GREENWICH CAPITAL ACCEPTANCE, INC., as Purchaser and THORNBURG MORTGAGE HOME LOANS, INC., as Seller MORTGAGE LOAN PURCHASE AGREEMENT Dated as of January 1, 2006 Hybrid Mortgage Loans Thornburg Mortgage Securities Trust 2006-1
EXECUTION
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Purchaser
and
▇▇▇▇▇▇▇▇▇
MORTGAGE HOME LOANS, INC.,
as
Seller
Dated
as
of January 1, 2006
Hybrid
Mortgage Loans
▇▇▇▇▇▇▇▇▇
Mortgage Securities Trust 2006-1
Table
of Contents
Page
|
ARTICLE
I. DEFINITIONS AND SCHEDULES
|
1
|
|
|
Section
1.01.
|
Definitions
|
1
|
|
ARTICLE
II. SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
|
2
|
|
|
Section
2.01.
|
Sale
of Mortgage Loans
|
2
|
|
Section
2.02.
|
Obligations
of the Seller Upon Sale
|
2
|
|
Section
2.03.
|
Payment
of Purchase Price for the Mortgage Loans
|
3
|
|
ARTICLE
III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
|
3
|
|
|
Section
3.01
|
Seller
Representations and Warranties Relating to the Mortgage
Loans
|
3
|
|
Section
3.02.
|
Seller’s
Representations and Warranties
|
3
|
|
Section
3.03
|
Remedies
for Breach of Representations and Warranties
|
5
|
|
ARTICLE
IV. SELLER’S COVENANTS
|
5
|
|
|
Section
4.01.
|
Covenants
of the Seller
|
5
|
|
ARTICLE
V. INDEMNIFICATION
|
6
|
|
|
Section
5.01.
|
Indemnification
|
6
|
|
ARTICLE
VI. TERMINATION
|
6
|
|
|
Section
6.01.
|
Termination
|
6
|
|
ARTICLE
VII. MISCELLANEOUS PROVISIONS
|
6
|
|
|
Section
7.01.
|
Amendment
|
6
|
|
Section
7.02.
|
Governing
Law
|
6
|
|
Section
7.03.
|
Notices
|
6
|
|
Section
7.04.
|
Severability
of Provisions
|
7
|
|
Section
7.05.
|
Counterparts
|
7
|
|
Section
7.06.
|
Further
Agreements
|
7
|
|
Section
7.07.
|
Intention
of the Parties
|
7
|
|
Section
7.08.
|
Successors
and Assigns: Assignment of Purchase Agreement
|
8
|
|
Section
7.09.
|
Survival
|
8
|
|
Schedule
I:
|
Mortgage
Loan Schedule.
|
I-1
|
|
Schedule
II:
|
List
of Servicers and Servicing Agreements
|
II-1
|
|
Schedule
III:
|
Seller’s
Representations and Warranties Relating to Mortgage Loans.
|
III-1
|
i
THIS
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of January 1, 2006 (the “Agreement”),
is
made and entered into between ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc. (the
“Seller”)
and
Greenwich Capital Acceptance, Inc. (the “Purchaser”).
WITNESSETH
WHEREAS,
the Seller is the owner of the notes or other evidence of indebtedness (the
“Mortgage
Notes”)
so
indicated on Schedule I hereto referred to below, and the other documents
or
instruments constituting the Mortgage File (collectively, the “Mortgage
Loans”);
and
WHEREAS,
the Seller is a party to the servicing agreements identified on Schedule
II
(each a “Servicing
Agreement,”
and
together the “Servicing
Agreements”),
and
certain of the Mortgage Loans are currently being serviced thereunder by
the
servicers identified therein; and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages or deeds of trust (the
“Mortgages”)
on the
properties (the “Mortgaged
Properties”)
securing such Mortgage Loans, including rights to (a) any property acquired
by
foreclosure or deed in lieu of foreclosure or otherwise, (b) the proceeds
of any
insurance policies covering the Mortgage Loans or the Mortgaged Properties
or
the obligors on the Mortgage Loans and (c) the Seller’s security interest in any
Additional Collateral; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans, including
the
Mortgages, and assign the Seller’s rights under the Servicing Agreements to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of that certain Pooling and Servicing Agreement dated
as
of January 1, 2006 (the “Pooling
and Servicing Agreement”)
among
the Purchaser, as depositor, the Seller, as seller, ▇▇▇▇▇ Fargo Bank, N.A.,
as
master servicer and securities administrator, Wilmington Trust Company, as
Delaware trustee and LaSalle Bank National Association, as trustee (in such
capacity, the “Trustee”),
the
Purchaser will convey the Mortgage Loans to ▇▇▇▇▇▇▇▇▇ Mortgage Securities
Trust
2006-1 (the “Trust”).
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
AND SCHEDULES
Section
1.01. Definitions. Any
capitalized term used but not defined herein and below shall have the meaning
assigned thereto in the Pooling and Servicing Agreement, the related Preliminary
Prospectus Supplement dated January 25, 2006 (the “Preliminary
Prospectus Supplement”)
to the
Prospectus dated September 26, 2005 (the “Prospectus”),
the
related Final Prospectus Supplement dated January 30, 2006 (the “Final
Prospectus Supplement”)
to the
Prospectus or the related Private Placement Memorandum dated January 30,
2006
(the “Memorandum”).
1
ARTICLE
II.
