THIRD AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT MORGAN STANLEY MORTGAGE CAPITAL INC., Purchaser AMERICAN HOME MORTGAGE CORP., Seller Dated as of June 1, 2006 Conventional, Fixed and Adjustable Rate Residential Mortgage Loans
Exhibit
99.7b
EXECUTION
COPY
THIRD
AMENDED AND RESTATED MORTGAGE LOAN
PURCHASE
AND WARRANTIES AGREEMENT
__________________
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
Purchaser
AMERICAN
HOME MORTGAGE CORP.,
Seller
__________________
Dated
as
of June 1, 2006
Conventional,
Fixed
and
Adjustable Rate
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
DEFINITIONS
|
2
|
|
SECTION
2.
|
AGREEMENT
TO PURCHASE
|
15
|
|
SECTION
3.
|
MORTGAGE
SCHEDULES
|
15
|
|
SECTION
4.
|
PURCHASE
PRICE
|
15
|
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES
|
16
|
|
SECTION
6.
|
CONVEYANCE
FROM SELLER TO PURCHASER
|
16
|
|
Subsection
6.01
|
Conveyance
of Mortgage Loans.
|
16
|
|
Subsection
6.02
|
Books
and Records.
|
17
|
|
Subsection
6.03
|
Delivery
of Mortgage Loan Documents.
|
18
|
|
Subsection
6.04
|
Quality
Control Procedures.
|
19
|
|
Subsection
6.05
|
MERS
Designated Loans.
|
19
|
|
SECTION
7.
|
SERVICING
OF THE MORTGAGE LOANS
|
19
|
|
SECTION
8.
|
[RESERVED]
|
20
|
|
SECTION
9.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SELLER; REMEDIES FOR
BREACH
|
20
|
|
Subsection
9.01
|
Representations
and Warranties Regarding the Seller
|
20
|
|
Subsection
9.02
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
23
|
|
Subsection
9.03
|
Remedies
for Breach of Representations and Warranties.
|
38
|
|
Subsection
9.04
|
Repurchase
of Mortgage Loans with Early Payment Defaults.
|
40
|
|
Subsection
9.05
|
Premium
Recapture.
|
40
|
|
SECTION
10.
|
CLOSING
|
40
|
|
SECTION
11.
|
CLOSING
DOCUMENTS
|
41
|
|
SECTION
12.
|
COSTS
|
42
|
i
|
SECTION
13.
|
COOPERATION
OF SELLER WITH A RECONSTITUTION
|
42
|
|
SECTION
14.
|
[RESERVED]
|
44
|
|
SECTION
15.
|
THE
SELLER
|
44
|
|
Subsection
15.01
|
Additional
Indemnification by the Seller; Third Party Claims
|
44
|
|
Subsection
15.02
|
Merger
or Consolidation of the Seller
|
45
|
|
SECTION
16.
|
FINANCIAL
STATEMENTS
|
46
|
|
SECTION
17.
|
MANDATORY
DELIVERY; GRANT OF SECURITY INTEREST
|
46
|
|
SECTION
18.
|
NOTICES
|
47
|
|
SECTION
19.
|
SEVERABILITY
CLAUSE
|
48
|
|
SECTION
20.
|
COUNTERPARTS
|
48
|
|
SECTION
21.
|
[RESERVED]
|
48
|
|
SECTION
22.
|
INTENTION
OF THE PARTIES
|
48
|
|
SECTION
23.
|
SUCCESSORS
AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT
|
49
|
|
SECTION
24.
|
WAIVERS
|
49
|
|
SECTION
25.
|
EXHIBITS
|
49
|
|
SECTION
26.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
49
|
|
SECTION
27.
|
REPRODUCTION
OF DOCUMENTS
|
50
|
|
SECTION
28.
|
FURTHER
AGREEMENTS
|
50
|
|
SECTION
29.
|
RECORDATION
OF ASSIGNMENTS OF MORTGAGE
|
50
|
|
SECTION
30.
|
NO
SOLICITATION
|
50
|
|
SECTION
31.
|
WAIVER
OF TRIAL BY JURY
|
51
|
ii
|
SECTION
32.
|
GOVERNING
LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS
|
51
|
|
SECTION
33.
|
AMENDMENT
|
52
|
|
SECTION
34.
|
CONFIDENTIALITY
|
52
|
|
SECTION
35.
|
ENTIRE
AGREEMENT
|
52
|
|
SECTION
36.
|
COMPLIANCE
WITH REGULATION AB
|
52
|
|
Subsection
36.01
|
Intent
of the Parties; Reasonableness.
|
52
|
|
Subsection
36.02
|
Additional
Representations and Warranties of the Seller.
|
53
|
|
Subsection
36.03
|
Information
to Be Provided.
|
54
|
|
Subsection
36.04
|
Indemnification;
Remedies.
|
57
|
EXHIBITS
|
EXHIBIT
A-1
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
A-2
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
|
EXHIBIT
D
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
|
EXHIBIT
E
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
iii
THIRD
AMENDED AND RESTATED MORTGAGE LOAN
PURCHASE
AND WARRANTIES AGREEMENT
This
THIRD AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
(“Agreement”), dated as of June 1, 2006, by and between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc., a New York corporation (the “Purchaser”),
and American Home Mortgage Corp., a Delaware corporation (the
“Seller”).
W I T N E S S E T H:
WHEREAS,
the Purchaser and the Seller are parties to that certain Mortgage Loan Purchase
and Warranties Agreement, dated as of November 1, 2003, as amended by that
certain Amendment No. 1, dated as of November 30, 2004, as further
amended by Amendment No. 2, dated as of February 22, 2005, as further
amended and restated by that certain First Amended and Restated Mortgage Loan
Purchase and Warranties Agreement, dated as of June 1, 2005, and as further
amended and restated by that certain Second Amended and Restated Mortgage Loan
Purchase and Warranties Agreement, dated as of December 1, 2005 (together,
the “Original Purchase Agreement”), and the Seller desires to sell, from
time to time, to the Purchaser, and the Purchaser desires to purchase, from
time
to time, from the Seller, certain conventional and non-conforming Alt A
residential first-lien and second-lien mortgage loans (the “Mortgage
Loans”) on a servicing released basis as described herein, and which shall
be delivered in three separate pools of whole loans (each, a “Mortgage Loan
Package”) on various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
each of the Seller and the Purchaser intend, and have agreed that, each purchase
and sale of Mortgage Loans between the Seller and the Purchaser on or after
June 1, 2005, shall be governed by the terms and conditions of this
Agreement;
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien or second lien on a residential dwelling
located in the jurisdiction indicated on the Mortgage Loan Schedule for the
related Mortgage Loan Package;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing by the Interim Servicer and control of the Mortgage
Loans;
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer or a public or private, rated or unrated, mortgage
pass-through transaction; and
WHEREAS,
at the present time, the Purchaser and the Seller desire to amend the Original
Purchase Agreement (as defined below) to make certain
modifications.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. DEFINITIONS
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices which are in accordance with accepted mortgage
servicing practices of prudent mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located.
Act: The
National Housing Act, as amended from time to time.
Adjustable
Rate Mortgage Loan: An adjustable rate Mortgage Loan purchased
pursuant to this Agreement, the Mortgage Interest Rate of which is adjusted
from
time to time in accordance with the terms of the related Mortgage
Note.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agency
Transfer: A ▇▇▇▇▇▇ Mae Transfer or a ▇▇▇▇▇▇▇ Mac
Transfer.
Agreement: This
Third Amended and Restated Mortgage Loan Purchase and Warranties Agreement
including all exhibits, schedules, amendments and supplements
hereto.
ALTA: The
American Land Title Association or any successor thereto.
Appraised
Value: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by a
Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage
Loan, such value of the Mortgaged Property is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage
Loan at the time of origination of such Refinanced Mortgage Loan by a Qualified
Appraiser.
Assignment
and Conveyance Agreement: As defined in Subsection
6.01.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Purchaser.
-2-
Balloon
Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or
(b) for which Monthly Payments of principal (not including the payment due
on its stated maturity date) are based on an amortization schedule that would
be
insufficient to fully amortize the principal thereof by the stated maturity
date
of the Mortgage Loan.
Business
Day: Any day other than (i) a Saturday or Sunday,
(ii) a day on which banking and savings and loan institutions, in the State
of New York or the State in which the Interim Servicer’s servicing operations
are located or (iii) the state in which the Custodian’s operations are
located, are authorized or obligated by law or executive order to be
closed.
Closing
Date: The date or dates on which the Purchaser from time to time
shall purchase, and the Seller from time to time shall sell, the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
CLTV: As
of any date and as to any Second Lien Loan, the ratio, expressed as a
percentage, of the (a) sum of (i) the outstanding principal balance of
the Second Lien Loan and (ii) the outstanding principal balance as of such
date of any mortgage loan or mortgage loans that are senior or equal in priority
to the Second Lien Loan and which are secured by the same Mortgaged Property
to
(b) the Appraised Value as determined pursuant to the Underwriting
Guidelines of the related Mortgaged Property as of the origination of the Second
Lien Loan.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission: The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of condemnation or the right of
eminent domain, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor’s Glossary.
-3-
Custodial
Account: The separate trust account created and maintained
pursuant to Subsection 2.04 of the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
Custodial
Agreement: The agreement(s) governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at any given time, all of the individual Custodial Agreements shall
collectively be referred to as the “Custodial Agreement.”
Custodian: Deutsche
Bank Trust Company Americas, a national banking association, and its successors
in interest, or any successor to the Custodian under the Custodial Agreement
as
therein provided.
Cut-off
Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Deemed
Material and Adverse Representation: Each representation and
warrnaty identified as such in Section 9.02 of this
Agreement.
Deleted
Mortgage Loan: A Mortgage Loan that is repurchased or replaced or
to be replaced with a Qualified Substitute Mortgage Loan by the Seller in
accordance with the terms of this Agreement.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: The date specified in the Interim Servicing Agreement (with
respect to each Mortgage Loan, for an interim period, as specified
therein).
Due
Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
▇▇▇▇▇▇
▇▇▇: The Federal National Mortgage Association, or any successor
thereto.
▇▇▇▇▇▇
Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ Mae
Servicers’ Guide, as amended or restated from time to time.
▇▇▇▇▇▇
▇▇▇ Transfer: As defined in Section 13.
-4-
FHA: The
Federal Housing Administration, an agency within the United States Department
of
Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development
where appropriate under the FHA Regulations.
First
Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
Fixed
Rate Mortgage Loan: A fixed rate mortgage loan purchased pursuant
to this Agreement.
▇▇▇▇▇▇▇
Mac: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
▇▇▇▇▇▇▇
Mac Transfer: As defined in Section 13.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount
is
added to the Index in accordance with the terms of the related Mortgage Note
to
determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for
such Mortgage Loan.
High
Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 (“HOEPA”), (b) with an “annual percentage
rate” or total “points and fees” payable by the related Mortgagor (as each such
term is calculated under HOEPA) that exceed the thresholds set forth by HOEPA
and its implementing regulations, including 12 C.F.R. § 226.32(a)(1)(i) and
(ii), (c) classified as a “high cost home,” “threshold,” “covered,” (excluding
New Jersey “Covered Home Loans” as that term was defined in clause (1) of
the definition of that term in the New Jersey Home Ownership Security Act of
2002 that were originated between November 26, 2003 and July 7, 2004),
“high risk home,” “predatory” or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different terminology
under a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates, points
and/or fees) or (d) a Mortgage Loan categorized as High Cost pursuant to
Appendix E of Standard & Poor’s Glossary. For avoidance of doubt,
the parties agree that this definition shall apply to any law regardless of
whether such law is presently, or in the future becomes, the subject of judicial
review or litigation.
Home
Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of Standard & Poor’s Glossary.
HUD: The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes
of this Agreement, is also deemed to include subdivisions thereof such as the
FHA and Government National Mortgage Association.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
-5-
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest
Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim
Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Interim
Servicer: The servicer under the Interim Servicing Agreement, or
its successor in interest, or any successor to the Interim Servicer under the
Interim Servicing Agreement, as therein provided.
Interim
Servicing Agreement: The agreement to be entered into by the
Purchaser and the Interim Servicer, providing for the Interim Servicer to
service the Mortgage Loans as specified by the Interim Servicing
Agreement.
Investor: With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage Loan
by more than the amount per annum set forth on the related Mortgage Loan
Schedule.
Liquidation
Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee’s sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, other than amounts received following the
acquisition of REO Property, Insurance Proceeds and Condemnation
Proceeds.
Loan
Performance Information: As defined in Subsection
36.03.
Loan-to-Value
Ratio or LTV: With respect to any Mortgage Loan, as of any date
of determination, the ratio (expressed as a percentage) the numerator of which
is the outstanding principal balance of the Mortgage Loan as of the related
Cut-off Date (unless otherwise indicated), and the denominator of which is
the
lesser of (a) the Appraised Value of the Mortgaged Property at origination
and (b) if the Mortgage Loan was made to finance the acquisition of the
related Mortgaged Property, the purchase price of the Mortgaged
Property.
Manufactured
Home: A single family residential unit that is constructed in a
factory in sections in accordance with the Federal Manufactured Home
Construction and Safety Standards adopted on June 15, 1976, by the Department
of
Housing and Urban Development
-6-
(“HUD
Code”), as amended in 2000, which preempts state and local building
codes. Each unit is identified by the presence of a HUD
Plate/Compliance Certificate label. The sections are then transported
to the site and joined together and affixed to a pre-built permanent foundation
(which satisfies the manufacturer’s requirements and all state, county, and
local building codes and regulations). The manufactured home is built
on a non-removable, permanent frame chassis that supports the complete unit
of
walls, floors, and roof. The underneath part of the home may have
running gear (wheels, axles, and brakes) that enable it to be transported to
the
permanent site. The wheels and hitch are removed prior to anchoring
the unit to the permanent foundation. The manufactured home must be
classified as real estate and taxed accordingly. The permanent
foundation may be on land owned by the mortgager or may be on leased
land.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, and its
successors in interest.
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedures Manual and (b) the
Seller has designated or will designate the Purchaser as the Investor on the
MERS System.
MERS
Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly
Payment: The scheduled monthly payment of principal and interest
on a Mortgage Loan.
Mortgage: With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note, which creates a first lien, in
the
case of a First Lien Loan, or a second lien, in the case of a Second Lien Loan,
on the related Mortgaged Property. With respect to a Co-op Loan, the
Security Agreement.
Mortgage
File: With respect to any Mortgage Loan, the Mortgage Loan
Documents and the items listed in Exhibit A-2 hereto and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement.
Mortgage
Interest Rate: With respect to each Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
Mortgage
Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in the
related Mortgage Note.
-7-
Mortgage
Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan originally sold, assigned and transferred pursuant
to this Agreement and identified on the applicable Mortgage Loan Schedule,
which
Mortgage Loan includes without limitation, the Mortgage File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, Servicing Rights and all other rights, benefits, proceeds
and obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents: The documents required to be delivered to the
Custodian pursuant to Subsection 6.03 with respect to any Mortgage
Loan.
Mortgage
Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage
Loan Schedule: The schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan in the related Mortgage
Loan Package: (1) the Seller’s Mortgage Loan identifying number;
(2) the Mortgagor’s name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or
a
second home; (5) the number and type of residential units constituting the
Mortgaged Property (e.g. single family residence, a two- to
four-family dwelling, condominium, planned unit development or cooperative);
(6) the original months to maturity or the remaining months to maturity
from the related Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner but
based
on the actual amortization schedule; (7) the Loan-to-Value Ratio at
origination; (8) the Mortgage Interest Rate as of the related Cut-off Date;
(9) the date on which the first Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
the Due Date; (10) the stated maturity date; (11) the amount of the
Monthly Payment as of the related Cut-off Date; (12) the last payment date
on which a payment was actually applied to the outstanding principal balance;
(13) the
original principal amount of the Mortgage Loan; (14) the principal balance
of the Mortgage Loan as of the close of business on the related Cut-off Date,
after deduction of payments of principal due and collected on or before the
related Cut-off Date; (15) with respect to each Mortgage Loan with a second
lien behind it, the combined principal balance of the Mortgage Loan and the
applicable second lien loan, at origination, (16) a code indicating whether
there is a simultaneous second; (17) with respect to Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (18) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (19) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of
the
Mortgage Note; (20) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (21) the type of Mortgage Loan (i.e., Fixed
Rate, Adjustable Rate); (22) a code indicating the purpose of the loan
(i.e., purchase, rate/term refinance or cash-out refinance); (23) a code
indicating the documentation style (i.e. no documents, full, alternative,
reduced, no income/no asset, stated income, no ration, reduced or NIV);
(24) the loan credit classification (as described in the Underwriting
Guidelines); (25) whether such Mortgage Loan provides for a Prepayment
Penalty; (26) the Prepayment Penalty period of such Mortgage Loan, if
applicable; (27) a description of the Prepayment Penalty, if applicable,
including whether the applicable Prepayment Penalty provision is “hard” or
“soft”; (28) the Mortgage Interest Rate as of origination; (29) the
credit risk score (FICO score); (30) the date of
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origination;
(31) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment period; (32) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate adjustment percentage; (33) with respect
to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate floor;
(34) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (35) with respect to Adjustable Rate Mortgage Loans, the
Periodic Rate Cap as of the first Interest Rate Adjustment Date; (36) a
code indicating whether the Mortgage Loan is a Balloon Mortgage Loan;
(37) the original Monthly Payment due; (38) the Appraised Value;
(39) a code indicating whether the Mortgage Loan is covered by a PMI Policy
and, if so, identifying the PMI Policy provider; (40) in connection with a
condominium unit, a code indicating whether the condominium project where
such
unit is located is low-rise or high-rise; (39) a code indicating whether
the
Mortgaged Property is a leasehold estate; (41) a code indicating whether
the Mortgage Loan is a MERS Designated Mortgage Loan; (42) the MERS
Identification Number, if applicable, (43) a code indicating if a Mortgage
Loan is a Covered Loan, and (44) the product type of Mortgage Loan (i.e.,
Fixed Rate, Adjustable Rate, First Lien Loan or Second Lien Loan), and with
respect to each Second Lien Loan, the product type of the related first lien
loan. With respect to the Mortgage Loans in the aggregate, the
related Mortgage Loan Schedule shall set forth the following information,
as of
the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; (4) the weighted average maturity of the Mortgage Loans;
(5) the average principal balance of the Mortgage Loans; (6) the
applicable Cut-off Date; and (7) the applicable Closing
Date.
Mortgage
Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged
Property: With respect to a Mortgage Loan that is not a Co-op
Loan, the Mortgagor’s real property securing repayment of a related Mortgage
Note, consisting of an unsubordinated estate in fee simple or, with respect
to
real property located in jurisdictions in which the use of leasehold estates
for
residential properties is a widely-accepted practice, a leasehold estate, in
a
single parcel or multiple parcels of real property improved by a Residential
Dwelling. With respect to a Co-op Loan, the stock allocated to a
dwelling unit in the residential cooperative housing corporation that was
pledged to secure such Co-op Loan and the related Co-op Lease.
Mortgagee: The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor: The
obligor on a Mortgage Note, who is an owner of the Mortgaged Property and the
grantor or mortgagor named in the Mortgage and such grantor’s or mortgagor’s
successors in title to the Mortgaged Property.
Nonrecoverable
Advance: Any advance previously made or proposed to be made in
respect of a Mortgage Loan which, in the good faith judgment of the Interim
Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable from related Insurance Proceeds, Liquidation Proceeds
or
otherwise. The determination by the Interim Servicer that it has made
a Nonrecoverable Advance or that any proposed advance of principal
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and
interest, if made, would constitute a Nonrecoverable Advance, shall be evidenced
by an Officers’ Certificate delivered to the Purchaser.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or a President or a Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Seller, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Seller, reasonably acceptable to the Purchaser, provided that any Opinion
of
Counsel relating to (a) the qualification of any account required to be
maintained pursuant to the Interim Servicing Agreement as an Eligible Account
(as defined in the Interim Servicing Agreement), (b) qualification of the
Mortgage Loans in a REMIC or (c) compliance with the REMIC Provisions, must
be (unless otherwise stated in such Opinion of Counsel) an opinion of counsel
who (i) is in fact independent of the Seller and any servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect
financial interest in the Seller or any servicer of the Mortgage Loans or in
an
Affiliate of either and (iii) is not connected with the Seller or any
servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Original
Purchase Agreement: That certain Mortgage Loan Purchase and
Warranties Agreement, dated as of November 1, 2003, as amended by that
certain Amendment No. 1, dated as of November 30, 2004, as further amended
by that certain Amendment No. 2, dated as of February 22, 2005, as
further amended and restated by that certain First Amended and Restated Mortgage
Loan Purchase and Warranties Agreement, dated as of June 1, 2005, and as
further amended and restated by that certain Second Amended and Restated
Mortgage Loan Purchase and Warranties Agreement, dated as of December 1,
2005, each by and between the Purchaser and the Seller.
