DLJ MORTGAGE CAPITAL, INC. Purchaser, TAYLOR, BEAN & WHITAKER MORTGAGE CORP. Seller MORTGAGE LOAN PURCHASE AGREEMENT DATED AS OF AUGUST 1, 2006
EXECUTION
DLJ
MORTGAGE CAPITAL, INC.
Purchaser,
▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ MORTGAGE CORP.
Seller
DATED
AS
OF AUGUST 1, 2006
TABLE
OF CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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2
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Section
1.01
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Defined
Terms
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2
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ARTICLE
II SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF
MORTGAGE
FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE
LOAN
DOCUMENTS
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14
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Section
2.01
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Agreement
to Purchase
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14
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Section
2.02
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Purchase
Price
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14
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Section
2.03
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Servicing
of Mortgage Loans
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14
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Section
2.04
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Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files
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15
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Section
2.05
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Books
and Records
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15
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Section
2.06
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Transfer
of Mortgage Loans
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16
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Section
2.07
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Delivery
of Mortgage Loan Documents
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16
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Section
2.08
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Quality
Control Procedures
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17
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Section
2.09
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Closing
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17
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ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW
OF
MORTGAGE LOANS
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18
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Section
3.01
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Representations
and Warranties of the Seller
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18
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Section
3.02
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Representations
and Warranties as to Individual Mortgage Loans
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21
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Section
3.03
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Repurchase;
Substitution
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26
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Section
3.04
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Reserved
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28
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Section
3.05
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Acknowledgement
of Anti-Predatory Lending Policies
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28
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ARTICLE
IV [[RESERVED]]
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29
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ARTICLE
V [[RESERVED]]
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30
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ARTICLE
VI [[RESERVED]]
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31
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ARTICLE
VII [[RESERVED]]
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32
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ARTICLE
VIII THE SELLER
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33
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Section
8.01
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Indemnification;
Third Party Claims
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33
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Section
8.02
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Merger
or Consolidation of the Seller
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33
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i
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Section
8.03
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Limitation
on Liability of the Seller and Others
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34
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ARTICLE
IX RECONSTITUTION OF MORTGAGE LOANS
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35
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Section
9.01
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Reconstitution
of Mortgage Loans
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35
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ARTICLE
X MISCELLANEOUS PROVISIONS
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37
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Section
10.01
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[[Reserved]]
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37
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Section
10.02
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Amendment
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37
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Section
10.03
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Recordation
of Agreement
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37
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Section
10.04
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Governing
Law
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37
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Section
10.05
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Notices
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37
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Section
10.06
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Severability
of Provisions
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38
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Section
10.07
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Exhibits
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38
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Section
10.08
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General
Interpretive Principles
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39
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Section
10.09
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Reproduction
of Documents
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39
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Section
10.10
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Confidentiality
of Information
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39
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Section
10.11
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Recordation
of Assignments of Mortgage
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40
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Section
10.12
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Assignment
by Purchaser
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40
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Section
10.13
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No
Partnership
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40
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Section
10.14
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Execution;
Successors and Assigns
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40
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Section
10.15
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Entire
Agreement
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41
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Section
10.16
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No
Solicitation
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41
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Section
10.17
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Costs
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41
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ARTICLE
XI COMPLIANCE WITH REGULATION AB
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42
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Section
11.01
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Intent
of the Parties; Reasonableness
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42
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Section
11.02
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Additional
Representations and Warranties of the Company
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42
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Section
11.03
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Information
to Be Provided by the Company
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43
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Section
11.04
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Indemnification;
Remedies
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49
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Section
11.05
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Third
Party Beneficiary
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51
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EXHIBITS
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A
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Contents
of Mortgage File
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B
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[Reserved]
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C
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[Reserved]
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D
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Form
of Assignment, Assumption and Recognition Agreement
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E
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[Reserved]
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F
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Mortgage
Loan Schedule
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G
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[Reserved]
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H
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[Reserved]
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I
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Form
of Bring Down Letter
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ii
This
is a
Mortgage Loan Purchase Agreement dated as of August 1, 2006 and is executed
between DLJ Mortgage Capital, Inc., as purchaser (the “Purchaser”)
and
▇▇▇▇▇▇, Bean & ▇▇▇▇▇▇▇▇ Mortgage Corp. as seller (the “Seller”).
WITNESSETH
:
WHEREAS,
the Purchaser desires to purchase from the Seller and the Seller desires to
sell
to the Purchaser certain Mortgage Loans identified on the Mortgage Loan Schedule
annexed hereto as Exhibit
F;
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule. The Mortgage Loans
as
described herein shall be delivered on the date provided herein (the
“Closing
Date”);
WHEREAS,
the Purchaser and the Seller wish to prescribe the terms of the sale, including
the representations and warranties of the Seller with respect to itself and
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 Seller agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
40/30
Mortgage Loan:
A
Mortgage Loan that has an original term to maturity of not more than thirty
years from commencement of amortization, with a balloon payment in year thirty
based upon a forty-year amortization schedule.
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions that service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located.
Adjustable
Rate Mortgage Loan:
An
adjustable rate mortgage loan purchased pursuant to this Agreement.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on the Mortgage Loan is
adjusted in accordance with the terms of the Mortgage Note.
Agreement:
This
Mortgage Loan Purchase Agreement, including all exhibits hereto, amendments
hereof and supplements hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser
of (i)
the value thereof as determined by an appraisal made for the originator of
the
Mortgage Loan at the time of origination of the Mortgage Loan by an appraiser
who met the underwriting requirements of the originator and (ii) the purchase
price paid for the related Mortgaged Property by the Mortgagor with the proceeds
of the Mortgage Loan; provided,
however,
that in
the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an appraiser who met the underwriting requirements of the
originator.
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 transfer of the Mortgage
to
the party indicated therein or, if the related Mortgage has been recorded in
the
name of MERS or its designee, such actions as are necessary to cause the Seller
or its designee to be shown as the owner of the related Mortgage on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
BIF:
The
Bank Insurance Fund, or any successor thereto.
2
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a legal holiday in the State
of
New York, or (iii) a day on which banks in the State of New York are authorized
or obligated by law or executive order to be closed.
Closing
Date:
August
30, 2006
Code:
The
Internal Revenue Code of 1986, as the same may be amended from time to time
(or
any successor statute thereto).
Commission:
The
United States Securities and Exchange Commission.
Company
Information:
As
defined in Section 11.04(a).
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.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan as to which the related Mortgage Note permits
the
Mortgagor to convert the Mortgage Interest Rate on such Mortgage Loan to a
fixed
Mortgage Interest Rate.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Co-op
Stock:
With
respect to a Co-op Loan, the single outstanding class of stock, partnership
interest or other ownership instrument in the related residential cooperative
housing corporation.
Credit
Score: The
credit score for each Mortgage Loan shall be the minimum of two credit bureau
scores obtained at origination or such other time by the Seller. If two credit
bureau scores are obtained, the Credit Score will be the lower score. If three
credit bureau scores are obtained, the Credit Score will be the middle of the
three. When there is more than one applicant, the lowest of the applicants’
Credit Scores will be used. There is only one score for any loan regardless
of
the number of borrowers and/or applicants.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
3.04 of the Servicing Agreement.
Cut-off
Date:
August
1, 2006
Depositor:
Credit
Suisse First Boston Mortgage Securities Corp., a Delaware Corporation, or its
successor in interest.
3
Determination
Date:
The
10th day (or if such 10th day is not a Business Day, the Business Day
immediately succeeding such 10th day)
of
the month of the related Remittance Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company that
is the principal subsidiary of a holding company, the commercial paper or other
short term debt obligations of such holding company) have been rated by each
Rating Agency in its highest short-term rating category, or (iii) a segregated
trust account or accounts (which shall be a “special deposit account”)
maintained with a federal or state chartered depository institution or trust
company, acting in its fiduciary capacity, in a manner acceptable to the Rating
Agencies. Eligible Accounts may bear interest.
Equity:
With
respect to any second lien Mortgage Loan, the Appraised Value, less the unpaid
principal balance of the related First Lien.
Equity
Loan-to-Value:
With
respect to any second lien Mortgage Loan, the original principal balance of
such
Mortgage Loan, divided by the Equity.
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, applicable law or any other related document.
Exchange
Act.
The
Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇
▇▇▇:
The
entity formerly known as the Federal National Mortgage Association, or any
successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan purchased pursuant to this Agreement which bears a fixed Mortgage
Interest Rate during the life of the loan.
▇▇▇▇▇▇▇
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation, or any
successor thereto.
4
▇▇▇▇▇▇▇
Mac Guides:
The
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇▇ Mac Servicers’ Guide and all
amendments or additions thereto, including, but not limited to, any future
updates thereof.
GAAP:
Generally accepted accounting procedures, consistently applied.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount set
forth in the related Mortgage Note and the related Mortgage Loan Schedule that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for such
Mortgage Loan.
HELOC:
Home
equity line of credit.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the Mortgage Interest Rate thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property, including the proceeds of
any
hazard or flood insurance policy, LPMI Policy or PMI Policy.
Interest
Only Mortgage Loan:
A
Mortgage Loan that only requires payments of interest for a period of time
specified in the related Mortgage Note.
Lender
Paid Mortgage Insurance Policy Program
or
LPMI
Policies:
A
program or policy in which, for any Mortgage Loan underwritten with an LTV
greater than 80.00% and less than 97.00%, the owner or servicer of such Mortgage
Loan is responsible for the premiums associated with the mortgage insurance
policy.
Liquidation
Proceeds:
Amounts
received in connection with the partial or complete liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of such Mortgage Loan,
trustee’s sale, foreclosure sale or otherwise, or the sale of the related REO
Property, if the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, the ratio of the original outstanding principal
amount of the Mortgage Loan, or with respect to any HELOC, the related credit
limit, and, with respect to any second lien Mortgage Loan, the outstanding
principal amount of any related First Lien as of the date of origination of
such
Mortgage Loan, to (i) the Appraised Value of the related Mortgaged Property
at
origination with respect to a Refinanced Mortgage Loan, or (ii) the lesser
of
the Appraised Value of the related Mortgaged Property at origination or the
purchase price of the related Mortgaged Property with respect to all other
Mortgage Loans.