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01. Sale
of Mortgage Loans; Assignment of the Servicing Agreements. The
Seller, concurrently with the execution and delivery of this Agreement, does
hereby sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, all of its right, title and interest in, to and under (i) each
Mortgage Loan, including the related Cut-Off Date Principal Balance, all
interest due thereon after the Cut-Off Date and all collections in respect
of
interest and principal due after the Cut-Off Date (and all principal received
before the Cut-Off Date to the extent such principal relates to a Monthly
Payment due after the Cut-Off Date); (ii) property which secured such Mortgage
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure;
(iii) its interest in any insurance policies in respect of the Mortgage Loans;
(iv) any Additional Collateral with respect to the Mortgage Loans; and (v)
all
proceeds of any of the foregoing.
Concurrently
with the execution and delivery of this Agreement, the Seller hereby assigns
to
the Purchaser all of its rights and interest (but none of its obligations)
under
each Servicing Agreement, other than any servicing rights retained pursuant
to
the provisions of such Servicing Agreements, to the extent relating to the
Mortgage Loans. The Purchaser hereby accepts such assignment, and shall be
entitled to exercise all such rights of the Seller under each Servicing
Agreement as if the Purchaser had been a party to each such
agreement.
Section
2.02. Obligations
of the Seller Upon Sale and Assignment. In
connection with the transfer pursuant to Section 2.01 hereof, the Seller
further
agrees, at its own expense, on or prior to the Closing Date, (a) to indicate
in
its books and records that the Mortgage Loans have been sold to the Purchaser
pursuant to this Agreement and (b) to deliver to the Purchaser and the Trustee
a
computer file containing a true and complete list of all such Mortgage Loans
specifying for each such Mortgage Loan, as of the Cut-Off Date, (i) its account
number and (ii) the Cut-Off Date Principal Balance and such file, which forms
a
part of Schedule A to the Pooling and Servicing Agreement, shall also be
marked
as Schedule I to this Agreement and is hereby incorporated into and made
a part
of this Agreement.
In
connection with such conveyance by the Seller, the Seller shall on behalf
of the
Purchaser deliver to, and deposit with the Trustee, as assignee of the
Purchaser, on or before the Closing Date, the documents described in Section
2.01 of the Pooling and Servicing Agreement including, but not limited to,
the
Servicing Agreements.
The
Seller hereby confirms to the Purchaser and the Trustee that it has made
the
appropriate entries in its general accounting records, to indicate that the
Mortgage Loans have been transferred to the Trustee, or a custodian appointed
pursuant to the Pooling and Servicing Agreement to act on behalf of the Trustee,
and that the Mortgage Loans constitute part of the Trust in accordance with
the
terms of the Pooling and Servicing Agreement.
2
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
in, to and under the Mortgage Loans and other property, and its rights under
the
Servicing Agreements, now existing or hereafter created, conveyed to it pursuant
to Section 2.01 hereof.
The
parties hereto intend that the transaction set forth herein be a non-recourse
sale by the Seller to the Purchaser of all of the Seller’s right, title and
interest in, to and under the Mortgage Loans and other property described
in
Section 2.01. Nonetheless, in the event the transaction set forth herein
is
deemed not to be a sale, the Seller hereby grants to the Purchaser a security
interest in all of the Seller’s right, title and interest in, to and under the
Mortgage Loans and other property described in Section 2.01, whether now
existing or hereafter created, to secure all of the Seller’s obligations
hereunder; and this Agreement shall constitute a security agreement under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that,
if
this Agreement were deemed to create a security interest in the Mortgage
Loans,
such security interest would be deemed to be a perfected security interest
of
first priority under applicable law and will be maintained as such throughout
the term of the Pooling and Servicing Agreement.
Section
2.03. Payment
of Purchase Price for the Mortgage Loans. In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to pay to the Seller on the Closing
Date by transfer of immediately available funds, an amount equal to
$1,911,469,449.90 (which amount includes accrued interest) (the “Purchase
Price”).
The
Seller shall pay, and be billed directly for, the amounts set forth in the
▇▇▇▇▇▇▇▇▇ Securitization Engagement Letter dated October 18, 2001, including
all
reasonable expenses incurred by the Purchaser in connection with the issuance
of
the Certificates, including, without limitation, printing fees incurred in
connection with the Preliminary Prospectus Supplement, the Final Prospectus
Supplement and the Memorandum relating to the Certificates, fees and expenses
of
Purchaser’s counsel, fees of the rating agencies requested to rate the
Certificates, accountant’s fees and expenses and the fees and expenses of the
Trustee and other out-of-pocket costs, if any.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01. Seller
Representations and Warranties Relating to the Mortgage Loans. The
Seller hereby makes the representations and warranties set forth in Schedule
III
hereto applicable to the Mortgage Loans and by this reference incorporated
herein, to the Depositor and the Trustee, as of the Closing Date or, if
applicable, such other date as may be specified therein.
Section
3.02. Seller’s
Representations and Warranties. The
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date or as of such other date specifically provided herein:
(i) the
Seller is duly organized, validly existing and in good standing as a corporation
under the laws of the State of Delaware and is and will remain in compliance
with the laws of each state in which any Mortgaged Property is located to
the
extent necessary to fulfill its obligations hereunder;
3
(ii) the
Seller has the power and authority to hold each Mortgage Loan, to sell each
Mortgage Loan, to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has
duly
executed and delivered this Agreement and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization or other similar laws in relation
to
the rights of creditors generally;
(iii) the
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a material default under
or
result in a material breach or acceleration of, any material contract, agreement
or other instrument to which the Seller is a party or which may be applicable
to
the Seller or its assets;
(iv) the
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) the
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vi) the
Seller has good, marketable and indefeasible title to the Mortgage Loans,
free
and clear of any and all liens, pledges, charges or security interests of
any
nature encumbering the Mortgage Loans;
(vii) the
Mortgage Loans are not being transferred by the Seller with any intent to
hinder, delay or defraud any creditors of the Seller;
(viii) there
are
no actions or proceedings against, or investigations known to it of, the
Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or validity or enforceability of, this
Agreement;
(ix) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained;
and
4
(x) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions.