Periodic
Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan
is the rate set forth as such on the related Mortgage Loan
Schedule.
Periodic
Rate Floor: With respect to each Adjustable Rate Mortgage Loan,
the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Interest
Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy: A policy of primary mortgage guaranty insurance issued by
an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is
located.
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Preliminary
Mortgage Schedule: As defined in Section 3.
Prepayment
Penalty: With respect to each Mortgage Loan, the amount of any
premium or penalty required to be paid by the Mortgagor if the Mortgagor prepays
such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any Prepayment Penalty thereon, and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase
Price and Terms Agreement: Those certain agreements setting forth
the general terms and conditions of the transactions consummated herein and
identifying the Mortgage Loans to be purchased from time to time hereunder,
by
and between the Seller and the Purchaser.
Purchase
Price Percentage: The percentage of par (expressed as a decimal)
set forth in the related Purchase Price and Terms Agreement.
Purchaser: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc., a New York corporation, and its successors in
interest and assigns, or any successor to the Purchaser under this Agreement
as
herein provided.
Qualified
Appraiser: An appraiser, duly appointed by the Seller, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan made
on
the security thereof, and whose compensation was not affected by the approval
or
disapproval of the Mortgage Loan, and such appraiser and the appraisal made
by
such appraiser both satisfied the requirements of Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an
agreement between the Seller and such Person that contemplated that such Person
would underwrite mortgage loans from time to time, for sale to the Seller,
in
accordance with underwriting guidelines designated by the Seller (“Designated
Guidelines”) or guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as described
in
clause (i) above and were acquired by the Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time such
Mortgage Loans were originated, used by the Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller’s own account or (y)
the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller on a consistent basis for use by lenders
in originating mortgage loans to be purchased by the Seller; and (iv) the Seller
employed, at the time such Mortgage Loans were acquired by the Seller,
pre-purchase or
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post-purchase
quality assurance procedures (which may involve, among other things, review
of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller.
Qualified
Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date
of
such substitution, (i) have an unpaid principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of
a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the unpaid principal balance
of
the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the
Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than and not more than one percent (1%) greater
than the Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a
remaining term to maturity not greater than and not more than one year less
than
that of the Deleted Mortgage Loan; (iv) be of the same type as the Deleted
Mortgage Loan (i.e., fixed rate or adjustable rate with same Mortgage Interest
Rate Cap and Index); (v) comply with each representation and warranty
(respecting individual Mortgage Loans) set forth in Section 9;
(vi) be current in the payment of principal and interest; (vii) be
secured by a Mortgaged Property of the same type and occupancy status as secured
by the Deleted Mortgage Loan; and (viii) have payment terms that do not
vary in any material respect from those of the Deleted Mortgage
Loan.
Reconstitution: Any
Securitization Transaction or a Whole Loan Transfer.
Reconstitution
Agreements: The agreement or agreements entered into by the
Seller and the Purchaser and/or certain third parties on the Reconstitution
Date
or Dates with respect to any or all of the Mortgage Loans sold hereunder, in
connection with a Whole Loan Transfer, Agency Transfer or a Securitization
Transaction pursuant to Section 13, including, but not limited to, a
seller’s warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect
to a
Securitization Transaction.
Reconstitution
Date: As defined in Section 13.
Refinanced
Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
REMIC: A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
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REMIC
Provisions: Provisions of the federal income tax law relating to
a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1,
Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance
Date: The date specified in the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
REO
Property: A Mortgaged Property acquired by the Interim Servicer
through foreclosure or deed in lieu of foreclosure.
Repurchase
Price: As defined in the related Purchase Price and Terms
Agreement.
Residential
Dwelling: Any one of the following: (i) a
detached one-family dwelling, (ii) a detached two- to four-family dwelling,
(iii) a one-family dwelling unit in a condominium project or (iv) a
one-family dwelling in a planned unit development, none of which is a
co-operative, mobile or Manufactured Home.
RESPA: Real
Estate Settlement Procedures Act, as amended from time to time.
Second
Lien Loan: A Mortgage Loan secured by a second lien Mortgage on
the related Mortgaged Property.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or other
transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
Security
Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As
defined in the initial paragraph of the Agreement, together with its successors
in interest.
Seller
Information: As defined in Subsection 36.04(a).
Servicing
Fee: With respect to each Mortgage Loan, the servicing fee
specified in the applicable Purchase Price and Terms Agreement.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Interim Servicer consisting of originals of all documents in the Mortgage
File which are not
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delivered
to the Purchaser or the
Custodian and copies of
the
Mortgage Loan Documents
set forth in
Section 2 of the Custodial
Agreement.
Servicing
Rights: Any and all of the following: (a) any and
all rights to service the Mortgage Loans; (b) any payments to or monies
received by the Seller for servicing the Mortgage Loans; (c) any late fees,
penalties or similar payments with respect to the Mortgage Loans;
(d) all
agreements or documents creating, defining or evidencing any such
servicing
rights to the extent they relate to such servicing rights and all
rights of the
Seller thereunder; (e) Escrow Payments or other similar payments with
respect to the Mortgage Loans and any amounts actually collected
by the Seller
with respect thereto; (f) all accounts and other rights to payment related
to any of the property described in this paragraph; and (g) any and all
documents, files, records, servicing files, servicing documents,
servicing
records, data tapes, computer records, or other information pertaining
to the
Mortgage Loans or pertaining to the past, present or prospective
servicing of
the Mortgage Loans.
Sponsor: The
sponsor, as such term is defined in Regulation AB, with respect
to any
Securitization Transaction.
Standard
& Poor’s: Standard & Poor’s Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard
& Poor’s Glossary: The Standard & Poor’s LEVELS®
Glossary, as may be in effect from time to time.
Stated
Principal Balance: As to each Mortgage Loan on any date of
determination, (i) the principal balance of such Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal
due on or
before such date, to the extent actually received, minus
(ii) all amounts
previously distributed to the Purchaser with respect to the
related Mortgage
Loan representing payments or recoveries of principal on
such Mortgage
Loan.
Static
Pool Information: Static pool information as described in Item
1105(a)(1) (3) and 1105(c) of Regulation AB.
Successor
Servicer: Any servicer of one or more Mortgage Loans designated
by the Purchaser as being entitled to the benefits of the
indemnifications set
forth in Subsections 9.03 and 15.01.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Transfer
Date: In the event the Interim Servicer is terminated as
servicer
of a Mortgage Loan pursuant to the Interim Servicing Agreement,
the date on
which the Purchaser, or its designee, shall receive the
transfer of servicing
responsibilities and begin to perform the servicing of
such Mortgage Loans, and
the Interim Servicer shall cease all servicing responsibilities.
Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy of
which is attached as an exhibit to the related Assignment
and
Conveyance.
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Whole
Loan Transfer: Any sale or transfer of some or all of the Mortgage Loans,
other than a Securitization Transaction.
SECTION
2. AGREEMENT
TO PURCHASE
The
Seller agrees to sell from time to time, and the Purchaser
agrees to purchase
from time to time, Mortgage Loans having an aggregate actual
unpaid principal
balance on the related Cut-off Date in an amount as set forth
in the related
Purchase Price and Terms Agreement, or in such other amount
as agreed by the
Purchaser and the Seller as evidenced by the actual aggregate
unpaid principal
balance of the Mortgage Loans accepted by the Purchaser on
each Closing Date,
together with the related Mortgage Files and all rights and
obligations arising
under the documents contained therein.
SECTION
3. MORTGAGE
SCHEDULES
The
Seller from time to time shall provide the Purchaser with certain
information
constituting a preliminary listing of the Mortgage Loans to
be purchased on each
Closing Date in accordance with the related Purchase Price
and Terms Agreement
and this Agreement (each, a “Preliminary Mortgage
Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans
to be purchased on a particular Closing Date to the Purchaser
at least five (5)
Business Days prior to the related Closing Date. The related Mortgage
Loan Schedule shall be the related Preliminary Mortgage Schedule
with those
Mortgage Loans which have not been funded prior to the related
Closing Date
deleted.
SECTION
4. PURCHASE
PRICE
The
Purchase Price for each Mortgage Loan shall be calculated in
accordance with the
related Purchase Price and Terms Agreement (subject to adjustment
as provided
therein). The initial principal amount of the related Mortgage Loans
shall be the aggregate actual unpaid principal balance of the
Mortgage Loans, so
computed as of the related Cut-off Date. If so provided in the
related Purchase Price and Terms Agreement, portions of the
Mortgage Loans shall
be priced and paid for separately.
In
addition to the Purchase Price as described above, the Purchaser
shall pay to
the Seller, at closing, accrued interest on the current principal
amount of the
related Mortgage Loans as of the related Cut-off Date at the
weighted average
Mortgage Interest Rate of those Mortgage Loans. The Purchase Price
plus accrued interest as set forth in the preceding paragraph
shall be paid to
the Seller by wire transfer of immediately available funds
to an account
designated by the Seller in writing.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans net of applicable Servicing Fees (minus that
portion of any such
payment which is allocable to the period prior to the related
Cut-off
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Date). The
outstanding principal balance of each Mortgage Loan as of the
related Cut-off
Date is determined after application of payments of principal
due on or before
the related Cut-off Date, to the extent actually collected,
together with any
unscheduled principal prepayments collected prior to such Cut-off
Date;
provided, however, that payments of scheduled principal and
interest paid prior
to such Cut-off date, but to be applied on a Due Date beyond
the related Cut-off
Date shall not be applied to the principal balance as of the
related Cut-off
Date. Such prepaid amounts shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the
Custodial Account, which account is established for the benefit
of the Purchaser
for subsequent remittance by the Seller to the Purchaser.
SECTION
5. EXAMINATION
OF MORTGAGE FILES
At
least
ten (10) Business Days prior to the related Closing Date, the
Seller shall
either (a) deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan to be purchased,
the related
Mortgage File, including a copy of the Assignment of Mortgage,
pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available to the
Purchaser for examination at such other location as shall otherwise
be
acceptable to the Purchaser. Such examination of the Mortgage Files
may be made by the Purchaser or its designee at any reasonable
time. If the Purchaser makes such examination prior to the related
Closing Date and determines, in its sole discretion, that any
Mortgage Loans are
unacceptable to the Purchaser for any reason, such Mortgage
Loans shall be
deleted from the related Mortgage Loan Schedule, and such Deleted
Mortgage Loan
may be replaced by a Qualified Substitute Mortgage Loan (or
Loans) acceptable to
the Purchaser. The Purchaser may, at its option and without notice to
the Seller, purchase some or all of the Mortgage Loans without
conducting any
partial or complete examination. The fact that the Purchaser or its
designee has conducted or has failed to conduct any partial
or complete
examination of the Mortgage Files shall not affect the Purchaser’s (or any of
its successor’s) rights to demand repurchase, substitution or other relief
as
provided herein.
SECTION
6. CONVEYANCE
FROM SELLER TO PURCHASER
Subsection
6.01 Conveyance of Mortgage
Loans.
The
Seller, simultaneously with the delivery of the Mortgage Loan
Schedule with
respect to the related Mortgage Loan Package to be purchased
on each Closing
Date, shall execute and deliver an Assignment and Conveyance
Agreement in the
form attached hereto as Exhibit H (the “Assignment and Conveyance
Agreement”). The Seller shall ensure that the contents of each
Servicing File, required to be retained by or delivered to
the Interim Servicer
to service the Mortgage Loans pursuant to the Interim Servicing
Agreement and
thus not delivered to the Purchaser, or its designee, are and
shall be held in
trust by the Interim Servicer for the benefit of the Purchaser
as the owner
thereof. The Seller agrees that the Interim Servicer’s possession of
any portion of each such Mortgage File is at the will of the
Purchaser for the
sole purpose of facilitating servicing of the Mortgage Loans
pursuant to this
Agreement, and such retention and possession by the Interim
Servicer shall be in
a custodial capacity only. The ownership of each Mortgage Note, each
Mortgage and the contents of each Mortgage File is vested in
the Purchaser and
the ownership of all records and documents with respect to
the
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related
Mortgage Loan prepared by or which come into the possession
of the Interim
Servicer shall immediately vest in the Purchaser and shall
be retained and
maintained, in trust, by the Interim Servicer for so long as
the Interim
Servicer is servicing such Mortgage Loans. The Seller shall cause the
Servicing File retained by the Interim Servicer pursuant to
this Agreement to be
appropriately identified in the Seller’s computer system and/or books and
records, as appropriate, to clearly reflect the sale of the
related Mortgage
Loan to the Purchaser. The Seller shall cause the Interim Servicer to
release from its custody the contents of any Servicing File
retained by it only
in accordance with this Agreement or the Interim Servicing
Agreement, except
when such release is required in connection with a repurchase
of any such
Mortgage Loan pursuant to Subsection 9.03 or if required under applicable
law or court order.
Subsection
6.02 Books and Records.
Record
title to each Mortgage and the related Mortgage Note as of
the related Closing
Date shall be in the name of the Seller, an Affiliate of the
Seller, the
Purchaser or one or more designees of the Purchaser, as the
Purchaser shall
select; provided, however, that if a Mortgage has been recorded in the
name of MERS or its designee, the Seller is shown as the owner
of the related
Mortgage Loan on the records of MERS for purposes of the system
of recording
transfers of beneficial ownership of mortgages maintained by
MERS. Notwithstanding the foregoing, ownership of each Mortgage and
related Mortgage Note shall be vested solely in the Purchaser
or the appropriate
designee of the Purchaser, as the case may be. All rights arising out
of the Mortgage Loans including, but not limited to, all funds
received by the
Seller or the Interim Servicer after the related Cut-off Date
on or in
connection with a Mortgage Loan shall be vested in the Purchaser
or one or more
designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received
and held by the
Seller or the Interim Servicer in trust for the benefit of
the Purchaser or the
appropriate designee of the Purchaser, as the case may be,
as the owner of the
Mortgage Loans pursuant to the terms of this Agreement.
The
Seller shall be or shall cause the Interim Servicer to be responsible
for
maintaining, and shall maintain, a complete set of books and
records for each
Mortgage Loan which shall be marked clearly to reflect the
ownership of each
Mortgage Loan by the Purchaser. In particular, the Seller shall or
shall cause the Interim Servicer to maintain in its possession,
available for
inspection by the Purchaser, and shall deliver to the Purchaser
upon demand,
evidence of compliance with all federal, state and local laws,
rules and
regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac,
including but not
limited to documentation as to the method used in determining
the applicability
of the provisions of the National Flood Insurance Act of 1968,
as amended, to
the Mortgaged Property, documentation evidencing insurance
coverage and periodic
inspection reports, as required by the ▇▇▇▇▇▇ Mae Guides. To the
extent that original documents are not required for purposes
of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Seller
or the Interim Servicer may be in the form of microfilm or
microfiche so long as
the Seller or the Interim Servicer complies with the requirements
of the ▇▇▇▇▇▇
▇▇▇ Guides.
It
is the
express intention of the parties that the transactions contemplated
by this
Agreement be, and be construed as, a sale of the related Mortgage
Loans by the
Seller and not a pledge of such Mortgage Loans by the Seller
to the Purchaser to
secure a debt or other obligation
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of
the
Seller. Consequently, the sale of each Mortgage Loan shall be
reflected as a purchase on the Purchaser’s business records, tax returns and
financial statements, and as a sale of assets on the Seller’s business records,
tax returns and financial statements.
Subsection
6.03 Delivery of Mortgage Loan
Documents.
The
Seller shall deliver and release to the Custodian no later
than two (2) Business
Days prior to the related Closing Date those Mortgage Loan
Documents set forth
on Exhibit A-1 hereto as required by the Custodial Agreement with
respect
to each Mortgage Loan set forth on the related Mortgage Loan
Schedule.
The
Custodian shall certify its receipt of all such Mortgage Loan
Documents required
to be delivered pursuant to the Custodial Agreement for the
related Closing
Date, as evidenced by the Initial Certification of the Custodian
in the form
annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay
all fees and
expenses of the Custodian.
The
Seller shall or shall cause the Interim Servicer to forward
to the Custodian, or
to such other Person as the Purchaser shall designate in writing,
original
documents evidencing an assumption, modification, consolidation
or extension of
any Mortgage Loan entered into in accordance with this Agreement
within two
weeks of their execution, provided, however, that the Seller
shall provide the
Custodian, or such other Person as the Purchaser shall designate
in writing,
with a certified true copy of any such document submitted for
recordation within
two weeks of its execution, and shall promptly provide the
original of any
document submitted for recordation or a copy of such document
certified by the
appropriate public recording office to be a true and complete
copy of the
original within ninety days of its submission for recordation.
In
the
event any document required to be delivered to the Custodian
in the Custodial
Agreement, including an original or copy of any document submitted
for
recordation to the appropriate public recording office, is
not so delivered to
the Custodian, or to such other Person as the Purchaser shall
designate in
writing, within 90 days following the related Closing Date
(other than with
respect to the Assignments of Mortgage which shall be delivered
to the Custodian
in blank and recorded subsequently by the Purchaser or its
designee), and in the
event that the Seller does not cure such failure within 30
days of discovery or
receipt of written notification of such failure from the Purchaser,
the related
Mortgage Loan shall, upon the request of the Purchaser, be
repurchased by the
Seller at the price and in the manner specified in Subsection
9.03. The foregoing repurchase obligation shall not apply in
the
event that the Seller cannot deliver an original document submitted
for
recordation to the appropriate public recording office within
the specified
period due to a delay caused by the recording office in the
applicable
jurisdiction; provided that the Seller shall instead deliver
a recording receipt
of such recording office or, if such recording receipt is not
available, an
officer’s certificate of a servicing officer of the Seller, confirming
that such
documents have been accepted for recording; provided that,
upon request of the
Purchaser and delivery by the Purchaser to the Seller of a
schedule of the
related Mortgage Loans, the Seller shall reissue and deliver
to the Purchaser or
its designee said officer’s certificate.
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In
connection with any recordings required under applicable law,
the Seller shall
pay all initial recording fees, if any, for the assignments
of mortgage and any
other fees or costs in transferring all original documents
to the Custodian or,
upon written request of the Purchaser, to the Purchaser or
the Purchaser’s
designee. The Purchaser or the Purchaser’s designee shall be
responsible for recording the Assignments of Mortgage and shall
be reimbursed by
the Seller for the costs associated therewith pursuant to the
preceding
sentence.
Subsection
6.04 Quality Control
Procedures.
The
Seller shall, or shall cause the Interim Servicer to, have
an internal quality
control program that verifies, on a regular basis, the existence
and accuracy of
the legal documents, credit documents, property appraisals,
and underwriting
decisions. The program shall include evaluating and monitoring the
overall quality of the Seller’s loan production and the servicing activities of
the Interim Servicer. The program is to ensure that the Mortgage
Loans are originated in accordance with the Underwriting Guidelines;
guard
against dishonest, fraudulent, or negligent acts; and guard
against errors and
omissions by officers, employees, or other authorized persons.
Subsection
6.05 MERS Designated Loans.
With
respect to each MERS Designated Mortgage Loan, the Seller shall,
on or prior to
the related Closing Date, designate the Purchaser as the Investor
and the
Custodian as custodian, and no Person shall be listed as Interim
Funder on the
MERS System. In addition, on or prior to the related Closing Date,
Seller shall provide the Custodian and the Purchaser with a
MERS Report listing
the Purchaser as the Investor, the Custodian as custodian and
no Person as
Interim Funder with respect to each MERS Designated Mortgage
Loan.
SECTION
7. SERVICING
OF THE MORTGAGE LOANS
The
Mortgage Loans have been sold by the Seller to the Purchaser
on a servicing
released basis. Subject to and upon the terms and conditions of this
Agreement and the Interim Servicing Agreement (with respect
to each Mortgage
Loan, for an interim period, as specified therein), the Seller
hereby sells,
transfers, assigns, conveys and delivers to the Purchaser the
Servicing
Rights.
The
Purchaser shall retain the Interim Servicer as contract servicer
of the Mortgage
Loans for an interim period pursuant to and in accordance with
the terms and
conditions contained in the Interim Servicing Agreement (with
respect to each
Mortgage Loan, for an interim period, as specified therein). The
Seller shall cause the Interim Servicer to execute the Interim
Servicing
Agreement on the initial Closing Date.