5
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled monthly payment due on any Due
Date
allocable to principal and/or interest on such Mortgage Loan pursuant to the
terms of the related Mortgage Note.
Mortgage:
With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note that creates a first or second
lien
on an unsubordinated estate in fee simple in real property securing the Mortgage
Note; except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first or second lien upon
a
leasehold estate of the Mortgagor. With respect to a Co-op Loan, the related
Security Agreement.
Mortgage
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified in
Exhibit
A-1
and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement.
Mortgage
Interest Rate:
With
respect to each Mortgage Loan, the annual rate of interest borne on the
applicable Mortgage Note after giving effect to any applicable Relief Act
Reduction.
6
Mortgage
Loan:
An
individual mortgage loan that 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,
any escrow accounts related to the Mortgage Loan, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan, excluding replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents contained in a Mortgage File.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans annexed hereto as Exhibit
F,
such
schedule setting forth the following information with respect to each Mortgage
Loan in the related Mortgage Loan Package:
(1) the
Seller’s Mortgage Loan identifying number;
(2) the
Mortgagor’s name;
(3) the
street address of the Mortgaged Property including the state and zip
code;
(4) a
code
indicating whether the Mortgaged Property is owner-occupied;
(5) the
type
of residential property constituting the Mortgaged Property;
(6) the
original months to maturity or the remaining months to maturity from the Cut-off
Date, in any case based on the original amortization schedule and, if different,
the maturity expressed in the same manner but based on the actual amortization
schedule;
(7) the
Loan-to-Value Ratio at origination and as of the Cut-off Date;
(8) [Reserved];
(9) the
Mortgage Interest Rate at origination and as of the Cut-off Date;
(10) the
Mortgage Loan origination date;
(11) the
paid
through date;
(12) the
stated maturity date of the Mortgage Loan;
(13) the
amount of the Monthly Payment as of the Cut-off Date;
(14) the
original principal amount of the Mortgage Loan as of the date of origination;
(15) the
Scheduled Principal Balance of the Mortgage Loan as of the Cut-off
Date;
7
(16) a
code
indicating the purpose of the Mortgage Loan (i.e., purchase, rate and term
refinance, equity take-out refinance);
(17) a
code
indicating the documentation style (i.e. full, alternative or reduced);
(18) the
number of times during the twelve (12) month period preceding the Closing Date
that any Monthly Payment has been received thirty (30) or more days after its
Due Date;
(19) the
date
on which the first payment is due;
(20) a
code
indicating whether or not the Mortgage Loan is insured as to payment defaults
by
a Primary Mortgage Insurance Policy and, in the case of any Mortgage Loan that
is insured as to payment defaults by a Primary Mortgage Insurance Policy, the
name of the provider of such Primary Mortgage Insurance Policy;
(21) a
code
indicating whether or not the Mortgage Loan is insured as to payment defaults
by
a LPMI Policy and, in the case of any Mortgage Loan that is insured as to
payment defaults by a LPMI Policy, a percentage representing the amount of
the
related insurance premium;
(22) a
code
indicating whether or not the Mortgage Loan is the subject of a Prepayment
Penalty as well as the terms of the Prepayment Penalty;
(23) the
Primary Mortgage Insurance Policy certificate number, if
applicable;
(24) the
Primary Mortgage Insurance Policy coverage percentage, if
applicable;
(25) a
code
indicating the Credit Score of the Mortgagor at the time of origination of
the
Mortgage Loan;
(26) a
code
indicating the credit grade and specific loan/underwriting program of each
Mortgage Loan as assigned by the Underwriting Standards;
(27) the
loan
type (i.e. fixed, adjustable; 2/28, 3/27, 5/25, etc.);
(28) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date and
the
Adjustment Date frequency;
(29) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(30) with
respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage Interest
Rate under the terms of the Mortgage Note;
(31) with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate under the terms of the Mortgage Note;
8
(32) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
(33) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the related Cut-off Date;
(34) with
respect to each Adjustable Rate Mortgage Loan, the Index;
(35) [Reserved];
(36) a
code
indicating whether the Mortgage Loan is a MERS Mortgage Loan;
(37) a
code
indicating whether the Mortgage Loan is an Interest Only Mortgage Loan;
(38) with
respect to each Interest Only Mortgage Loan, the duration of the related
interest only period; and
(39) a
code
indicating whether the Mortgage Loan is a 40/30 Mortgage Loan.
With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall
set forth the following information, as of the Cut-off Date unless otherwise
specified:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans;
(3) the
weighted average Mortgage Interest Rate of the Mortgage Loans;
(4) the
weighted average original months to maturity of the Mortgage Loans and the
weighted average remaining months to maturity of the Mortgage
Loans.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to a Mortgage Loan that is not a Co-op Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a fee simple
parcel of real estate or a leasehold estate, the term of which is equal to
or
longer than the term of the related Mortgage Note. With respect to a Co-op
Loan,
the related Co-op Stock and Co-op Lease securing the indebtedness of the
Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
9
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Senior Vice President or a Vice President and by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Seller, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
OTS:
Office
of Thrift Supervision.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, that is the maximum
amount by which the Mortgage Interest Rate for such Mortgage Loan may increase
(without regard to the Maximum Mortgage Interest Rate) or decrease (without
regard to the Minimum Mortgage Interest Rate) on such Adjustment Date from
the
Mortgage Interest Rate in effect immediately prior to such Adjustment Date,
which may be a different amount with respect to the first Adjustment
Date.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Prepayment
Penalty:
With
respect to each Mortgage Loan, the penalty imposed if the Mortgagor prepays
such
Mortgage Loan as provided in the related Mortgage Note or Mortgage.
Primary
Mortgage Insurance Policy:
Each
policy of primary mortgage insurance represented to be in effect pursuant to
Section 3.02(cc).
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as the
average rate in The
Wall Street Journal
(Northeast Edition).
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan that
is received in advance of its scheduled Due Date, including any Prepayment
Penalty or premium thereon, and that is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase
Price:
As
defined in Section 2.02.
Purchaser:
DLJ
Mortgage Capital, Inc., its successors in interest and assigns.
Qualified
Appraiser:
With
respect to each Mortgage Loan, an appraiser, duly appointed by the Seller,
who
had no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of ▇▇▇▇▇▇ ▇▇▇
or
▇▇▇▇▇▇▇ Mac and Title XI of FIRREA and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated.
10
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided
that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within 180 days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such Mortgage Loans were originated, used by the Seller in origination of
mortgage loans of the same type as the Mortgage Loans for the Seller’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Seller.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided by the insurance policy issued by it, approved as an insurer by ▇▇▇▇▇▇
Mae and/or ▇▇▇▇▇▇▇ Mac.
Rating
Agencies:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. and ▇▇▇▇▇’▇ Investors Service, Inc.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which were
used in whole or part to satisfy an existing mortgage.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
The
18th
day of
each month, beginning in September 2006, or if such day is not a Business Day,
the first Business Day immediately following such date.
11
Repurchase
Price:
With
respect to any Mortgage Loan, the outstanding principal balance of the Mortgage
Loan, plus
(ii)
interest on such outstanding principal balance at the related Mortgage Interest
Rate from the date through which interest was last distributed to the Purchaser
(from payments from the related Mortgagor or from Monthly Advances) through
the
day prior to the date of repurchase, plus
(iii)
third party expenses incurred in connection with the transfer of the Mortgage
Loan being repurchased, reduced by amounts received or advanced in respect
of
such repurchased Mortgage Loan that are being held in the Custodial Account
for
distribution in the month of repurchase, plus
(iv) any
unreimbursed Servicing Advances or Servicing Fees.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Scheduled
Principal Balance:
As to
each Mortgage Loan, (i) the principal balance of such Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before
such
date, whether or not received, minus
(ii) all
amounts previously distributed to the Purchaser with respect to the Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rate or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Security
Agreement:
With
respect to a Co-op Loan, the agreement or mortgage creating a security interest
in favor of the originator of the Co-op Loan in the related Co-op
Stock.
Seller’s
Officer’s Certificate:
A
certificate signed by the Chairman of the Board, President, any Vice President
or Treasurer of Seller stating the date by which Seller expects to receive
any
missing documents sent for recording from the applicable recording
office.
Servicer:
▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Mortgage Corp., as Servicer under the Servicing Agreement,
or any successor thereto.
Servicing
Advances:
As
defined in the Servicing Agreement.
Servicing
Agreement:
The
securitization servicing agreement dated as of August 1, 2006, ▇▇▇▇▇▇, Bean
and
▇▇▇▇▇▇▇▇ Mortgage Corp., as Seller and as Servicer, and ▇▇▇▇▇ Fargo Bank, N.A.,
as master serivcer.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
12
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Underwriting
Standards:
As to
each Mortgage Loan, the Seller’s underwriting guidelines in effect as of the
related Closing Date.
13
ARTICLE
II
SERVICING
OF MORTGAGE LOANS;
RECORD
TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase on the Closing Date
pursuant to this Agreement the Mortgage Loans being sold by the Seller and
listed on the Mortgage Loan Schedule, but not the servicing rights associated
therewith, having an aggregate Scheduled Principal Balance in an amount as
agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on such
Closing Date. The Seller shall deliver in an electronic format the Mortgage
Loan
Schedule for the Mortgage Loans to be purchased on such Closing Date to the
Purchaser at least four Business Days prior to such Closing Date.
Section
2.02 Purchase
Price.
The
Purchase Price for the Mortgage Loans shall be equal to the sum
of (i)
100.453125% multiplied
by the
aggregate Scheduled Principal Balance of Mortgage Loans listed on the related
Mortgage Loan Schedule, plus
(ii)
accrued interest on the aggregate Scheduled Principal Balance of the Mortgage
Loans at the weighted average Mortgage Interest Rate of such Mortgage Loans
from
the Cut-off Date to but not including such Closing Date (the “Purchase
Price”).
The
Purchase Price as set forth in the preceding paragraph for the Mortgage Loans
in
a Mortgage Loan Package shall be paid on the Closing Date by wire transfer
of
immediately available funds.