(b) On
the
Closing Date, the Seller shall deliver to the Purchaser a certificate of
an
authorized officer of the Seller to the effect that, as of the Closing Date,
the
information set forth in the Preliminary Prospectus Supplement, the Final
Prospectus Supplement and the Memorandum, as it relates to the ▇▇▇▇▇▇▇▇▇
Information does not contain an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
Section
3.03. Remedies
for Breach of Representations and Warranties.
It is
understood and agreed that (i) the representations and warranties set forth
in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser and the Trust,
notwithstanding any restrictive or qualified endorsement on any Mortgage
Note or
Assignment or the examination or lack of examination of any Mortgage File
and
(ii) the remedies for the breach of such representations and warranties and
for
the failure to deliver the documents referred to in Section 2.02 hereof shall
be
as set forth in Section 2.03 of the Pooling and Servicing
Agreement.
It
is
understood and agreed that the representations and warranties set forth in
Section 3.01 hereof shall survive delivery of the respective Mortgage Files
to
the Trustee on behalf of the Purchaser.
ARTICLE
IV.
SELLER’S
COVENANTS
Section
4.01. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, it will
not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any Mortgage Loan, or any interest
therein; it will notify the Trust, as assignee of the Purchaser, of the
existence of any Lien on any Mortgage Loan immediately upon discovery thereof;
and it will defend the right, title and interest of the Trust, as assignee
of
the Purchaser, in, to and under the Mortgage Loans, against all claims of
third
parties claiming through or under the Seller; provided,
however,
that
nothing in this Section 4.01 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any Liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect
thereto.
5
ARTICLE
V.
INDEMNIFICATION
Section
5.01. Indemnification. The
Seller agrees to indemnify and to hold each of the Purchaser, the Trust,
the
Trustee, each of the officers and directors of each such entity and each
person
or entity who controls each such entity or person harmless against any and
all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser, the
Trust,
the Trustee, or any such person or entity may sustain in any way related
to the
failure of the Seller to perform its duties in compliance with the terms
of this
Agreement. The Seller shall immediately notify the Purchaser and the Trustee
if
a claim is made under this provision. The Seller shall assume the defense
of any
such claim and pay all expenses in connection therewith, including reasonable
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against the Purchaser, the Trust, the Trustee or any
such
person or entity in respect of such claim.
ARTICLE
VI.
TERMINATION
Section
6.01. Termination.
The respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the respective indemnity obligations
as provided herein, upon the termination of the Trust as provided in Article
X
of the Pooling and Servicing Agreement.
ARTICLE
VII.
MISCELLANEOUS
PROVISIONS
Section
7.01. Amendment. This
Agreement may be amended from time to time by the Seller and the Purchaser
by
written agreement signed by the parties hereto.
Section
7.02. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York, without reference to its conflict of law provisions (other
than Section 5-1401 of the General Obligations Law), and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section
7.03. 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, postage prepaid, addressed as follows:
if
to the
Seller:
▇▇▇▇▇▇▇▇▇
Mortgage Home Loans, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇
6
or
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Seller.
if
to the
Purchaser:
Greenwich
Capital Acceptance, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Legal Department
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
Section
7.04. 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 of enforceability of the other provisions of this
Agreement.
Section
7.05. Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, which may be transmitted by telecopier
each of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same
agreement.
Section
7.06. Further
Agreements.
The
parties hereto each agree to execute and deliver to the other such additional
documents, instruments or agreements as may be necessary or reasonable and
appropriate to effectuate the purposes of this Agreement or in connection
with
the issuance of the Certificates representing interests in the Trust Fund,
including the Mortgage Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Seller, the Seller will
cooperate with the Purchaser in connection with the sale of the Certificates.
In
that connection, the Seller will provide to the Purchaser any and all
information and appropriate verification of information, whether through
letters
of its auditors and counsel or otherwise, as the Purchaser shall reasonably
request and will provide to the Purchaser such additional representations
and
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are reasonably
required in connection with the offering of the Certificates.
Section
7.07. Intention
of the Parties. It
is the
intention of the parties that the Purchaser is purchasing, and the Seller
is
selling, the Mortgage Loans rather than pledging such Mortgage Loans to secure
a
loan by the Purchaser to the Seller. Accordingly, the parties hereto each
intend
to treat the transaction as a sale by the Seller, and a purchase by the
Purchaser, of the Mortgage Loans. The Purchaser will have the right to review
the Mortgage Loans and the related Mortgage Files to determine the
characteristics of the Mortgage Loans which will affect the Federal income
tax
consequences of owning the Mortgage Loans and the Seller will cooperate with
all
reasonable requests made by the Purchaser in the course of such
review.
7
Section
7.08. Successors
and Assigns: Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee. The obligations of the Seller under
this
Agreement cannot be assigned or delegated to a third party without the consent
of the Purchaser which consent shall be at the Purchaser’s sole discretion,
except that the Purchaser acknowledges and agrees that the Seller may assign
its
obligations hereunder to any Person into which the Seller is merged or any
corporation resulting from any merger, conversion or consolidation to which
the
Seller is a party or any Person succeeding to the business of the Seller.