The
Seller shall cause the Interim Servicer to transfer the servicing
of the
Mortgage Loans on each Transfer Date in accordance with the
terms of the Interim
Servicing Agreement.
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SECTION
8. [RESERVED]
SECTION
9. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SELLER; REMEDIES FOR BREACH
Subsection
9.01 Representations and Warranties Regarding
the Seller
The
Seller represents, warrants and covenants to the Purchaser
that as of the date
hereof and as of each Closing Date:
(a) Due
Organization and Authority. The Seller is a corporation duly
organized, validly existing, and in good standing under the
laws of its
jurisdiction of incorporation or formation and has all licenses
necessary to
carry on its business as now being conducted, except where
the failure to be so
licensed would not have a material adverse effect on the Seller,
the Mortgage
Loans, the Mortgaged Properties or the transactions contemplated
by this
Agreement, and is licensed, qualified and in good standing
in the states where
the Mortgaged Property is located if the laws of such state
require licensing or
qualification in order to conduct business of the type conducted
by the Seller,
and in any event the Seller is in compliance with the laws
of any such state to
the extent necessary to ensure the enforceability of the related
Mortgage
Loan. The Seller had the full corporate power and authority and legal
right to originate the Mortgage Loans that it originated and
to acquire the
Mortgage Loans that it acquired. The Seller has corporate power and
authority to hold each Mortgage Loan, to sell each Mortgage
Loan and to execute
and deliver this Agreement and to perform its obligations hereunder;
the
execution, delivery and performance of this Agreement (including
all instruments
of transfer to be delivered pursuant to this Agreement) by
the Seller and the
consummation of the transactions contemplated hereby have been
duly and validly
authorized; this Agreement has been duly executed and delivered
and constitutes
the valid, legal, binding and enforceable obligation of the
Seller, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the
enforcement of the rights of creditors and (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity
or at
law. All requisite corporate action has been taken by the Seller
to
make this Agreement valid and binding upon the Seller in accordance
with its
terms;
(b) No
Consent Required. No consent, approval, authorization or order is
required for the transactions contemplated by this Agreement
from any court,
governmental agency or body, or federal or state regulatory
authority having
jurisdiction over the Seller is required or, if required, such
consent,
approval, authorization or order has been or will, prior to
the related Closing
Date, be obtained;
(c) Ordinary
Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of
business of the
Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are
not subject to the
bulk transfer or any similar statutory provisions in effect
in any applicable
jurisdiction;
(d) No
Conflicts. Neither the execution and delivery of this Agreement,
the acquisition or origination of the Mortgage Loans by the
Seller, the sale of
the Mortgage Loans to
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the
Purchaser, the consummation of the transactions contemplated
hereby, nor the
fulfillment of or compliance with the terms and conditions
of this Agreement,
will conflict with or result in a breach of any of the terms,
conditions or
provisions of (i) the Seller’s charter or by-laws or (ii) any legal
restriction or any agreement or instrument to which the Seller
is now a party or
by which it is bound, or constitute a default or result in
an acceleration under
any of the foregoing except, in the case of clause (ii), any
defaults or
breaches that would not, either in any one instance or in the
aggregate, result
in a material adverse effect on the Seller, the Mortgage Loans,
the Mortgaged
Properties or the transactions contemplated by this Agreement,
or result in the
material violation of any law, rule, regulation, order, judgment
or decree to
which the Seller or its property is subject, or result in the
creation or
imposition of any lien, charge or encumbrance that would have
a material adverse
effect upon any of its properties pursuant to the terms of
any mortgage,
contract, deed of trust or other instrument, or impair the
ability of the
Purchaser to realize on the Mortgage Loans, impair the value
of the Mortgage
Loans, or impair the ability of the Purchaser to realize the
full amount of any
insurance benefits accruing pursuant to this Agreement;
(e) No
Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before
any court,
administrative agency or other tribunal asserting the invalidity
of this
Agreement, seeking to prevent the consummation of any of the
transactions
contemplated by this Agreement or which, either in any one
instance or in the
aggregate, may result in any material adverse change in the
business,
operations, financial condition, properties or assets of the
Seller, or in any
material impairment of the right or ability of the Seller to
carry on its
business substantially as now conducted, or in any material
liability on the
part of the Seller, or which would draw into question the validity
of this
Agreement or the Mortgage Loans or of any action taken or to
be taken in
connection with the obligations of the Seller contemplated
herein, or which
would be likely to impair materially the ability of the Seller
to perform under
the terms of this Agreement;
(f) Ability
to Perform; Solvency. The Seller does not believe, nor does it
have any reason or cause to believe, that it cannot perform
each and every
covenant contained in this Agreement. The Seller is solvent and the
sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) Seller’s
Origination. The Seller’s decision to originate any mortgage loan
or to deny any mortgage loan application is an independent
decision based upon
the Underwriting Guidelines, and is in no way made as a result
of Purchaser’s
decision to purchase, or not to purchase, or the price Purchaser
may offer to
pay for, any such mortgage loan, if originated;
(h) Anti-Money
Laundering Laws. The Seller has complied with all applicable
anti-money laundering laws, executive orders and regulations,
including without
limitation the USA Patriot Act of 2001 (collectively, the “Anti-Money
Laundering Laws”); the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering
Laws, has conducted
the requisite due diligence in connection with the origination
of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including
with respect to
the legitimacy of the applicable Mortgagor and the origin of
the assets used by
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the
said
Mortgagor to purchase the property in question, and maintains,
and will
maintain, sufficient information to identify the applicable
Mortgagor for
purposes of the Anti-Money Laundering Laws;
(i) Financial
Statements. The Seller has delivered to the Purchaser financial
statements as to its last three complete fiscal years and any
later quarter
ended more than 60 days prior to the execution of this Agreement. All
such financial statements (a) 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 Seller and its
subsidiaries and
(b) are true, correct and complete as of their respective dates
and have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except
as set forth in the
notes thereto. In addition, the Seller has delivered information as
to its loan gain and loss experience in respect of foreclosures
and its loan
delinquency experience for the immediately preceding three-year
period, in each
case with respect to mortgage loans owned by it and such mortgage
loans serviced
for others during such period, and all such information so
delivered shall be
true and correct in all material respects. There has been no change
in the business, operations, financial condition, properties
or assets of the
Seller since the date of the Seller’s financial statements that would have a
material adverse effect on its ability to perform its obligations
under this
Agreement.
(j) Selection
Process. The Mortgage Loans were selected from among the
outstanding one- to four-family mortgage loans in the Seller’s portfolio at the
related Closing Date as to which the representations and warranties
set forth in
Subsection 9.01 could be made and such selection was not made in a
manner
so as to affect adversely the interests of the Purchaser;
(k) Delivery
to the Custodian. The Mortgage Note, the Mortgage, the Assignment
of Mortgage and any other documents required to be delivered
with respect to
each Mortgage Loan pursuant to the Custodial Agreement shall
be delivered to the
Custodian all in compliance with the specific requirements
of the Custodial
Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit 2
hereto, except for such documents as will be delivered to the
Custodian;
(l) Mortgage
Loan Characteristics. The characteristics of the related Mortgage
Loan Package are as set forth on the description of the pool
characteristics for
the applicable Mortgage Loan Package delivered pursuant to
Section 11 on
the related Closing Date in the form attached as Exhibit B to each
related Assignment and Conveyance Agreement;
(m) No
Untrue Information. Neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document
furnished or to be
furnished pursuant to this Agreement or any Reconstitution
Agreement or in
connection with the transactions contemplated hereby (including
any
Securitization Transaction or Whole Loan Transfer) contains
or will contain any
untrue statement of fact or omits or will omit to state a fact
necessary to make
the statements contained herein or therein not misleading in
any material
respect;
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(n) No
Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission
or
compensation in connection with the sale of the Mortgage Loans;
(o) Sale
Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted
accounting principles
the transfer of the Mortgage Loans will be treated as a sale
on the books and
records of the Seller and the Seller has determined that the
disposition of the
Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for
tax and accounting purposes;
(p) Owner
of Record. The Seller is the owner of record of each Mortgage and
the indebtedness evidenced by each Mortgage Note, except for
any Assignments of
Mortgage which have been sent for recording, and upon recordation
the Seller
will be the owner of record of each Mortgage and the indebtedness
evidenced by
each Mortgage Note, and upon the sale of the Mortgage Loans
to the Purchaser,
the Seller will retain the Mortgage Files with respect thereto
in trust only for
the purpose of servicing and supervising the servicing of each
Mortgage
Loan;
(q) Reasonable
Purchase Price. The consideration received by the Seller upon the
sale of the Mortgage Loans under this Agreement constitutes
fair consideration
and reasonably equivalent value for the Mortgage Loans; and
(r) Privacy. The
Seller agrees and acknowledges that as to all nonpublic personal
information
received or obtained by it with respect to any
Mortgagor: (a) such information is and shall be held by Seller
in accordance with all applicable law, including but not limited
to the privacy
provisions of the ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Act; (b) to the extent such
information is included in the Mortgage Loan Schedule, such
information is in
connection with a proposed or actual secondary market sale
related to a
transaction of the Mortgagor for purposes of 16 C.F.R. §313.14(a)(3); and
(c) Seller is hereby prohibited from disclosing or using any such
information other than to carry out the express provisions
of this Agreement, or
as otherwise permitted by applicable law.
Subsection
9.02 Representations and Warranties Regarding
Individual Mortgage Loans. The
Seller hereby represents and warrants to the Purchaser that,
as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
(b) Payments
Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage
Note have
been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the
Mortgage Loan been
30 days or more delinquent at any time since the origination
of the Mortgage
Loan;
(c) No
Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments,
insurance
premiums, ground rents, leasehold payments, water, sewer and
municipal charges,
leasehold payments or ground
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rents
which previously became due and owing have been paid, or an
escrow of funds has
been established in an amount sufficient to pay for every such
item which
remains unpaid and which has been assessed but is not yet due
and
payable. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than
the Mortgagor,
directly or indirectly, for the payment of any amount required
under the
Mortgage Loan, except for interest accruing from the date of
the Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever
is greater, to
the day which precedes by one month the related Due Date of
the first
installment of principal and interest;
(d) Original
Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any
respect, from the
date of origination except by a written instrument which has
been recorded, if
necessary to protect the interests of the Purchaser, and which
has been
delivered to the Custodian or to such other Person as the Purchaser
shall
designate in writing, and the terms of which are reflected
in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration
or modification has been approved by the issuer of any related
PMI Policy and
the title insurer, if any, to the extent required by the policy,
and its terms
are reflected on the related Mortgage Loan Schedule, if
applicable. No instrument of waiver, alteration or modification has
been executed, and no Mortgagor has been released, in whole
or in part, except
in connection with an assumption agreement, approved by the
issuer of any
related PMI Policy and the title insurer, to the extent required
by the policy,
and which assumption agreement is part of the Mortgage Loan
File delivered to
the Custodian or to such other Person as the Purchaser shall
designate in
writing and the terms of which are reflected in the related
Mortgage Loan
Schedule;
(e) No
Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without
limitation the
defense of usury, nor will the operation of any of the terms
of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder,
render either the
Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to
any right of rescission, set-off, counterclaim or defense,
including without
limitation the defense of usury and no such right of rescission,
set-off,
counterclaim or defense has been asserted with respect thereto,
and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency
proceeding at the
time the Mortgage Loan was originated;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured
by a generally
acceptable insurer against loss by fire, hazards of extended
coverage and such
other hazards as are provided for in the Underwriting Guidelines. If
required by the National Flood Insurance Act of 1968, as amended,
each Mortgage
Loan is covered by a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration
as in effect which
policy conforms with the Underwriting Guidelines. All individual
insurance policies contain a standard mortgagee clause naming
the Seller and its
successors and assigns as mortgagee, and all premiums thereon
have been
paid. The Mortgage obligates the Mortgagor thereunder to maintain
the
hazard insurance policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to
obtain
and maintain such insurance at such Mortgagor’s cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state
law or regulation, the Mortgagor has been given an opportunity
to choose the
carrier of the required hazard insurance, provided the policy
is not a
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“master”
or “blanket” hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned
unit
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and
will be in full
force and effect and inure to the benefit of the Purchaser
upon the consummation
of the transactions contemplated by this Agreement. The insurance
policy provides for advance notice to the Seller or Servicer
if the policy is
canceled or not renewed, or if any other change that adversely
affects the
Seller’s interests is made; the certificate includes the types and
amounts of
coverage provided, describes any endorsements that are part
of the “master”
policy and would be acceptable pursuant to the ▇▇▇▇▇▇ Mae Guides. The
Seller has not engaged in, and has no knowledge of the Mortgagor,
any
Subservicer or any prior originator or subservicer’s having engaged in, any act
or omission which would impair the coverage of any such policy,
the benefits of
the endorsement provided for herein, or the validity and binding
effect of
either including, without limitation, no unlawful fee, commission,
kickback or
other unlawful compensation or value of any kind has been or
will be received,
retained or realized by any attorney, firm or other person
or entity, and no
such unlawful items have been received, retained or realized
by the
Seller;
(g) Compliance
with Applicable Laws. Any and all requirements of any federal,
state or local law applicable to the origination or servicing
of the Mortgage
Loans, including, without limitation, usury, truth-in-lending,
real estate
settlement procedures, consumer credit protection, predatory,
abusive and fair
lending, equal credit opportunity and disclosure laws applicable
to the Mortgage
Loans, including, without limitation, any provisions relating
to a Prepayment
Penalty, have been complied with in all material respects,
the consummation of
the transactions contemplated hereby will not involve the violation
of any such
laws or regulations in any material respect, and the Seller
shall maintain in
its possession, available for the Purchaser’s inspection, and shall deliver to
the Purchaser upon demand, evidence of compliance with all
such foregoing
requirements. This representation and warranty is a Deemed Material
and Adverse Representation;
(h) No
Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and
the Mortgaged
Property has not been released from the lien of the Mortgage,
in whole or in
part, nor has any instrument been executed that would effect
any such release,
cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor’s failure to
perform such action would cause the Mortgage Loan to be in
default, nor has the
Seller waived any default resulting from any action or inaction
by the
Mortgagor;
(i) Type
of Mortgaged Property. With respect to a Mortgage Loan that is
not a Co-op Loan and is not secured by an interest in a leasehold
estate, the
Mortgaged Property is a fee simple estate that consists of
a single parcel of
real property with a detached single family residence erected
thereon, or a two-
to four-family dwelling, or an individual residential condominium
unit in a
condominium project, or an individual unit in a planned unit
development (or
with respect to each Co-op Loan, an individual unit in a residential
cooperative
housing corporation); provided, however, that any condominium
unit, planned unit
development or residential cooperative housing corporation
shall conform with
the Underwriting Guidelines. No portion of the Mortgaged Property (or
Underlying Mortgaged Property, in the case of a Co-op Loan)
is used for
commercial purposes, and since the date of origination, no
portion of the
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Mortgaged
Property has been used for commercial purposes; provided, that
Mortgaged
Properties which contain a home office shall not be considered
as being used for
commercial purposes as long as the Mortgaged Property has not
been altered for
commercial purposes and is not storing any chemicals or raw
materials other than
those commonly used for homeowner repair, maintenance and/or
household
purposes. None of the Mortgaged Properties are (a) log homes,
mobile homes, geodesic domes or other unique property types,
or
(b) Manufactured Homes. The representation and warranty in (b)
above is a Deemed Material and Adverse Representation;
(j) Valid
First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First
Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged
Property,
including all buildings and improvements on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating
and air conditioning
systems located in or annexed to such buildings, and all additions,
alterations
and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(A) with
respect to a Second Lien Loan only, the lien of the first mortgage
on the
Mortgaged Property;
(B) the
lien of current real property taxes and assessments not yet
due and
payable;
(C) covenants,
conditions and restrictions, rights of way, easements and other
matters of the
public record as of the date of recording acceptable to prudent
mortgage lending
institutions generally and specifically referred to in the
lender’s title
insurance policy delivered to the originator of the Mortgage
Loan and (A)
specifically referred to or otherwise considered in the appraisal
made for the
originator of the Mortgage Loan or (B) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal;
and
(D) other
matters to which like properties are commonly subject which
do not materially
interfere with the benefits of the security intended to be
provided by the
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document
related to and
delivered in connection with the Mortgage Loan establishes
and creates a valid,
subsisting, enforceable and perfected first lien (with respect
to a First Lien
Loan) or second lien (with respect to a Second Lien Loan) and
first priority
(with respect to a First Lien Loan) or second priority (with
respect to a Second
Lien Loan) security interest on the property described therein
and the Seller
has full right to sell and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid,
subsisting and
enforceable first priority security interest on the related
cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related
residential cooperative housing corporation for unpaid assessments
representing
the Mortgagor’s pro rata share of the related residential
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cooperative
housing corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other
assessments to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially
interfere with the
benefits of the security interest intended to be provided by
the related
Security Agreement;
(k) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage and any
other agreement executed and delivered by a Mortgagor in connection
with a
Mortgage Loan are genuine, and each is the legal, valid and
binding obligation
of the maker thereof enforceable in accordance with its terms
(including,
without limitation, any provisions therein relating to Prepayment
Penalties). All parties to the Mortgage Note, the Mortgage and any
other such related agreement had legal capacity to enter into
the Mortgage Loan
and to execute and deliver the Mortgage Note, the Mortgage
and any such
agreement, and the Mortgage Note, the Mortgage and any other
such related
agreement have been duly and properly executed by other such
related
parties. No fraud, error, omission, misrepresentation, negligence or
similar occurrence with respect to a Mortgage Loan has taken
place on the part
of the Seller in connection with the origination of the Mortgage
Loan or in the
application of any insurance in relation to such Mortgage Loan. The
documents, instruments and agreements submitted for loan underwriting
were not
falsified and contain no untrue statement of material fact
or omit to state a
material fact required to be stated therein or necessary to
make the information
and statements therein not misleading. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect
to a Mortgage
Loan has taken place on the part of any Person, including without
limitation,
the Mortgagor, any appraiser, any builder or developer, or
any other party
involved in the origination of the Mortgage Loan or in the
application for any
insurance in relation to such Mortgage Loan. The Seller has reviewed
all of the documents constituting the Servicing File and has
made such inquiries
as it deems necessary to make and confirm the accuracy of the
representations
set forth herein;
(l) Full
Disbursement of Proceeds. The Mortgage Loan has been closed and
the proceeds of the Mortgage Loan have been fully disbursed
and there is no
requirement for future advances thereunder, and any and all
requirements as to
completion of any on-site or off site improvement and as to
disbursements of any
escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and
the recording of
the Mortgage were paid, and the Mortgagor is not entitled to
any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The
Seller is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale
of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage
Files or any part
thereof with respect thereto not delivered to the Custodian,
the Purchaser or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is
not assigned or pledged, and the Seller has good, indefeasible
and marketable
title thereto, and has full right to transfer and sell the
Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation
interest,
lien, pledge, charge, claim or security interest, and has full
right and
authority subject to no interest or participation of, or agreement
with, any
other party, to sell and assign each Mortgage Loan pursuant
to this Agreement
and following the sale of each Mortgage Loan, the Purchaser
will own such
Mortgage Loan free and
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clear
of
any encumbrance, equity, participation interest, lien, pledge,
charge, claim or
security interest. The Seller intends to relinquish all rights to
possess, control and monitor the Mortgage Loan, except as may
be required of the
Seller in its capacity as Servicer of such Mortgage Loan. After the
related Closing Date, the Seller will have no right to modify
or alter the terms
of the sale of the Mortgage Loan and the Seller will have no
obligation or right
to repurchase the Mortgage Loan or substitute another Mortgage
Loan, except as
provided in this Agreement;
(n) Doing
Business. All parties which have had any legal interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are (or,
during the period in which they held and disposed of such interest,
were)
(1) in compliance with any and all applicable licensing requirements
of the
laws of the state wherein the Mortgaged Property is located,
and any
qualification requirements of ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, as
applicable, and
(2) either (i) organized under the laws of such state, or
(ii) qualified to do business in such state, or (iii) federal savings
and loan association, a savings bank or a national bank having
a principal
office in such state, or (3) not doing business in such state;
(o) CLTV,
LTV and PMI Policy. No Mortgage Loan that is a Second Lien Loan
has a CLTV greater than 100%. No Mortgage Loan has an LTV greater
than 100%. Any Mortgage Loan that had at the time of origination an
LTV in excess of 80% is insured as to payment defaults by a
PMI
Policy. Any PMI Policy in effect covers the related Mortgage Loan for
the life of such Mortgage Loan. All provisions of such PMI Policy
have been and are being complied with, such policy is in full
force and effect,
and all premiums due thereunder have been paid. No action, inaction,
or event has occurred and no state of facts exists that has,
or will result in
the exclusion from, denial of, or defense to coverage. Any Mortgage
Loan subject to a PMI Policy obligates the Mortgagor thereunder
to maintain the
PMI Policy and to pay all premiums and charges in connection
therewith. The Mortgage Interest Rate for the Mortgage Loan as set
forth on the related Mortgage Loan Schedule is net of any such
insurance premium
if the related PMI Policy is lender-paid;
(p) Title
Insurance. With respect to a Mortgage Loan which is not a Co-op
Loan, the Mortgage Loan is covered by an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable
under the
Underwriting Guidelines and each such title insurance policy
is issued by a
title insurer acceptable under the Underwriting Guidelines
and qualified to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
the Seller, its successors and assigns, as to the first (with
respect to a First
Lien Loan) or second (with respect to a Second Lien Loan) priority
lien of the
Mortgage in the original principal amount of the Mortgage Loan,
subject only to
the exceptions contained in clauses (i), (ii), (iii) and (iv)
of paragraph (j)