With
respect to each Mortgage Loan, the Purchaser shall be entitled to (1) the
principal portion of all Monthly Payments due after the Cut-off Date,
(2) all other recoveries of principal collected on or after the Cut-off
Date (provided,
however,
that
the principal portion of all Monthly Payments due on or before the Cut-off
Date
and collected by the Servicer or any successor servicer after the Cut-off Date
shall belong to the Seller) and (3) all payments of interest on the
Mortgage Loans (minus
that
portion of any such payment that is allocable to the period prior to the Cut-off
Date). The Scheduled 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, together with any unscheduled
Principal Prepayments collected prior to the Cut-off Date; provided,
however,
that
Monthly Payments for a Due Date beyond the Cut-off Date shall not be applied
to
the principal balance as of the Cut-off Date. Such Monthly Payments shall be
the
property of the Purchaser. The Seller shall deposit any such Monthly Payments
into the Custodial Account.
Section
2.03 Servicing
of Mortgage Loans.
On
the
Closing Date, the Mortgage Loans shall be sold by the Seller to the Purchaser
on
a servicing retained basis.
14
| Section 2.04 |
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
|
As
of the
Closing Date, the Seller shall have sold, transferred, assigned, set over and
conveyed to the Purchaser, without recourse, and the Seller hereby acknowledges
that the Purchaser shall have, all the right, title and interest of the Seller
in and to the Mortgage Loans. In accordance with Section 2.07, the Seller shall
deliver at its own expense, the Mortgage Files for the related Mortgage Loans
to
the Purchaser or its designee. In addition, on or before each Closing Date,
the
Seller shall deliver at its own expense, the Servicing Files for the Mortgage
Loans to the Servicer. From each Closing Date, the ownership of each related
Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the
related Mortgage File and all rights, benefits, proceeds and obligations arising
therefrom or in connection therewith, has been vested in 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 and all records or
documents with respect to the Mortgage Loans prepared by or that come into
the
possession of the Seller shall be received and held by the Seller in trust
for
the benefit of the Purchaser as the owner of the Mortgage Loans. Any portion
of
the Mortgage Files retained by the Seller shall be appropriately identified
in
the Seller’s computer system to clearly reflect the ownership of the Mortgage
Loans by the Purchaser.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at its own expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser in accordance with this Agreement by including (or deleting, in the
case of Mortgage Loans that are repurchased in accordance with this Agreement)
in such computer files the information required by the MERS® System to identify
the Purchaser of such Mortgage Loans. The Seller further agrees that it will
not, and will not permit the Servicer to, alter the information referenced
in
this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance
with
the terms of this Agreement.
Section
2.05 Books
and Records.
The
sale
of each Mortgage Loan will be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller. The Seller shall
maintain a complete set of books and records for the Mortgage Loans sold by
it,
which shall be appropriately identified in the Seller’s computer system to
clearly reflect the ownership of the Mortgage Loans by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser or its designee, and shall deliver to the Purchaser
upon demand, evidence of compliance with all federal, state and local laws,
rules and regulations, and requirements of ▇▇▇▇▇▇▇ Mac, as applicable, including
but not limited to documentation as to the method used in determining the
applicability of the provisions of the Flood Disaster Protection Act of 1973,
as
amended, to the Mortgaged Property and documentation evidencing insurance
coverage and eligibility of any condominium project for approval by the Seller.
To the extent that original documents are not required for purposes of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Seller 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 Seller complies with the requirements
of the ▇▇▇▇▇▇▇ Mac Guides.
15
In
addition to the foregoing, the Seller shall provide to any supervisory agents
or
examiners that regulate the Purchaser, including but not limited to, the OTS,
the FDIC and other similar entities, access, during normal business hours,
upon
reasonable advance notice to the Seller and without charge to the Seller or
such
supervisory agents or examiners, to any documentation regarding the Mortgage
Loans that may be required by any applicable regulator.
Section
2.06 Transfer
of Mortgage Loans.
The
Seller shall keep at its office books and records in which, subject to such
reasonable regulations as it may prescribe, the Seller shall note the transfer
of the Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms of Section 10.12. For the purposes
of
this Agreement, the Seller shall be under no obligation to deal with any person
with respect to this Agreement or any Mortgage Loan unless a properly executed
Assignment, Assumption and Recognition Agreement in the form of Exhibit D
with
respect to such Mortgage Loan has been delivered to the Seller. Upon receipt
of
notice of the transfer, the Seller shall ▇▇▇▇ its books and records to reflect
the ownership of the Mortgage Loans by such assignee, and the previous Purchaser
shall be released from its obligations hereunder with respect to the Mortgage
Loans sold or transferred.
Section
2.07 Delivery
of Mortgage Loan Documents.
The
Seller shall deliver and release to the Purchaser or its designee the Mortgage
Loan Documents no later than five Business Days prior to the Closing Date
pursuant to a bailee letter agreement. If the Seller cannot deliver the original
recorded Mortgage Loan Documents on the Closing Date, the Seller shall, promptly
upon receipt thereof and in any case not later than 90 days from the Closing
Date, deliver such original recorded documents to the Purchaser or its designee
(unless the Seller is delayed in making such delivery by reason of the fact
that
such documents shall not have been returned by the appropriate recording
office). If delivery is not completed within 90 days of the Closing Date solely
because such documents shall not have been returned by the appropriate recording
office, the Seller shall deliver or cause to be delivered to the Purchaser
or
its designee a Seller’s Officer’s Certificate that shall (i) identify the
recorded document, (ii) state that the recorded document has not been delivered
to the Purchaser or its designee due solely to a delay caused by the public
recording office and (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation. In the event that documents have not been received by the date
specified in the Seller’s Officer’s Certificate, a subsequent Seller’s Officer’s
Certificate shall be delivered by such date specified in the prior Seller’s
Officer’s Certificate, stating a revised date for receipt of documentation. The
procedure shall be repeated until the documents have been received and
delivered. The Seller shall use its best efforts to effect delivery of all
delayed recorded documents within 120 days of the Closing Date.
16
Pursuant
to Section 10.11, the Seller shall be responsible for recording the Assignments
of Mortgage (or Form UCC-3’s for Co-op Loans). The Seller shall pay all initial
recording fees for the Assignments of Mortgage (or Form UCC-3’s for Co-op Loans)
and any other fees in connection with the transfer of the Mortgage Loan
Documents to the Purchaser or its designee.
No
later
than five days prior to the related Closing Date, the Seller shall provide
a
copy of the commitment for title insurance to the Purchaser or its
designee.
Any
review by the Purchaser or its designee of the Mortgage Files shall in no way
alter or reduce the Seller’s obligations hereunder.
If
the
Purchaser or its designee discovers any defect with respect to any document
constituting part of a Mortgage File, the Purchaser shall, or shall cause its
designee to, give written specification of such defect to the Seller and the
Seller shall cure or repurchase such Mortgage Loan in accordance with Section
3.03.
Section
2.08 Quality
Control Procedures.
The
Seller must have an internal quality control program that verifies, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals and underwriting decisions. The program must be capable
of
evaluating and monitoring the overall quality of its loan production and
servicing activities. The program is to ensure that the Mortgage Loans are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
Section
2.09 Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
Closing Date. 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 for the Mortgage Loans to be purchased on the Closing Date shall be
subject to each of the following conditions:
| (a) |
at
least five Business Days prior to the Closing Date, the Seller shall
deliver to the Purchaser a magnetic diskette, or transmit by modem
or
e-mail, a listing on a loan-level basis of the information contained
in
the Mortgage Loan Schedule;
|
| (b) |
all
of the representations and warranties of the Seller under this Agreement
shall be materially true and correct as of the Closing Date (or with
respect to representations and warranties made as of a date other
than the
Closing Date, as of such date), and no event shall have occurred
that,
with notice or the passage of time, would constitute a material default
under this Agreement;
|
17
| (c) |
the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents, in such forms as are agreed
upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the terms
hereof;
|
| (d) |
the
Seller shall have delivered and released to the Purchaser (or its
designee) on or prior to the Closing Date all documents required
pursuant
to the terms of this Agreement; and
|
| (e) |
all
other terms and conditions of this Agreement shall have been materially
complied with.
|
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
Closing Date the Purchase Price pursuant to Section 2.02 of this Agreement,
by
wire transfer of immediately available funds to the account designated by the
Seller.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
SELLER; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section
3.01 Representations
and Warranties of the Seller.
