policy referenced in Section (xv) above, all
improvements which were considered in determining
the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building
restriction lines of the Mortgaged Property and no
improvements on adjoining properties encroach upon
the Mortgaged Property. As of the date of
origination of each Mortgage Loan, no improvement
located on or being part of the Mortgaged Property
is in violation of any applicable zoning law or
regulation;
(xviii) Customary Provisions.
The Mortgage contains customary and enforceable
provisions such as to render the rights and
remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the
benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated
as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. To the best of
the Company's knowledge, following the date of
origination of the Mortgage Loan, 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 a Mortgagor which
would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage;
(xix) Occupancy of the Mortgaged Property.
As of the date of origination, the Mortgaged
Property was lawfully occupied under applicable
law.
(xx) No Additional Collateral.
The Mortgage Note is not and has not been secured
by any collateral, pledged account or other
security except the lien of the corresponding
Mortgage and the security interest of any
applicable security agreement or chattel mortgage
referred to in (xi) above;
(xxi) Deeds of Trust.
In the event that 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 Mortgagee to the trustee
under the deed of trust, except in connection with
a trustee's sale after default by the Mortgagor;
(xxii) Transfer of Mortgage Loans.
The Assignment is in recordable form and is
acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is
located.
(xxiii) Mortgaged Property Undamaged.
The Mortgaged Property is not materially damaged by
water, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty or
vandalism so as to affect adversely the value of
the Mortgaged Property as security for the Mortgage
Loan or the use for which the premises were
intended;
(xxiv) Collection Practices; Escrow Deposits.
The origination and collection practices used with
respect to the Mortgage Loan have been in
accordance with Acceptable Servicing Practices, and
have been in all material respects legal and
proper, and in accordance with the terms of the
Mortgage Note and Mortgage. All Escrow Payments
have been collected in full compliance with state
and federal law. An escrow of funds is not
prohibited by applicable law and has been
established to pay for every item that remains
unpaid and has been assessed but is not yet due and
payable. No escrow deposits or Escrow Payments or
other charges or payments due the Company have been
capitalized under the Mortgage Note;
(xxv) No Condemnation.
To the best of Company's knowledge, there is no
proceeding pending or threatened for the total or
partial condemnation of the related Mortgaged
Property;
(xxvi) The Appraisal.
The Mortgage Loan Documents contain an appraisal of
the related Mortgaged Property by an appraiser who
had no interest, direct or indirect, in the
Mortgaged Property or in any loan made on the
security thereof; and whose compensation is not
affected by the approval or disapproval of the
Mortgage Loan, and the appraisal and the appraiser
both satisfy the applicable requirements of FNMA
and FHLMC;
(xxvii) Insurance.
The improvements located on the Mortgaged Property
securing each Mortgage Loan are insured by an
insurer acceptable to FNMA or FHLMC against loss by
fire and such hazards as are covered under a
standard extended coverage endorsement and such
other hazards as are customary in the area where
the Mortgaged Property is located, in an amount
which is not less than the lesser of 100% of the
insurable value of the Mortgaged Property and the
outstanding principal balance of the Mortgage Loan,
but in no event less than the minimum amount
necessary to fully compensate for any damage or
loss on a replacement cost basis, and which
complies with the requirements of Section 4.10
hereof; if the Mortgaged Property is
a condominium unit, it is included under the
coverage afforded by a blanket policy for the
project; the insurance policy contains a standard
clause naming the originator of such mortgage loan,
its successor and assigns, as insured mortgagee; if
upon origination of the Mortgage Loan, the
improvements on the Mortgaged Property were in an
area identified in the Federal Register by the
Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy
meeting the requirements of the current guidelines
of the Federal Insurance Administration is in
effect with a generally acceptable insurance
carrier, in an amount representing coverage not
less than the least of (A) the outstanding princi-
pal balance of the Mortgage Loan, (B) the full
insurable value and (C) the maximum amount of
insurance which was available under the Flood
Disaster Protection Act of 1983, as amended; and
the Mortgage obligates the mortgagor thereunder to
maintain all such insurance at the mortgagor's cost
and expense and the Company has not acted or failed
to act so as to impair the coverage of any such
insurance policy or the validity, binding effect
and enforceability thereof; the Mortgage obligates
the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and
on the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to maintain such insurance
at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor; all such
insurance policies contain a standard mortgagee
clause naming the originator of the Mortgage Loan,
its successors, and assigns as mortgagee;
(xxviii) Soldiers' and Sailors' Civil Relief Act.
The Mortgagor has not notified the Company, and the
Company has no knowledge of any relief requested
or allowed to the Mortgagor under the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended;
(xxix) Payment Terms.
The Mortgage Note is payable on the first day of
each month in equal monthly installments of
principal and interest, with interest in arrears,
providing for full amortization by maturity over a
scheduled term of no more than 30 years. No
Mortgage Loan has a shared appreciation or other
contingent interest feature, or permits negative
amortization;
(xxx) No Defaults.
Except with respect to delinquencies identified on
the Mortgage Loan Schedule, there is no default,
breach, violation or event of acceleration existing
under any Mortgage or Mortgage Note and no event
that, 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 the Company has not waived any
default, breach, violation or event of
acceleration; and
(xxxi) Loan-to-Value Ratio; Modifications; No
Foreclosures.
The Loan-to-Value Ratio of each Mortgage Loan was
less than 100% at the time of its origination or
refinancing, as applicable. No Mortgage Loan is
subject to a written foreclosure agreement or
pending foreclosure proceedings.
(xxxii) Primary Mortgage Insurance.
Each Mortgage Loan with an LTV at origination in
excess of 80% will be subject to a Primary Mortgage
Insurance Policy, issued by an insurer acceptable
to FNMA or FHLMC, in at least such amounts as are
required by FHLMC or FNMA. All provisions of such
Primary Mortgage Insurance 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 Primary
Mortgage Insurance Policy obligates the Mortgagor
thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith
unless terminable in accordance with FHLMC
standards or applicable law.
(xxxiii) Underwriting Guidelines.
The Mortgage Loan was underwritten in accordance
with the Company's underwriting guidelines in
effect at the time of origination with exceptions
thereto exercised in a reasonable manner.
(xxxiv) Adverse Selection.
The Company used no adverse selection procedures in
selecting the Mortgage Loan from among the
outstanding first-lien residential mortgage loans
owned by it which were available for inclusion in
the Mortgage Loans.
Section 3.03 Repurchase.
It is understood and agreed that 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 the delivery of the Mortgage Loan Documents to the
Custodian and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by either the Company or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser (or
which materially and adversely affects the interests of Purchaser in the
related Mortgage Loan in the case of a representation and warranty relating to
a particular Mortgage Loan), the party discovering such breach shall give
prompt written notice to the other.
Within 90 days of the earlier of either discovery by or notice to the
Company of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans, (i) the Company shall use
its best efforts promptly to cure such breach in all material respects and
(ii) if such breach cannot be cured, the Company 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 90 days of the earlier of
either discovery by or notice to the Company of such breach, all of the
Mortgage Loans shall, at the Purchaser's option, be repurchased by the Company
at the Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant
to the foregoing provisions of this Section 3.03 shall be accomplished by
deposit in the Custodial Account of the amount of the Repurchase Price as
required in Section 4.04, for distribution to Purchaser on the Remittance Date
for the month following the date of the repurchase, 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 for application in
accordance with Section 5.01.
At the time of repurchase, the Purchaser and the Company shall
arrange for the reassignment of the repurchased Mortgage Loan to the Company
and the delivery to the Company of any documents held by the Custodian
relating to the repurchased Mortgage Loan. In the event of a repurchase, the
Company shall, simultaneously with such reassignment, give written notice to
the Purchaser that such repurchase has taken place and amend the Mortgage Loan
Schedule to reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
In addition to such repurchase obligation, the Company shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other reasonable costs and expenses (excluding, however,
punitive damages, loss of profit damages and exemplary damages) resulting from
any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Company's representations and warranties
contained in this Agreement. It is understood and agreed that the obligations
of the Company set forth in this Section 3.03 to cure or repurchase a
defective Mortgage Loan and to indemnify the Purchaser as provided in this
Section 3.03 and Section 8.01, constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and warranties.