of this Subsection 9.02, and in the case of Adjustable Rate Mortgage
Loans, against any loss by reason of the invalidity or unenforceability
of the
lien resulting from the provisions of the Mortgage providing
for adjustment to
the Mortgage Interest Rate and Monthly Payment. Where required by
state law or regulation, the Mortgagor has been given the opportunity
to choose
the carrier of the required mortgage title insurance. Additionally,
such lender’s title insurance policy affirmatively insures ingress and
egress,
and against encroachments by or upon the Mortgaged Property
or any interest
therein. The Seller, its successor and assigns, are the sole insured
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will
be in force and
effect upon the consummation of the transactions contemplated
by this
Agreement. No
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claims
have been made under such lender’s title insurance policy, and no prior holder
of the related Mortgage, including the Seller, has done, by
act or omission,
anything which would impair the coverage of such lender’s title insurance
policy, including without limitation, no unlawful fee, commission,
kickback or
other unlawful compensation or value of any kind has been or
will be received,
retained or realized by any attorney, firm or other person
or entity, and no
such unlawful items have been received, retained or realized
by the
Seller;
(q) No
Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event
which would permit
acceleration existing under the Mortgage or the Mortgage Note
and no event
which, with the passage of time or with notice and the expiration
of any grace
or cure period, would constitute a default, breach, violation
or event which
would permit acceleration, and neither the Seller nor any of
its affiliates nor
any of their respective predecessors, have waived any default,
breach, violation
or event which would permit acceleration;
(r) No
Mechanics’ Liens. There are no mechanics’ or similar liens or
claims which have been filed for work, labor or material (and
no rights are
outstanding that under law could give rise to such liens) affecting
the related
Mortgaged Property which are or may be liens prior to, or equal
or coordinate
with, the lien of the related Mortgage;
(s) Location
of Improvements; No Encroachments. All improvements which were
considered in determining the Appraised Value of the Mortgaged
Property lay
wholly within the boundaries and building restriction lines
of the Mortgaged
Property, and no improvements on adjoining properties encroach
upon the
Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning
law or
regulation;
(t) Origination;
Payment Terms. The Mortgage Loan was originated by a mortgagee
approved by the Secretary of Housing and Urban Development
pursuant to
Sections 203 and 211 of the National Housing Act, a savings and
loan association, a savings bank, a commercial bank, credit
union, insurance
company or other similar institution which is supervised and
examined by a
federal or state authority. Principal payments on the Mortgage Loan
commenced no more than seventy days after funds were disbursed
in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as, in the
case of an Adjustable Rate Mortgage Loan, the Lifetime Rate
Cap and the Periodic
Cap are as set forth on the related Mortgage Loan Schedule. The
Mortgage Note is payable in equal monthly installments of principal
(except for
Mortgage Loans that provide for a fixed period of interest-only
payments at the
beginning of their term) and interest, which installments of
interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change
due to the
adjustments to the Mortgage Interest Rate on each Interest
Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient
to amortize the
Mortgage Loan fully by the stated maturity date, over an original
term of not
more than fifteen years from commencement of amortization. With
respect to any Mortgage Loan that provides for a fixed period
of interest-only
payments at the beginning of its term, at the end of such interest-only
period,
the Monthly Payment will be recalculated so as to require Monthly
Payments
sufficient to amortize the Mortgage Loan fully by its stated
maturity
date. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgage Loan is payable on the first day of
each
month. The Mortgage Loan does not require a balloon
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payment
on its stated maturity date; and by its original terms or any
modification
thereof, does not provide for amortization beyond its scheduled
maturity
date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the
holder thereof
adequate for the realization against the Mortgaged Property
of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be
able to deliver good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which
would interfere with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage, subject to applicable federal and state
laws and
judicial precedent with respect to bankruptcy and right of
redemption or similar
law;
(v) Conformance
with Agency and Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines
(a copy of which is
attached to each related Assignment and Conveyance Agreement). The
Mortgage Loan is in conformity with the standards of ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae
under one of their respective home mortgage purchase programs
(except that the
principal balance of certain Mortgage Loans may have exceeded
the limits of
▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac). The Mortgage Note and Mortgage are on
forms acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇ and no representations
have been
made to a Mortgagor that are inconsistent with the mortgage
instruments
used;
(w) Occupancy
of the Mortgaged Property. The Mortgaged Property is lawfully
occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to
all occupied portions
of the Mortgaged Property and, with respect to the use and
occupancy of the
same, including but not limited to certificates of occupancy
and fire
underwriting certificates, have been made or obtained from
the appropriate
authorities. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgagor represented at the time of origination
of the Mortgage
Loan that the Mortgagor would occupy the Mortgaged Property
as the Mortgagor’s
primary residence;
(x) No
Additional Collateral. The Mortgage Note is not and has not been
secured by any collateral except the lien of the corresponding
Mortgage and the
security interest of any applicable security agreement or chattel
mortgage
referred to in clause (j) above;
(y) Deeds
of Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law
to serve as such,
has been properly designated and currently so serves and is
named in the
Mortgage, and no fees or expenses are or will become payable
by the Purchaser to
the trustee under the deed of trust, except in connection with
a trustee’s sale
after default by the Mortgagor;
(z) Acceptable
Investment. There are no circumstances or conditions with respect
to the Mortgage, the Mortgaged Property, the Mortgagor, the
Mortgage File or the
Mortgagor’s credit standing that can reasonably be expected to cause
private
institutional investors who invest in prime mortgage loans
similar to the
Mortgage Loan to regard the
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Mortgage
Loan as an unacceptable investment, cause the Mortgage Loan
to become
delinquent, or adversely affect the value or marketability
of the Mortgage Loan,
or cause the Mortgage Loan to prepay during any period materially
faster or
slower than the mortgage loans originated by the Seller generally. No
Mortgaged Property is located in a state, city, county or other
local
jurisdiction which the Purchaser has determined in its sole
good faith
discretion would cause the related Mortgage Loan to be ineligible
for whole loan
sale or securitization in a transaction consistent with the
prevailing sale and
securitization industry (including, without limitation, the
practice of the
rating agencies) with respect to substantially similar mortgage
loans;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to
be delivered under
the Custodial Agreement for each Mortgage Loan have been delivered
to the
Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit 2 attached hereto,
except for such documents the originals of which have been
delivered to the
Custodian;
(bb) Transfer
of Mortgage Loans. The Assignment of Mortgage (except with
respect to any Mortgage that has been recorded in the name
of MERS or its
designee) with respect to each Mortgage Loan is in recordable
form and is
acceptable for recording under the laws of the jurisdiction
in which the
Mortgaged Property is located;
(cc) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains
an enforceable
provision for the acceleration of the payment of the unpaid
principal balance of
the Mortgage Loan in the event that the Mortgaged Property
is sold or
transferred without the prior written consent of the Mortgagee
thereunder;
(dd) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage
Loan Documents
provide that after the related first Interest Rate Adjustment
Date, a related
Mortgage Loan may only be assumed if the party assuming such
Mortgage Loan meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant
to which Monthly Payments are paid or partially paid with funds
deposited in any
separate account established by the Seller, the Mortgagor,
or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor
nor does it
contain any other similar provisions which may constitute a
“buydown”
provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or
other contingent
interest feature;
(ff) Consolidation
of Future Advances. Any future advances made to the Mortgagor
prior to the applicable Cut-off Date have been consolidated
with the outstanding
principal amount secured by the Mortgage, and the secured principal
amount, as
consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to
a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority
by a title
insurance policy, an endorsement to the policy insuring the
Mortgagee’s
consolidated interest or by other title evidence acceptable
to ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
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(gg) Mortgaged
Property Undamaged; No Condemnation Proceedings. There is no
proceeding pending or threatened for the total or partial condemnation
of the
Mortgaged Property. The Mortgaged Property is undamaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado
or other casualty
so as to affect adversely the value of the Mortgaged Property
as security for
the Mortgage Loan or the use for which the premises were intended
and each
Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
(hh) Collection
Practices; Escrow Deposits; Interest Rate Adjustments. The
origination, servicing and collection practices used by the
Seller and the
Interim Servicer with respect to the Mortgage Loan have been
in all respects in
compliance with Accepted Servicing Practices, applicable laws
and regulations,
and have been in all respects legal and proper. With respect to
escrow deposits and Escrow Payments, all such payments are
in the possession of,
or under the control of, the Seller or the Interim Servicer
and there exist no
deficiencies in connection therewith for which customary arrangements
for
repayment thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law and
the provisions of
the related Mortgage Note and Mortgage. An escrow of funds is not
prohibited by applicable law and has been established in an
amount sufficient to
pay for every item that remains unpaid and has been assessed
but is not yet due
and payable. No escrow deposits or Escrow Payments or other charges
or payments due the Seller have been capitalized under the
Mortgage or the
Mortgage Note. All Mortgage Interest Rate adjustments have been made
in strict compliance with state and federal law and the terms
of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment
Date. If, pursuant to the terms of the Mortgage Note, another index
was selected for determining the Mortgage Interest Rate, the
same index was used
with respect to each Mortgage Note which required a new index
to be selected,
and such selection did not conflict with the terms of the related
Mortgage
Note. The Seller or the Interim Servicer executed and delivered any
and all notices required under applicable law and the terms
of the related
Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly
Payment adjustments. Any interest required to be paid pursuant to
state, federal and local law has been properly paid and credited;
(ii) Conversion
to Fixed Interest Rate. The Mortgage Loan does not contain a
provision whereby the Mortgagor is permitted to convert the
Mortgage Interest
Rate from an adjustable rate to a fixed rate;
(jj) Other
Insurance Policies; No Defense to Coverage. No action, inaction
or event has occurred and no state of facts exists or has existed
on or prior to
the Closing Date that has resulted or will result in the exclusion
from, denial
of, or defense to coverage under any applicable hazard insurance
policy, PMI
Policy or bankruptcy bond (including, without limitation, any
exclusions,
denials or defenses which would limit or reduce the availability
of the timely
payment of the full amount of the loss otherwise due thereunder
to the insured),
irrespective of the cause of such failure of coverage. The Seller has
caused or will cause to be performed any and all acts required
to preserve the
rights and remedies of the Purchaser in any insurance policies
applicable to the
Mortgage Loans including, without limitation, any necessary
notifications of
insurers, assignments of policies or interests therein, and
establishments of
coinsured, joint loss payee and mortgagee rights in favor of
the
Purchaser. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will
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be
received by the Seller or by any officer, director, or employee
of the Seller or
any designee of the Seller or any corporation in which the
Seller or any
officer, director, or employee had a financial interest at
the time of placement
of such insurance;
(kk) No
Violation of Environmental Laws. To the best of the Seller’s
knowledge, there is no pending action or proceeding directly
involving the
Mortgaged Property in which compliance with any local, state
or federal
environmental law, rule or regulation is an issue and the Mortgaged
property is
free from any and all toxic or hazardous substances; there
is no violation of
any environmental law, rule or regulation with respect to the
Mortgage Property;
and nothing further remains to be done to satisfy in full all
requirements of
each such law, rule or regulation constituting a prerequisite
to use and
enjoyment of said property;
(ll) Servicemembers
Civil Relief Act. The Mortgagor has not notified the Seller, and
the Seller has no knowledge of any relief requested or allowed
to the Mortgagor
under the Servicemembers Civil Relief Act, or other similar
state
statute;
(mm) Appraisal. The
Mortgage File contains an appraisal of the related Mortgaged
Property signed
prior to the approval of the Mortgage Loan application by a
Qualified Appraiser,
duly appointed by the Seller, who had no interest, direct or
indirect in the
Mortgaged Property or in any loan made on the security thereof,
and whose
compensation is not affected by the approval or disapproval
of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements
of ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac and Title XI of the Financial Institutions
Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as
in effect on the date the Mortgage Loan was originated;
(nn) Disclosure
Materials. The Mortgagor has executed a statement to the effect
that the Mortgagor has received all disclosure materials required
by, and the
Seller has complied with, all applicable law with respect to
the making of the
Mortgage Loans. The Seller shall maintain such statement in the
Mortgage File;
(oo) Construction
or Rehabilitation of Mortgaged Property. No Mortgage Loan was
made in connection with the construction (other than a “construct-to-perm” loan)
or rehabilitation of a Mortgaged Property or facilitating the
trade-in or
exchange of a Mortgaged Property;
(pp) Escrow
Analysis. If applicable, with respect to each Mortgage Loan, the
Seller has within the last twelve months (unless such Mortgage
was originated
within such twelve month period) analyzed the required Escrow
Payments for each
Mortgage and adjusted the amount of such payments so that,
assuming all required
payments are timely made, any deficiency will be eliminated
on or before the
first anniversary of such analysis, or any overage will be
refunded to the
Mortgagor, in accordance with RESPA and any other applicable
law;
(qq) Credit
Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information
furnished
by the Seller to the Purchaser, that Seller has full right
and authority and is
not precluded by law or contract from furnishing such information
to the
Purchaser and the Purchaser is not precluded from furnishing
the same to any
subsequent or prospective purchaser of such Mortgage. The Seller has,
or has
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caused
the Interim Servicer in its capacity as servicer, and shall
for each Mortgage
Loan, fully furnished, in accordance with the Fair Credit Reporting
Act and its
implementing regulations, accurate and complete information
(e.g. favorable and
unfavorable) on its borrower credit files to Equifax, Experian
and Trans Union
Credit Information Company (three of the credit repositories),
on a monthly
basis. This representation and warranty is a Deemed Material and
Adverse Representation;
(rr) Leaseholds. If
the Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than five years after the maturity date of the Mortgage Loan;
(3) the
ground lease does not provide for termination of the lease
in the event of
lessee’s default without the Mortgagee being entitled to receive written
notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground
lease protects the Mortgagee’s interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in
the jurisdiction in
which the Mortgaged Property is located;
(ss) Prepayment
Penalty. Each Mortgage Loan that is subject to a Prepayment
Penalty as provided in the related Mortgage Note is identified
on the related
Mortgage Loan Schedule. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is
enforceable, subject
to applicable bankruptcy laws, and will be enforced by the
Seller during the
period the Seller is acting as Interim Servicer for the benefit
of the
Purchaser, and each Prepayment Penalty complied in all material
respects with
applicable federal, state and local law. Each such Prepayment Penalty
is in an amount not more than the maximum amount permitted
under applicable law
and no such Prepayment Penalty may provide for a term in excess
of five (5)
years with respect to Mortgage Loans originated prior to October
1,
2002. With respect to Mortgage Loans originated on or after October
1, 2002, the duration of the Prepayment Penalty period shall
not exceed three
(3) years from the date of the Mortgage Note unless the Mortgage
Loan was
modified to reduce the Prepayment Penalty period to no more
than three (3) years
from the date of the related Mortgage Note and the Mortgagor
was notified in
writing of such reduction in Prepayment Penalty period. With respect
to any Mortgage Loan that contains a provision permitting imposition
of a
Prepayment Penalty upon a prepayment prior to maturity: (i)
the Mortgage Loan
provides some benefit to the Mortgagor (e.g., a rate or fee reduction)
in exchange for accepting such Prepayment Penalty, (ii) prior
to the Mortgage
Loan’s origination, the Mortgagor was offered the option of obtaining
a mortgage
loan that did not require payment of such a penalty and (iii)
the Prepayment
Penalty was adequately disclosed to the Mortgagor in the mortgage
loan documents
pursuant to applicable state, local and federal law. This
representation and warranty is a Deemed Material and Adverse
Representation;
(tt) Predatory
Lending Regulations. No Mortgage Loan is a High Cost Loan or
Covered Loan, as applicable. No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 and no Mortgage
Loan is in violation
of any comparable state or local law. This representation and
warranty is a Deemed Material and Adverse Representation;
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(uu) Single-premium
credit life insurance policy. No Mortgagor was required to
purchase any single premium credit insurance policy (e.g.,
life, mortgage,
disability, property, accident, unemployment or health insurance
product) or
debt cancellation agreement as a condition of obtaining the
extension of
credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property,
accident,
unemployment, mortgage or health insurance) in connection with
the origination
of the Mortgage Loan. No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition
to closing, such
Mortgage Loan. This representation and warranty is a Deemed Material
and Adverse Representation;
(vv) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(ww) Tax
Service Contract. Each Mortgage Loan is either (x) a First
Lien Loan covered by a paid in full, life of loan, tax service
contract issued
by First American Real Estate Tax Service, and such contract
is transferable, or
(y) a Second Lien Loan subordinate to a First Lien Loan which,
to the best
of Seller’s knowledge, is covered by a paid in full, life of loan, tax
service
contract issued by First American Real Estate Tax Service,
and such contract is
transferable. On the related Closing Date, the Seller shall remit to
the Purchaser a transfer fee of two dollars ($2.00) for each
Mortgage Loan
covered by such a tax service contract. If such a tax service
contract with First American Real Estate Tax Service is not
in place then a
placement fee of seventy two dollars ($72.00) will apply for
each such Mortgage
Loan;
(xx) Origination. No
predatory or deceptive lending practices, including, without
limitation, the
extension of credit without regard to the ability of the Mortgagor
to repay and
the extension of credit which has no apparent benefit to the
Mortgagor, were
employed in the origination of the Mortgage Loan;
(yy) Recordation. Each
original Mortgage was recorded and all subsequent assignments
of the original
Mortgage (other than the assignment to the Purchaser) have
been recorded in the
appropriate jurisdictions wherein such recordation is necessary
to perfect the
lien thereof as against creditors of the Seller, or is in the
process of being
recorded;
(zz) Co-op
Loans. With respect to a Mortgage Loan that is a Co-op Loan, the
stock that is pledged as security for the Mortgage Loan is
held by a person as a
tenant-stockholder (as defined in Section 216 of the Code)
in a cooperative
housing corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor
Bankruptcy. The Mortgagor has not filed a bankruptcy petition, is
not the subject of an involuntary bankruptcy proceeding and
has not consented to
the filing of a bankruptcy proceeding against it or to a receiver
being
appointed in respect of the related Mortgaged Property;
(bbb) No
Prior Offer. The Mortgage Loan has not previously been offered
for sale;
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(ccc) Georgia
Fair Lending Act. There is no Mortgage Loan that was originated
on or after October 1, 2002 and before March 7, 2003 which
is secured by
property located in the State of Georgia. There is no Mortgage Loan
that was originated on or after March 7, 2003 that is a “high cost home loan” as
defined under the Georgia Fair Lending Act. This representation and
warranty is a Deemed Material and Adverse Representation;
(ddd) No
Arbitration. No Mortgagor with respect to any Mortgage Loan
originated on or after August 1, 2004 agreed to submit to arbitration
to resolve
any dispute arising out of or relating in any way to the mortgage
loan
transaction. This representation and warranty is a Deemed Material
and Adverse Representation;
(eee) Flood
Service Contract. Each Mortgage Loan is covered by a paid in
full, life of loan, flood service contract issued by either
First American Flood
Data Services or Fidelity, and such contract is transferable. If no
such flood service contract is in place, or if such flood service
contract is
issued by an insurer other than First American Flood Data Services
or Fidelity,
then on the related Closing Date, the Seller shall remit to
the Purchaser a
placement fee of ten dollars ($10.00) for each such Mortgage
Loan;
(fff) Negative
Amortization. No Mortgage Loan is subject to negative
amortization;
(ggg) Origination
Practices/No Steering. The Mortgagor was not encouraged or
required to select a mortgage loan product offered by the Mortgage
Loan’s
originator which is a higher cost product designed for less
creditworthy
borrowers, unless at the time of the Mortgage Loan’s origination, such Mortgagor
did not qualify taking into account such facts as, without
limitation, the
Mortgage Loan’s requirements and the Mortgagor’s credit history, income, assets
and liabilities and debt-to-income ratios for a lower-cost
credit product then
offered by the Mortgage Loan’s originator or any affiliate of the Mortgage
Loan’s originator. If, at the time of loan application, the Mortgagor
may have qualified for a lower-cost credit product then offered
by any mortgage
lending affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s
originator referred the Mortgagor’s application to such affiliate for
underwriting consideration. For a Mortgagor who seeks financing
through a Mortgage Loan originator’s higher-priced subprime lending channel, the
Mortgagor was directed towards or offered the Mortgage Loan
originator’s
standard mortgage line if the Mortgagor was able to qualify
for one of the
standard products. This representation and warranty is a Deemed
Material and Adverse Representation;
(hhh) Underwriting
Methodology. The methodology used in underwriting the extension
of credit for each Mortgage Loan does not rely solely on the
extent of the
Mortgagor’s equity in the collateral as the principal determining factor
in
approving such extension of credit. The methodology employed
objective criteria such as the Mortgagor’s income, assets and liabilities, to
the proposed mortgage payment and, based on such methodology,
the Mortgage
Loan’s originator made a reasonable determination that at the time
of
origination the Mortgagor had the ability to make timely payments
on the
Mortgage Loan. Such underwriting methodology confirmed that at the
time of origination (application/approval) the Mortgagor had
a reasonable
ability to make timely payments on the Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse
Representation;
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(iii)
Points and Fees. No Mortgagor was charged “points and fees”
(whether or not financed) in an amount greater than
(i) $1,000, or
(ii) 5% of the principal amount of such Mortgage Loan, whichever
is
greater. For purposes of this representation, such 5% limitation is
calculated in accordance with ▇▇▇▇▇▇ Mae’s anti-predatory lending requirements
as set forth in the ▇▇▇▇▇▇ ▇▇▇ Guides and “points and fees”
(x) include origination, underwriting, broker and finder fees
and
charges that the mortgagee imposed as a condition of making
the Mortgage Loan,
whether they are paid to the mortgagee or a third party; and
(y) exclude bona fide discount points, fees paid for actual services
rendered in connection with the origination of the Mortgage
Loan (such as
attorneys’ fees, notaries fees and fees paid for property appraisals,
credit
reports, surveys, title examinations and extracts, flood and
tax certifications,
and home inspections), the cost of mortgage insurance or credit-risk
price
adjustments, the costs of title, hazard, and flood insurance
policies, state and
local transfer taxes or fees, escrow deposits for the future
payment of taxes
and insurance premiums, and other miscellaneous fees and charges
which
miscellaneous fees and charges, in total, do not exceed 0.25%
of the principal
amount of such Mortgage Loan. This representation and warranty is a
Deemed Material and Adverse Representation;
(jjj)
Fees Charges. All points, fees and charges (including
finance charges) and whether or not financed, assessed, collected
or to be
collected in connection with the origination and servicing
of each Mortgage Loan
have been disclosed in writing to the Mortgagor in accordance
with applicable
state and federal law and regulation. This representation and
warranty is a Deemed Material and Adverse Representation; and
(kkk)
Second Lien Loans. With respect to each Second Lien
Loan:
(i) No
Negative Amortization of Related First Lien Loan. The related
first lien loan does not permit negative amortization.