▇▇▇▇▇▇,
Bean & ▇▇▇▇▇▇▇▇ Mortgage Corp., in its capacity as Seller (for the purposes
of this Section 3.01 only, the “Company”), represents, warrants and covenants to
the Purchaser that as of each Closing Date or as of such date specifically
provided herein:
(a) The
Company 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 Company by any such
state, 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 each Mortgage
Loan
and the servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(b) The
Company 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 to conduct its business as presently conducted; the Company
has duly authorized the execution, delivery and performance of this Agreement
and any agreements contemplated hereby, has duly executed and delivered this
Agreement and any agreements contemplated hereby, and this Agreement and each
Assignment of Mortgage to the Purchaser and any agreements contemplated hereby,
constitute the legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms , except as such
enforceability may be limited 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 Company to make this Agreement and all agreements
contemplated hereby valid and binding upon the Company in accordance with their
terms;
18
(c) Neither
the execution and delivery of this Agreement, the sale of the Mortgage Loans
to
the Purchaser, the consummation of the transactions contemplated hereby, nor
the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with any of the terms, conditions or provisions of the Company’s
charter or by-laws or materially 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 Company 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 Company or its property is
subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened, or
any
order or decree outstanding, that is reasonably likely to have a material
adverse effect on the sale of the Mortgage Loans, the execution, delivery,
performance or enforceability of this Agreement, or which is reasonably likely
to have a material adverse effect on the financial condition of the
Company;
(e) 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, except for consents,
approvals, authorizations and orders that have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Company, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Company pursuant
to
this Agreement are not subject to bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(g) The
origination and servicing practices with respect to each Mortgage Note and
Mortgage have been legal and in accordance with applicable laws and regulations,
and in all material respects proper and prudent in the mortgage origination
and
servicing business. With respect to escrow deposits and payments that the
Company is entitled to collect, all such payments are in the possession of,
or
under the control of, the Company, and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All Escrow Payments have been collected and are being maintained in full
compliance with applicable state and federal law and the provisions of the
related Mortgage Note and Mortgage. As to any Mortgage Loan that is the subject
of an escrow, escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every escrowed item that remains
unpaid and has been assessed but is not yet due and payable. No escrow deposits
or other charges or payments due under the Mortgage Note have been capitalized
under any Mortgage or the related Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law
and
the terms of the related Mortgage Note. Any interest required to be paid
pursuant to state and local law has been properly paid and
credited;
19
(h) The
Company has not used selection procedures that identified the Mortgage Loans
as
being less desirable or valuable than other comparable mortgage loans in the
Company’s portfolio at the Cut-off Date;
(i) The
Company will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(j) The
Company is an approved seller/servicer of residential mortgage loans for ▇▇▇▇▇▇▇
Mac and HUD, with such facilities, procedures and personnel necessary for the
sound servicing of such mortgage loans. The Company is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, meets the minimum capital requirements, if
applicable, set forth by the OCC, and is in good standing to sell mortgage
loans
to and service mortgage loans for ▇▇▇▇▇▇▇ Mac, and no event has occurred that
would make the Company unable to comply with eligibility requirements or that
would require notification to ▇▇▇▇▇▇▇ Mac;
(k) The
Company 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. 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 with
the
intent to hinder, delay or defraud any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared by, or on
behalf of, the Company pursuant to this Agreement or in connection with the
transactions contemplated hereby, contains or will contain any statement that
is
or will be inaccurate or misleading in any material respect. The Company has
prudently originated and underwritten each Mortgage Loan;
(m) [Reserved];
(n) The
Company has delivered to the Purchaser financial statements as to its last
two
complete fiscal years. All such financial statements fairly present the
pertinent results of operations and changes in financial position for each
of
such periods and the financial position at the end of each such period of the
Company and its subsidiaries and have been prepared in accordance with GAAP
consistently applied throughout the periods involved, except as set forth in
the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Company since the date of the Company’s
financial statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement;
20
(o) The
Company 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; and
(p) The
Company is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
| Section 3.02 |
Representations
and Warranties as to Individual Mortgage
Loans.
|
The
Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the applicable Closing Date as follows:
(a) The
information set forth in Exhibit F with respect to the Mortgage Loans is
complete, true and correct in all material respects;
(b) All
payments due prior to the Cut-off Date for such Mortgage Loan have been made
as
of the Closing Date, the Mortgage Loan is not 30 days or more delinquent in
payment; there are no material defaults under the terms of the Mortgage Loan;
(c) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents that previously became due and
owing
have been paid, or escrow funds have been established in an amount sufficient
to
pay for every such escrowed item that remains unpaid and that has been assessed
but is not yet due and payable;
(d) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been recorded
or sent for recording to the extent any such recordation is required by law
or
necessary to protect the interest of the Purchaser. No other instrument of
waiver, alteration or modification has been executed, and no Mortgagor has
been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement, which assumption agreement is part of the Mortgage
File
and the terms of which are reflected in Exhibit F; the substance of any such
waiver, alteration or modification has been approved by the issuer of any
related Primary Mortgage Insurance Policy and title insurance policy, to the
extent required by the related policies;
(e) The
Mortgage Note and the Mortgage 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 the Mortgage Note or
Mortgage unenforceable in whole or in part or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
21
(f) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the FNMA Guides, against loss by
fire, hazards of extended coverage and such other hazards as are provided for
in
the ▇▇▇▇▇▇▇ Mac Guides, as well as all additional requirements set forth in
Section 3.12 of the Servicing Agreement. All such standard hazard policies
are
in full force and effect and on the date of origination contained a standard
mortgagee clause naming the Seller and its successors in interest and assigns
as
loss payee and such clause is still in effect and all premiums due thereon
have
been paid. If required by the Flood Disaster Protection Act of 1973, as amended,
the Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
which policy conforms to ▇▇▇▇▇▇▇ Mac requirements as well as all additional
requirements set forth in Section 3.12 of the Servicing Agreement. Such policy
was issued by an insurer acceptable under ▇▇▇▇▇▇▇ Mac guidelines. 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 the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(g) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable federal, state or local law including, without limitation usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and predatory and abusive lending laws
applicable to the Mortgage Loan;
(h) The
related Mortgage is a valid, subsisting, enforceable and perfected first lien
on
the Mortgaged Property including, for Mortgage Loans that are not Cooperative
Loans, all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems affixed
to such buildings, and all additions, alterations and replacements made at
any
time with respect to the foregoing securing the Mortgage Note’s original
principal balance. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such
lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first lien, as applicable, of the Mortgage subject only to (1) the
lien of non-delinquent current real property taxes and assessments not yet
due
and payable, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
that are acceptable to mortgage lending institutions generally and either
(A) that are referred to or otherwise considered in the appraisal made for
the originator of the Mortgage Loan or (B) that do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal, and
(3) other matters to which like properties are commonly subject that do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected first
lien and first priority security interest on the property described therein,
and
the Seller has the full right to sell and assign the same to the
Purchaser;
22
(i) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles;
(j) The
Seller or its affiliate is the sole owner of record and holder of the Mortgage
Loan and the indebtedness evidenced by the Mortgage Note. Immediately prior
to
the transfer and assignment to the Purchaser on the Closing Date, the Mortgage
Loan, including the Mortgage Note and the Mortgage, were not subject to an
assignment or pledge, and the Seller had good and marketable title to and was
the sole owner thereof and had full right to transfer and sell the Mortgage
Loan
to the Purchaser free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest and has the full right and authority subject
to no interest or participation of, or agreement with, any other party, to
sell
and assign the Mortgage Loan and following the sale of the Mortgage Loan, the
Purchaser will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security
interest;
(k) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such liens) affecting the related Mortgaged Property that are or may be liens
prior to or equal to the lien of the related Mortgage;
(l) All
improvements subject to the Mortgage that were considered in determining the
appraised value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) except for de minimus encroachments
permitted by the ▇▇▇▇▇▇▇ Mac Guide and that have been noted on the appraisal,
or
the title policy affirmatively insures against loss or damage by reason of
any
violation, variation, encroachment or adverse circumstances that is either
disclosed or would have been disclosed by an accurate survey, and no
improvements on adjoining properties encroach upon the Mortgaged Property except
those that are insured against by the title insurance policy referred to in
clause (d) above or are acceptable under the ▇▇▇▇▇▇▇ Mac Guide, and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(m) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty. At origination of the Mortgage
Loan there was, and there currently is, no proceeding pending for the total
or
partial condemnation of the Mortgaged Property;
23
(n) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
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;
(o) Each
Mortgage Loan has been serviced in all material respects in compliance with
Accepted Servicing Practices;
(p) With
respect to each Cooperative Loan, the related Mortgage is a valid, enforceable
and subsisting first security interest on the related Cooperative Shares
securing the related Mortgage Note, subject only to (a) liens of the Cooperative
Property for unpaid assessments representing the Mortgagor’s pro rata share of
the Cooperative Property’s payments for its blanket mortgage, current and future
real property taxes, insurance premiums, maintenance fees and other assessments
to which like collateral is commonly subject and (b) other matters to which
like
collateral is commonly subject that do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interest in the Cooperative Shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related Cooperative Property which individually
or
in the aggregate will not have a material adverse effect on such Cooperative
Loan), which have priority over Seller’s security interest in such Cooperative
Shares;
(q) The
Mortgage Loan complies with all the terms, conditions and requirements of the
originator’s underwriting standards in effect at the time of origination of such
Mortgage Loan.