Any cause of action against the Company relating to or arising out of
the breach of any representations and warranties made in Sections 3.01 and
3.02 shall accrue as to any Mortgage Loan upon the earliest of (i) discovery
of such breach by the Company or the Purchaser or notice thereof by the
Purchaser to the Company, (ii) failures by the Company to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon the
Company by the Purchaser for compliance with this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer.
The Company, as an independent contractor, shall service and
administer the Mortgage Loans and shall have full power and authority, acting
alone or through the utilization of a third party servicing provider, to do
any and all things in connection with such servicing and administration which
the Company may deem necessary or desirable, consistent with the terms of this
Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement and subject to the REMIC
Provisions if the Mortgage Loans have been transferred to a REMIC, the Company
may waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Company's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Purchaser. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Company shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 5.03, the difference between (a) such month's
principal and one month's interest at the Mortgage Loan Remittance Rate on the
unpaid principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Company shall be entitled to reimbursement for such advances to
the same extent as for all other advances made pursuant to Section 5.03.
Without limiting the generality of the foregoing, the Company 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
Properties. If reasonably required by the Company, the Purchaser shall furnish
the Company with any powers of attorney and other documents necessary or
appropriate to enable the Company to carry out its servicing and
administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Company shall
employ procedures (including collection procedures) and exercise the same
care that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
Section 4.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, and (3) the Company shall determine to be in the best
interest of Purchaser. In the event that any payment due under any Mortgage
Loan is not postponed pursuant to Section 4.01 and remains delinquent for a
period of 90 days or any other default continues for a period of 90 days
beyond the expiration of any grace or cure period, the Company shall commence
foreclosure proceedings. In the event the Purchaser objects to such
foreclosure action, the Company shall not be required to make Monthly Advances
with respect to such Mortgage Loan, pursuant to Section 5.03, and the
Company's obligation to make such Monthly Advances shall terminate on the 90th
day referred to above. In such connection, the Company shall from its own
funds make all necessary and proper Servicing Advances, provided, however,
that the Company shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration or preservation of any
Mortgaged Property, unless it shall determine (a) that such preservation,
restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan to Purchaser after reimbursement to itself for such expenses
and (b) that such expenses will be recoverable by it either through
Liquidation Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Custodial Account pursuant to Section 4.05) or through
Insurance Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure,
in the event the Company has reasonable cause to believe that a Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, or if the
Purchaser otherwise requests an environmental inspection or review of such
Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector. The cost for such inspection or review shall be borne by
the Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Company to proceed with foreclosure
or acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean up costs, as applicable, from the related Liquidation Proceeds, or if
the Liquidation Proceeds are insufficient to fully reimburse the Company, the
Company shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 4.05 hereof. In the event the Purchaser directs
the Company not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Company shall be reimbursed for all Servicing Advances made
with respect to the related Mortgaged Property from the Custodial Account
pursuant to Section 4.05 hereof.
Section 4.03 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Company shall proceed diligently in
accordance with this Agreement to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable in accordance with
FHLMC Guidelines, and shall, in accordance with RESPA and applicable state
law, take special care in ascertaining and estimating Escrow Payments and all
other charges that will become due and payable with respect to the Mortgage
Loan and the Mortgaged Property, to the end that the installments payable by
the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
Section 4.04 Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled "ABN AMRO
Mortgage Group Inc., in trust for the Purchaser of Residential Mortgage Loans
serviced under a Company's Warranties and Servicing Agreement, dated as of
August 1, 2001, and various Mortgagors - P & I", or as otherwise directed in
writing by the Purchaser or its assigns after the Closing Date in connection
with any Whole Loan Transfer or Pass-Through Transfer. The Custodial Account
shall be established with a Qualified Depository. Upon request of the
Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Custodial
Account. Any funds deposited in the Custodial Account shall at all times be
insured to the fullest extent allowed by applicable law. Funds deposited in
the Custodial Account may be drawn on by the Company in accordance with
Section 4.05.
The Company shall deposit in the Custodial Account within one
Business Day (or two Business Days in the case of the amounts described in
clauses (iii) through (v) below) of the Company's receipt, and retain therein,
the following collections received by the Company and payments made by the
Company after the Cut-off Date, other than payments of principal and interest
due on or before the Cut-off Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments, but not including
Payaheads;
(ii) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to
be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14), Section 4.11 and
Section 4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released
to the Mortgagor in accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 4.01, 5.01, 5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 2.03, 3.03 or 6.02;
(viii) with respect to each Principal Prepayment including, for
this purpose, the principal portion of Insurance Proceeds,
Condemnation Proceeds, and Liquidation Proceeds an amount
(to be paid by the Company out of its own funds, but not in
excess of its aggregate Servicing Fee for the related Due
Period) which, when added to all amounts allocable to
interest received in connection with the Principal
Prepayment, equals one month's interest on the amount of
principal so prepaid at the Mortgage Loan Remittance Rate;
(ix) any amounts required to be deposited by the Company pursuant
to Section 4.11 in connection with the deductible clause in
any blanket hazard insurance policy; and
(x) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to
Section 4.16.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
and assumption fees, to the extent permitted by Section 6.01, need not be
deposited by the Company into the Custodial Account. Any interest paid on
funds deposited in the Custodial Account by the depository institution shall
accrue to the benefit of the Company and the Company shall be entitled to
retain and withdraw such interest from the Custodial Account pursuant to
Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account.
The Company shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Company's
funds made pursuant to Section 5.03, the Company's right to
reimburse itself pursuant to this subclause (ii) being
limited to amounts received on the related Mortgage Loan
which represent late payments of principal and/or interest
respecting which any such advance was made, it being
understood that, in the case of any such reimbursement, the
Company's right thereto shall be prior to the rights of
Purchaser, except that, where the Company is required to
repurchase a Mortgage Loan pursuant to Section 2.03, 3.03 or
6.02, the Company's right to such reimbursement shall be
subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts
required to be paid to the Purchaser with respect to such
Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Company's right to
reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the
Company from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any
such reimbursement, the Company's right thereto shall be
prior to the rights of Purchaser, except that where the
Company is required to repurchase a Mortgage Loan pursuant
to Section 2.03, 3.03 or 6.02, in which case the Company's
right to such reimbursement shall be subsequent to the
payment to the Purchaser of the Repurchase Price pursuant to
such sections and all other amounts required to be paid to
the Purchaser with respect to such Mortgage Loan;
(iv) to pay itself as servicing compensation any interest on
funds deposited in the Custodial Account;
(v) to reimburse itself for expenses incurred to the extent
reimbursable pursuant to Section 8.01;
(vi) to pay any amount required to be paid pursuant to Section
4.16 related to any REO Property, it being understood that,
in the case of any such expenditure or withdrawal related
to a particular REO Property, the amount of such expenditure
or withdrawal from the Custodial Account shall be limited to
amounts on deposit in the Custodial Account with respect to
the related REO Property;
(vii) to reimburse itself for any Monthly Advances, Servicing
Advances or REO expenses after liquidation of the Mortgaged
Property to the extent not otherwise reimbursed above;
(viii) to reimburse the trustee for any Pass-Through Transfer for
any unreimbursed Monthly Advances or Servicing Advances made
by the Trustee, as applicable, the right to reimbursement
pursuant to this subclause (viii) with respect to any
Mortgage Loan being limited to related Liquidation Proceeds,
proceeds of REO Dispositions, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be
collected by the Company from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that, in
the case of such reimbursement, such trustee's right thereto
shall be prior to the rights of the Company to reimbursement
under (ii) and (iii), and prior to the rights of the
Purchaser under (i);
(ix) to remove funds inadvertently placed in the Custodial
Account by the Company; and
(x) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodian Account is interest bearing, on each
Remittance Date, the Company shall withdraw all interest earned on funds on
deposit in the Custodial Account. The Company may use such withdrawn funds
only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more Escrow Accounts, in the form of time deposit or demand accounts,
titled, "ABN AMRO Mortgage Group Inc., in trust for the Purchaser under the
Seller's Warranties and Servicing Agreement dated as of August 1, 2001 and/or
subsequent purchasers of Mortgage Loans, and various Mortgagors - T & I." The
Escrow Accounts shall be established with a Qualified Depository, in a manner
which shall provide maximum available insurance thereunder. Upon request of
the Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.07.
The Company shall deposit in the Escrow Account or Accounts within
two (2) Business Days of the Company's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any
such items as required under the terms of this Agreement;
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or
repair of any Mortgaged Property; and
(iii) all amounts representing proceeds of any Primary Mortgage
Insurance Policy.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than interest on escrowed funds required by law to be paid to the Mortgagor.