(ii) Request
for Notice; No Consent Required. Where required or customary in
the jurisdiction in which the Mortgaged Property is located,
the original lender
has filed for record a request for notice of any action by
the related senior
lienholder, and the Seller has notified the senior lienholder
in writing of the
existence of the Second Lien Loan and requested notification
of any action to be
taken against the Mortgagor by the senior lienholder. Either (a) no
consent for the Second Lien Loan is required by the holder
of the related first
lien or (b) such consent has been obtained and is contained
in the related
mortgage file;
(iii) No
Default Under First Lien. To the best of Seller’s knowledge, the
related First Lien Loan related thereto is in full force and
effect, and there
is no default, breach, violation or event which would permit
acceleration
existing under such first Mortgage or Mortgage Note, and no
event which, with
the passage of time or with notice and the expiration of any
grace or cure
period, would constitute a default, breach, violation or event
which would
permit acceleration thereunder;
(iv) Right
to Cure First Lien. The related first lien Mortgage contains a
provision which provides for giving notice of default or breach
to the mortgagee
under the Mortgage Loan and allows such mortgagee to cure any
default under the
related first lien Mortgage; and
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(v) Principal
Residence. The related Mortgaged Property is the Mortgagor’s
principal residence. This representation and warranty is a Deemed
Material and Adverse Representation.
Subsection
9.03 Remedies for Breach of Representations and
Warranties.
It
is
understood and agreed that the representations and warranties
set forth in
Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the
Purchaser,
notwithstanding any restrictive or qualified endorsement on
any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine
any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties,
the party
discovering such breach shall give prompt written notice to
the other relevant
parties.
Within
sixty (60) days after the earlier of either discovery by or
notice to the Seller
of any such breach of a representation or warranty, which materially
and
adversely affects the value of the Mortgage Loans or the interest
of the
Purchaser therein (or which materially and adversely affects
the value of the
applicable Mortgage Loan or the interest of the Purchaser therein
in the case of
a representation and warranty relating to a particular Mortgage
Loan), the
Seller shall use its best efforts promptly to cure such breach
in all material
respects and, if such breach cannot be cured by the Seller
by the earlier of
sixty (60) days from (i) the Seller’s discovery of such breach or
(ii) the Seller’s actual receipt of notice of such breach, the Seller
shall, at the Purchaser’s option, repurchase such affected Mortgage Loan at the
Repurchase Price. Notwithstanding the above sentence, within 60 days
of the earlier of either discovery by, or notice to, the Seller
of any breach of
the representation or warranty set forth in clause (vv) of
Subsection
9.02, the Seller shall repurchase such Mortgage Loan at the
Repurchase Price
and (ii) any breach of a Deemed Material and Adverse Representation
shall
automatically be deemed to materially and adversely affect
the value of the
Mortgage Loans or the interest of the Purchaser therein. In the event
that a breach shall involve any representation or warranty
set forth in
Subsection 9.01, and such breach cannot be cured within 60 days of
the
earlier of either discovery by or notice to the Seller of such
breach, all of
the Mortgage Loans materially and adversely affected by such
breach shall, at
the Purchaser’s option, be repurchased by the Seller at the Repurchase
Price. However, if the breach shall involve a representation or
warranty set forth in Subsection 9.02 (except as provided in the second
sentence of this paragraph with respect to certain breaches
for which no
substitution is permitted) and the Seller discovers or receives
notice of any
such breach within 120 days of the related Closing Date, the
Seller shall, at
the Purchaser’s option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as
provided above,
remove such Mortgage Loan (a “Deleted Mortgage Loan”) and substitute in
its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such
substitution shall be effected not later than 120 days after
the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it
shall repurchase the deficient Mortgage Loan at the Repurchase
Price. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Subsection 9.03 shall be accomplished by
either (a) if the Interim Servicing Agreement has been entered
into and is in
effect, deposit in the Custodial Account of the amount of the
Repurchase Price
for distribution to the Purchaser on the next scheduled Remittance
Date, after
deducting therefrom any amount received in respect of such
repurchased Mortgage
Loan or Loans and being held in the Custodial Account for future
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distribution
or (b) if the Interim Servicing Agreement has not been entered
into or is no
longer in effect, by direct remittance of the Repurchase Price
to the Purchaser
or its designee in accordance with the Purchaser’s instructions.
At
the
time of repurchase or substitution, the Purchaser and the Seller
shall arrange
for the reassignment of the Deleted Mortgage Loan to the Seller
and the delivery
to the Seller of any documents held by the Custodian relating
to the Deleted
Mortgage Loan. In the event of a repurchase or substitution, the
Seller shall, simultaneously with such reassignment, give written
notice to the
Purchaser that such repurchase or substitution has taken place,
amend the
Mortgage Loan Schedule to reflect the withdrawal of the Deleted
Mortgage Loan
from this Agreement, and, in the case of substitution, identify
a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan
Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to
this
Agreement. In connection with any such substitution, the Seller shall
be deemed to have made as to such Qualified Substitute Mortgage
Loan the
representations and warranties set forth in this Agreement
except that all such
representations and warranties set forth in this Agreement
shall be deemed made
as of the date of such substitution. The Seller shall effect such
substitution by delivering to the Custodian or to such other
party as the
Purchaser may designate in writing for such Qualified Substitute
Mortgage Loan
the documents required by Subsection 6.03 and the Custodial Agreement,
with the Mortgage Note endorsed as required by Subsection 6.03 and the
Custodial Agreement. No substitution will be made in any calendar
month after the Determination Date for such month. The Seller shall
cause the Interim Servicer to remit directly to the Purchaser,
or its designee
in accordance with the Purchaser’s instructions the Monthly Payment less the
Servicing Fee due, if any, on such Qualified Substitute Mortgage
Loan or Loans
in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage
Loans in the month of
substitution shall be retained by the Seller. For the month of
substitution, distributions to the Purchaser shall include
the Monthly Payment
due on any Deleted Mortgage Loan in the month of substitution,
and the Seller
shall thereafter be entitled to retain all amounts subsequently
received by the
Seller in respect of such Deleted Mortgage Loan.
The
Seller shall give written notice to the Purchaser that such
substitution has
taken place and shall amend the related Mortgage Loan Schedule
to reflect the
removal of such Deleted Mortgage Loan from the terms of this
Agreement and the
substitution of the Qualified Substitute Mortgage Loan. Upon such
substitution, each Qualified Substitute Mortgage Loan shall
be subject to the
terms of this Agreement in all respects, and the Seller shall
be deemed to have
made with respect to such Qualified Substitute Mortgage Loan,
as of the date of
substitution, the covenants, representations and warranties
set forth in
Subsections 9.01 and 9.02.
For
any
month in which the Seller substitutes one or more Qualified
Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall
determine the
amount (if any) by which the aggregate principal balance of
all such Qualified
Substitute Mortgage Loans as of the date of substitution is
less than the
aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after
application of scheduled principal payments due in the month
of
substitution). The amount of such shortfall plus one month’s interest
thereon at the applicable Mortgage Interest Rate minus the
related Servicing Fee
shall be remitted by the Seller from its own funds directly
to the Purchaser or
its designee in accordance with the Purchaser’s instructions within three (3)
Business Days of such substitution.
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In
addition to such repurchase or substitution obligation, the
Seller shall
indemnify the Purchaser and its present and former directors,
officers,
employees and agents and any Successor Servicer and its present
and former
directors, officers, employees and agents and hold such parties
harmless against
any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and
related costs, judgments, and other costs and expenses resulting
from any claim,
demand, defense or assertion based on or grounded upon, or
resulting from, a
breach of the Seller representations and warranties contained
in this Agreement
or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection 9.03 to cure,
repurchase or substitute for a defective Mortgage Loan and
to indemnify the
Purchaser and Successor Servicer as provided in this Subsection 9.03
and in Subsection 15.01 constitute the sole remedies of the Purchaser and
Successor Servicer respecting a breach of the foregoing representations
and
warranties. For purposes of this paragraph “Purchaser” shall mean the
Person then acting as the Purchaser under this Agreement and
any and all Persons
who previously were “Purchasers” under this Agreement and “Successor Servicer”
shall mean any Person designated as the Successor Servicer
pursuant to this
Agreement and any and all Persons who previously were “Successor Servicers”
pursuant to this Agreement.
Any
cause
of action against the Seller relating to or arising out of
the breach of any
representations and warranties made in Subsections 9.01 and
9.02 shall accrue as to any Mortgage Loan upon
(i) 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, substitute a
Qualified Substitute Mortgage Loan, or repurchase such Mortgage
Loan as
specified above and (iii) demand upon the Seller by the Purchaser for
compliance with this Agreement.
Subsection
9.04 Repurchase of Mortgage Loans with Early
Payment Defaults.
If
the related Mortgagor is delinquent with respect to any of
the Mortgage Loan’s
first three (3) Monthly Payments either (i) after origination of such
Mortgage Loan, or (ii) after the related Closing Date, the
Seller, at the
Purchaser’s option, shall repurchase such Mortgage Loan from the Purchaser
at a
price equal to the Repurchase Price. The Seller shall repurchase such
delinquent Mortgage Loan within thirty (30) days of such request.
Subsection
9.05 Premium Recapture.
With
respect to any Mortgage Loan without Prepayment Penalties that
prepays in full
during the first three (3) months following the related Closing
Date, and with
respect to any Mortgage Loan that is repurchased pursuant to
Subsection 9.04,
the Seller shall pay the Purchaser, within three (3) Business
Days after such
prepayment in full or repurchase, an amount equal to the excess
of the Purchase
Price Percentage for such Mortgage Loan over par, multiplied
by the outstanding
principal balance of such Mortgage Loan as of the related Cut-off
Date.
SECTION
10. CLOSING
The
closing for the purchase and sale of each Mortgage Loan Package
shall take place
on the related Closing Date. At the Purchaser’s option, each Closing
shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place
as the parties shall
agree.
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The
closing for the Mortgage Loans to be purchased on each Closing
Date shall be
subject to each of the following conditions:
(i) at
least two Business Days prior to the related Closing Date,
the Seller shall
deliver to the Purchaser a magnetic diskette, or transmit by
modem, a listing on
a loan-level basis of the necessary information to compute
the Purchase Price of
the Mortgage Loans delivered on such Closing Date (including
accrued interest),
and prepare a Mortgage Loan Schedule;
(ii) all
of the representations and warranties of the Seller under this
Agreement and of
the Interim Servicer under the Interim Servicing Agreement
(with respect to each
Mortgage Loan for an interim period, as specified therein)
shall be true and
correct as of the related Closing Date and no event shall have
occurred which,
with notice or the passage of time, would constitute a default
under this
Agreement or an Event of Default under the Interim Servicing
Agreement;
(iii) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents as specified in Section 11 of this
Agreement, in such forms as are agreed upon and acceptable
to the Purchaser,
duly executed by all signatories other than the Purchaser as
required pursuant
to the terms hereof;
(iv) the
Seller shall have delivered and released to the Custodian all
documents required
pursuant to the Custodial Agreement; and
(v) all
other terms and conditions of this Agreement and the related
Purchase Price and
Terms Agreement shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the
Seller on the
related Closing Date the Purchase Price, plus accrued interest
pursuant to
Section 4 of this Agreement, by wire transfer of immediately
available
funds to the account designated by the Seller.
SECTION
11. CLOSING
DOCUMENTS
The
Closing Documents for the Mortgage Loans to be purchased on
each Closing Date
shall consist of fully executed originals of the following
documents:
1. this
Agreement (to be executed and delivered only for the initial
Closing
Date);
2. with
respect to the initial Closing Date, the Custodial Agreement,
dated as of the
initial Cut-off Date;
3. the
related Mortgage Loan Schedule (one copy to be attached to
the Custodian’s
counterpart of the Custodial Agreement in connection with the
initial Closing
Date, and one copy to be attached to the related Assignment
and Conveyance as
the Mortgage Loan Schedule thereto);
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4. a
Custodian’s Certification, as required under the Custodial Agreement,
in the
form of Exhibit 2 to the Custodial Agreement;
5. with
respect to the initial Closing Date, an Officer’s Certificate, in the form of
Exhibit C hereto with respect to each of the Seller, including
all
attachments thereto; with respect to subsequent Closing Dates,
an Officer’s
Certificate upon request of the Purchaser;
6. with
respect to the initial Closing Date, an Opinion of Counsel
of the Seller (who
may be an employee of the Seller), in the form of Exhibit D hereto
(“Opinion of Counsel of the Seller”);
7. a
Security Release Certification, in the form of Exhibit E or F, as
applicable, hereto executed by any person, as requested by
the Purchaser, if any
of the Mortgage Loans have at any time been subject to any
security interest,
pledge or hypothecation for the benefit of such person;
8. a
certificate or other evidence of merger or change of name,
signed or stamped by
the applicable regulatory authority, if any of the Mortgage
Loans were acquired
by the Seller by merger or acquired or originated by the Seller
while conducting
business under a name other than its present name, if applicable;
9. with
respect to the initial Closing Date, the Underwriting Guidelines
to be attached
hereto as Exhibit G and with respect to each subsequent Closing Date,
the
Underwriting Guidelines to be attached to the related Assignment
and
Conveyance;
10. Assignment
and Conveyance Agreement in the form of Exhibit H hereto, and all
exhibits thereto; and
11. a
MERS Report reflecting the Purchaser as Investor, the Custodian
as custodian and
no Person as Interim Funder for each MERS Designated Mortgage
Loan.
The
Seller shall bear the risk of loss of the closing documents
until such time as
they are received by the Purchaser or its attorneys.
SECTION
12. COSTS
The
Purchaser shall pay any commissions due its salesmen and the
legal fees and
expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery
of the Mortgage
Loans and the Servicing Rights including recording fees, fees
for title policy
endorsements and continuations, fees for recording Assignments
of Mortgage, and
the Seller’s attorney’s fees, shall be paid by the Seller.
SECTION
13. COOPERATION OF
SELLER WITH A RECONSTITUTION
The
Seller and the Purchaser agree that with respect to some or
all of the Mortgage
Loans, after the related Closing Date, on one or more dates
(each, a
“Reconstitution
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Date”)
at the Purchaser’s sole option, the Purchaser may effect a sale (each, a
“Reconstitution”) of some or all of the Mortgage Loans then subject
to
this Agreement, without recourse, to:
(i) ▇▇▇▇▇▇
▇▇▇ under its Cash Purchase Program or MBS Program (Special
Servicing Option)
(each, a “▇▇▇▇▇▇ Mae Transfer”); or
(ii) ▇▇▇▇▇▇▇
Mac (the “▇▇▇▇▇▇▇ Mac Transfer”); or
(iii) one
or more third party purchasers in one or more Whole Loan Transfers;
or
(iv) one
or more trusts or other entities to be formed as part of one
or more
Securitization Transactions.
The
Seller agrees to execute in connection with any Agency Transfer,
any and all
pool purchase contracts, and/or agreements reasonably acceptable
to the Seller
among the Purchaser, the Seller, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
(as the case may be)
and any servicer in connection with a Whole Loan Transfer,
a seller’s warranties
and servicing agreement or a participation and servicing agreement
in form and
substance reasonably acceptable to the parties, and in connection
with a
Securitization Transaction, a pooling and servicing agreement
in form and
substance reasonably acceptable to the parties (collectively,
the agreements
referred to herein are designated the “Reconstitution
Agreements”).
With
respect to each Whole Loan Transfer and each Securitization
Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully
with the
Purchaser and any prospective purchaser with respect to all
reasonable requests
and due diligence procedures; (2) to execute, deliver and perform
all
Reconstitution Agreements required by the Purchaser; and (3)
to restate the
representations and warranties set forth in Subsections 9.01 and
9.02 as of the settlement or closing date in connection
with such
Reconstitution (each, a “Reconstitution Date”) or make the representations and
warranties set forth in the related selling/servicing guide
of the servicer or
issuer, as the case may be, or such representations or warranties
as may be
required by any rating agency or prospective purchaser of the
related securities
or such Mortgage Loans in connection with such Reconstitution. The
Seller shall provide to such servicer or issuer, as the case
may be, and any
other participants or purchasers in such Reconstitution: (i) any and
all information and appropriate verification of information
which may be
reasonably available to the Seller or its affiliates, whether
through letters of
its auditors and counsel or otherwise, as the Purchaser or
any such other
participant shall request; (ii) such additional representations,
warranties,
covenants, opinions of counsel, letters from auditors, and
certificates of
public officials or officers of the Seller or the Interim Servicer
as are
reasonably believed necessary by the Purchaser or any such
other participant;
and (iii) to execute, deliver and satisfy all conditions set
forth in any
indemnity agreement required by the Purchaser or any such participant,
including, without limitation, an Indemnification and Contribution
Agreement in
substantially the form attached hereto as Exhibit B. Moreover,
the Seller agrees to cooperate with all reasonable requests
made by the
Purchaser to effect such Reconstitution Agreements. The Seller shall
indemnify the Purchaser, each affiliate of the Purchaser participating
in the
Reconstitution and each Person who controls the Purchaser or
such affiliate and
their respective present and former directors, officers, employees
and agents,
and hold each of them harmless from and
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against
any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and
related costs, judgments, and any other costs, fees and expenses
that each of
them may sustain arising out of or based upon any untrue statement
or alleged
untrue statement of a material fact contained in the information
provided by or
on behalf of the Seller regarding the Seller (or if the Seller
is not the
originator, the originator of the Mortgage Loans), the Seller’s servicing
practices or performance, the Mortgage Loans or the Underwriting
Guidelines set
forth in any offering document prepared in connection with
any
Reconstitution. For purposes of the previous sentence, “Purchaser”
shall mean the Person then acting as the Purchaser under this
Agreement and any
and all Persons who previously were “Purchasers” under this
Agreement.