(r) The
Seller has delivered or caused to be delivered to the Purchaser or its designee
the original Mortgage bearing evidence that such instruments have been recorded
in the appropriate jurisdiction where the Mortgaged Property is located as
determined by the Seller (or, in lieu of the original of the Mortgage or the
assignment thereof, a duplicate or conformed copy of the Mortgage or the
instrument of assignment, if any, together with a certificate of receipt from
the Seller or the settlement agent who handled the closing of the Mortgage
Loan,
certifying that such copy or copies represent true and correct copy(ies) of
the
originals) and that such original(s) have been or are currently submitted to
be
recorded in the appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located) or a certification or receipt of the
recording authority evidencing the same;
(s) The
Mortgage File contains each of the documents specified in Exhibit
A-1
to this
Agreement;
(t) With
respect to each Cooperative Loan, the Co-op Stock that is pledged as security
for the Cooperative Loan is held by a person as a tenant-stockholder (as defined
in Section 216 of the Code) in a cooperative housing corporation (as defined
in
Section 216 of the Code);
24
(u) With
respect to each Mortgage Loan, (a) the Mortgage Loan was originated by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or similar institution that is supervised and examined by a federal or state
authority or (b) at the time the Mortgage Loan was originated, the originator
was a mortgagee duly licensed as required by the State within which the Mortgage
Loan was originated, and was subject to supervision and examination conducted
by
the applicable State authority of such State;
(v) The
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code;
(w) With
respect to each Mortgage Loan, to the knowledge of the Seller, (i) no borrower
obtained a prepaid single-premium credit insurance policy in connection with
the
origination of a Mortgage Loan, (ii) the related Servicer of each such Mortgage
Loan has fully furnished, in accordance with the Fair Credit Reporting Act
and
its implementing regulations, accurate and complete information on its borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
on
a monthly basis; (iii) no such Mortgage Loan will impose a Prepayment Penalty
for a term in excess of five years; and (iv) with respect to any Mortgage Loans
that are on manufactured housing, such housing will be the principal residence
of the borrower upon origination of such mortgage loan;
(x) With
respect to each Mortgage Loan that was originated on or after October 1, 2002
and before March 7, 2003, no such Mortgage Loan is secured by a Mortgaged
Property located in the State of Georgia and no Mortgage Loan sold by any Seller
secured by Mortgaged Property located in the State of Georgia that was
originated on or after March 7, 2003 is a “high cost home loan” as defined in
the Georgia Fair Lending Act (HB 1361), as amended;
(y) None
of
the Mortgage Loans are classified as (a) a “high cost mortgage” loan under the
Home Ownership and Equity Protection Act of 1994 or (b) a “high cost home,”
“covered,” “high-cost,” “high-risk home,” or “predatory” loan under any other
applicable state, federal or local law;
(z) With
respect to each Mortgage Loan that has a Prepayment Penalty feature, each such
Prepayment Penalty is enforceable
and, at
the time such Mortgage Loan was originated, each Prepayment Penalty complied
with applicable federal, state and local law, subject to federal preemption
where applicable;
(aa) Each
Mortgage Loan that is secured by residential real property (or a leasehold
interest therein) has a Loan-to-Value Ratio of 100% or less by Cut-Off Date
Principal Balance;
25
(bb) No
Mortgage Loan is a “High Cost Loan” or “Covered Loan”, as applicable, as such
terms are defined in the Standard
&
Poor’s
LEVELS®
Glossary, Appendix E, in effect as of the Closing Date; and
(cc) With
respect to any Mortgage Loan originated on or after August 1, 2004, either
(a)
the related Mortgage and the related Mortgage Note does not contain a mandatory
arbitration clause (that is, a clause that requires the related
Mortgagor to submit to arbitration to resolve any dispute arising out of or
relating in any way to the Mortgage Loan) or (b) the related Mortgage and the
related Mortgage Note contained a mandatory arbitration clause as of the related
origination date and such clause has or will be waived by the originator or
an
entity designated by the Seller in writing no later than 60 days after the
related Closing Date which notice included or will include the following
language: “WE ARE HEREBY NOTIFYING YOU THAT THE MANDATORY ARBITRATION CLAUSE OF
YOUR LOAN, REQUIRING THAT YOU SUBMIT TO ARBITRATION TO RESOLVE ANY DISPUTE
ARISING OUT OF OR RELATING IN ANY WAY TO YOUR MORTGAGE LOAN, IS IMMEDIATELY
NULL
AND VOID. YOU ARE FREE TO CHOOSE TO EXERCISE ANY OF YOUR RIGHTS OR ENFORCE
ANY
REMEDIES UNDER YOUR MORTGAGE LOAN THROUGH THE COURT SYSTEM.” A copy of the
written notice referred to in the immediately preceding sentence, if applicable,
shall be retained in the related Mortgage File.
| Section 3.03 |
Repurchase;
Substitution.
|
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 and delivery
of the Mortgage File to the Purchaser or its designee, and shall inure to the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment or the examination, or lack
of
examination, of any Mortgage Loan Document. Upon discovery by the Seller or
the
Purchaser of a breach of any of the foregoing representations and warranties
that materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser in any Mortgage Loan, the party discovering such
breach shall give prompt written notice to the others. With respect to the
representations and warranties that are made to the best of the Seller’s
knowledge, if it is discovered by the Seller or the Purchaser that the substance
of such representation and warranty is inaccurate and such inaccuracy materially
and adversely affects the value of the related Mortgage Loan or the interests
of
the Purchaser therein, notwithstanding such Seller’s lack of knowledge with
respect to the substance of such representation or warranty, such inaccuracy
shall be deemed a breach of the applicable representation or warranty. The
Seller shall have a period of 60 days from the earlier of its discovery or
its
receipt of notice of any such breach within which to correct or cure such
breach. The Seller hereby covenants and agrees that if any such breach is not
corrected or cured within such 60-day period, the Seller shall, at the
Purchaser’s option and not later than the next Determination Date, either
repurchase such Mortgage Loan at the Repurchase Price or substitute a mortgage
loan for the defective Mortgage Loan as provided below. In the event that any
such breach shall involve any representation or warranty set forth in Section
3.01, and such breach is not cured within 60 days of the earlier of either
discovery by or notice to the Seller of such breach, all Mortgage Loans shall,
at the option of the Purchaser, be repurchased by the Seller at the Repurchase
Price. Any such repurchase shall be accomplished by deposit in the Custodial
Account of the amount of the Repurchase Price.
26
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Seller shall (or shall cause the Servicer to)
either (i) cause MERS to execute and deliver an assignment of the Mortgage
in
recordable form to transfer the Mortgage from MERS to the Seller and shall
cause
such Mortgage to be removed from registration on the MERS® System in accordance
with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS®
System the Seller as the beneficial holder of such Mortgage Loan.
If
the
Seller is required to repurchase any Mortgage Loan pursuant to this Section
3.03
as a result of a breach of any of the representations and warranties set forth
in Section 3.02, the Seller may, with the Purchaser’s prior consent, which
consent shall not be unreasonably withheld, within two years from the Closing
Date, remove such defective Mortgage Loan from the terms of this Agreement
and
substitute another mortgage loan for such defective Mortgage Loan, in lieu
of
repurchasing such defective Mortgage Loan. Any substitute Mortgage Loan shall
(a) have a principal balance at the time of substitution not in excess of the
principal balance of the defective Mortgage Loan (the amount of any difference,
plus one month’s interest thereon at the Mortgage Interest Rate borne by the
defective Mortgage Loan, being paid by the Seller and deemed to be a Principal
Prepayment to be deposited by the Seller in the Custodial Account), (b) have
a
Mortgage Interest Rate not less than, and not more than one percentage point
greater than, the Mortgage Interest Rate of the removed Mortgage Loan, (c)
have
a remaining term to stated maturity not later than, and not more than one year
less than, the remaining term to stated maturity of the removed Mortgage Loan,
(d) be, in the reasonable determination of the Purchaser, of the same type,
quality and character (including location of the Mortgaged Property) as the
removed Mortgage Loan as if the breach had not occurred, (e) have a
Loan-to-Value Ratio at origination no greater than that of the removed Mortgage
Loan, (f) with respect to any second lien Mortgage Loan, have an Equity
Loan-to-Value Ratio at origination no greater than that of the removed Mortgage
Loan, (g) have the same lien priority as that of the removed Mortgage Loan
and
(h) be, in the reasonable determination of the Purchaser, in material compliance
with the representations and warranties contained in this Agreement and
described in Section 3.02 as of the date of substitution.
The
Seller shall amend the Mortgage Loan Schedule to reflect the withdrawal of
the
removed Mortgage Loan from this Agreement and the substitution of such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. The Monthly Payment on a substitute Mortgage Loan due on the Due Date
in
the month of substitution shall be the property of the Seller and the Monthly
Payment on the Defective Mortgage Loan for which the substitution is made due
on
the such date shall be the property of the Purchaser.
It
is
understood and agreed that the obligation of the Seller set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage Loan,
and to indemnify the Purchaser pursuant to Section 8.01, constitutes the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Seller fails to repurchase or substitute for a defective
Mortgage Loan in accordance with this Section 3.03, or fails to cure a defective
Mortgage Loan to the Purchaser’s reasonable satisfaction in accordance with this
Section 3.03, or to indemnify the Purchaser pursuant to Section 8.01, that
failure shall, upon compliance by the Purchaser with the next to the last
paragraph of this Section 3.03, be a default and the Purchaser shall be entitled
to pursue all available remedies.
27
Any
cause
of action against the Seller 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 (i) the earlier of discovery of such breach by the Seller
or notice thereof by the Purchaser to the Seller, (ii) failure by the Seller
to
cure such breach or repurchase such Mortgage Loan as specified above and (iii)
demand upon the Seller by the Purchaser for compliance with this
Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent the Purchaser may, in connection
with any repurchase or substitution of a Defective Mortgage Loan pursuant to
this Section 3.03, require that the Seller deliver, at the Seller’s expense, an
Opinion of Counsel to the effect that such repurchase or substitution will
not
(i) result in the imposition of taxes on “prohibited transactions” of such REMIC
(as defined in Section 860F of the Code) or otherwise subject the REMIC to
tax,
or (ii) cause the REMIC to fail to qualify as a REMIC at any time.
| Section 3.04 |
Reserved.
|
| Section 3.05 |
Acknowledgement
of Anti-Predatory Lending
Policies.
|
As
of the
applicable Closing Date, the Purchaser has in place internal policies and
procedures that expressly prohibit its purchase of any Mortgage Loan classified
as (a) a “high cost” loan under the Home Ownership and Equity Protection Act of
1994 or (b) a “high cost,” “threshold,” “covered,” or “predatory” loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law, regulation or ordinance imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees).
28
ARTICLE
IV
[[RESERVED]]
29
ARTICLE
V
[[RESERVED]]
30
ARTICLE
VI
[[RESERVED]]
31
ARTICLE
VII
[[RESERVED]]
32
ARTICLE
VIII
THE
SELLER
|
Section
8.01
|
Indemnification;
Third Party Claims.
|
The
Seller agrees to indemnify the Purchaser and hold it harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser may sustain in any way related to the failure of the Seller to observe
and perform its duties, obligations, and covenants in strict compliance with
the
terms of this Agreement or as a result of the breach of a representation or
warranty set forth in Sections 3.01 or 3.02 of this Agreement. An indemnifying
party hereunder shall immediately notify the Purchaser if a claim is made by
a
third party with respect to this Agreement or a Mortgage Loan, assume (with
the
consent of the Purchaser) the defense of any such claim and pay all expenses
in
connection therewith, including reasonable and necessary 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. An indemnifying party
hereunder shall follow any written instructions received from the Purchaser
in
connection with such claim. The Purchaser shall promptly reimburse an
indemnifying party hereunder for all amounts advanced by it pursuant to the
two
preceding sentences except when the claim relates to the failure of the Seller
to perform its duties and obligations pursuant to this Agreement, the breach
of
representation or warranty set forth in Sections 3.01 or 3.02, or the gross
negligence, bad faith or willful misconduct of the Seller. The provisions of
this Section 8.01 shall survive termination of this Agreement.
|
Section
8.02
|
Merger
or Consolidation of the Seller.
|
The
Seller shall keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and 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 either the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller, hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided,
however,
that
the successor or surviving Person shall be an institution or (i) having a GAAP
net worth of not less than $25,000,000, (ii) the deposits of which are insured
by the FDIC, SAIF and/or BIF, or which is a HUD-approved mortgagee whose primary
business is in origination and servicing of first lien mortgage loans, and
(iii)
who is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved seller/servicer in good standing.