To the extent required by law, the Company shall pay interest on escrowed
funds to the Mortgagor notwithstanding that the Escrow Account may be
non-interest bearing or that interest paid thereon is insufficient for such
purposes.
Section 4.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums,
condominium charges, fire and hazard insurance premiums or
other items constituting Escrow Payments for the related
Mortgage;
(ii) to reimburse the Company for any Servicing Advances made by
the Company pursuant to Section 4.08 with respect to a
related Mortgage Loan, but only from amounts received on the
related Mortgage Loan which represent late collections of
Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess
of the amounts required under the terms of the related
Mortgage Loan;
(iv) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in
accordance with the terms of the related Mortgage and
Mortgage Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in
Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in
the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow Account
by the Company;
(viii) to apply the proceeds of Primary Mortgage Insurance as if
such proceeds were payments on, or Liquidation Proceeds of,
the related Mortgage Loan, as the case may be; and
(ix) to clear and terminate the Escrow Account on the termination
of this Agreement; and
Section 4.08 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien
upon the Mortgaged Property and fire and hazard insurance coverage and shall
obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date, employing for such purpose deposits of
the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Company in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. The Company assumes full responsibility for
the timely payment of all such bills and shall effect timely payment of all
such charges irrespective of each Mortgagor's faithful performance in the
payment of same of the making of the Escrow Payments, and the Company shall
make advances from its own funds to effect such payments.
Section 4.09 Protection of Accounts.
The Company may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time, upon prior written
notice to the Purchaser.
Section 4.10 Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are
insured by an insurer acceptable to FNMA or FHLMC, against loss by fire,
hazards of extended coverage and such other hazards as are customary in the
area where the Mortgaged Property is located, in an amount which is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan and (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan and (b) an amount such that the
proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer. In the event a hazard insurance policy shall
be in danger of being terminated, or in the event the insurer shall cease to
be acceptable to FNMA or FHLMC, the Company shall notify the Purchaser and the
related Mortgagor, and shall use its best efforts, as permitted by applicable
law, to obtain from another Qualified Insurer a replacement hazard insurance
policy substantially and materially similar in all respects to the original
policy. In no event, however, shall a Mortgage Loan be without a hazard
insurance policy at any time, subject only to Section 4.11 hereof.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier acceptable to FNMA or FHLMC, in an
amount representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on
a replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended.
If a Mortgage is secured by a unit in a condominium project, the
Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current FNMA/ FHLMC requirements, and inform the
owner's association to notify the Company promptly of any change in the
insurance coverage or of any condemnation or casualty loss that may have a
material effect on the value of the Mortgaged Property as security.
In the event that any Purchaser or the Company shall determine that
the Mortgaged Property should be insured against loss or damage by hazards and
risks not covered by the insurance required to be maintained by the Mortgagor
pursuant to the terms of the Mortgage, the Company shall communicate and
consult with the Mortgagor with respect to the need for such insurance and
bring to the Mortgagor's attention the desirability of protection of the
Mortgaged Property.
All policies required hereunder shall name the Company as loss payee
and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Company shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to FNMA and FHLMC and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The Company shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Company under
any such policies (other than amounts to be deposited in the Escrow Account
and applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to
the Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Primary Mortgage Insurance Policy; Claims.
With respect to each Mortgage Loan with a LTV in excess of 80%, the
Company shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a Primary Mortgage Insurance
Policy insuring that portion of the Mortgage Loan in excess of a percentage in
conformance with FHLMC requirements. The Company shall pay or shall cause the
Mortgagor to pay the premium thereon on a timely basis, at least until the LTV
of such Mortgage Loan is reduced to 80%, or such amount as required by
applicable law, or such other amount as FHLMC permits for cancellation of
mortgage insurance. In the event that such Primary Mortgage Insurance Policy
shall be terminated, the Company shall obtain from another insurer a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated Primary Mortgage Insurance Policy. If the insurer
shall cease to be a qualified insurer, the Company shall determine whether
recoveries under the Primary Mortgage Insurance Policy are jeopardized for
reasons related to the financial condition of such insurer, it being
understood that the Company shall in no event have any responsibility or
liability for any failure to recover under the Primary Mortgage Insurance
Policy for such reason. If the Company determines that recoveries are so
jeopardized, it shall notify the Purchaser and the Mortgagor, if required, and
obtain from another qualified insurer a replacement insurance policy. The
Company shall not take any action which would result in noncoverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of the Company would have been covered thereunder. In connection with
any assumption or substitution agreement entered into or to be entered into
pursuant to Subsection 6.01, the Company shall promptly notify the insurer
under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
Primary Mortgage Insurance Policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such Primary Mortgage Insurance Policy. If such Primary Mortgage Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the Company shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
In connection with its activities as Company, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such Primary Mortgage Insurance Policy and, in
this regard, to take such action as shall be necessary to permit recovery
under any Primary Mortgage Insurance Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 4.06, any amounts collected by the Company under any
Primary Mortgage Insurance Policy shall be deposited in the Escrow Account,
subject to withdrawal pursuant to Section 4.07.
Section 4.12 Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the amount required pursuant to
Section 4.10 and otherwise complies with all other requirements of Section
4.10, it shall conclusively be deemed to have satisfied its obligations as set
forth in Section 4.10. The Company shall prepare and make any claims on the
blanket policy as deemed necessary by the Company in accordance with Accepted
Servicing Practices. Any amounts collected by the Company under any such
policy relating to a Mortgage Loan shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 4.05. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
4.10, and there shall have been a loss which would have been covered by such
policy, the Company shall deposit in the Custodial Account at the time of such
loss the amount not otherwise payable under the blanket policy because of such
deductible clause, such amount to be deposited from the Company's funds,
without reimbursement therefor. Upon request of any Purchaser, the Company
shall cause to be delivered to such Purchaser a certified true copy of such
policy and a statement from the insurer thereunder that such policy shall in
no event be terminated or materially modified without 30 days' prior written
notice to such Purchaser.
Section 4.13 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond
and Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan
without having obtained payment in full of the indebtedness secured thereby.
No provision of this Section 4.13 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
amounts acceptable to GNMA. Upon the request of any Purchaser, the Company
shall cause to be delivered to such Purchaser a certified true copy of such
fidelity bond and insurance policy and a statement from the surety and the
insurer that such fidelity bond and insurance policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Purchaser.
Section 4.14 Inspections.
If any Mortgage Loan is more than 60 days delinquent, the Company or
its agent immediately shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may be required by the primary mortgage guaranty insurer. The Company shall
keep a written report of each such inspection for a reasonable period of time
in accordance with its customary file retention practices.
Section 4.15 Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to
be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices. For claims greater
than $15,000, at a minimum the Company shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(i) The Company shall receive satisfactory independent
verification of completion of repairs and issuance of any
required approvals with respect thereto;
(ii) the Company shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not
limited to requiring waivers with respect to mechanics' and
materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Company shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow
Account.
If the Purchaser is named as an additional loss payee, the Company is
hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 4.16 Claims.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer in a timely fashion and, in this regard, to take such action as shall
be necessary to permit recovery respecting a defaulted Mortgage Loan. Pursuant
to Section 4.04, any amounts collected by the Company under any guaranty shall
be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 4.05.
Section 4.17 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Company or its nominee, or in the event the
Company 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, or the
perfection of the ownership or security interest of the Purchaser in such REO
Property would be adversely effected, the deed or certificate of sale shall be
taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Company from any attorney duly licensed to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the Purchaser shall acknowledge in
writing that such title is being held as nominee for the Purchaser.
The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition
and sale. The Company, either itself or through an agent selected by the
Company, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Company shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
the Company deems to be in the best interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless (i) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Company deter
mines, and gives an appropriate notice to the Purchaser to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property.
If a period longer than one year is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Company shall report monthly to
the Purchaser as to the progress being made in selling such REO Property and
(ii) if, with the written consent of the Purchaser, a purchase money mortgage
is taken in connection with such sale, such purchase money mortgage shall name
the Company as mortgagee, and such purchase money mortgage shall not be held
pursuant to this Agreement, but instead a separate participation agreement
among the Company and Purchaser shall be entered into with respect to such
purchase money mortgage.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the Company
at such price, and upon such terms and conditions, as the Company deems to be
in the best interests of the Purchaser. The proceeds of sale of the REO
Property shall be promptly deposited in the Custodial Account. As soon as
practical thereafter the expenses of such sale shall be paid and the Company
shall reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to Section 5.03. On the
Remittance Date immediately following the Principal Prepayment Period in which
such sale proceeds are received the net cash proceeds of such sale remaining
in the Custodial Account shall be distributed to the Purchaser.