The
parties hereto acknowledge that the Purchaser is acquiring the Mortgage Loans
and the rights of the Seller under the Servicing Agreements for the purpose
of
selling them to the Trust that will issue the Certificates representing
undivided interests in such Mortgage Loans. As an inducement to the Purchaser
to
purchase the Mortgage Loans, the Seller acknowledges and consents to the
assignment by the Purchaser to the Trust of all of the Purchaser’s rights
against the Seller pursuant to this Agreement insofar as such rights relate
to
Mortgage Loans transferred to the Trust and to the enforcement or exercise
of
any right or remedy against the Seller pursuant to this Agreement by the
Trustee. Such enforcement of a right or remedy by the Trustee shall have
the
same force and effect as if the right or remedy had been enforced or exercised
by the Purchaser directly.
Section
7.09. Survival.
The
representations and warranties set forth in Sections 3.01 and 3.02 and the
provisions of Article V hereof shall survive the purchase of the Mortgage
Loans
hereunder.
8
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above
written.
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Purchaser
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Senior Vice President
▇▇▇▇▇▇▇▇▇
MORTGAGE HOME LOANS, INC.,
as
Seller
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice President
STATE
OF CONNECTICUT )
)ss.:
COUNTY
OF FAIRFIELD )
On
the 26th day of January, 2006 before me, a Notary Public in and for said
State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, known to me to be a Senior
Vice
President of GREENWICH CAPITAL ACCEPTANCE, INC., the corporation that executed
the within instrument, and also known to me to be the person who executed
it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Notary
Public
My
Commission Expires on 6/30/09
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Notary
Public
My
Commission Expires on 6/30/09
STATE
OF NEW MEXICO )
)ss.:
COUNTY
OF SANTE FE )
On
the 30th day of January, 2006 before me, a notary public in and for said
State, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me to be a Senior Vice
President of ▇▇▇▇▇▇▇▇▇ MORTGAGE HOME LOANS, INC., a Delaware corporation
that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
/s/
Nyira Gitana
Notary
Public
My
Commission Expires 4/8/06
Offical
Seal
Nyira
Gitana
Notary
Public
State
of New Mexico
My
Commission Expires 4/8/06
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[See
Schedule I of Pooling and Servicing Agreement]
I-1
SCHEDULE
II
LIST
OF
SERVICING AGREEMENTS
| 1. |
Amended
and Restated Correspondent Loan Purchase Agreement, dated as of
March 25,
2002, between ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc. (“▇▇▇▇▇▇▇▇▇”) and First
Republic Bank (“First Republic”), including the related Transfer Notice,
dated as of January 31, 2006, from ▇▇▇▇▇▇▇▇▇ to First
Republic.
|
| 2. |
Amended
and Restated Correspondent Loan Purchase Agreement, dated as of
March 27,
2002, between ▇▇▇▇▇▇▇▇▇ and Colonial National Mortgage (f/k/a Colonial
Savings, F.A.) (“Colonial”), including the related Transfer Notice, dated
as of January 31, 2006, from ▇▇▇▇▇▇▇▇▇ to
Colonial.
|
| 3. |
(a)
Servicing Agreement, dated as of March 1, 2002, among ▇▇▇▇▇▇▇▇▇,
as seller
and servicer and ▇▇▇▇▇ Fargo, as master servicer, as amended by
the
Amendment to Servicing Agreement, dated as of December 1, 2002,
and as
amended by the Second Amendment to Servicing Agreement, dated as
of
January 31, 2006, and (b) the Subservicing Acknowledgement Agreement,
dated as of March 1, 2002, between ▇▇▇▇▇▇▇▇▇, as servicer, and
Cenlar FSB,
as sub-servicer (“Cenlar”), as amended by the Second Amendment to
Subservicing Acknowledgement Agreement, dated as of December 1,
2002, and
by the Second Amendment to Subservicing Acknowledgement Agreement,
dated
as of January 1, 2006, including the related Transfer Notice, dated
as of
January 24, 2006, from ▇▇▇▇▇▇▇▇▇, as seller, to ▇▇▇▇▇▇▇▇▇, as servicer,
and Cenlar, as sub-servicer.
|
| 4. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ Fargo, as servicer, and acknowledged by ▇▇▇▇▇ Fargo,
as master
servicer, and LaSalle Bank National Association (“LaSalle”), as
trustee,
relating to the Amended and Restated Seller’s Warranties and Servicing
Agreement dated as of November 1, 2005, between EMC Mortgage Corporation
(“EMC”) and ▇▇▇▇▇ Fargo, as amended by the Purchase, Assignment,
Assumption and Recognition Agreement dated as of January 25, 2006,
among
EMC, ▇▇▇▇▇ Fargo and ▇▇▇▇▇▇▇▇▇.
|
| 5. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ Fargo, as servicer, and acknowledged by ▇▇▇▇▇ Fargo,
as master
servicer, and LaSalle, as trustee,
relating to the Amended and Restated Master Seller’s Warranties and
Servicing Agreement dated as of December 1, 2005, between Bank
of America,
National Association (“BofA”) and ▇▇▇▇▇ Fargo, as amended by the
Assignment, Assumption and Recognition Agreement dated as of January
26,
2006, among BofA, ▇▇▇▇▇ Fargo and
▇▇▇▇▇▇▇▇▇.
|
| 6. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and Countrywide Home Loans, Inc. (“Countrywide”), as servicer, and
acknowledged by ▇▇▇▇▇ Fargo, as master servicer, and LaSalle, as
trustee,
relating to the Mortgage Loan Purchase and Servicing Agreement
dated as of
September 1, 2005, between ▇▇▇▇▇▇▇▇▇ and Countrywide, as amended
by
Amendment Reg AB dated as of January 4, 2006, by and between Countrywide
and ▇▇▇▇▇▇▇▇▇.