Notwithstanding the foregoing, if the successor or surviving Person is an
institution with a GAAP net worth of less than $25,000,000, then the Purchaser
may, in its sole discretion, waive such minimum GAAP net worth
requirement.
33
|
Section
8.03
|
Limitation
on Liability of the Seller and Others.
|
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment made in good faith; provided,
however,
that
this provision shall not protect the Seller or any such person against any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of
negligence, bad faith or willful misconduct, or any breach of the terms and
conditions of this Agreement. The Seller and any officer, employee or agent
of
the Seller may rely in good faith on any document of any kind prima facie
properly executed and submitted by the Purchaser respecting any matters arising
hereunder.
34
ARTICLE
IX
RECONSTITUTION
OF MORTGAGE LOANS
|
Section
9.01
|
Reconstitution
of Mortgage Loans.
|
(a) The
Seller acknowledges and the Purchaser agrees that with respect to some or all
of
the Mortgage Loans, the Purchaser intends to effect one or more sales of the
Mortgage Loans as public or private pass-through transfers (each, a
“Reconstitution”).
(b) With
respect to each Reconstitution, the Seller agrees:
(i) to
cooperate fully with the Purchaser and any prospective purchaser with respect
to
all reasonable requests and due diligence procedures including participating
in
meetings with rating agencies, bond insurers and such other parties as the
Purchaser shall designate and participating in meetings with prospective
purchasers of the Mortgage Loans or interests therein and providing information
contained in the Mortgage Loan Schedule including any diskette or other related
data tapes provided as reasonably requested by such purchasers;
(ii) to
execute all agreements required to be executed by the Seller in connection
with
such Reconsititution, provided
that any
such agreements be consistent with the terms hereof and impose no greater
duties, liabilities or obligations upon the Seller than those set forth herein,
and provided,
further,
that
the Seller is given an opportunity to review and reasonably negotiate in good
faith the content of such documents not specifically referenced or provided
for
herein;
(iii) to
make
all the representations and warranties set forth in Section 3.01 and Section
3.02, as of the date of the Reconstitution, as specified in a letter from the
Purchaser to the Seller (substantially in the form of Exhibit I hereto)
indicating the date of the Reconstitution and the applicable Mortgage Loans.
No
other document need be prepared indicating that the Seller is making such
representations and warranties as to the applicable Mortgage Loans as of such
date;
(iv) to
deliver to the Purchaser and to any Person designated by the Purchaser
(a) for inclusion in any prospectus or other offering material such
publicly available information regarding the Seller, its financial condition
and
its mortgage loan delinquency, foreclosure and loss experience and any
additional information requested by the Purchaser, (b) any similar non
public, unaudited financial information (which the Purchaser may, at its option
and at its cost, have audited by certified public accountants) and such other
information as is reasonably requested by the Purchaser and which the Seller
is
capable of providing without unreasonable effort or expense, and to indemnify
the Purchaser and its affiliates for material misstatements or omissions
contained in such information, and (c) such statements and audit letters of
reputable, certified public accountants pertaining to information provided
by
the Seller pursuant to clause (a) above as shall be reasonably requested by
the
Purchaser; and
35
(v) to
deliver to the Purchaser, and to any Person designated by the Purchaser,
opinions of counsel in a form reasonably acceptable to the Purchaser as are
customarily delivered by sellers and reasonably determined by the Purchaser
to
be necessary in connection with Reconstitutions, it being understood that the
cost of any opinions of counsel (other than in-house counsel) that may be
required for a Reconstitution, as the case may be, shall be the responsibility
of the Purchaser.
36
ARTICLE
X
MISCELLANEOUS
PROVISIONS
|
Section
10.01
|
[[Reserved]]
|
|
Section
10.02
|
Amendment.
|
This
Agreement may be amended or supplemented from time to time by written agreement
executed by the Purchaser, the Seller and the Servicer.
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Section
10.03
|
Recordation
of Agreement.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the Mortgaged Properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Seller
at
the Seller’s expense on direction of the Purchaser.
|
Section
10.04
|
Governing
Law.
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard 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
10.05
|
Notices.
|
Any
demands, notices or other communications permitted or required hereunder 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 certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
| (i) |
if
to the Seller:
|
▇▇▇▇▇▇,
Bean & ▇▇▇▇▇▇▇▇ Mortgage Corp.
▇▇▇
▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇▇▇, President
with
copy
to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ Mortgage Corp.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
37
| (ii) |
if
to the Purchaser:
|
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse Securities (USA) LLC
Eleven
Madison ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with
copy
to:
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse Securities (USA) LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel - RMBS
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
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Section
10.06
|
Severability
of Provisions.
|
Any
part,
provision, representation or warranty of this Agreement that is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
|
Section
10.07
|
Exhibits.
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
38
|
Section
10.08
|
General
Interpretive Principles.
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(iii) references
herein to “Articles,” “Sections,” Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
“herein,” “hereof,” “hereunder,” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(vi) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(vii) headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
|
Section
10.09
|
Reproduction
of Documents.
|
This
Agreement and all documents relating thereto, including without limitation
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
39
|
Section
10.10
|
Confidentiality
of Information.
|
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required by law, each party agrees
to
keep all non-public information regarding the other party strictly confidential,
and to use all such information solely in order to effectuate the purpose of
the
Agreement, provided
that
each party may provide confidential information to its employees, agents and
affiliates who have a need to know such information in order to effectuate
the
transaction and,
provided,
further,
that
such information is identified as confidential non-public information. In
addition, confidential information may be provided to a regulatory authority
with supervisory power over the Purchaser, provided
such
information is identified as confidential non-public information.
|
Section
10.11
|
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, such recordation to be effected at the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
|
Section
10.12
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right, without the consent of the Seller, 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, Assumption and Recognition
Agreement substantially in the form of Exhibit
D
hereto,
and the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans. In no event
shall the Purchaser sell a partial interest in any Mortgage Loan without the
written consent of the Seller, which consent shall not be unreasonably denied.
All references to the Purchaser in this Agreement shall be deemed to include
its
assignee or designee.
|
Section
10.13
|
No
Partnership.
|
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto.
|
Section
10.14
|
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 8.02, this Agreement shall inure
to
the benefit of and be binding upon the Seller, the Purchaser and their
respective successors and assigns.
40
|
Section
10.15
|
Entire
Agreement.
|
Each
of
the parties to this Agreement acknowledges that no representations, agreements
or promises were made to any of the other parties to this Agreement or any
of
its employees other than those representations, agreements or promises
specifically contained herein. This Agreement sets forth the entire
understanding between the parties hereto and shall be binding upon all
successors of all of the parties.
|
Section
10.16
|
No
Solicitation.
|
From
and
after the Closing Date, the Seller agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents or affiliates,
or by
any independent contractors on the Seller’s behalf, to personally, by telephone,
by mail, or electronically by e-mail or through the internet or otherwise,
solicit the borrower or obligor under any Mortgage Loan to refinance the
Mortgage Loan, in whole or in part, without the prior written consent of the
Purchaser. It is understood and agreed that all rights and benefits relating
to
the solicitation of any Mortgagors to refinance any Mortgage Loans and the
attendant rights, title and interest in and to the list of such Mortgagors
and
data relating to their Mortgages (including insurance renewal dates) shall
be
transferred to the Purchaser pursuant hereto on the Closing Date and the Seller
shall take no action to undermine these rights and benefits. Notwithstanding
the
foregoing, it is understood and agreed that promotions undertaken by the Seller
or any affiliate of the Seller that are directed to the general public at large,
or segments thereof, provided that no segment shall consist primarily of the
borrowers or obligors under the Mortgage Loans, including, without limitation,
mass mailing based on commercially acquired mailing lists, newspaper, radio
and
television advertisements shall not constitute solicitation under this Section
10.16, nor shall efforts undertaken by the Servicer to direct borrowers who
are
determined to be in the course of refinancing a Mortgage Loan to conduct such
refinance with the Servicer’s affiliated originator be deemed to constitute
impermissible solicitation under this Section 10.16, provided that such efforts
shall not be intended to cause the refinance of a Mortgage Loan that would
not
otherwise have been refinanced or have the effect of increasing the rate at
which the Mortgage Loans are prepaid. This Section 10.16 shall not be deemed
to
preclude the Seller or any of its affiliates from soliciting any Mortgagor
for
any other financial products or services. The Seller shall use its best efforts
to prevent the sale of the name of any Mortgagor to any Person who is not an
affiliate of the Seller.
|
Section
10.17
|
Costs.
|
The
Purchaser shall pay any commissions due its salesmen, the expenses of its
accountants and attorneys and the expenses and fees of any broker retained
by
the Purchaser with respect to the transactions covered by this Agreement. All
other costs and expenses incurred in connection with the transfer and delivery
of the Mortgage Loans and related servicing rights including without limitation
fees for recording intervening assignments of mortgage and Assignments of
Mortgage, the cost of obtaining tax service contracts and the legal fees and
expenses of its attorneys shall be paid by the Seller. The Seller shall be
responsible for causing to occur the recordation of all Assignments of Mortgage
and all intervening assignments of mortgage, as applicable.