The Company shall withdraw the Custodial Account funds necessary for
the proper operation management and maintenance of the REO Property, including
the cost of maintaining any hazard insurance pursuant to Section 4.10 and the
fees of any managing agent of the Company, or the Company itself. The Company
shall make monthly distributions on each Remittance Date to the Purchaser of
the net cash flow from the REO Property (which shall equal the revenues from
such REO Property net of the expenses described in the Section 4.16 and of any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
Section 4.18 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.02, the
Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That statement
shall be accompanied by such other information as the Purchaser shall
reasonably request.
Section 4.19 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Purchaser pursuant to a deed in lieu of
foreclosure, the Company shall submit to the Purchaser a liquidation report
with respect to such Mortgaged Property.
Section 4.20 Reports of Foreclosures and Abandonments of
Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code. The Company shall file information
reports with respect to the receipt of mortgage interest received in a trade
or business and information returns relating to cancellation of indebtedness
income with respect to any Mortgaged Property as required by the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by the Code.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances.
On each Remittance Date the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net
of charges against or withdrawals from the Custodial Account pursuant to
Section 4.05), plus (b) all amounts, if any, which the Company is obligated to
distribute pursuant to Section 5.03, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment
Period which amounts shall be remitted on the following Remittance Date,
together with any additional interest required to be deposited in the
Custodial Account in connection with such Principal Prepayment in accordance
with Section 4.04(viii); and minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day
of the month of the Remittance Date.
With respect to any remittance received by the Purchaser after the
date on which such payment was due, the Company shall pay to the Purchaser
interest on any such late payment at an annual rate equal to the Prime Rate,
adjusted as of the date of each charge, plus two percentage points, but in no
event greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Custodial Account by the Company on the
date such late payment is made and shall cover the period commencing with the
day following such second Business Day and ending with the Business Day on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The payment by the Company of any such interest shall not be deemed an
extension of time for payment or a waiver of any Event of Default by the
Company.
Section 5.02 Statements to Purchaser.
Not later than the Remittance Advice Date, the Company shall furnish
to the Purchaser a Monthly Remittance Advice, including the information set
forth in Exhibit E attached hereto, with a trial balance report attached
thereto, as to the preceding remittance and the period ending on the last day
of the preceding month, in a form to be agreed upon by the Purchaser and the
Company.
Section 5.03 Monthly Advances by Company.
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due
on the Mortgage Loans during the applicable Due Period and which were
delinquent at the close of business on the Determination Date immediately
preceding such Remittance Date or which were deferred pursuant to Section
4.01. Any amounts held for future distribution and so used shall be replaced
by the Company by deposit in the Custodial Account on or before any future
Remittance Date if funds in the Custodial Account on such Remittance Date
shall be less than payments to the Purchaser required to be made on such
Remittance Date. Notwithstanding the foregoing, the Company shall not be
permitted to make any advances from amounts held for future distribution, and
instead shall be required to make all advances from its own funds, unless the
Company, its parent, or their respective successors hereunder shall have a
long-term credit rating of at least "A" by Fitch, Inc., or the equivalent
rating of another Rating Agency. The Company's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly
Payment due prior to the payment in full of the Mortgage Loan, or through the
last Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan or REO
Property; provided, however, that such obligation shall cease if the Company
determines, in its sole reasonable opinion, that advances with respect to such
Mortgage Loan are non-recoverable by the Company from Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds, or otherwise with respect to a
particular Mortgage Loan. In the event that the Company determines that any
such advances are non-recoverable, the Company shall provide the Purchaser
with a certificate signed by two officers of the Company evidencing such
determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption
not specifically allowed under the terms of the Mortgage Note by the person to
whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the extent
it has knowledge of such conveyance, exercise its rights to accelerate the
maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Company shall not exercise such rights if
prohibited by law from doing so.
If the Company reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the person to whom such property
has been conveyed, pursuant to which such person becomes liable under the
Mortgage Note and the original Mortgagor remains liable thereon or (ii) in the
event the Company is unable under applicable law to require that the original
Mortgagor remain liable under the Mortgage Note and the Company has the prior
consent of the primary mortgage guaranty insurer, a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. If an assumption fee is collected by the Company for entering
into an assumption agreement the fee will be retained by the Company as
additional servicing compensation. In connection with any such assumption,
neither the Mortgage Interest Rate borne by the related Mortgage Note, the
term of the Mortgage Loan nor the outstanding principal amount of the Mortgage
Loan shall be changed without Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loans. If the credit of the proposed transferee does
not meet such underwriting criteria, the Company diligently shall, to the
extent permitted by the Mortgage or the Mortgage Note and by applicable law,
accelerate the maturity of the Mortgage Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, the Company shall
notify the Purchaser in the Monthly Remittance Advice as provided in Section
5.02, and may request the release of any Mortgage Loan Documents.
If the Company satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Company otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Company shall
repurchase the related Mortgage Loan at the Repurchase Price by deposit
thereof in the Custodial Account within 2 Business Days of receipt of such
demand by the Purchaser. The Company shall maintain the Fidelity Bond and
Errors and Omissions Insurance Policy as provided for in Section 4.12 insuring
the Company against any loss it may sustain with respect to any Mortgage Loan
not satisfied in accordance with the procedures set forth herein.
Section 6.03 Servicing Compensation.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amount of its Servicing Fee. The Servicing
Fee shall be payable monthly and shall be computed on the basis of the same
unpaid scheduled principal balance and for the 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 payable solely from, the
interest portion of such Monthly Payments.
Additional servicing compensation in the form of assumption fees, to
the extent provided in Section 6.01, and late payment charges shall be
retained by the Company to the extent not required to be deposited in the
Custodial Account. The Company shall be required to pay all expenses incurred
by it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement thereof except as specifically provided for herein.
Section 6.04 Annual Statement as to Compliance.
Within one hundred twenty (120) days after the Company's fiscal year
end, an Officer's Certificate, stating that (i) a review of the activities of
the Company during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (ii) the Company
has complied with the provisions of this Agreement or similar agreements, and
(iii) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement or similar
agreements throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by the
Company to cure such default.
Section 6.05 Annual Independent Public Accountants' Servicing Report.
Within one hundred twenty (120) days after the Company's fiscal year
end, the Company at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Purchaser to the effect that such
firm has, with respect to the Company's overall servicing operations, examined
such operations in accordance with the requirements of the Uniform Single
Attestation Program for Mortgage Bankers, stating such firm's conclusions
relating thereto.
Section 6.06 Right to Examine Company Records.
The Purchaser, or its designee, shall have the right to examine and
audit any and all of the books, records, or other information of the Company,
whether held by the Company or by another on its behalf, with respect to or
concerning this Agreement or the Mortgage Loans, during business hours or at
such other times as may be reasonable under applicable circumstances, upon
reasonable advance notice. The Purchaser shall pay its own travel expenses
associated with such examination.
Section 6.07 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, the Company 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
Section 860G(a)(2) of the Code and the tax on "contributions" to a REMIC set
forth in Section 860(D) of the Code) unless the Company 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 VII
COMPANY TO COOPERATE
Section 7.01 Provision of Information.
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies
or originals of any documents contained in the Servicing File for each
Mortgage Loan provided for herein. All other special reports or information
not provided for herein as shall be necessary, reasonable, or appropriate with
respect to the Purchaser or any regulatory agency will be provided at the
Purchaser's expense. All such reports, documents or information shall be
provided by and in accordance with all reasonable instructions and directions
which the Purchaser may give.
The Company shall execute and deliver all such instruments and take
all such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02 Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective Purchaser a Consolidated Statement of
Operations of the Company (which may be presented as a component of the
audited financial statements of the parent of the Company) for the most
recently completed two fiscal years for which such a statement is available,
as well as a Consolidated Statement of Condition at the end of the last two
fiscal years covered by such Consolidated Statement of Operations. The Company
also shall make available any comparable interim statements to the extent any
such statements have been prepared by or on behalf of the Company (and are
available upon request to members or stockholders of the Company or to the
public at large).