In
the
event the Purchaser has elected to have the Seller or the Interim
Servicer hold
record title to the Mortgages, prior to the Reconstitution
Date, the Seller
shall prepare an assignment of mortgage in blank or to the
prospective purchaser
or trustee, as applicable, from the Seller or the Interim Servicer,
as
applicable, acceptable to the prospective purchaser or trustee,
as applicable,
for each Mortgage Loan that is part of the Reconstitution and
shall pay all
preparation and recording costs associated therewith. In connection
with the Reconstitution, the Seller shall execute or shall
cause the Interim
Servicer to execute each assignment of mortgage, track such
Assignments of
Mortgage to ensure they have been recorded and deliver them
as required by the
prospective purchaser or trustee, as applicable, upon the Seller’s receipt
thereof. Additionally, the Seller shall prepare and execute or shall
cause the Interim Servicer to execute, at the direction of
the Purchaser, any
note endorsement in connection with any and all seller/servicer
agreements.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution
shall remain
subject to this Agreement and, if the Interim Servicing Agreement
shall remain
in effect with respect to the related Mortgage Loan Package,
shall continue to
be serviced in accordance with the terms of this Agreement
and the Interim
Servicing Agreement and with respect thereto this Agreement
shall remain in full
force and effect.
SECTION
14. [RESERVED]
SECTION
15. THE
SELLER
Subsection
15.01 Additional Indemnification by the Seller; Third Party
Claims
(a) The
Seller shall indemnify the Purchaser and its present and former
directors,
officers, employees and agents and the Successor Servicer and
its present and
former directors, officers, employees and agents, and hold
such parties harmless
against any and all claims, losses, damages, penalties, fines,
forfeitures,
reasonable legal fees and expenses (including reasonable legal
fees and expenses
incurred in connection with the enforcement of the Seller’s indemnification
obligation under this Subsection 15.01) and related costs, judgments, and
any other reasonable costs, fees and expenses that such parties
may sustain
related to the failure of the Seller to perform its duties
in strict compliance
with the terms of this Agreement or any Reconstitution Agreement
entered into
pursuant to Section 13 or any breach of any of Seller’s representations,
warranties and covenants set forth in this Agreement. For purposes of
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this
paragraph “Purchaser” shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were
“Purchasers” under
this Agreement and “Successor Servicer” shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all
Persons who
previously were “Successor Servicers” pursuant to this Agreement.
(b) Promptly
after receipt by an indemnified party under this Subsection 15.01 of
notice of the commencement of any action, such indemnified
party will, if a
claim in respect thereof is to be made against the indemnifying
party under this
Subsection 15.01, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party will
not relieve the indemnifying party from any liability which
it may have to any
indemnified party under this Subsection 15.01, except to the extent that
it has been prejudiced in any material respect, or from any
liability which it
may have, otherwise than under this Subsection 15.01. In case
any such action is brought against any indemnified party and
it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be
entitled to participate therein, and to the extent that it
may elect by written
notice delivered to the indemnified party promptly after receiving
the aforesaid
notice from such indemnified party, to assume the defense thereof,
with counsel
reasonably satisfactory to such indemnified party; provided
that if the
defendants in any such action include both the indemnified
party and the
indemnifying party and the indemnified party or parties shall
have reasonably
concluded that there may be legal defenses available to it
or them and/or other
indemnified parties which are different from or additional
to those available to
the indemnifying party, the indemnified party or parties shall
have the right to
select separate counsel to assert such legal defenses and to
otherwise
participate in the defense of such action on behalf of such
indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense
of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be
liable to such indemnified party for expenses incurred by the
indemnified party
in connection with the defense thereof unless (i) the indemnified
party shall
have employed separate counsel in connection with the assertion
of legal
defenses in accordance with the proviso to the next preceding
sentence (it being
understood, however, that the indemnifying party shall not
be liable for the
expenses of more than one separate counsel (together with one
local counsel, if
applicable)), (ii) the indemnifying party shall not have employed
counsel
reasonably satisfactory to the indemnified party to represent
the indemnified
party within a reasonable time after notice of commencement
of the action or
(iii) the indemnifying party has authorized in writing the
employment of counsel
for the indemnified party at the expense of the indemnifying
party; and except
that, if clause (i) or (iii) is applicable, such liability
shall be only in
respect of the counsel referred to in such clause (i) or (iii).
Subsection
15.02 Merger or Consolidation of the Seller
The
Seller will keep in full effect its existence, rights and franchises
as a
corporation under the laws of the state of its incorporation
except as permitted
herein, and will obtain and preserve its qualification to do
business as a
foreign corporation in each jurisdiction in which such qualification
is or shall
be necessary to protect the validity and enforceability of
this Agreement, or
any of the Mortgage Loans and to perform its duties under this
Agreement.
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Any
Person into which the Seller may be merged or consolidated,
or any corporation
resulting from any merger, conversion or consolidation to which
the Seller shall
be a party, or any Person succeeding to the business of the
Seller, shall be the
successor of the Seller hereunder, without the execution or
filing of any paper
or any further act on the part of any of the parties hereto,
anything herein to
the contrary notwithstanding; provided, however, that the successor or
surviving Person shall have a net worth of at least $25,000,000.
SECTION
16. FINANCIAL
STATEMENTS
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective
purchasers
audited financial statements of the Seller for the most recently
completed three
fiscal years respecting which such statements are available,
as well as a
Consolidated Statement of Condition of the Seller at the end
of the last two
fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable
interim statements to the extent any such statements have been
prepared by the
Seller (and are available upon request to members or stockholders
of the Seller
or the public at large). The Seller, if it has not already done so,
agrees to furnish promptly to the Purchaser copies of the statements
specified
above. The Seller shall also make available information on its
servicing performance with respect to loans serviced for others,
including
delinquency ratios.
The
Seller also agrees to allow reasonable access to a knowledgeable
financial or
accounting officer for the purpose of answering questions asked
by any
prospective purchaser regarding recent developments affecting
the Seller or the
financial statements of the Seller.
SECTION
17. MANDATORY DELIVERY;
GRANT OF SECURITY INTEREST
The
sale
and delivery on the related Closing Date of the Mortgage Loans
described on the
related Mortgage Loan Schedule is mandatory from and after
the date of the
execution of the related Purchase Price and Terms Agreement,
it being
specifically understood and agreed that each Mortgage Loan
is unique and
identifiable on the date hereof and that an award of money
damages would be
insufficient to compensate the Purchaser for the losses and
damages incurred by
the Purchaser (including damages to prospective purchasers
of the Mortgage
Loans) in the event of the Seller’s failure to deliver (i) each of the related
Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii)
one or more Mortgage Loans otherwise acceptable to the Purchaser
on or before
the related Closing Date. The Seller hereby grants to the Purchaser a
lien on and a continuing security interest in each Mortgage
Loan and each
document and instrument evidencing each such Mortgage Loan
to secure the
performance by the Seller of its obligations under the related
Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold
such Mortgage
Loans in custody for the Purchaser subject to the Purchaser’s (a) right to
reject any Mortgage Loan (or Qualified Substitute Mortgage
Loan) under the terms
of this Agreement and to require another Mortgage Loan (or
Qualified Substitute
Mortgage Loan) to be substituted therefor, and (b) obligation
to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the
Purchaser under this Agreement are distinct from, and cumulative
with, any other
rights or remedies under this
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Agreement
or afforded by law or equity and all such rights and remedies
may be exercised
concurrently, independently or successively.
SECTION
18. NOTICES
All
demands, notices and communications hereunder shall be in writing
and shall be
deemed to have been duly given if mailed, by registered or
certified mail,
return receipt requested, or, if by other means, when received
by the other
party at the address as follows:
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(i)
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if
to the Seller:
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American
Home Mortgage Corp.
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▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇.
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Fax:
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Email: ▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
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with
copies to:
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▇▇▇▇
▇. ▇▇▇▇, General Counsel
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American
Home Mortgage Corp.
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▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Fax:
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Email: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
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(ii)
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if
to the Purchaser:
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
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1221
Avenue of the ▇▇▇▇▇▇▇▇
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▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ - Whole Loan Operations
Manager
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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with
copies to:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ – Servicing Oversight
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▇▇▇
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▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ - ▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
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▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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or
such
other address as may hereafter be furnished to the other party
by like
notice. Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received
at the
premises of the addressee (as evidenced, in the case of registered
or certified
mail, by the date noted on the return receipt).
SECTION
19. SEVERABILITY
CLAUSE
Any
part,
provision representation or warranty of this Agreement which
is prohibited or
unenforceable or is held to be void or unenforceable in any
jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such
prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any
such prohibition or unenforceability in any jurisdiction as
to any Mortgage Loan
shall not invalidate or render unenforceable such provision
in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders
void or
unenforceable any provision hereof. If the invalidity of any part,
provision, representation or warranty of this Agreement shall
deprive any party
of the economic benefit intended to be conferred by this Agreement,
the parties
shall negotiate, in good-faith, to develop a structure the
economic effect of
which is nearly as possible the same as the economic effect
of this Agreement
without regard to such invalidity.
SECTION
20. COUNTERPARTS
This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
SECTION
21. [RESERVED]
SECTION
22. INTENTION OF THE
PARTIES
It
is the
intention of the parties that the Purchaser is purchasing,
and the Seller is
selling the Mortgage Loans and not a debt instrument of the
Seller or another
security. Accordingly, the parties hereto each intend to treat the
transaction for federal income tax purposes as a sale by the
Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be
consistent with
classification of such arrangement as a grantor trust in the
event it is not
found to represent direct ownership of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans
and the related
Mortgage Loan Files to determine the characteristics of the
Mortgage Loans which
shall affect the federal income tax consequences of owning
the Mortgage Loans
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and
the
Seller shall cooperate with all reasonable requests made by
the Purchaser in the
course of such review.
SECTION
23. SUCCESSORS AND
ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT
This
Agreement shall bind and inure to the benefit of and be enforceable
by the
Seller and the Purchaser and the respective permitted successors
and assigns of
the Seller and the successors and assigns of the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by
the Seller to a
third party without the prior written consent of the Purchaser,
which consent
may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser
in whole or
in part, and with respect to one or more of the Mortgage Loans,
without the
consent of the Seller. There shall be no limitation on the number of
assignments or transfers allowable by the Purchaser with respect
to the Mortgage
Loans and this Agreement. In the event the Purchaser assigns this
Agreement, and the assignee assumes any of the Purchaser’s obligations
hereunder, the Seller acknowledges and agrees to look solely
to such assignee,
and not to the Purchaser, for performance of the obligations
so assumed and the
Purchaser shall be relieved from any liability to the Seller
with respect
thereto.
SECTION
24. WAIVERS
No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against
whom such waiver or
modification is sought to be enforced.
SECTION
25. EXHIBITS
The
exhibits to this Agreement are hereby incorporated and made
a part hereof and
are an integral part of this Agreement.
SECTION
26. GENERAL INTERPRETIVE
PRINCIPLES
For
purposes of this Agreement, except as otherwise expressly provided
or unless the
context otherwise requires:
(a) the
terms defined in this Agreement have the meanings assigned
to them in this
Agreement and include the plural as well as the singular, and
the use of any
gender herein shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned
to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated
Articles,
Sections, Subsections, Paragraphs and other subdivisions of
this
Agreement;
-49-
(d) reference
to a Subsection without further reference to a Section is a
reference to such
Subsection as contained in the same Section in which the reference
appears, and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words “herein,” “hereof,” “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision;
and
(f) the
terms “include” and “including” shall mean without limitation by reason of
enumeration.
SECTION
27. REPRODUCTION OF
DOCUMENTS
This
Agreement and all documents relating thereto, including, without
limitation, (a)
consents, waivers and modifications which may hereafter be
executed, (b)
documents received by any party at the closing, and (c) financial
statements,
certificates and other information previously or hereafter
furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card,
miniature
photographic or other similar process. The parties agree that any
such reproduction shall be admissible in evidence as the original
itself in any
judicial or administrative proceeding, whether or not the original
is in
existence and whether or not such reproduction was made by
a party in the
regular course of business, and that any enlargement, facsimile
or further
reproduction of such reproduction shall likewise be admissible
in
evidence.
SECTION
28. FURTHER
AGREEMENTS
The
Seller and the Purchaser each agree to execute and deliver
to the other such
reasonable and appropriate additional documents, instruments
or agreements as
may be necessary or appropriate to effectuate the purposes
of this
Agreement.
SECTION
29. RECORDATION OF
ASSIGNMENTS OF MORTGAGE
To
the
extent permitted by applicable law, each of the Assignments
of Mortgage is
subject to recordation in all appropriate public offices for
real property
records in all the counties or their comparable jurisdictions
in which any or
all of the Mortgaged Properties are situated, and in any other
appropriate
public recording office or elsewhere, such recordation to be
effected at the
Seller’s expense in the event recordation is necessary under applicable
law or
reasonably requested by the Purchaser.
SECTION
30. NO
SOLICITATION
From
and
after the related Closing Date, the Seller agrees that it will
not take any
action or permit or cause any action to be taken by any of
its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone or mail (via electronic means or otherwise),
solicit a
Mortgagor under any Mortgage Loan for the purpose of refinancing
a Mortgage
Loan, in whole or in part, without the prior written consent
of the
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Purchaser. Notwithstanding
the foregoing, it is understood and agreed that the Seller,
or any of its
affiliates:
(i) may
advertise its availability for handling refinancings of mortgages
in its
portfolio, including the promotion of terms it has available
for such
refinancings, through the sending of letters or promotional
material, so long as
it does not specifically target Mortgagors; and
(ii) may
provide pay-off information and otherwise cooperate with individual
mortgagors
who contact it about prepaying their mortgages by advising
them of refinancing
terms and streamlined origination arrangements that are available.
Promotions
undertaken by the Seller or by any affiliate of the Seller
which are directed to
the general public at large (including, without limitation,
mass mailing based
on commercially acquired mailing lists, newspaper, radio and
television
advertisements), shall not constitute solicitation under this
Section
30.
SECTION
31. WAIVER OF TRIAL BY
JURY
THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT
MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT
OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION
32. GOVERNING LAW
JURISDICTION; CONSENT TO SERVICE OF PROCESS
THIS
AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED COUNTERPART
THEREOF IS
RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND SHALL
BE DEEMED TO HAVE
BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ITS
CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE
SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION
OF THE COURTS OF
THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION
OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING
IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR
PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW;
AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY
CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
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SECTION
33. AMENDMENT
This
Agreement may be amended from time to time by the Purchaser
and the Seller by
written agreement signed by the parties hereto.
SECTION
34. CONFIDENTIALITY
Each
of
the Purchaser and the Seller shall employ proper procedures
and standards
designed to maintain the confidential nature of the terms of
this Agreement,
except to the extent: (a) the disclosure of which is reasonably
believed by such party to be required in connection with regulatory
requirements
or other legal requirements relating to its affairs; (b) disclosed to any
one or more of such party’s employees, officers, directors, agents, attorneys or
accountants who would have access to the contents of this Agreement
and such
data and information in the normal course of the performance
of such Person’s
duties for such party, to the extent such party has procedures
in effect to
inform such Person of the confidential nature thereof; (c) that is
disclosed in a prospectus, prospectus supplement or private
placement memorandum
relating to a securitization of the Mortgage Loans by the Purchaser
(or an
affiliate assignee thereof) or to any Person in connection
with the resale or
proposed resale of all or a portion of the Mortgage Loans by
such party in
accordance with the terms of this Agreement; and (d) that is reasonably
believed by such party to be necessary for the enforcement
of such party’s
rights under this Agreement.
Notwithstanding
any other express or implied agreement to the contrary, each
of the Purchaser
and the Seller agree and acknowledge that each of them and
each of their
employees, representatives, and other agents may disclose to
any and all
persons, without limitation of any kind, the tax treatment
and tax structure of
the transaction and all materials of any kind (including opinions
or other tax
analyses) that are provided to any of them relating to such
tax treatment and
tax structure, except to the extent that confidentiality is
reasonably necessary
to comply with U.S. federal or state securities laws. For purposes of
this paragraph, the terms “tax treatment” and “tax structure” have the meanings
specified in Treasury Regulation section 1.6011-4(c).
SECTION
35. ENTIRE
AGREEMENT
This
Agreement constitutes the entire agreement and understanding
relating to the
subject matter hereof between the parties hereto and any prior
oral or written
agreements between them shall be deemed to have merged herewith.
SECTION
36. COMPLIANCE WITH
REGULATION AB
Subsection
36.01 Intent of the Parties;
Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose
of
Section 36 of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation
AB and related
rules and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed securities
that are
registered under the Securities Act, the Seller acknowledges
that investors in
privately offered securities may require that the Purchaser
or any Depositor
provide comparable disclosure in
-52-
unregistered
offerings. References in this Agreement to compliance with Regulation
AB include provision of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to
request delivery of
information or other performance under these provisions other
than in good
faith, or for purposes other than compliance with the Securities
Act, the
Exchange Act and the rules and regulations of the Commission
thereunder (or the
provision in a private offering of disclosure comparable to
that required under
the Securities Act). The Seller acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether
due to
interpretive guidance provided by the Commission or its staff,
consensus among
participants in the asset-backed securities markets, advice
of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser
or any
Depositor in good faith for delivery of information under these
provisions on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller shall cooperate
fully with the
Purchaser to deliver to the Purchaser (including any of its
assignees or
designees) and any Depositor, any and all statements, reports,
certifications,
records and any other information necessary in the good faith
determination of
the Purchaser or any Depositor to permit the Purchaser or such
Depositor to
comply with the provisions of Regulation AB, together with
such disclosures
relating to the Seller, any Third-Party Originator and the
Mortgage Loans, or
the servicing of the Mortgage Loans, reasonably believed by
the Purchaser or any
Depositor to be necessary in order to effect such compliance.
Subsection
36.02 Additional Representations and Warranties of the
Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of
the date on which information is first provided to the Purchaser
or any
Depositor under Subsection 36.03 that, except as disclosed in writing to
the Purchaser or such Depositor prior to such date: (i) the
Seller is not aware and has not received notice that any default,
early
amortization or other performance triggering event has occurred
as to any other
securitization due to any act or failure to act of the Seller;
(ii) the
Interim Servicer has not been terminated as servicer in a residential
mortgage
loan securitization, either due to a servicing default or to
application of a
servicing performance test or trigger; (iii) no material noncompliance with
the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Interim Servicer as
servicer has been
disclosed or reported by the Seller; (iv) no material changes to the
Interim Servicer’s policies or procedures with respect to the servicing function
it will perform under the Interim Servicing Agreement and any
Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage
Loans have
occurred during the three-year period immediately preceding
the related
Securitization Transaction; (v) there are no aspects of the Interim
Servicer’s financial condition that could have a material adverse effect
on the
performance by the Interim Servicer of its servicing obligations
under the
Interim Servicing Agreement or any Reconstitution Agreement;
(vi) there are
no material legal or governmental proceedings pending (or known
to be
contemplated) against the Seller, Interim Servicer, any Subservicer
or any
Third-Party Originator; and (vii) there are no affiliations, relationships
or transactions relating to the Seller, Interim Servicer, any
Subservicer or any
Third-Party Originator with respect to any Securitization Transaction
and any
party thereto identified by the related Depositor of a type
described in Item
1119 of Regulation AB.
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The
Seller hereby represents and warrants that it is unable without
unreasonable
effort or expense to provide Static Pool Information with respect
to mortgage
loans that the Seller sold on a servicing-released basis that
were originated
prior to January 1, 2006, other than with respect to mortgage
loans included in
any Static Pool Information provided by the Seller to the
Purchaser.