41
ARTICLE
XI
COMPLIANCE
WITH REGULATION AB
|
Section
11.01
|
Intent
of the Parties; Reasonableness.
|
The
Purchaser and the Seller (for purposes of this Article XI, the “Company”)
acknowledge and agree that the purpose of Article XI of this Agreement is to
facilitate compliance by the Purchaser and any Depositor with the provisions
of
Regulation AB and related rules and regulations of the Commission. Although
Regulation AB is applicable by its terms only to offerings of asset-backed
securities that are registered under the Securities Act, the Company
acknowledges that investors in privately offered securities may require that
the
Purchaser or any Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation AB include
provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Company acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser, any Master Servicer or
any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection with
any
Securitization Transaction, the Company shall cooperate fully with the Purchaser
and any Master Servicer to deliver to the Purchaser (including any of its
assignees or designees), any Master Servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser, the Master Servicer or any
Depositor to permit the Purchaser, such Master Servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Company, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Company by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
|
Section
11.02
|
Additional
Representations and Warranties of the
Company.
|
(a) The
Company shall be deemed to represent to the Purchaser, to any Master Servicer
and to any Depositor, as of the date on which information is first provided
to
the Purchaser, any Master Servicer or any Depositor under Section 11.03 that,
except as disclosed in writing to the Purchaser, such Master Servicer or such
Depositor prior to such date: (i) the Company is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure
to
act of the Company; (ii) the Company has not been terminated as servicer in
a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Company as servicer
has been disclosed or reported by the Company; (iv) no material changes to
the
Company’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Company’s financial condition that could have a material
adverse effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Company, any Subservicer or any Third-Party Originator; and (vii) there
are
no affiliations, relationships or transactions relating to the Company, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a
type
described in Item 1119 of Regulation AB.
42
(b) If
so
requested by the Purchaser, any Master Servicer or any Depositor on any date
following the date on which information is first provided to the Purchaser,
any
Master Servicer or any Depositor under Section 11.03, the Company shall, within
five Business Days following such request, confirm in writing the accuracy
of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
|
Section
11.03
|
Information
to Be Provided by the Company.
|
In
connection with any Securitization Transaction the Company shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c), (f) and (g)
of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Company, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this
Section.
43
(a) If
so
requested by the Purchaser or any Depositor, the Company shall provide such
information regarding (i) the Company, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Subservicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(i) the
originator’s form of organization;
(ii) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(iii) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Company, each Third-Party Originator and each
Subservicer; and
(iv) a
description of any affiliation or relationship between the Company, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Company by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
|
(1)
|
the
sponsor;
|
|
(2)
|
the
depositor;
|
|
(3)
|
the
issuing entity;
|
|
(4)
|
any
servicer;
|
|
(5)
|
any
trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider;
and
|
44
|
(9)
|
any
other material transaction party.
|
(b) If
so
requested by the Purchaser or any Depositor, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Company, if the Company is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Company (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the
Company (or Third-Party Originator) Static Pool Information with respect to
more
than one mortgage loan type, the Purchaser or any Depositor shall be entitled
to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Company, and need not be customized for the
Purchaser or any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135 days prior
to
the date of the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides a permanent
record of the information provided, such as a portable document format (pdf)
file, or other such electronic format reasonably required by the Purchaser
or
the Depositor, as applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Company shall provide corrected Static Pool Information to
the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Company.
If
so
requested by the Purchaser or any Depositor, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining
to Static Pool Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Company’s or Third-Party Originator’s
originations or purchases, to calendar months commencing January 1,
2006,
as the
Purchaser or such Depositor shall reasonably request. Such statements and
letters shall be addressed to and be for the benefit of such parties as the
Purchaser or such Depositor shall designate, which may include, by way of
example, any Sponsor, any Depositor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a standard,
generally applicable document accompanied by a reliance letter authorizing
reliance by the addressees designated by the Purchaser or such
Depositor.
45
(c) If
so
requested by the Purchaser or any Depositor, the Company shall provide such
information regarding the Company, as servicer of the Mortgage Loans, and each
Subservicer (each of the Company and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108, 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(i) the
Servicer’s form of organization;
(ii) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
|
(1)
|
whether
any prior securitizations of mortgage loans of a type similar to
the
Mortgage Loans involving the Servicer have defaulted or experienced
an
early amortization or other performance triggering event because
of
servicing during the three-year period immediately preceding the
related
Securitization Transaction;
|
|
(2)
|
the
extent of outsourcing the Servicer
utilizes;
|
|
(3)
|
whether
there has been previous disclosure of material noncompliance with
the
applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as a servicer during
the
three-year period immediately preceding the related Securitization
Transaction;
|
|
(4)
|
whether
the Servicer has been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application
of a servicing performance test or trigger;
and
|
46
|
(5)
|
such
other information as the Purchaser or any Depositor may reasonably
request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
|
(iii) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(iv) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Company
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(v) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(vi) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(vii) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(viii) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(ix) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer; and
(x) a
description of any affiliation or relationship between the Servicer and any
of
the following parties to a Securitization Transaction, as such parties are
identified to the Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
47
|
(1)
|
the
sponsor;
|
|
(2)
|
the
depositor;
|
|
(3)
|
the
issuing entity;
|
|
(4)
|
any
servicer;
|
|
(5)
|
any
trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider;
and
|
|
(9)
|
any
other material transaction party.
|
(d) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Company shall (or shall cause each Subservicer
and
Third-Party Originator to) (i) notify the Purchaser, any Master Servicer and
any
Depositor in writing of (A) any material litigation or governmental proceedings
pending against the Company, any Subservicer or any Third-Party Originator,
(B)
any affiliations or relationships that develop following the closing date of
a
Securitization Transaction between the Company, any Subservicer or any
Third-Party Originator and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing
by
the requesting party) with respect to such Securitization Transaction, (C)
any
Event of Default under the terms of this Agreement or any Reconstitution
Agreement, (D) any merger, consolidation or sale of substantially all of the
assets of the Company, and (E) the Company’s entry into an agreement with a
Subservicer to perform or assist in the performance of any of the Company’s
obligations under this Agreement or any Reconstitution Agreement, and (ii)
provide to the Purchaser and any Depositor a description of such proceedings,
affiliations or relationships.
(e) As
a
condition to the succession to the Company or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Company or any Subservicer,
the Company shall provide to the Purchaser, any Master Servicer and any
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser and any Depositor
of such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
48
(f) In
addition to such information as the Company, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
days
prior to the deadline for the filing of any distribution report on Form 10-D
in
respect of any Securitization Transaction that includes any of the Mortgage
Loans serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of
any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(g) The
Company shall provide to the Purchaser, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports, and such other
information related to the Company or any Subservicer or the Company or such
Subservicer’s performance hereunder.
|
Section
11.04
|
Indemnification;
Remedies.
|
(a) The
Company
shall
indemnify the Purchaser, each affiliate of the Purchaser, and each of the
following parties participating
in a Securitization Transaction: each
sponsor and issuing entity; each Person (including but not limited to any Master
Servicer, if applicable) responsible for the preparation, execution or filing
of
any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees, agents and
affiliates of each of the foregoing and of the Depositor (each, an “Indemnified
Party”), and shall hold each of them harmless from and against any losses,
claims, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based
upon:
49
(i) (A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, data, accountants’ letter or other
material
provided
under
this Article XI
by or on
behalf of the Company,
or provided under this Article XI by or on behalf of any Subservicer,
Subcontractor or Third-Party Originator (collectively, the “Company
Information”),
or (B)
the omission or alleged omission to state in the Company Information a material
fact required to be stated in the Company Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided,
by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to the
Company Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Company
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
breach by the Company of its obligations under this Article, including
particularly any failure by the Company, any Subservicer, any Subcontractor
or
any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article XI;
(iii) any
breach by the Company of a representation or warranty set forth in Section
11.02(a) or in a writing furnished pursuant to Section 11.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 11.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Company in connection with
its performance under this Article.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
50
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Company shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article XI, or any
breach by the Company of a representation or warranty set forth in Section
11.02(a) or in a writing furnished pursuant to Section 11.02(b) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 11.02(b) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute a default with
respect to the Company under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or any Depositor, as applicable,
in
its sole discretion to terminate the rights and obligations of the Company
as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Company
(and if the Company is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer reasonably acceptable to any Master
Servicer for such Securitization Transaction); provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
|
Section
11.05
|
Third
Party Beneficiary.
|
Solely
for purposes of this Article XI and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits under this Article XI as if it were
a
direct party to this Agreement.
51
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
| DLJ
MORTGAGE
CAPITAL, INC.
Purchaser
|
||
| |
|
|
| By: | /s/ ▇▇▇ ▇▇▇ | |
|
Name:
▇▇▇ ▇▇▇
Title:
Vice
President
|
||
|
▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ MORTGAGE CORP.
Seller
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
CEO
|
||
Exhibit
A
Contents
of 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
which shall be retained by the Seller in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Mortgage
Loan Purchase Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of ___________________ without
recourse,” and signed in the name of the Seller by an authorized officer, with
all intervening endorsements showing a complete chain of title from the
originator to the Seller. If the Mortgage Loan was acquired by the Seller in
a
merger, the endorsement must be by “[Seller], successor by merger to the [name
of predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the endorsement must be by “[Seller]
formerly known as [previous name]”. If the original note is unavailable, seller
will provide an affidavit of lost note (in form acceptable to the Purchaser)
stating that the original Mortgage Note was lost or destroyed, together with
a
copy of such Mortgage Note and indemnifying the Purchaser against any and all
claims arising as a result of any person or entity claiming they are the holder
of the note or that the note has been paid off and returned. With respect to
any
HELOC, the original Loan Agreement.
2. A
true
certified copy, certified by the [title insurer], of the applicable first
lien.
3. Except
as
provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original Mortgage with evidence of recording thereon, or a copy thereof
certified by the public recording office in which such mortgage has been
recorded or, if the original Mortgage has not been returned from the applicable
public recording office, a true certified copy, certified by the [the Company],
of the original Mortgage together with a certificate of the Seller certifying
that the original Mortgage has been delivered for recording in the appropriate
public recording office of the jurisdiction in which the Mortgaged Property
is
located and in the case of each MERS Mortgage Loan, the original Mortgage,
noting the presence of the MIN of the Mortgage Loans and either language
indicating that the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not
a MOM Loan at origination, the original Mortgage and the assignment thereof
to
MERS, with evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded.
4. The
original or certified to be a true copy or if in electronic form identified
on
the Mortgage Loan Schedule, the certificate number, certified by the Seller,
of
the related Primary Mortgage Insurance Policy or LPMI Policy, if
required.