The Company also shall make available to Purchaser or prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or
the financial statements of the Company, and to permit any prospective
Purchaser to inspect the Company's servicing facilities for the purpose of
satisfying such prospective Purchaser that the Company has the ability to
service the Mortgage Loans as provided in this Agreement.
ARTICLE VIII
THE COMPANY
Section 8.01 Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other reasonable costs, fees and expenses (excluding, however, punitive
damages, loss of profit damages and exemplary damages) that the Purchaser may
sustain in any way related to the failure of the Company to perform its duties
and service the Mortgage Loans in compliance with the terms of this Agreement.
The Company immediately shall notify the Purchaser if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the Purchaser) the defense of any such claim and
pay all expenses in connection therewith, including counsel 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 Company shall follow any
reasonable written instructions received from the Purchaser in connection with
such claim. The Purchaser promptly shall reimburse the Company for all costs,
fees or expenses advanced by it pursuant to this paragraph except to the
extent the claim in any way results from, relates to or arises out of any
liability, obligation, act or omission of the Company, including without
limitation, the Company's indemnification obligation under Section 3.03 and
this Section 8.01, any repurchase obligation of the Company hereunder
including Sections 2.03, 3.03 and 6.02, or the failure of the Company to
service and administer the Mortgage Loans and otherwise perform its
obligations hereunder in compliance with the terms of this Agreement.
Section 8.02 Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and
franchises as a corporation, and shall obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any person into which the Company may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Company shall be a party, or any Person succeeding to the business
of the Company, shall be the successor of the Company hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution which
is a FNMA/FHLMC-approved company in good standing. Furthermore, in the event
the Company transfers or otherwise disposes of all or substantially all of its
assets to an affiliate of the Company, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Purchaser for all of
the Company's obligations and liabilities hereunder. Notwithstanding the
foregoing, any party to whom the Company sells or otherwise disposes of all or
substantially all of its property or assets shall become a party to this
Agreement.
Section 8.03 Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in accordance
with Accepted Servicing Practices and in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Company against any breach of warranties or
representations made herein, or failure to perform its obligations in
compliance with any standard of care set forth in this Agreement or any other
liability which would otherwise be imposed under this Agreement. The Company
and any director, officer, employee or agent of the Company 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. The Company 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
expense or liability, provided, however, that the Company may, with the
consent of the Purchaser, undertake any such action which it may deem
necessary or desirable in respect to this Agreement and the rights and duties
of the parties hereto. In such event, the Company shall be entitled to
reimbursement from the Purchaser of the reasonable legal expenses and costs of
such action.
Section 8.04 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company and
subsequent Purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Except for transactions under Section 8.02, the Company shall neither assign
this Agreement or the servicing hereunder, nor delegate its rights or duties
hereunder or any portion thereof without the prior written consent of the
Purchaser, which consent shall not be unreasonably withheld or delayed.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or
upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Company. Any
such determination permitting the resignation of the Company shall be
evidenced by an Opinion of Counsel to such effect delivered to the Purchaser
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a successor shall
have assumed the Company's responsibilities and obligations hereunder in the
manner provided in Section 12.01.
Without in any way limiting the generality of this Section 8.04, in
the event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof; or sell or otherwise dispose of all or substantially all of its
property or assets (not including transactions under Section 8.02 hereof),
without the prior written consent of the Purchaser, which shall not be
unreasonably withheld, then the Purchaser shall have the right to terminate
this Agreement upon notice given as set forth in Section 10.01, without any
payment of any penalty or damages and without any liability whatsoever to the
Company or any third party.
ARTICLE IX
PASS-THROUGH TRANSFER
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Pass-Through Transfer
The Purchaser and the Company agree that with respect to some or all
of the Mortgage Loans, the Purchaser, at its sole option, may at any time
effect Whole Loan Transfers or Pass-Through Transfers, retaining the Company
as the Servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer"; provided, however, that the Purchaser shall
use its reasonable best efforts to give the Company 10 Business Days' prior
written notice of each such transfer and, in the event Purchaser shall for any
reason be unable to provide such 10 Business Days' notice, shall reasonably
cooperate with Company in its efforts to minimize any negative effects of such
failure; and, provided, further, that the Purchaser shall not transfer any or
all Mortgage Loans more than five times in the aggregate unless the Purchaser
pays to the Company a fee of 0.0625% of the outstanding principal balance of
the Mortgage Loans being transferred. From and after the Reconstitution Date,
the Mortgage Loans transferred shall remain covered by this Agreement, insofar
as the Company shall continue to service such Mortgage Loans on behalf of the
Purchaser in accordance with the terms and provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with
each Whole Loan Transfer or Pass-Through Transfer in accordance with this
Article IX. In connection therewith the Company shall:
(a) make all representations and warranties under Section 3.01
hereof as of the Closing Date and under Section 3.02 hereof
as of the closing date of each Whole Loan Transfer or
Pass-Through Transfer but not later than December 1, 2001;
(b) negotiate in good faith and execute any seller/servicer
agreements required by the issuer to effectuate the
foregoing provided such agreements create no greater
obligation or cost on the part of the Company than otherwise
set forth in this Agreement;
(c) provide as applicable:
(i) any and all appropriate information and appropriate
verification of information which may be
reasonably available to the Company, whether
through letters of its auditors and counsel or
otherwise, as the Purchaser shall reasonably
request; and
(ii) such additional representations, warranties,
covenants, opinions of counsel, letters from
auditors, financial description of the Company as
servicer as may be reasonably required for
inclusion in any offering memorandum to be
distributed to potential investors in connection
with a Pass-Through Transfer with respect to the
Mortgage Loans, and certificates of public
officials or officers of the Company as are
reasonably believed necessary by the trustee, any
Rating Agency, any credit enhancer or the mortgage
insurance provider, as the case may be, in
connection with such Whole Loan Transfers or
Pass-Through Transfers. The Purchaser shall pay all
third party costs (including all necessary fees and
expenses of external counsel) associated with the
preparation of such information. The Company shall
execute any seller/servicer agreements required
within a reasonable period of time after receipt
of such seller/servicer agreements which time shall
be sufficient for the Company and Company's counsel
to review such seller/servicer agreements. Under
this Agreement, the Company shall retain a
servicing fee at a rate per annum equal to no less
than 0.50% per Mortgage Loan; and
(d) indemnify the Purchaser for any material misstatements
contained in the information provided pursuant to (c)
above.
In the event the Purchaser has elected to have the Company hold
record title to the Mortgages, prior to the Reconstitution Date and after the
Closing Date the Company shall prepare an Assignment in blank or, at the
option of the Purchaser, to the trustee from the Company (to the extent such
Assignment has not been prepared on or before the Closing Date) acceptable to
the trustee for each Mortgage Loan that is part of the Whole Loan Transfers or
Pass-Through Transfers. The Purchaser shall pay all preparation and recording
costs associated therewith. The Company shall execute each Assignment, track
such Assignments to ensure they have been recorded and deliver them as
required by the trustee upon the Company's receipt thereof. Additionally, at
the Purchaser's expense, the Company shall prepare and execute, at the
direction of the Purchaser, any note endorsements in connection with any and
all seller/servicer agreements.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
Each of the following shall constitute an Event of Default on the
part of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this
Agreement which continues unremedied for a period of three
Business Days after the date upon which written notice of
such failure, requiring the same to be remedied, shall have
been given to the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on
the part of the Company set forth in this Agreement which
continues unremedied for a period of 30 days after the date
on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Company by the
Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do
business in any jurisdiction where the Mortgaged Property is
located if such license is required; or
(iv) 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,
readjustment of debt, including bankruptcy, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Company and such degree or order shall
have remained in force undischarged or unstayed for a period
of 60 days; or
(v) the Company shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to the Company or of
or relating to all or substantially all of its property; or
(vi) the Company 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, bankruptcy or
reorganization statute, make an assignment for the benefit
of its creditors, voluntarily suspend payment of its
obligations or cease its normal business operations for
three Business Days; or
(vii) the Company ceases to meet the qualifications of a
FNMA/FHLMC servicer;
(viii) the Company attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the
servicing responsibilities hereunder or to delegate its
duties hereunder or any portion thereof in violation of
Section 8.04; or
(ix) the taking of any action by the Company, any Company
Employee, any Affiliate or any director or employee thereof
that has been determined by any court, governmental body or
arbitrator having competent jurisdiction to constitute fraud
or criminal activity in the performance of its obligations
under this Agreement or the indictment of any of the
foregoing Persons for criminal activity related to the
mortgage origination or servicing activities of the Company,
in each case, where such indictment materially and adversely
affects the ability of the Company to perform its
obligations under this Agreement (subject to the condition
that such indictment is not dismissed within 90 days).