|
II-1
| 7. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and Countrywide Home Loans Servicing LP (“Countrywide Servicing”), as
servicer, and acknowledged by ▇▇▇▇▇ Fargo, as master servicer,
and
LaSalle, as trustee,
relating to Amended and Restated Servicing Agreement dated as of
December
1, 2005, between ▇.▇. ▇▇▇▇▇▇ Mortgage Acquisition Corp. (“▇.▇. ▇▇▇▇▇▇
Acquisition”) and Countrywide Servicing, as amended by the Assignment,
Assumption and Recognition Agreement dated as of January 30, 2006,
among
▇.▇. ▇▇▇▇▇▇ Acquisition, Countrywide Servicing and
▇▇▇▇▇▇▇▇▇.
|
| 8. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and JPMorgan Chase Bank, National Association (“Chase”), as servicer, and
acknowledged by ▇▇▇▇▇ Fargo, as master servicer, and LaSalle, as
trustee,
relating to the Flow Servicing Agreement dated as of September
1, 2005,
between ▇▇▇▇▇▇▇▇▇ and Chase, as amended by Amendment Reg AB dated
as of
January 1, 2006, by and between Chase and
▇▇▇▇▇▇▇▇▇.
|
| 9. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and PHH Mortgage Corporation (“PHH Mortgage”), as servicer, and
acknowledged by ▇▇▇▇▇ Fargo, as master servicer, and LaSalle, as
trustee,
relating to the Amended and Restated Mortgage Loan Flow Purchase,
Sale and
Servicing Agreement dated as of January 1, 2006, between PHH Mortgage,
Bishops Gate Residential Mortgage Trust (“Bishops Gate”) and ▇.▇. ▇▇▇▇▇▇
Acquisition, as amended by the Assignment, Assumption and Recognition
Agreement dated as of January 30, 2006, among PHH Mortgage, Bishops
Gate,
▇.▇. ▇▇▇▇▇▇ Acquisition and
▇▇▇▇▇▇▇▇▇.
|
| 10. |
Reconstituted
Servicing Agreement, dated as of January 1, 2006, by and among
▇▇▇▇▇▇▇▇▇
and BofA, as servicer, and acknowledged by ▇▇▇▇▇ Fargo, as master
servicer, and LaSalle, as trustee,
relating to the Flow Mortgage Loan Sale and Servicing Agreement
dated as
of November 1, 2005, between ▇▇▇▇▇▇▇▇▇ and BofA, as amended by
Amendment
Reg AB dated as of January 26, 2006, by and between BofA and
▇▇▇▇▇▇▇▇▇.
|
II-2
SCHEDULE
III
SELLER’S
REPRESENTATIONS AND
WARRANTIES
RELATING TO
MORTGAGE
LOANS
The
Seller hereby represents and warrants to, and covenants with, the Purchaser
that, as to each Mortgage Loan, as of the Closing Date:
| (i) |
(a)
The information set forth in the Mortgage Loan Schedule is complete,
true
and correct in all material respects and (b) the Mortgage Note
or an
affidavit of lost Mortgage Note with respect to each Mortgage Loan
has
been delivered to the Trustee or its
designee.
|
| (ii) |
As
of the Cut-Off Date approximately 0.12% of the Mortgage Loans (by
Stated
Principal Balance) were 30 to 59 days delinquent in payment, and
none of
the Mortgage Loans are 60 or more days delinquent. Other than 24
Mortgage
Loans (representing approximately 0.67% of the Mortgage Loans),
the Seller
has not advanced funds to, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the Mortgaged
Property subject to the Mortgage, directly or indirectly, for the
payment
of any amount required by the Mortgage
Loan.
|
| (iii) |
To
the best of the Seller’s knowledge, there are no delinquent taxes, ground
rents, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments
or other outstanding charges affecting the related Mortgaged Property
or
escrow funds have been established in an amount sufficient to pay
for
every such escrowed item which remains
unpaid.
|
| (iv) |
The
terms of the Mortgage Note and the Mortgage (including with respect
to
provisions relating to any Additional Collateral (if applicable))
have not
been impaired, waived, altered or modified in any respect, except
by
written instruments which have been recorded, if necessary to protect
the
interests of the Trust, and which are included in the Mortgage
File, the
substance of which waiver, alteration or modification has been
approved by
the primary mortgage guaranty insurer, if any, and by the title
insurer,
to the extent required by the related policy and is reflected on
the
Mortgage Loan Schedule. Except for any modification agreement or
similar
document contained in the Mortgage File permitting a borrower to
modify
his loan, no instrument of waiver, alteration or modification has
been
executed, and no Mortgagor has been released, in whole or in part,
except
in connection with an assumption agreement approved by the primary
mortgage insurer, if any, and title insurer, to the extent required
by the
policy, and which assumption agreement is part of the Mortgage
File.
|
III-1
| (v) |
The
Mortgage Note and the Mortgage (including with respect to provisions
relating to any Additional Collateral (if applicable)) are not
subject to
any right of rescission, set-off, counterclaim or defense, including
the
defense of usury, nor will the operation of any of the terms of
the
Mortgage Note and Mortgage, or the exercise of any right thereunder,
render the Mortgage unenforceable, in whole or in part, or subject
to any
right of rescission, set-off, counterclaim or defense, including
the
defense of usury, and to the Seller’s knowledge no such right of
rescission, set-off, counterclaim or defense has been asserted
with
respect thereto.