5. In
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment, from the Seller in accordance with Purchaser’s instructions, which
assignment shall, but for any blanks requested by the Purchaser, be in form
and
substance acceptable for recording, or a copy certified by the Seller as a
true
and correct copy of the original Assignment which has been sent for recordation.
If the Mortgage Loan was acquired or originated by the Seller while doing
business under another name, the Assignment must be by “[Seller] formerly known
as [previous name]”.
A-1
6. With
respect to Mortgage Loans that are not HELOCs or Co-op Loans, the original
policy of title insurance, including riders and endorsements thereto, or if
the
policy has not yet been issued, a written commitment or interim binder or
preliminary report of title issued by the title insurance or escrow company.
With respect to Mortgage Loans that are HELOCs, such evidence or inquiry of
title as is required for compliance with the Underwriting
Standards.
7. Originals
of all recorded intervening Assignments, or copies thereof, certified by the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Seller, with evidence of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the [title insurer] of the original Assignment together
with
a certificate of the [title insurer] certifying that the original Assignment
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
8. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the [title insurer], of such
original document together with certificate of Seller certifying the original
of
such document has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located.
9. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required in the appropriate jurisdiction where the Mortgaged Property is
located (or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office, certifying
that such copy represents a true and complete copy of the original and that
such
original has been or is currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located), or if the original power of attorney or other such instrument
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
10. With
respect to a Co-op Loan: (i) a copy of the Co-op Lease and the assignment of
such Co-op Lease to the originator of the Mortgage Loan, with all intervening
assignments showing a complete chain of title and an assignment thereof by
Seller; (ii) the stock certificate together with an undated stock power relating
to such stock certificate executed in blank; (iii) the recognition agreement
in
substantially the same form as standard a “AZTECH” form; (iv) copies of the
financial statement filed by the originator as secured party and, if applicable,
a filed UCC-3 Assignment of the subject security interest showing a complete
chain of title, together with an executed UCC-3 Assignment of such security
interest by the Seller in a form sufficient for filing.
A-2
11. The
original of any guarantee executed in connection with the Mortgage
Note.
Notwithstanding
anything to the contrary herein, the Seller may provide one certificate for
all
of the Mortgage Loans indicating that the documents were delivered for
recording.
A-3
Exhibit
B
[Reserved]
B-1
Exhibit
C
[Reserved]
C-1
Exhibit
D
Form
of Assignment, Assumption and Recognition Agreement
This
Assignment, Assumption and Recognition Agreement (this “Assignment
Agreement”),
dated
as of _________, between DLJ Mortgage Capital, Inc., a Delaware corporation
(the
“Assignor”),
______________________, a ________ corporation (the “Assignee”),
and
______________ (the “Seller”):
For
good
and valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those certain
mortgage loans listed on Exhibit
A
attached
hereto (the “Mortgage
Loans”);
and
(b) the Mortgage
Loan Purchase Agreement dated as of ______,
but
only to the extent of the Mortgage Loans (the “Purchase
Agreement”).
For
purposes of this Assignment Agreement, the term “Purchase Agreement” includes
any separate ▇▇▇▇ of sale, assignment and conveyance or other instrument
pursuant to which Seller and Assignor effectuated the purchase and sale of
any
Mortgage Loan following the execution and delivery of the Purchase
Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any all obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
that are not the Mortgage Loans set forth on Exhibit
A
attached
hereto and are not the subject of this Assignment Agreement.
2. Each
of
the Seller and the Assignor represent and warrant to the Assignee that (a)
the
copy of the Purchase Agreement, attached hereto as Exhibit
B,
provided to the Assignee, is a true, complete and accurate copy of the Purchase
Agreement, (b) the Purchase Agreement is in full force and effect as of the
date
hereof, (c) the provisions thereof have not been waived, amended or modified
in
any respect, nor have any notices of termination been given thereunder, (d)
the
Purchase Agreement contains all of the terms and conditions governing the sale
of the Mortgage Loans by the Seller to Assignor and the purchase of the Mortgage
Loans by Assignor from the Seller; provided,
however,
that
the date of purchase and sale and the amount of payment for the Mortgage Loans
may be set out in a Purchase Price and Terms Letter, as defined in the Purchase
Agreement and (e) the Seller sold, conveyed and transferred each Mortgage Loan
to Assignor pursuant to the Purchase Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee and the
Seller that:
(a) As
of the
date hereof, the Assignor is not in default under the Purchase
Agreement;
D-1
(b) The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Purchase Agreement, free from any and all claims and
encumbrances arising out of the Assignor’s ownership thereof, and the Mortgage
Loans, as well as the Purchase Agreement, upon the transfer thereof to the
Assignee as contemplated herein, shall be free and clear of all such liens,
claims and encumbrances or any lien claim or encumbrance arising out of the
ownership of the Mortgage Loans by any person at any time after Assignor first
acquired any Mortgage Loan from the Seller;
(c) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Purchase Agreement or the Mortgage Loans;
(d) The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase Agreement or the Mortgage
Loans. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under or defaults under, the Purchase Agreement, or the Mortgage
Loans;
(e) The
Assignor is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to sell, transfer and assign the Mortgage
Loans;
(f) The
Assignor has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignor is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignor or its property is subject.
The
execution, delivery and performance by the Assignor of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Assignment Agreement has been duly executed and delivered by the Assignor
and constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(g) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignor in connection with the execution, delivery or performance by the
Assignor of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(h) The
Assignor has paid the purchase price for the Mortgage Loans and has satisfied
any conditions to closing required of it under the terms of the Purchase
Agreement.
D-2
4. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Seller that:
(a) The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignee’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject.
The
execution, delivery and performance by the Assignee of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Assignment Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignee in connection with the execution, delivery or performance by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Purchase Agreement and the Mortgage Loans, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
5. The
Seller warrants and represents to, and covenants with, the Assignor and the
Assignee that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
formation, and has all requisite power and authority to service the Mortgage
Loans;
(b) The
Seller has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject. The execution, delivery and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller. This Assignment Agreement has been
duly executed and delivered by the Seller and constitutes the valid and legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms except as enforceability thereof may be limited by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or in law;
D-3
(d) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby;
(e) As
of the
date hereof, the Seller is not in default under the Purchase Agreement;
and
(f) No
event
has occurred or has failed to occur, during the period commencing on date on
which Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth in
Section 3.02 of the Purchase Agreement untrue if such representations and
warranties were made with respect to the Mortgage Loans effective as of the
date
hereof.
Within
60
days of the earlier of either, discovery by the Seller or notice to the Seller
from the Assignee, of a breach of any of the foregoing representations and
warranties with respect to a Mortgage Loan which materially and adversely
affects the value of such Mortgage Loan or the Assignee’s interests therein, the
Seller shall use its best efforts to cure such breach in all material respects
and, if such breach is not cured within such 60-day period, the Seller shall,
at
the Assignee’s option, repurchase such Mortgage Loan at a price equal to the
unpaid principal balance of the Mortgage Loan as of the date or repurchase,
plus
accrued interest thereon to, but not including, the date of
repurchase.
In
connection with any repurchase of a Mortgage Loan, the Assignee shall reassign
the provisions of the Purchase Agreement to the Seller with respect to such
Mortgage Loan, and provide for the prompt delivery of the related custodial
file
to the Seller or its designee, as applicable.
6. From
and
after the date hereof, the Seller shall recognize the Assignee as the owner
of
the Mortgage Loans, and shall look solely to the Assignee for performance from
and after the date hereof of the Assignor’s obligations with respect to the
Mortgage Loans.
7. [Reserved]
8. Notice
Addresses.
D-4
(a) The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
________________
________________
________________
Attention:
________________
(b) The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
DLJ
Mortgage Capital, Inc.
c/o
Credit Suisse Securities (USA) LLC
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
_______________
(c) The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
________________
________________
________________
Attention:
________________
9. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York, without regard to conflict of laws principles (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, except to the extent preempted by federal law.
10. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
11. No
term
or provision of this Assignment Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
12. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans and
the
assignment of the Purchase Agreement by the Assignor.
13. Notwithstanding
the assignment of the Purchase Agreement by either the Assignor or Assignee,
this Assignment Agreement shall not be deemed assigned by the Seller or the
Assignor unless assigned by separate written instrument.
D-5
14. For
the
purpose for facilitating the execution of this Assignment Agreement as herein
provided and for other purposes, this Assignment Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute and be
one
and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
D-6
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
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DLJ
Mortgage Capital, Inc.
Assignor
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By:
Name:
Title:
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Assignee |
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By:
Name:
Title:
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Seller |
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By:
Name:
Title:
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D-7
Exhibit
E
[Reserved]
E-1
Exhibit
F
Mortgage
Loan Schedule
F-1
Exhibit
G
[Reserved]
G-1
Exhibit
H
[Reserved]
H-1
Exhibit
I
Form
of Bring Down Letter
[DLJ
Mortgage Capital, Inc. Letterhead]
_____,
200_
[Name
of
Seller]
[Address
of Seller]
Re:
Mortgage
Loan Purchase
Agreement,
dated as of ___, 200_
Ladies
and Gentlemen:
Reference
is made to Section 9.01(b)(iii) of the referenced Mortgage Loan Purchase
Agreement, dated as of _____, 200_ (the “Agreement”),
among
DLJ Mortgage Capital, Inc., as Purchaser and ____________, as Seller.
Capitalized terms used herein and not otherwise defined have the meanings set
forth in the Agreement.
Pursuant
to such Section 9.01(b)(iii), we hereby notify you that the representations
and
warranties set forth in Sections 3.01 and 3.02 of the Agreement with respect
to
the Mortgage Loans identified on Exhibit A hereto are being made by you as
of
____, 200_ (the “Bring-Down
Date”).
This
letter will be the only document evidencing your obligation to make the
representations and warranties set forth in Sections 3.01 and 3.02 with respect
to the Mortgage Loans identified on Exhibit A hereto as of the Bring-Down Date.
Reference is made to Section 3.03 of the Agreement for the procedures to be
followed by the parties to the Agreement in the event of any breach of a
representation and warranty and the remedies therefore.
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Very
truly yours,
DLJ
Mortgage Capital, Inc.,
as
Purchaser
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Name:
Title:
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I-1