In each and every such case, so long as an Event of Default shall not
have been remedied, in addition to whatever rights the Purchaser may have at
law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Company, may terminate
with cause all the rights and obligations of the Company under this Agreement
and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority and
power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.01. Upon written request from any Purchaser,
the Company shall prepare, execute and deliver to the successor entity
designated by the Purchaser any and all documents and other instruments, place
in such successor's possession all Mortgage Files, and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related documents, at the
Company's sole expense. The Company shall cooperate with the Purchaser and
such successor in effecting the termination of the Company's responsibilities
and rights hereunder, including without limitation, the transfer to such
successor for administration by it of all cash amounts which shall at the time
be credited by the Company to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans. The Company will
remain entitled to repayment of outstanding Servicing Advances and advances of
Monthly Payments, which shall be reimbursed to it either (i) by the successor
Servicer upon its becoming servicer or (ii) when such advances would otherwise
have been reimbursed from the Mortgage Loans, but on a FIFO basis as to each
Mortgage Loan between the Servicer and the successor servicer.
Section 10.02 Waiver of Defaults.
By a written notice, the Purchaser may waive any default by the
Company in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
This Agreement shall terminate upon any of: (i) the later of the
final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or the disposition of any REO Property with respect to
the last Mortgage Loan and the remittance of all funds due hereunder, (ii)
mutual consent of the Company and the Purchaser in writing or (iii)
termination pursuant to Section 10.01, 11.02 or 11.03.
Section 11.02 Termination Without Cause.
Upon at least 30 days' prior written notice, at any time and without
cause, the Purchaser may terminate, at its sole option, any rights the Company
may have hereunder as provided in this Section 11.02 upon payment to the
Company of a termination fee equal to two and one-half percent (2.5%) of the
aggregate outstanding principal balance of the Mortgage Loans as of the date
of such termination. Any such notice of termination shall be in writing and
delivered to the Company by registered mail as provided in Section 12.05.
Section 11.03 Termination With Cause.
Notwithstanding any other provision hereof to the contrary, the
Purchaser, at its option, may terminate this Agreement, and any rights the
Company may have hereunder, with cause upon ten (10) Business Days' prior
written notice. For all purposes of determining "cause" with respect to
termination of this Agreement or the rights of the Company hereunder, such
term shall mean (i) termination upon the occurrence of any Event of Default
hereunder which is not cured within any applicable cure period and not waived
by the Purchaser or (ii) any repeated material failure to comply with the
terms and provisions of this Agreement. In the event of a termination of the
Company for cause under this Section 11.03, no liquidated damages shall be
payable to the Company pursuant to Section 11.02.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company.
Prior to termination of the Company's responsibilities and duties
under this Agreement pursuant to Sections 8.04, 10.01 or 11.01, the Purchaser
shall, (i) succeed to and assume all of the Company's responsibilities,
rights, duties and obligations under this Agreement, or (ii) appoint a
successor having the characteristics set forth in Section 8.02 and which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Company under this Agreement prior to the termination of
Company's responsibilities, duties and liabilities under this Agreement. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. In the event that the
Company's duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the Company shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with
the same degree of diligence and prudence which it is obligated to exercise
under this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation
or removal of the Company pursuant to the aforementioned sections shall not
become effective until a successor shall be appointed pursuant to this Section
12.01 and shall in no event relieve the Company of the representations and
warranties made pursuant to Sections 3.01 and 3.02 and the remedies available
to the Purchaser under Sections 2.03, 3.03 and 6.02, it being understood and
agreed that the provisions of such Sections 2.03, 3.01, 3.02, 3.03 and 6.01
shall be applicable to the Company notwithstanding any such sale, assignment,
resignation or termination of the Company, or the termination of this
Agreement; provided that the Company, as servicer, shall not be liable
hereunder for any acts or omissions occurring subsequent to its resignation or
removal as servicer hereunder or the termination of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Company and to the Purchaser an instrument accepting such
appointment, wherein the successor shall make the representations and
warranties set forth in Section 3.01, except for the portion of subsection (h)
relating to sale of the mortgage loans and all of subsections (j) and (l)
thereof, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Company, with like effect as if originally named as a party to this Agreement;
provided, however, that the Company shall retain its right to reimbursement
for any unreimbursed Advances made by it prior to its resignation or removal
to the same extent that the Company was entitled to reimbursement prior to
such removal or resignation. Any termination or resignation of the Company or
termination of this Agreement pursuant to Section 8.04, 10.01, 11.01, 11.02 or
11.03 shall not affect any claims that any Purchaser may have against the
Company arising out of the Company's actions or failure to act prior to any
such termination or resignation.
The Company shall deliver promptly to the successor servicer the
funds in the Custodial Account and Escrow Account and all Mortgage Files and
related documents and statements held by it hereunder and the Company shall
account for all funds and shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and definitively
vest in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company
shall notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment.
This Agreement may be amended from time to time by the Company and by
written agreement signed by the Company and the Purchaser.
Section 12.03 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
EACH OF THE COMPANY AND THE PURCHASER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE COMPANY OR THE PURCHASER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PURCHASER TO ENTER INTO THIS
AGREEMENT.
Section 12.04 Duration of Agreement.
This Agreement shall continue in existence and effect until
terminated as herein provided. This Agreement shall continue notwithstanding
transfers of the Mortgage Loans by the Purchaser.
Section 12.05 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by registered mail, certified mail, postage prepaid, addressed as
follows:
(i) if to the Company:
ABN AMRO MORTGAGE GROUP INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy:
With a copy to:
Legal Department
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or such other address as may hereafter be furnished to the
Purchaser in writing by the Company;
(ii) if to Purchaser:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished to the
Company in writing by the Purchaser.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
Section 12.07 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
the Company shall be rendered as an independent contractor and not as agent
for the Purchaser.
Section 12.08 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same agreement. Subject to Section 8.04, this
Agreement shall inure to the benefit of and be binding upon, and shall be
enforceable by, the Company and the Purchaser and their respective successors
and assigns, including without limitation, any trustee appointed by the
Purchaser with respect to any Whole Loan Transfer or Pass-Through Transfer.
Section 12.09 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments of
Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in
which any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, which recordation shall have
been effected at the Company's expense in the event recordation is either
necessary under applicable law or requested by the Purchaser at its sole
option. The Company shall not be responsible for any erroneous recording which
results from misleading directions from the Purchaser.
Section 12.10 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Company but subject to the limit set forth in Section 2.02 hereof, to assign,
in whole or in part, its interest under this Agreement with respect to some or
all of the Mortgage Loans, and designate any person to exercise any rights of
the Purchaser hereunder, by executing an Assignment and Assumption Agreement
substantially in the form of Exhibit F hereto and the assignee or designee
shall accede to the rights and obligations hereunder of the Purchaser with
respect to such Mortgage Loans. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee, subject to
Section 9.01.
Section 12.11 Solicitation of Mortgagor.
From and after the Closing Date, neither the Company nor the
Purchaser shall take any action to solicit the refinancing of any Mortgage
Loan or provide information to any other entity to solicit the refinancing of
any Mortgage Loan; provided that, the foregoing shall not preclude the
Company, the Purchaser or any of their affiliates from (a) engaging in general
solicitations to its customer base (provided, that the Mortgagors under the
Mortgage Loan shall not be deemed included in the "customer base" of the
Purchaser or its affiliates solely by virtue of being included in this
transaction), including by mass mailing or as part of monthly or periodic
statements mailed to its borrowers or to holders of deposit or other accounts,
(b) engaging in solicitations to the general public, including without
limitation by mass mailing, newspaper, radio, television or other media which
are not specifically directed toward the Mortgagors or (c) refinancing the
Mortgage Loan of any Mortgagor who, without solicitation, contacts the Company
or the Purchaser to request the refinancing of the related Mortgage Loan.