|
| (vi) |
All
buildings upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage
and
such other hazards as are customary in the area where the Mortgaged
Property is located. All such insurance policies contain a standard
mortgagee clause naming the Master Servicer or the applicable Servicer,
their successors and assigns as mortgagee and to the Seller’s knowledge
all premiums thereon have been paid. If upon origination of the
Mortgage
Loan, the Mortgaged Property was in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available)
a flood
insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration is in effect which policy conforms
to the
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Mortgage obligates
the
Mortgagor thereunder to maintain all such insurance at 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.
|
| (vii) |
The
Mortgage Loan is not a loan (A) subject to 12 CFR Part 226.31,
12 CFR Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing
TILA, which implements the Home Ownership and Equity Protection
Act of
1994, as amended, or any comparable state law (B) a “High Cost Loan” or
“Covered Loan” as applicable, as such terms are defined in the current
Standard & Poor’s LEVELS® GLOSSARY classified and/or defined as a
“high cost” loan or “predatory,” “high cost,” “threshold” or “covered”
lending under any other state, federal or local law. No Mortgage
Loan
originated on or after October 1, 2002 through March 6, 2003 is
governed
by the Georgia Fair Lending Act. The Mortgage Loan at the time
it was made
otherwise complied in all material respects with any and all requirements
of any federal, state or local law including, but not limited to,
all
predatory lending laws, usury, truth in lending, real estate settlement
procedures (including the Real Estate Settlement Procedures Act
of 1974,
as amended), consumer credit protection, equal credit opportunity
or
disclosure laws applicable to such Mortgage
Loan.
|
| (viii) |
The
Mortgage has not been satisfied, canceled or subordinated, or rescinded,
in whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage except for a release that does not materially
impair the security of the Mortgage Loan or is reflected in the
loan-to-value ratio, in whole or in part, nor has any instrument
been
executed that would effect any such release, cancellation, subordination
or rescission unless payoff funds have been deposited in the custodial
account.
|
III-2
| (ix) |
The
Mortgage is a valid, existing and enforceable first lien on the
Mortgaged
Property, including all improvements on the Mortgaged Property
subject
only to (A) the lien of current real property taxes and assessments
not
yet due and payable, (B) covenants, conditions and restrictions,
rights of
way, easements and other matters of the public record as of the
date of
recording being acceptable to mortgage lending institutions generally
and
either (a) specifically referred to in a lender’s title insurance policy
delivered to the originator of the Mortgage Loan or (b) which do
not
adversely affect the Appraised Value of the Mortgaged Property,
and (C)
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; and, further provided, with respect
to
Cooperative Loans, the lien of the related cooperative corporation
for
unpaid assessments representing the obligor’s pro rata share of the
cooperative corporation’s payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees
and other
assessments to which like collateral is commonly subject. Any security
agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage establishes and creates
a valid,
existing and enforceable first lien and first priority security
interest
on the property described therein and the Seller has full right
to sell
and assign the same to the
Purchaser.
|
| (x) |
The
Mortgage Note and the related Mortgage are genuine and each is
the legal,
valid and binding obligation of the maker thereof, enforceable
in
accordance with its terms, except as the enforceability thereof
may be
limited by bankruptcy, insolvency, or reorganization or other laws
relating to the rights of creditors and general principles of
equity.
|
| (xi) |
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.
|
| (xii) |
The
proceeds of the Mortgage Loan have been fully disbursed, there
is no
requirement for future advances thereunder and any and all requirements
as
to completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with
(except
for escrow funds for exterior items which could not be completed
due to
weather and escrow funds for the completion of swimming pools);
and all
costs, fees and expenses incurred in making, closing or recording
the
Mortgage Loan have been paid, except recording fees with respect
to
Mortgages not recorded as of the Closing
Date.
|
| (xiii) |
The
Seller has acquired its ownership of each Mortgage Loan in good
faith
without notice of any adverse claim, and as of the Closing Date,
the
Mortgage Note and the Mortgage are not assigned or pledged, and
immediately prior to the sale of the Mortgage Loan to the Purchaser,
the
Seller was the sole owner thereof and with full right to transfer
and sell
the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest and with
full
right and authority subject to no interest or participation of,
or
agreement with, any other party, to sell and assign each Mortgage
Loan
pursuant to this Agreement.
|
III-3
| (xiv) |
To
the Seller’s best knowledge, the Seller or, if the Mortgage Loan was not
originated by the Seller, the originator is or was (or, during
the period
in which they held and disposed of such interest, were) (A) in
compliance
with any and all applicable licensing requirements of the laws
of the
state wherein the Mortgaged Property is located, and (B) either
(i)
organized under the laws of such state, or (ii) qualified to do
business
in such state, or (iii) a federal savings and loan association
or national
bank or subsidiary having preemptive authority under federal law
or under
applicable state law to engage in business in such state without
qualification, or (iv) not doing business in such
state.
|
| (xv) |
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy or
other form acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by a
title
insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to
do
business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in (ix)(A) through
(C)
above) the originator or the Seller, their respective successors
and
assigns as to the first priority lien of the Mortgage in the original
principal balance of the Mortgage Loan. The Seller is the sole
insured of
such lender’s title insurance policy, and such lender’s title insurance
policy is in full force and effect and will be in full force and
effect
upon the consummation of the transactions contemplated by this
Agreement.