(b) If
so requested by the Purchaser or any Depositor on any date
following the date on
which information is first provided to the Purchaser or any
Depositor under
Subsection 36.03, the Seller shall, within five Business Days following
such request, confirm in writing the accuracy of the representations
and
warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date
of such request,
provide reasonably adequate disclosure of the pertinent facts,
in writing, to
the requesting party.
Subsection
36.03 Information to Be Provided.
In
connection with any Securitization Transaction the Seller shall
(i) within
five Business Days following request by the Purchaser or any
Depositor, provide
to the Purchaser and such Depositor (or, as applicable, cause
each Third-Party
Originator to provide), in writing and in form and substance
reasonably
satisfactory to the Purchaser and such Depositor, the information
and materials
specified in paragraphs (a) and (b) of this Section, and (ii) as
promptly as practicable following notice to or discovery by
the Seller, provide
to the Purchaser and any Depositor (in writing and in form
and substance
reasonably satisfactory to the Purchaser and such Depositor)
the information
specified in paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller
shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or
(ii) each Third-Party Originator, as is requested for the purpose
of
compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119
of Regulation
AB. Such information shall include, at a minimum:
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(A)
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the
originator’s form of organization;
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(B)
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a
description of the originator’s origination program and how long the
originator has been engaged in originating residential
mortgage loans,
which description shall include a discussion of the
originator’s
experience in originating mortgage loans of a similar
type as the Mortgage
Loans; information regarding the size and composition
of the originator’s
origination portfolio; and information that may be
material, in the good
faith judgment of the Purchaser or any Depositor,
to an analysis of the
performance of the Mortgage Loans, including the
originators’
credit-granting or underwriting criteria for mortgage
loans of similar
type(s) as the Mortgage Loans and such other information
as the Purchaser
or any Depositor may reasonably request for the purpose
of compliance with
Item 1110(b)(2) of Regulation AB;
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(C)
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a
description of any material legal or governmental
proceedings pending (or
known to be contemplated) against the Seller and
each Third-Party
Originator; and
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(D)
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a
description of any affiliation or relationship between
the Seller, each
Third-Party Originator and any of the following parties
to a
Securitization Transaction, as such parties are identified
to the Seller
by the Purchaser or any Depositor in writing in advance
of such
Securitization Transaction:
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(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8)
any enhancement or support provider; and
(9) any
other material transaction party.
(b) Except
with respect to any Securitization Transaction for which less
than 20% of the
pool assets (measured by cut-off date principal balance) are
Mortgage Loans, if
so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static
Pool
Information with respect to the mortgage loans (of a similar
type as the
Mortgage Loans, as reasonably identified by the Purchaser as
provided below)
originated by (i) the Seller, if the Seller is an originator
of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified
Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information
shall be prepared in form and substance reasonably satisfactory
to the Purchaser
by the Seller (or Third-Party Originator) on the basis of its
reasonable, good
faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation
AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect
to more than
one mortgage loan type, the Purchaser or any Depositor shall
be entitled to
specify whether some or all of such information shall be provided
pursuant to
this paragraph. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable,
shall be presented in
increments no less frequently than quarterly over the life
of the mortgage loans
included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or
other offering
document in which the Static Pool Information is to be included
or incorporated
by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information
provided,
such as a portable document format (pdf) file, or other such
electronic format
reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly
following notice or discovery of a material error in Static
Pool Information
provided pursuant to the immediately preceding paragraph (including
an omission
to include therein information required to be provided pursuant
to such
paragraph), the Seller shall provide corrected Static Pool
Information to the
Purchaser or any Depositor, as applicable, in the
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same
format in which Static Pool Information was previously provided
to such party by
the Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall
provide (or, as
applicable, cause each Third-Party Originator to provide),
at the expense of the
requesting party (to the extent of any additional incremental
expense associated
with delivery pursuant to this Agreement), such agreed-upon
procedures letters
of certified public accountants reasonably acceptable to the
Purchaser or
Depositor, as applicable, pertaining to Static Pool Information
relating to
prior securitized pools for securitizations closed on or after
January 1, 2006
or, in the case of Static Pool Information with respect to
the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor
shall reasonably
request. Such letters shall be addressed to and be for the benefit of
such parties as the Purchaser or such Depositor shall designate,
which may
include, by way of example, any Sponsor, any Depositor and
any broker dealer
acting as underwriter, placement agent or initial purchaser
with respect to a
Securitization Transaction. Any such statement or letter may take the
form of a standard, generally applicable document accompanied
by a reliance
letter authorizing reliance by the addressees designated by
the Purchaser or
such Depositor.
(c) [Reserved]
(d) If
so requested by the Purchaser or any Depositor for the purpose
of satisfying its
reporting obligation under the Exchange Act with respect to
any class of
asset-backed securities, the Seller shall (or shall cause each
Third-Party
Originator to) (i) notify the Purchaser and any Depositor in
writing of (A) any
material litigation or governmental proceedings pending against
the Seller or
any Third-Party Originator and (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between the
Seller or any Third-Party Originator and any of the parties
specified in clause
(D) of paragraph (a) of this Section (and any other parties
identified in
writing by the requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor
a description
of such proceedings, affiliations or relationships.
(e) With
respect to those Mortgage Loans that were originated by the
Seller (including as
an acquirer of Mortgage Loans from a Qualified Correspondent)
and sold to the
Purchaser pursuant to this Agreement, the Purchaser shall,
to the extent
consistent with then-current industry practice, cause the servicer
(or another
party) to be obligated to provide, information, in the form
customarily provided
by such servicer or other party (which need not be customized
for the Seller)
with respect to the Mortgage Loans reasonably necessary for
the Seller to
prepare static pool information as described in Item 1105(a)(2)
and (3) of
Regulation AB (such information provided by the servicer or
such other party,
the “Loan Performance Information”).
In
addition, the Purchaser shall cause the related servicer (or
such other party)
to be obligated to provide, promptly following notice or discovery
of a material
error in Loan Performance Information provided pursuant to
the immediately
preceding paragraph (including an omission to include therein
information
required to be provided pursuant to such paragraph), corrected
Loan Performance
Information in the same format in which Loan Performance
-56-
Information
was previously provided to the Seller by such servicer (or
such other party),
subject to such time limits as mutually agreed to by the Seller
and the
Purchaser.
Subsection
36.04 Indemnification; Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, the
Depositor and each of the following parties participating in
a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required
to be filed with
the Commission with respect to such Securitization Transaction,
or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the
Exchange Act with respect to such Securitization Transaction;
each broker dealer
acting as underwriter, placement agent or initial purchaser,
each Person who
controls any of such parties or the Depositor (within the meaning
of Section 15
of the Securities Act and Section 20 of the Exchange Act);
and the respective
present and former directors, officers, employees and agents
of each of the
foregoing and of the Depositor, and shall hold each of them
harmless from and
against any losses, damages, penalties, fines, forfeitures,
legal fees and
expenses and related costs, judgments, and any other costs,
fees and expenses
that any of them may sustain arising out of or based upon:
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(i)
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(A) any
untrue statement of a material fact contained or
alleged to be contained
in any information, report, certification, accountants’ letter or other
material provided in written or electronic form under
this
Section 36 by or on behalf of the Seller, or provided
under
this Section 36 by or on behalf of any Third-Party Originator
(collectively, the “Seller Information”), or (B) the omission
or alleged omission to state in the Seller Information
a material fact
required to be stated in the Seller Information or
necessary in order to
make the statements therein, in the light of the
circumstances under which
they were made, not misleading; provided, by way
of clarification, that
clause (B) of this paragraph shall be construed solely
by reference to the
Seller Information and not to any other information
communicated in
connection with a sale or purchase of securities,
without regard to
whether the Seller Information or any portion thereof
is presented
together with or separately from such other
information;
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(ii)
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any
failure by the Seller or any Third-Party Originator
to deliver any
information, report, certification, accountants’ letter or other material
when and as required under this Section 36;
or
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(iii)
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any
breach by the Seller of a representation or warranty
set forth in
Subsection 36.02(a) or in a writing furnished pursuant to
Subsection 36.02(b) and made as of a date prior to the closing
date
of the related Securitization Transaction, to the
extent that such breach
is not cured by such closing date, or any breach
by the Seller of a
representation or warranty in a writing furnished
pursuant to
Subsection 36.02(b) to the extent made as of a date subsequent
to
such closing date.
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In
the
case of any failure of performance described in clause (a)(ii) of this
Section, the Seller shall promptly reimburse the Purchaser,
any Depositor, as
applicable, and each Person responsible for the preparation,
execution or filing
of any report required to be filed with the Commission with
respect to such
Securitization Transaction, or for execution of a certification
pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such
Securitization Transaction, for all costs reasonably incurred
by each such party
in order to obtain the information, report, certification,
accountants’ letter
or other material not delivered as required by the Seller or
any Third-Party
Originator.
Any
failure by the Seller or any Third-Party Originator to deliver
any information,
report, certification, accountants’ letter or other material when and as
required under this Section 36, or any breach by the Seller of a
representation or warranty set forth in Subsection 36.02(a) or in a
writing furnished pursuant to Subsection 36.02(b) and made as of a date
prior to the closing date of the related Securitization Transaction,
to the
extent that such breach is not cured by such closing date,
or any breach by the
Seller of a representation or warranty in a writing furnished
pursuant to
Subsection 36.02(b) to the extent made as of a date subsequent to such
closing date, shall immediately and automatically, without
notice or grace
period, constitute an Event of Default with respect to the
Seller under this
Agreement and any applicable Reconstitution Agreement, and
shall entitle the
Purchaser or Depositor, as applicable, in its sole discretion
to terminate the
rights and obligations of the Interim Servicer as servicer
under the Interim
Servicing Agreement and/or any applicable Reconstitution Agreement
without
payment (notwithstanding anything in this Agreement or any
applicable
Reconstitution Agreement to the contrary) of any compensation
to the Interim
Servicer; provided that to the extent that any provision of
this Agreement
and/or any applicable Reconstitution Agreement expressly provides
for the
survival of certain rights or obligations following termination
of the Interim
Servicer as servicer, such provision shall be given effect.
(b) The
Purchaser shall indemnify (or shall cause the applicable servicer
to indemnify)
the Seller, each affiliate of the Seller, and the respective
present and former
directors, officers, employees and agents of each of the foregoing,
and shall
hold each of them harmless from and against any losses, damages,
penalties,
fines, forfeitures, legal fees and expenses and related costs,
judgments, and
any other costs, fees and expenses that any of them may sustain
arising out of
or based upon:
(i) (A) any
untrue statement of a material fact contained or alleged to
be contained in the
Loan Performance Information or (B) the omission or alleged
omission to state in
the Loan Performance Information a material fact required to
be stated in the
Loan Performance 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 Loan Performance
Information and
not to any other information communicated in connection with
a sale of mortgage
loans or a sale or purchase of securities, without regard to
whether the Loan
Performance Information or any portion thereof is presented
together with or
separately from such other information;
(ii) any
failure by the Purchaser or by the related servicer (or such
other party) to
deliver any Loan Performance Information as required under
Section
36.03(e). In the
-58-
case
of
any failure of performance described in clause (b)(ii) of this
Section, the
Purchaser shall promptly reimburse the Seller for all costs
reasonably incurred
by the Seller in order to obtain the Loan Performance Information.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be
signed hereto by their respective officers thereunto duly authorized
as of the
date first above written.
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC. | |||
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By:
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| Name | |||
| Title | |||
| AMERICAN HOME MORTGAGE CORP. | |||
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By:
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| Name | |||
| Title | |||
EXHIBIT
A-1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents
shall include each of
the following items, which shall be available for inspection
by the Purchaser
and any prospective Purchaser, and which shall be delivered
to the Custodian, or
to such other Person as the Purchaser shall designate in writing,
pursuant to
Section 6 of the Third Amended and Restated Mortgage Loan Purchase
and
Warranties Agreement to which this Exhibit is attached (the
“Agreement”):
(a) the
original Mortgage Note bearing all intervening endorsements,
endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last Endorsee”) by an authorized officer. To
the extent that there is no room on the face of the Mortgage
Notes for
endorsements, the endorsement may be contained on an allonge,
if state law so
allows and the Custodian is so advised by the Seller that state
law so
allows. If the Mortgage Loan was acquired by the Seller in a merger,
the endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the
endorsement must be
by “[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original
Mortgage with
evidence of recording thereon. With respect to any Co-op Loan, an
original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered
the original
Mortgage with evidence of recording thereon on or prior to
the Closing Date
because of a delay caused by the public recording office where
such Mortgage has
been delivered for recordation or because such Mortgage has
been lost or because
such public recording office retains the original recorded
Mortgage, the Seller
shall deliver or cause to be delivered to the Custodian, a
photocopy of such
Mortgage, together with (i) in the case of a delay caused by
the public
recording office, an Officer’s Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that
such Mortgage has
been dispatched to the appropriate public recording office
for recordation and
that the original recorded Mortgage or a copy of such Mortgage
certified by such
public recording office to be a true and complete copy of the
original recorded
Mortgage will be promptly delivered to the Custodian upon receipt
thereof by the
Seller; or (ii) in the case of a Mortgage where a public recording
office
retains the original recorded Mortgage or in the case where
a Mortgage is lost
after recordation in a public recording office, a copy of such
Mortgage
certified by such public recording office to be a true and
complete copy of the
original recorded Mortgage;
A-1-1
(d) the
originals of all assumption, modification, consolidation or
extension
agreements, if any, with evidence of recording thereon;
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original
Assignment of
Mortgage for each Mortgage Loan, in form and substance acceptable
for recording
(except with respect to MERS Designated Loans). The Assignment of
Mortgage must be duly recorded only if recordation is either
necessary under
applicable law or commonly required by private institutional
mortgage investors
in the area where the Mortgaged Property is located or on direction
of the
Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned
to the
Purchaser. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage
Loan was acquired by the Seller in a merger, the Assignment
of Mortgage must be
made by “[Seller], successor by merger to [name of predecessor]”. If
the Mortgage Loan was acquired or originated by the Seller
while doing business
under another name, the Assignment of Mortgage must be by “[Seller], formerly
known as [previous name]”;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals
of all
intervening assignments of mortgage (if any) evidencing a complete
chain of
assignment from the Seller to the Last Endorsee (or, in the
case of a MERS
Designated Loan, MERS) with evidence of recording thereon,
or if any such
intervening assignment has not been returned from the applicable
recording
office or has been lost or if such public recording office
retains the original
recorded assignments of mortgage, the Seller shall deliver
or cause to be
delivered to the Custodian, a photocopy of such intervening
assignment, together
with (i) in the case of a delay caused by the public recording
office, an
Officer’s Certificate of the Seller (or certified by the title company,
escrow
agent, or closing attorney) stating that such intervening assignment
of mortgage
has been dispatched to the appropriate public recording office
for recordation
and that such original recorded intervening assignment of mortgage
or a copy of
such intervening assignment of mortgage certified by the appropriate
public
recording office to be a true and complete copy of the original
recorded
intervening assignment of mortgage will be promptly delivered
to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of
an intervening
assignment where a public recording office retains the original
recorded
intervening assignment or in the case where an intervening
assignment is lost
after recordation in a public recording office, a copy of such
intervening
assignment certified by such public recording office to be
a true and complete
copy of the original recorded intervening assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original
mortgagee
policy of title insurance or, in the event such original title
policy is
unavailable, a certified true copy of the related policy binder
or commitment
for title certified to be true and complete by the title insurance
company;
(h) the
original or, if unavailable, a copy of any security agreement,
chattel mortgage
or equivalent document executed in connection with the Mortgage;
A-1-2
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the
assignment of such Co-op Lease, with all intervening assignments
showing a
complete chain of title and an assignment thereof by Seller;
(ii) the stock
certificate together with an undated stock power relating to
such stock
certificate executed in blank; (iii) the recognition agreement
of the interests
of the Mortgagee with respect to the Co-op Loan by the residential
cooperative
housing corporation, the stock of which was pledged by the
related Mortgagor to
the originator of such Co-op Loan; and (iv) copies of the financing
statement
filed by the originator as secured party and, if applicable,
a filed UCC-3
assignment of the subject security interest showing a complete
chain of title,
together with an executed UCC-3 assignment of such security
interest by the
Seller in a form sufficient for filing; and
(j) if
any of the above documents has been executed by a person holding
a power of
attorney, an original or photocopy of such power certified
by the holder of the
original power of attorney to be a true and correct copy of
the
original.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in
returning any
recorded document, the Seller shall deliver to the Purchaser,
within 90 days of
the related Closing Date, an Officer’s Certificate which shall (i) identify the
recorded document, (ii) state that the recorded document has
not been delivered
to the Custodian due solely to a delay caused by the public
recording office,
(iii) state the amount of time generally required by the applicable
recording
office to record and return a document submitted for recordation,
and (iv)
specify the date the applicable recorded document will be delivered
to the
Custodian; provided, however, that any recorded document shall in no
event be delivered later than one year following the related
Closing
Date. An extension of the date specified in clause (iv) above may
be
requested from the Purchaser, which consent shall not be unreasonably
withheld.
▇-▇-▇
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▇-▇
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include
each of the
following items, unless otherwise disclosed to the Purchaser
on the data tape,
which shall be available for inspection by the Purchaser and
which shall be
retained by the Interim Servicer or delivered to the Purchaser:
(a) Copies
of the Mortgage Loan Documents.
(b) Residential
loan application.
(c) Mortgage
Loan closing statement.
(d) Verification
of employment and income, if required.
(e) Verification
of acceptable evidence of source and amount of downpayment.
(f) Credit
report on Mortgagor, in a form acceptable to either ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇
Mac.
(g) Residential
appraisal report.
(h) Photograph
of the Mortgaged Property and photographs of comparable properties.
(i)
Survey of the Mortgaged Property, unless a survey is not required
by the title
insurer.
(j) Copy
of each instrument necessary to complete identification of
any exception set
forth in the exception schedule in the title policy, i.e.,
map or plat,
restrictions, easements, home owner association declarations,
etc.
(k) Copies
of all required disclosure statements.
(l)
If applicable, termite report, structural engineer’s report, water potability
and septic certification.
(m) Sales
Contract, if applicable.
(n) Copy
of the owner’s title insurance policy or attorney’s opinion of title and
abstract of title, as applicable.
Evidence
of electronic notation of the hazard insurance policy, and,
if required by law,
evidence of the flood insurance policy.
A-2-1
EXHIBIT
B
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”), dated as of
[_______], 200_, among [________________] (the “Depositor”), a
[______________] corporation (the “Depositor”), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc., a New York corporation (“▇▇▇▇▇▇”) and [_____________], a
[_______________] (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect
to the
Prospectus, dated [________________], and the Prospectus Supplement
to the
Prospectus, [________________] (the “Prospectus Supplement”), relating to
[________________] Certificates (the “Certificates”) to be issued
pursuant to a Pooling and Servicing Agreement, dated as of
[________________]
(the “P&S”), among the Depositor, as depositor, [________________],
as servicer (the “Servicer”), and [________________], as trustee (the
“Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”) to enter into the
Underwriting Agreement, dated [____________________] (the “Underwriting
Agreement”) between the Depositor and the Underwriter[s], and
[_______________] (the “Initial Purchaser[s]”) to enter into the
Certificate Purchase Agreement, dated [____________] (the “Certificate
Purchase Agreement”) between the Depositor and the Initial Purchaser[s],
Seller has agreed to provide for indemnification and contribution
on the terms
and conditions hereinafter set forth;
WHEREAS,
▇▇▇▇▇▇ purchased from Seller certain of the Mortgage Loans
underlying the
Certificates (the “Mortgage Loans”) pursuant to a Third Amended and
Restated Mortgage Loan Purchase and Warranties Servicing Agreement,
dated as of
June 1, 2006 (the “Purchase Agreement”), by and between ▇▇▇▇▇▇ and
Seller; and
WHEREAS,
pursuant to Section 13 of the Purchase Agreement, the Seller has agreed to
indemnify the Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial
Purchaser[s]
and their respective affiliates, present and former directors,
officers,
employees and agents.