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By: ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
ABN AMRO MORTGAGE GROUP INC,
As seller and servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 24th day of August, 2001 before me, a Notary Public in and for
said State, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be the Vice
President of ▇▇▇▇▇▇▇ Sachs Real Estate Funding Corp., the general partner of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, the partnership that executed the within
instrument and also known to me to be the person who executed it on behalf of
said partnership, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
/s/ Onyx S. Wellington
------------------------------------
Notary Public
My Commission expires April 10, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
) ss:
COUNTY OF PALM BEACH )
On the 12th day of December, 2001 before me, a Notary Public in
and for said State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, known to me to
be the First Vice President of ABN AMRO Mortgage Group Inc., the
corporation that executed the within instrument, who acknowledged to me to
be the person who executed the within instrument on behalf of said
corporation on August 24, 2001.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
My Commission expires 6-12-2005
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be retained by the
Company in the Servicing File or delivered to the Custodian pursuant to
Sections 2.01 and 2.03 of the Seller's Warranties and the Servicing Agreement
to which this Exhibit is attached (the "Agreement"):
1. The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of ______________,
without recourse" and signed in the name of the Company by
an authorized officer (in the event that the Mortgage Loan
was acquired by the Company in a merger, the signature must
be in the following form: "[Company], successor by merger to
[name of predecessor]"; and in the event that the Mortgage
Loan was acquired or originated by the Company while doing
business under another name, the signature must be in the
following form: "[Company], formerly know as [previous
name]").
2. The original of any personal endorsement, surety and/or
guaranty agreement executed in connection with the Mortgage
Note, if any.
3. The original Mortgage, with evidence of recording thereon or
a certified true and correct copy of the Mortgage sent for
recordation. If in connection with any Mortgage Loan, the
Company cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to
the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or
because such public recording office retains the original
recorded Mortgage, the Company shall deliver or cause to be
delivered to the Custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of the
Company stating that such Mortgage has been dispatched to
the appropriate public recording office for recordation and
that the original recorded Mortgage or a copy of such
Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Mortgage
will be promptly delivered to the Custodian upon receipt
thereof by the Company; or (ii) in the case of a Mortgage
where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of
such Mortgage certified by such public recording office or
by the title insurance company that issued the title policy
to be a true and complete copy of the original recorded
Mortgage.
4. The originals or certified true copies of all assumption,
modification, consolidation or extension agreements, with
evidence of recording noted thereon if recordation is
required to maintain the lien of the mortgage or is
otherwise required, or, if recordation is not so required,
an original or copy of any such assumption, modification,
consolidation or extension agreements.
5. The original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, from the
Company to "______________" or as otherwise directed by the
Purchaser. If the Mortgage Loan was acquired by the Company
in a merger, the Assignment of Mortgage must be made by
"[Company], successor by merger to [name of predecessor]."
If the Mortgage Loan was acquired or originated by the
Company while doing business under another name, the
Assignment of Mortgage must be by "[Company], formerly know
as [previous name]." Subject to the foregoing and where
permitted under the applicable laws of the jurisdiction
wherein the Mortgaged property is located, such Assignments
of Mortgage may be made by blanket assignments for Mortgage
Loans secured by the Mortgaged Properties located in the
same county.
6. Originals or certified true copies of all intervening
assignments of the Mortgage necessary to show a complete
chain of title from the original mortgagee to the Seller,
with evidence of recording thereon, or if any such
intervening assignment has not been returned from the
applicable recording office or has been lost or if such
public recording office retains the original recorded
assignments of mortgage, the Company shall deliver or cause
to be delivered to the Custodian, a photocopy of such
intervening assignment, together with (i) in the case of a
delay caused by the public recording office, an Officer's
Certificate of the Company stating that such intervening
assignment of mortgage has been dispatched to the
appropriate public recording office for recordation and that
such original recorded intervening assignment of mortgage or
a copy of such intervening assignment of mortgage certified
by the appropriate public recording office or by the title
insurance company that issued the title policy to be a true
and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Company; or (ii) in
the case of an intervening assignment where a public
recording office retains the original recorded intervening
assignment or in the case where an intervening assignment is
lost after recordation in a public recording office, a copy
of such intervening assignment certified by such public
recording office to be a true and complete copy of the
original recorded intervening assignment; provided, that
such intervening assignments may be in the form of blanket
assignments, a copy of which, with evidence of recording
noted thereon, shall be acceptable.
7. The original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title
(accompanied by an abstract of title), as the case may be,
with respect to each Mortgage Loan.
8. Any security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items to the extent in the possession of the Company or in the
possession of the Company's agent(s):
9. Verification of Mortgage Insurance.
10. The original hazard insurance policy and, if required by
law, flood insurance policy, in accordance with Section 4.10
of the Agreement.
11. Residential loan application.
12. Mortgage Loan closing statement.
13. Verification of employment and income, unless originated
under the Company's Limited Documentation program, FNMA
Timesaver Plus.
14. Verification of acceptable evidence of source and amount of
down payment.
15. Credit report on the Mortgagor, if available.
16. Residential appraisal report.
17. Photograph of the Mortgaged Property.
18. Survey of the Mortgaged Property, if required by the title
company or applicable law.
19. Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the
title policy, i.e. map or plat, restrictions, easements,
sewer agreements, home association declarations, etc.
20. All required disclosure statements.
21. If available, termite report, structural engineer's report,
water potability and septic certification.
22. Sales contract, if applicable.
23. Evidence of payment of taxes and insurance premiums,
insurance claim files, correspondence, current and
historical computerized data files, and all other
processing, underwriting and closing papers and records
which are customarily contained in a mortgage loan file and
which are required to document the Mortgage Loan or to
service the Mortgage Loan.
24. Amortization schedule, if available.
25. Original power of attorney, if applicable.
In the event an Officer's Certificate of the Company is delivered to
the Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 240 days of the Closing Date, an Officer's Certificate which shall (i)
identify the recorded document, (ii) state that the recorded document has not
been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will
be delivered to the Custodian. The Company shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv)
above. An extension of the date specified in (iv) above may be requested from
the Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
See attached
EXHIBIT D
FORM OF OPINION OF COUNSEL
See Attached
EXHIBIT E
ITEMS TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
INVESTOR REPORTS
Monthly Cutoffs:
Scheduled Remittance:
P139 Trial Balance by Investor
T62A Loan Activity Report
T62C Monthly Accounting Report
T62D Reconciliation of Principal and Calculation of Minimum Cash
Required T62E Liquidation Report S50Y Private Pool Detail Report S21H
Participant Summary of Curtailments Made Remittance Report S21J
Participant Summary of Paid In Full Remittance Report S21K
Participant Consolidation of Remittance Report
DEFAULT REPORTS
Delinquents:
Loan Number
Borrower Name
Address
Due Date
Unpaid Principal Balance
Escrow Advance
Corporate Advance
Comments
Foreclosure:
Loan Number
Borrower Name
Address
Unpaid Principal Balance Default Code Description Escrow Advance
Corporate Advance FC/Stop Status Part A Filing Date Part B Filing
Date Indicator Step Code Description Actual Date REO Start Date
Comments
Bankruptcy:
Loan Number
Loan Type (PMI / No PMI)
MI Coverage Amount
Borrower Name
Address
Unpaid Principal Balance
Default Code Description
Escrow Advance
Corporate Advance
Chapter
Filing Date
Confirm Hearing Date
Post Petition Due Date
Motion For Relief Filed Date
Motion For Relief Hearing Date
Motion For Relief Denied Date
Motion For Relief Followup Date
Dismissal Date
Discharge Date
Comments
EXHIBIT F
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this
_____ day of __________________, 200_, among ABN AMRO Mortgage Group Inc., a
__________________________ (the "Servicer"), _________________________ a
________________________ (the "Assignee"), and _____________________________,
a _______________________ (the "Assignor).
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company and the Servicer
have entered into a certain Seller's Warranties and Servicing Agreement dated
as of [ ], 2001 (the "Servicing Agreement"), pursuant to which the Servicer
sold certain mortgage loans listed on the mortgage loan schedule attached as
an exhibit to the Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and
conditions to purchase from the Assignor certain mortgage loans (the "Mortgage
Loans"), which Mortgage Loans are subject to the provisions of the Servicing
Agreement and are listed on the mortgage loan schedule attached as Exhibit 1
hereto (the "Mortgage Loan Schedule");
WHEREAS, pursuant to a Trust Agreement, dated as of [______
__], 2001 (the "Trust Agreement"), between GS Mortgage Securities Corp., as
Depositor, and [______], as Trustee (the "Trustee"), the Assignee will
transfer the Mortgage Loans to the Trustee, together with the Assignee's
rights in the Sale and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee all
of its right, title and interest in and to the Mortgage Loans and Servicing
Agreement, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor to indemnification thereunder), and the Assignee hereby
assumes all of the Assignor's obligations under the Servicing Agreement, to
the extent relating to the Mortgage Loans from and after the date hereof, and
the Servicer hereby acknowledges such assignment and assumption and hereby
agrees to the release of the Assignor from any obligations under the Servicing
Agreement from and after the date hereof, to the extent relating to the
Mortgage Loans. Notwithstanding the foregoing, it is understood that the
Assignor is not released from liability for any breaches of the
representations and warranties made in Section 3.06 of the Servicing
Agreement, and the Assignee is not undertaking any such liability hereunder.