No claims have been made under such lender’s title insurance policy, and
no prior holder of the related Mortgage, including the Seller,
has done,
by act or omission, anything which would impair the coverage of
such
lender’s title insurance policy.
|
| (xvi) |
Except
as set forth in (ii) above, there is no default, breach, violation
or
event of acceleration existing under the Mortgage or the Mortgage
Note and
no event which, with the passage of time or with notice and the
expiration
of any grace or cure period, would constitute a default, breach,
violation
or event of acceleration, and the Seller has not waived any default,
breach, violation or event of
acceleration.
|
| (xvii) |
To
the best of the Seller’s knowledge, there are no mechanics’ or similar
liens or claims which have been filed for work, labor or material
(and no
rights are outstanding that under law could give rise to such lien)
affecting the related Mortgaged Property which are or may be liens
prior
to, or equal or on parity with, the lien of the related
Mortgage.
|
| (xviii) |
To
the Seller’s best knowledge, all improvements which were considered in
determining the Appraised Value of the related Mortgaged Property
lay
wholly within the boundaries and building restriction lines of
the
Mortgaged Property, and no improvements on adjoining properties
encroach
upon the Mortgaged Property.
|
III-4
| (xix) |
The
Mortgage Loan was originated by the Seller or a subsidiary of the
Seller
or was purchased by the Seller from a third party and the originator
of
each Mortgage Loan, was, at the time of origination, (A) (1) a
▇▇▇▇▇▇
▇▇▇-approved or ▇▇▇▇▇▇▇ Mac-approved seller/servicer and (2) a
U.S.
Department of Housing and Urban Development approved mortgage banker,
or a
savings and loan association, a savings bank, a commercial bank
or similar
banking institution which is supervised and examined by a federal
or state
authority or (B) closed in the name of a loan broker under the
circumstances described in the following sentence. If such Mortgage
Loan
was originated through a loan broker, the related originator qualifies
under clause (A) above, such Mortgage Loan met such originator’s
underwriting criteria at the time of origination and was originated
in
accordance with such originator’s polices and procedures and such
originator acquired such Mortgage Loan from the loan broker
contemporaneously with the origination thereof. Each Mortgage Note
has a
Loan Rate that adjusts periodically (not always in correlation
to the
index calculation term), based on the 1-Month LIBOR, 6-Month LIBOR,
1-Year
LIBOR or 1-Year CMT index, (as each is defined in the Pooling and
Servicing Agreement), except that some Mortgage Loans first adjust
after
an initial period of three, five, seven or ten years following
origination.
|
| (xx) |
The
origination practices used by the Seller or the originator of the
Mortgage
Loan and the collection practices used by the Master Servicer or
the
applicable Servicer with respect to each Mortgage Note and Mortgage
have
been in all respects legal, proper, prudent and customary in the
mortgage
origination and servicing business. With respect to escrow deposits
and
escrow payments, if any, all such payments are in the possession
of, or
under the control of, the applicable Servicer and there exist no
deficiencies in connection therewith for which customary arrangements
for
repayment thereof have not been made.
|
| (xxi) |
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty, so as to
have a
material adverse effect on the value of the related Mortgaged Property
as
security for the related Mortgage Loan or the use for which the
premises
were intended and there is no proceeding pending for the total
or partial
condemnation thereof.
|
| (xxii) |
The
Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided
thereby, including, (A) in the case of a Mortgage designated as
a deed of
trust, by trustee’s sale, and (B) otherwise by judicial foreclosure. There
is no other exemption available to the Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee’s sale or the
right to foreclose the Mortgage.
|
III-5
| (xxiii) |
The
Mortgage Loan was underwritten generally in accordance with either
(A) the
Seller’s underwriting standards described in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement, (B) in the case
of a
Mortgage Loan originated by Countrywide Home Loans, Inc., Countrywide
Home
Loans, Inc.’s underwriting standards described in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement, (C)
in the case
of a Mortgage Loan acquired from a bulk seller, the related bulk
seller’s
underwriting standards or a third party originator’s underwriting
guidelines, (D) in the case of a Mortgage Loan originated by PHH
Mortgage
Corporation, PHH Mortgage Corporation’s underwriting standards described
in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement, (E) in the case of a Mortgage Loan originated by ▇▇▇▇▇
Fargo
Bank, N.A., ▇▇▇▇▇ Fargo Bank, N.A.’s underwriting standards described in
the Preliminary Prospectus Supplement and the Final Prospectus
Supplement
or (F) in the case of a Mortgage Loan originated by First Republic
Bank,
the underwriting standards of First Republic
Bank.
|
| (xxiv) |
The
mortgage file in possession of the related Servicer contains an
appraisal
of the related Mortgaged Property by a qualified appraiser, duly
appointed
by the originator of the Mortgage Loan, 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 or, in accordance with certain
specified
programs of the originator of the Mortgage Loan an approved AVM
in lieu of
the appraisal.
|
| (xxv) |
In
the event the Mortgage constitutes a deed of trust, a trustee,
duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Depositor to
the
trustee under the deed of trust, except, in connection with a trustee’s
sale after default by the
Mortgagor.
|
| (xxvi) |
Other
than 24 Mortgage Loans (representing approximately 0.67% of the
Mortgage
Loans), no Mortgage Loan (A) contains provisions pursuant to which
Monthly
Payments are paid or partially paid with funds deposited in any
separate
account established by the Seller, the Mortgagor, or anyone on
behalf of
the Mortgagor or paid by any source other than the Mortgagor or
(B)
contains any provision permitting a temporary “buydown” of the related
Loan Rate. No Mortgage Loan was a graduated payment mortgage loan
as of
the date of its origination. No Mortgage Loan has a shared appreciation
or
other contingent interest feature.
|
| (xxvii) |
No
Mortgage Loan had a Loan-To-Value Ratio in excess of 100%. Other
than 4
Mortgage Loans (representing approximately 0.05% of the Mortgage
Loans)
the portion of the unpaid principal balance of each Mortgage Loan
which is
in excess of 80% of the original Loan-to-Value Ratio either (a)
has
Additional Collateral or (b) is and will be insured as to payment
defaults
under a Primary Mortgage Insurance Policy issued by a primary mortgage
insurer licensed to do business in the state in which the Mortgaged
Property is located and acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
as of the
Closing Date, so as to reduce the Mortgagee’s exposure in accordance with
the standards of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and applicable law.
All
provisions of such Primary Mortgage Insurance Policy have been
and are
being complied with; such policy is valid and in full force and
effect and
all premiums due thereunder have been paid. Each Mortgage Loan
which has
an original Loan-to-Value Ratio in excess of 80%, and which is
not an
Additional Collateral Mortgage Loan and is not covered by a Primary
Mortgage Insurance Policy, has paid down such that its current
Loan-to-Value Ratio, as of the Cut-Off Date, is less than or equal
to 80%.
|
III-6
| (xxviii) |
Except
for any Additional Collateral Mortgage Loans, the Mortgage Note
is not and
has not been secured by any collateral, pledged account, or other
security
except the lien of the Mortgage, and the security interest of any
applicable security agreement or chattel mortgage referred to
above.
|
| (xxix) |
[Reserved].
|
| (xxx) |
To
the best of Seller’s knowledge, the Mortgaged Property is lawfully
occupied under applicable law. To the best of Seller’s knowledge, all
inspections, licenses and certificates required to be made or issued
with
respect to all occupied portions of the related Mortgaged Property
and,
with respect to the use and occupancy of the same, including but
not
limited to certificates of occupancy, had been made or obtained
from the
appropriate authorities.
|
| (xxxi) |
No
defense against coverage under any Primary Insurance Policy (including,
without limitation, any exclusions, denials or defenses which would
limit
or reduce the availability of the timely payment of the full amount
of the
loss otherwise due thereunder to the insured) exists arising out
of
actions, representations, errors, omissions, negligence, or fraud
of the
Seller, and the Seller is not aware of any fact that could reasonably
lead
the Seller to believe that any such defense exists arising out
of the
actions, representations, errors, omissions, negligence or fraud
of the
related Mortgagor or any party involved in the application for
such
coverage.
|
| (xxxii) |
Each
Assignment is in recordable form, is acceptable for recording under
the
laws of the jurisdiction in which the Mortgaged Property is
located.
|
| (xxxiii) |
If
the Mortgaged Property is a condominium unit or a planned unit
development
(other than a de minimis planned unit development) such condominium
or
planned unit development project meets ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
or the
originator’s eligibility
requirements.
|
| (xxxiv) |
Each
Mortgage is a “qualified mortgage” for purposes of the REMIC
Provisions.
|
| (xxxv) |
To
the Seller’s best knowledge, no fraud was committed by the originator of
the Mortgage Loan and the Seller is not aware of any fact that
would
reasonably lead the Seller to believe that any Mortgagor had committed
fraud in connection with the origination of such Mortgage
Loan.
|
III-7
| (xxxvi) |
The
Mortgagor has not notified the Seller, and the Seller has no knowledge
of
any relief requested by the Mortgagor under the Relief
Act.
|
| (xxxvii) |
The
Seller has no knowledge of any toxic or hazardous substances affecting
the
Mortgaged Property or any violation of any local, state, or federal
environmental law, rule, or regulation. The Seller has no knowledge
of any
pending action or proceeding directly involving any Mortgaged Property
in
which compliance with any environmental law, rule, or regulation
is an
issue.
|
| (xxxviii) |
As
to any Additional Collateral Mortgage Loan, such Mortgage Loan
is secured
by a perfected first priority security interest in the related
Additional
Collateral.
|
| (xxxix) |
As
to any Additional Collateral Mortgage Loan, the applicable pledge
agreement is in place, is genuine and is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with
its terms
subject to bankruptcy, insolvency and other laws of general application
affecting the rights of creditors and general principles of
equity.
|
| (xl) |
With
respect to each Cooperative Loan (i) there is no provision in the
related
proprietary lease which requires the related Mortgagor to offer
for sale
the shares owned by such Mortgagor first to the Cooperative Corporation
for a price less than the outstanding amount of the Cooperative
Loan, (ii)
there is no prohibition in the related proprietary lease against
pledging
such shares or assigning the proprietary lease that has been violated
in
connection with the origination of the Cooperative
Loan.
|
| (xli) |
With
respect to each Cooperative Loan, as of the closing of such Cooperative
Loan, the originator of the Cooperative Loan obtained evidence
that, if
the Cooperative Property is in a federally designated flood area,
a flood
insurance policy has been obtained in an amount equal to at least
that
required by applicable law, which insurance the Cooperative Corporation
is
obligated to maintain at the Cooperative Corporation’s cost and
expense.
|
| (xlii) |
With
respect to each Cooperative Loan, as of the Closing Date, such
Cooperative
Loan is secured by shares held by a “tenant-stockholder” of a corporation
that qualifies as a “cooperative housing corporation” as such terms are
defined in Section 216(b)(1) of the Code and to the best of the
Seller’s
knowledge, no Cooperative Corporation is subject to proceedings
which
would, if adversely determined, result in such Cooperative Corporation
losing its status as a “cooperative housing corporation” under Section
216(b)(1) of the Code.
|
| (xliii) |
With
respect to each Cooperative Loan, the related Mortgage and related
UCC
financing statement creates a first-priority security interest
in the
stock in the Cooperative Corporation and the related proprietary
lease of
the related Cooperative Unit which were pledged to secure such
Cooperative
Loan, and the Cooperative Corporation owns the Cooperative Corporation
as
an estate in fee simple in real property or pursuant to a leasehold
acceptable to ▇▇▇▇▇▇ Mae.
|
III-8