(b) The Assignor represents and warrants to the Assignee
that the Assignor has not taken any action which would serve to impair or
encumber the Assignor's ownership interest in the Mortgage Loans since the
date of the Servicing Agreement.
(c) The Servicer and the Assignor shall have the right to
amend, modify or terminate the Servicing Agreement without the joinder of the
Assignee with respect to mortgage loans not conveyed to the Assignee
hereunder, provided, however, that such amendment, modification or termination
shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the
Assignee that (i) attached hereto as Exhibit 2 is a true, accurate and
complete copy of the Servicing Agreement, (ii) the Servicing Agreement is in
full force and effect as of the date hereof, (iii) the Servicing Agreement has
not been amended or modified in any respect and (iv) no notice of termination
has been given to the Servicer under the Servicing Agreement.
3. Recognition of Purchaser.
From and after the date hereof, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Mortgage Loans and shall service
the Mortgage Loans for the benefit of the Assignee pursuant to the Servicing
Agreement, the terms of which are incorporated herein by reference. It is the
intention of the Assignor, Servicer and Assignee that the Servicing Agreement
shall be binding upon and inure to the benefit of the Servicer and the
Assignee and their successors and assigns.
4. Representations and Warranties.
(a) Decision to Purchase. The Assignee represents
and warrants that it is a sophisticated investor able to evaluate the risks
and merits of the transactions contemplated hereby, and that it has not relied
in connection therewith upon any statements or representations of the Assignor
or the Servicer other than those contained in the Servicing Agreement or this
Agreement.
(b) Authority. The Assignee hereto represents and
warrants that it is duly and legally authorized to enter into this Agreement
and to perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability. The Assignee hereto represents
and warrants that this Agreement has been duly authorized, executed and
delivered by it and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The
Assignor hereby represents and warrants to the Assignee as follows:
(a) The Assignor has been duly organized and is
validly existing as a limited partnership in good standing under the laws of
the State of New York with full power and authority (corporate and other) to
enter into and perform its obligations under the Servicing Agreement and this
Assignment Agreement.
(b) This Assignment Agreement has been duly
executed and delivered by the Assignor, and, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a
legal, valid, and binding agreement of the Assignor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(c) The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated thereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date thereof.
(d) The execution and delivery of this Assignment
Agreement have been duly authorized by all necessary corporate action on the
part of the Assignor; neither the execution and delivery by the Assignor of
this Assignment Agreement, nor the consummation by the Assignor of the
transactions therein contemplated, nor compliance by the Assignor with the
provisions thereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of the governing documents of the
Assignor or any law, governmental rule or regulation or any material judgment,
decree or order binding on the Assignor or any of its properties, or any of
the provisions of any material indenture, mortgage, deed of trust, contract or
other instrument to which the Assignor is a party or by which it is bound.
(e) There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will if determined adversely to the
Assignor materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note or the related Mortgage
or any interest or participation therein.
(g) The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded the Mortgage, and the Assignor
has not released the Mortgaged Property from the lien of the Mortgage, in
whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related Federal Insurer, to the extent such approval was required.
It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive delivery of the
respective Mortgage Files to the Custodian and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed
that the obligations of the Assignor set forth in Section 6 to repurchase a
Mortgage Loan constitute the sole remedies available to the Assignee and its
assigns on their behalf respecting a breach of the representations and
warranties contained in this Section 5. It is further understood and agreed
that the Assignor shall be deemed not to have made the representations and
warranties in this Section 5 with respect to, and to the extent of,
representations and warranties made, as to the matters covered in this Section
5, by the Servicer in the Servicing Agreement (or any officer's certificate
delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 5, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
6. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of
any representation, warranty, or covenant under this Assignment Agreement that
materially and adversely affects the value of any Mortgage Loan or the
interest of the Assignee therein (it being understood that any such defect or
breach shall be deemed to have materially and adversely affected the value of
the related Mortgage Loan or the interest of the Assignee therein if the
Assignee incurs a loss as a result of such defect or breach), the Assignee
promptly shall request that the Assignor cure such breach and, if the Assignor
does not cure such breach in all material respects within 60 days from the
date on which it is notified of the breach, the Assignee may enforce the
Assignor's obligation hereunder to purchase such Mortgage Loan from the
Assignee. Notwithstanding the foregoing, however, if such breach is a
Qualification Defect, such cure or repurchase must take place within 75 days
of the Defect Discovery Date.
In the event the Servicer has breached a representation or
warranty under the Servicing Agreement that is substantially identical to a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Servicer. If the Servicer does not within 60
days after notification of the breach, take steps to cure such breach (which
may include certifying to progress made and requesting an extension of the
time to cure such breach, as permitted under the Servicing Agreement) or
purchase, or substitute for the Mortgage Loan, the Trustee shall be entitled
to enforce the obligations of the Assignor hereunder to cure such breach or to
purchase the Mortgage Loan from the Trust. In such event, the Assignor shall
succeed to the rights of the Assignee to enforce the obligations of the
Servicer to cure such breach or repurchase such Mortgage Loan under the terms
of the related Servicing Agreement with respect to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall
have no responsibility to enforce any provision of this Assignment Agreement,
to oversee compliance hereof, or to take notice of any breach or default
thereof.
7. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall
remain in full force and effect in accordance with its terms.
8. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS).
9. Notices.
Any notices or other communications permitted or required
hereunder or under the Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to: (i) in the case of the Servicer, [______________________,
_____________________] or such address as may hereafter be furnished by the
Servicer; (ii) in the case of the Assignee, _________________,
_________________, Attention: ________________________, or such other address
as may hereafter be furnished by the Assignee, and (iii) in the case of the
Assignor, __________________, Attention: _________________, or such other
address as may hereafter be furnished by the Assignor.
10. Counterparts.
This Agreement may be executed in counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same instrument.
11. Definitions.
Any capitalized term used but not defined in this Agreement
has the same meaning as in the Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
ASSIGNEE:
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNOR:
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Acknowledged by:
SERVICER:
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
EXHIBIT G
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, ______________________, hereby certify that I am a duly
elected [Vice President] of _____________________________, a corporation
organized under the laws of the State of _________ (the "Company") and further
as follows:
1. Attached hereto as Exhibit 1 is a true, correct and
complete copy of the Articles of Incorporation of the Company which is in full
force and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and
complete copy of the by-laws of the Company which are in effect on the date
hereof.
3. The execution and delivery by the Company of the Seller's
Warranties and Servicing Agreement, dated as of [ ], 2001 (the "Sale and
Servicing Agreement") and the Custodial Agreement, dated as of [ ], 2001 (the
"Custodial Agreement" and, together with the Sale and Servicing Agreement, the
"Agreements") are in the ordinary course of business of the Company and no
special resolutions or consents of the board of directors of the Company are
required in connection therewith.
4. Each person who, as an officer or representative of the
Company, signed (a) the Sale and Servicing Agreement, or (b) any other
document delivered prior hereto or on the date hereof in connection with any
transaction described in the Agreements was, at the respective times of such
signing and delivery a duly elected or appointed, qualified and acting officer
or representative of the Company, who holds the office set forth opposite his
or her name on Exhibit 3, and the signatures of such persons appearing on such
documents are their genuine signatures.
No proceedings for dissolution, merger, consolidation,
liquidation, conservatorship or receivership of the Company or for the sale of
all or substantially all of its assets is pending, or to my knowledge
threatened, and no such proceeding is contemplated by the Company.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of the Company.
Dated: By:
-----------------------------------
Title: Vice President
I, __________________ the Secretary of
__________________________, hereby certify that _______________________ is a
duly elected and acting Vice President of the Company and that the signature
appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
-----------------------------------
Title: Secretary