NOW
THEREFORE, in consideration of the agreements contained herein,
and other
valuable consideration the receipt and sufficiency of which
are hereby
acknowledged, the Depositor, ▇▇▇▇▇▇ and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor,
▇▇▇▇▇▇, the
Underwriter[s], the Initial Purchaser[s] and their respective
affiliates and
their respective
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present
and former directors, officers, employees and agents and each
person, if any,
who controls the Depositor, ▇▇▇▇▇▇, the Underwriter[s] , the
Initial
Purchaser[s] or such affiliate within the meaning of either
Section 15 of the
Securities Act of 1933, as amended (the “1933 Act”), or Section 20 of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), against any
and all losses, claims, damages or liabilities, joint or several,
to which they
or any of them may become subject under the 1933 Act, the 1934
Act or other
federal or state statutory law or regulation, at common law
or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect
thereof) arise out of or are based in whole or in part upon
any untrue statement
or alleged untrue statement of a material fact contained in
the Prospectus
Supplement, the Offering Circular, the ABS Informational and
Computational
Materials or in the Free Writing Prospectus or any omission
or alleged omission
to state in the Prospectus Supplement, the Offering Circular,
the ABS
Informational and Computational Materials or in the Free Writing
Prospectus a
material fact required to be stated therein or necessary to
make the statements
therein, in light of the circumstances in which they were made,
not misleading,
or any such untrue statement or omission or alleged untrue
statement or alleged
omission made in any amendment of or supplement to the Prospectus
Supplement,
the Offering Circular, the ABS Informational and Computational
Materials or the
Free Writing Prospectus and agrees to reimburse the Depositor,
▇▇▇▇▇▇, the
Underwriter[s], the Initial Purchaser[s] or such affiliates
and each such
officer, director, employee, agent and controlling person promptly
upon demand
for any legal or other expenses reasonably incurred by any
of them in connection
with investigating or defending or preparing to defend against
any such loss,
claim, damage, liability or action as such expenses are incurred;
provided,
however, that Seller shall be liable in any such case only
to the extent that
any such loss, claim, damage, liability or action arises out
of, or is based
upon, (i) any breach of the representation and warranty set forth in
Section 2(vii) below or (ii) any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance
upon and in
conformity with the Seller Information. The foregoing indemnity
agreement is in addition to any liability which Seller may
otherwise have to the
Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s]
their affiliates
or any such director, officer, employee, agent or controlling
person of the
Depositor, ▇▇▇▇▇▇, the Underwriter[s], the Initial Purchaser[s]
or their
respective affiliates.
As
used
herein:
“Seller
Information” means any information relating to Seller, the Mortgage
Loans
and/or the underwriting guidelines relating to the Mortgage
Loans set forth in
the Prospectus Supplement, the Offering Circular, the ABS Informational
and
Computational Materials or the Free Writing Prospectus and
static pool
information regarding mortgage loans originated or acquired
by the Seller and
included in the Prospectus Supplement, the Offering Circular,
the ABS
Informational and Computational Materials or the Free Writing
Prospectus
[incorporated by reference form the Seller’s website located at __________] and
in any case, provided by, or authorized in writing by the Seller
for use in, the
Prospectus Supplement, the Offering Circular, the ABS Informational
and
Computational Materials or the Free Writing Prospectus.
“Free
Writing Prospectus” means any written communication that constitutes a “free
writing prospectus,” as defined in Rule 405 under the 1933 Act.
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“ABS
Informational and Computational Materials” means any written communication
as defined in Item 1101(a) of Regulation AB under the 1933
Act and the 1934 Act,
as may be amended from time to time.
“Due
Diligence Writings” means the disclosure in the Free Writing Prospectus,
Prospectus Supplement, Offering Circular or the ABS Informational
and
Computational Materials attached hereto as Exhibit A, and, to the extent
such disclosure does not reflect the responses of the Seller
to the questions
asked by the Underwriter, which questions are based upon the
requirements of
Regulation AB, the written responses to such questions prepared
by the Seller
and attached hereto as Exhibit B.
“Offering
Circular” means the offering circular, dated [__________] relating
to the
private offering of the [_______________] Certificates.
“Regulation
AB”: Subpart 229.1100 – Asset-Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to
time, and subject to
such clarification and interpretation as have been provided
by the Commission in
the adopting release (Asset-Backed Securities, Securities Act
Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by
the staff of the
Commission, or as may be provided by the Commission or its
staff from time to
time.
(b) Promptly
after receipt by any indemnified party under this Section 1 of
notice of any claim or the commencement of any action, such
indemnified party
shall, if a claim in respect thereof is to be made against
any indemnifying
party under this Section 1, notify the indemnifying party in writing
of the claim or the commencement of that action; provided,
however, that the failure to notify an indemnifying
party shall not
relieve it from any liability which it may have under this
Section 1
except to the extent it has been materially prejudiced by such
failure; and
provided, further, however, that the failure to
notify any indemnifying party shall not relieve it from any
liability which it
may have to any indemnified party otherwise than under this
Section 1.
If
any
such claim or action shall be brought against an indemnified
party, and it shall
notify the indemnifying party thereof, the indemnifying party
shall be entitled
to participate therein and, to the extent that it wishes, jointly
with any other
similarly notified indemnifying party, to assume the defense
thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party
of its election to
assume the defense of such claim or action, except as provided
in the following
paragraph, the indemnifying party shall not be liable to the
indemnified party
under this Section 1 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other
than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel
in any such
action and to participate in the defense thereof, but the fees
and expenses of
such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically
authorized by the indemnifying party in writing; (ii) such indemnified
party shall have been advised by such counsel that there may
be one or more
legal defenses available to it which are different from or
additional to those
available to the indemnifying party and in the
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reasonable
judgment of such counsel it is necessary or appropriate for
such indemnified
party to employ separate counsel; or (iii) the indemnifying party has
failed to assume the defense of such action and employ counsel
reasonably
satisfactory to the indemnified party in a timely manner, in
which case, if such
indemnified party notifies the indemnifying party in writing
that it elects to
employ separate counsel at the expense of the indemnifying
party, the
indemnifying party shall not have the right to assume the defense
of such action
on behalf of such indemnified party, it being understood, however,
the
indemnifying party shall not, in connection with any one such
action or separate
but substantially similar or related actions in the same jurisdiction
arising
out of the same general allegations or circumstances, be liable
for the
reasonable fees and expenses of more than one separate firm
of attorneys (in
addition to local counsel) at any time for all such indemnified
parties.
Each
indemnified party, as a condition of the indemnity agreements
contained in this
Section 1, shall cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without
its written
consent (which consent shall not be unreasonably withheld),
but if settled with
its written consent or if there be a final judgment for the
plaintiff in any
such action, the indemnifying party agrees to indemnify and
hold harmless any
indemnified party from and against any loss or liability by
reason of such
settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party
shall have requested
an indemnifying party to reimburse the indemnified party for
reasonable fees and
expenses of counsel, the indemnifying party agrees that it
shall be liable for
any settlement of any proceeding effected without its written
consent if
(i) such settlement is entered into more than 45 days after receipt
by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such
request prior to the date of such settlement.
If
the
indemnification provided for in this Section 1 is unavailable to an
indemnified party, then the indemnifying party, in lieu of
indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such
indemnified party as a result of such losses, claims, damages
or liabilities, in
such proportion as is appropriate to reflect the relative fault
of the
indemnifying party and the indemnified party, respectively,
in connection with
the statements or omissions that result in such losses, claims,
damages or
liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and
indemnifying party shall be determined by reference to, among
other things,
whether the untrue or alleged untrue statement of a material
fact or the
omission or alleged omission to state a material fact relates
to information
supplied by such parties and their relative knowledge, access
to information and
opportunity to correct or prevent such statement or omission
and any other
equitable considerations.
The
indemnity and contribution agreements contained in this Section 1 and the
representations and warranties set forth in Section 2 shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by the Depositor, ▇▇▇▇▇▇, the
Underwriter[s], the Initial Purchaser[s] their respective affiliates,
directors,
officers, employees or agents or any person controlling the
Depositor, ▇▇▇▇▇▇,
the
B-4
Underwriter[s],
the Initial Purchaser[s] or any such affiliate, and (iii) acceptance of and
payment for any of the Offered Certificates or the Private
Certificates.
2. Representations
and Warranties. Seller represents and warrants that:
(i) Seller
is validly existing and in good standing under the laws of
its jurisdiction of
formation or incorporation, as applicable, and has full power
and authority to
own its assets and to transact the business in which it is
currently
engaged. Seller is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the
business transacted
by it or any properties owned or leased by it requires such
qualification and in
which the failure so to qualify would have a material adverse
effect on the
business, properties, assets or condition (financial or otherwise)
of
Seller;
(ii) Seller
is not required to obtain the consent of any other person or
any consent,
license, approval or authorization from, or registration or
declaration with,
any governmental authority, bureau or agency in connection
with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller
will not violate
any provision of any existing law or regulation or any order
decree of any court
applicable to Seller or any provision of the charter or bylaws
of Seller, or
constitute a material breach of any mortgage, indenture, contract
or other
agreement to which Seller is a party or by which it may be
bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental
body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or
the Offered
Certificates, in either case, which would have a material adverse
effect on the
business, properties, assets or condition (financial or otherwise)
of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and
perform this
Agreement and all of the transactions contemplated hereunder,
and has taken all
necessary corporate action to authorize the execution, delivery
and performance
of this Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of each
of Seller enforceable
in accordance with its terms, except as such enforcement may
be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws
affecting the enforcement of creditors’ rights generally, by the availability of
equitable remedies, and by limitations of public policy under
applicable
securities law as to rights of indemnity and contribution
thereunder;
(vi) this
Agreement has been duly executed and delivered by Seller; and
(vii) the
Seller hereto represents that the Due Diligence Writings provided
by the Seller
are true, correct and complete in all material respects as
of the date
hereof.
B-5
3. Notices. All
communications hereunder will be in writing and effective only
on receipt, and,
if sent to Seller, will be mailed, delivered or faxed or emailed
and confirmed
by mail [___________________]; if sent to ▇▇▇▇▇▇, ▇▇▇▇ be mailed,
delivered or
faxed or emailed and confirmed by mail to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
– Whole Loans Operations Manager, Fax: [____],
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with copies to
(i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – Legal Counsel, Securities, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____], Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ – SPG Finance, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax [_____],
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; if to the Depositor, will
be
mailed, delivered or telegraphed and confirmed to [____________________];
or if
to the Underwriter[s], will be mailed, delivered or telegraphed
and confirmed to
[___________________]; or if to the Initial Purchaser[s], will
be mailed,
delivered or telegraphed and confirmed to [___________________].
4. Miscellaneous. This
Agreement shall be governed by, and construed in accordance
with, the laws of
the State of New York without giving effect to the conflict
of laws provisions
thereof. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns and
the controlling
persons referred to herein, and no other person shall have
any right or
obligation hereunder. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only
by an instrument
in writing signed by the party against whom enforcement of
the change, waiver,
discharge or termination is sought. This Agreement may be executed in
counterparts, each of which when so executed and delivered
shall be considered
an original, and all such counterparts shall constitute one
and the same
instrument. Capitalized terms used but not defined herein shall have
the meanings provided in the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
B-6
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly
executed by their respective officers hereunto duly authorized,
this __th day of
[_____________].
| [DEPOSITOR] | |||
|
|
By:
|
||
| Name | |||
| Title | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC. | |||
|
|
By:
|
||
| Name | |||
| Title | |||
| [SELLER] | |||
|
|
By:
|
||
| Name | |||
| Title | |||
B-7
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected
[Vice] President
of ________________[COMPANY], a [state] [federally] chartered
institution
organized under the laws of the [state of ____________] [United
States] (the
“Company”) and further as follows:
1. Attached
hereto as Exhibit 1 is a true, correct and complete copy of the charter
of the Company which is in full force and effect on the date
hereof and which
has been in effect without amendment, waiver, rescission or
modification since
___________.
2. Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws
of
the Company which are in effect on the date hereof and which
have been in effect
without amendment, waiver, rescission or modification since
___________.
3. Attached
hereto as Exhibit 3 is an original certificate of good standing of the
Company issued within ten days of the date hereof, and no event
has occurred
since the date thereof which would impair such standing.
4. Attached
hereto as Exhibit 4 is a true, correct and complete copy of the corporate
resolutions of the Board of Directors of the Company authorizing
the Company to
execute and deliver (a) the Mortgage Loan Purchase and Warranties
Agreement,
dated as of _______ __, 200_ (the “Purchase Agreement”), by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the “Purchaser”) and the Company
and (b) the Custodial Agreement, dated as of _______ __, 200_
(the “Custodial
Agreement”), by and among the Purchaser, the Company, _________________
(the
“Interim Servicer”) and [CUSTODIAN] (the “Custodian”), [and to
endorse the Mortgage Notes and execute the Assignments of Mortgages
by original
[or facsimile] signature], and such resolutions are in effect
on the date hereof
and have been in effect without amendment, waiver, rescission
or modification
since ____________.
5. Either
(i) no consent, approval, authorization or order of any court
or governmental
agency or body is required for the execution, delivery and
performance by the
Company of or compliance by the Company with the Purchase Agreement,
[the sale
of the mortgage loans] or the consummation of the transactions
contemplated by
the agreements; or (ii) any required consent, approval, authorization
or order
has been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the
fulfillment of the
terms of the Purchase Agreement conflicts or will conflict
with or results or
will result in a breach of or constitutes or will constitute
a default under the
charter or by-laws of the Company or, to the best of my knowledge,
the terms of
any indenture or other agreement or instrument to which the
Company is a party
or by which it is bound or to which it is subject, or any statute
or order,
rule, regulations, writ, injunction or decree of any court,
governmental
authority or regulatory body to which the Company is subject
or by which it is
bound.
C-1
7. To
the best of my knowledge, there is no action, suit, proceeding
or investigation
pending or threatened against the Company which, in my judgment,
either in any
one instance or in the aggregate, may result in any material
adverse change in
the business, operations, financial condition, properties or
assets of the
Company or in any material impairment of the right or ability
of the Company to
carry on its business substantially as now conducted or in
any material
liability on the part of the Company or which would draw into
question the
validity of the Purchase Agreement, or the mortgage loans or
of any action taken
or to be taken in connection with the transactions contemplated
hereby, or which
would be likely to impair materially the ability of the Company
to perform under
the terms of the Purchase Agreement.
8. Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Company, signed (a) the Purchase Agreement,
and (b) any
other document delivered or on the date hereof in connection
with any purchase
described in the agreements set forth above was, at the respective
times of such
signing and delivery, and is now, a duly elected or appointed,
qualified and
acting officer or representative of the Company, who holds
the office set forth
opposite his or her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
9. The
Company is duly authorized to engage in the transactions described
and
contemplated in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed
the seal of the
Company.
|
Dated:
|
_____________________
|
|
|
By:
|
||
| Name | |||
| Title: [Vice] President | |||
[Seal]
C-2
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified
and acting
[Vice] President of the Company and that the signature appearing
above is [her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
|
_____________________
|
|
|
By:
|
||
| Name | |||
| Title: [Assistant] Secretary | |||
C-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
||
C-4
EXHIBIT
D
FORM
OF OPINION OF COUNSEL TO THE SELLER
(date)
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel
to
___________________ (the “Company”), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans
pursuant to that
certain Third Amended and Restated Mortgage Loan Purchase and
Warranties
Agreement by and between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc.
(the “Purchaser”), dated as of June 1, 2006 (the “Purchase
Agreement”) which sale is in the form of whole loans, delivered pursuant
to
a Custodial Agreement dated as of _____________ __, ____ among
the Purchaser,
the Company, ________________________________ (the “Interim Servicer”)
and ______________________[CUSTODIAN] (the “Custodial Agreement”, and
collectively with the Purchase Agreement, the
“Agreements”). Capitalized terms not otherwise defined herein
have the meanings set forth in the Purchase Agreement.
[We]
[I]
have examined the following documents:
1. the
Purchase Agreement;
2. the
Custodial Agreement;
3. the
form of Assignment of Mortgage;
4. the
form of endorsement of the Mortgage Notes; and
5. such
other documents, records and papers as we have deemed necessary
and relevant as
a basis for this opinion.
To
the
extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the
representations and warranties of the Company contained in
the Purchase
Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all
signatures, the
legal capacity of natural persons and the conformity to the
originals of all
documents.
D-1
Based
upon the foregoing, it is [our] [my] opinion that:
1. The
Company is a [type of entity] duly organized, validly existing
and in good
standing under the laws of the [United States] and is qualified
to transact
business in, and is in good standing under, the laws of [the
state of
incorporation].
2. The
Company has the power to engage in the transactions contemplated
by the
Agreements and all requisite power, authority and legal right
to execute and
deliver the Agreements and to perform and observe the terms
and conditions of
the Agreements.
3. The
Agreements have been duly authorized, executed and delivered
by the Company, and
are the legal, valid and binding agreement enforceable in accordance
with its
terms against the Company, subject to bankruptcy laws and other
similar laws of
general application affecting rights of creditors and subject
to the application
of the rules of equity, including those respecting the availability
of specific
performance, none of which will materially interfere with the
realization of the
benefits provided thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
4. The
Company has been duly authorized to allow any of its officers
to execute any and
all documents by original signature in order to complete the
transactions
contemplated by the Agreements.
5. The
Company has been duly authorized to allow any of its officers
to execute by
original [or facsimile] signature the endorsements to the Mortgage
Notes and the
Assignments of Mortgages, and the original [or facsimile] signature
of the
officer at the Company executing the endorsements to the Mortgage
Notes and the
Assignments of Mortgages represents the legal and valid signature
of said
officer of the Company.
6. Either
(i) no consent, approval, authorization or order of any court
or governmental
agency or body is required for the execution, delivery and
performance by the
Company of or compliance by the Company with the Agreements
and the sale of the
Mortgage Loans by the Company or the consummation of the transactions
contemplated by the Agreements or (ii) any required consent,
approval,
authorization or order has been obtained by the Company.
7. Neither
the consummation of the transactions contemplated by, nor the
fulfillment of the
terms of, the Agreements conflict or will conflict with or
results or will
result in a breach of or constitute or will constitute a default
under the
charter or by-laws of the Company or, to the best of my knowledge,
the material
terms of any indenture or other agreement or instrument to
which the Company is
a party or by which it is bound or to which it is subject,
or violates any
statute or order, rule, regulations, writ, injunction or decree
of any court,
governmental authority or regulatory body to which the Company
is subject or by
which it is bound.
8. There
is no action, suit, proceeding or investigation pending or,
to the best of [our]
[my] knowledge, threatened against the Company which, in [our]
[my] judgment,
either in any one instance or in the aggregate, may result
in any material
adverse change in the business, operations, financial condition,
properties or
assets of the Company or in any material
D-2
impairment
of the right or ability of the Company to carry on its business
substantially as
now conducted or in any material liability on the part of the
Company or which
would draw into question the validity of the Agreements or
the Mortgage Loans or
of any action taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair materially
the ability
of the Company to perform under the terms of the Agreements.
9. The
sale of each Mortgage Note and Mortgage as and in the manner
contemplated by the
Agreements is sufficient to fully transfer to the Purchaser
all right, title and
interest of the Company thereto as noteholder and mortgagee.
10. The
Mortgages have been duly assigned and the Mortgage Notes have
been duly endorsed
as provided in the Custodial Agreement. The Assignments of Mortgage
are in recordable form, except for the insertion of the name
of the assignee,
and upon the name of the assignee being inserted, are acceptable
for recording
under the laws of the state where each related Mortgaged Property
is
located. The endorsement of the Mortgage Notes, the delivery to the
Purchaser, or its designee, of the Assignments of Mortgage,
and the delivery of
the original endorsed Mortgage Notes to the Purchaser, or its
designee, are
sufficient to permit the Purchaser to avail itself of all protection
available
under applicable law against the claims of any present or future
creditors of
the Company, and are sufficient to prevent any other sale,
transfer, assignment,
pledge or hypothecation of the Mortgages and the Mortgage Notes
by the Company
from being enforceable.
Except
as
otherwise set forth in the Agreements, I assume no obligation
to revise this
opinion or alter its conclusions to update or support this
letter to reflect any
facts or circumstances that may hereafter develop.
This
opinion is given to you for your sole benefit, and no other
person or entity is
entitled to rely hereon except that the purchaser or purchasers
to which you
initially and directly resell the Mortgage Loans may rely on
this opinion as if
it were addressed to them as of the date of this opinion.
|
|
Very
truly yours,
|
|
|
_____________________________
|
|
|
[Name]
|
|
|
[Assistant]
General Counsel
|
D-3
EXHIBIT
E
FORM
OF SECURITY RELEASE CERTIFICATION
___________________,
200__
[Federal
Home Loan Bank of
______(the
“Association”)]
________________________
________________________
________________________
Attention___________________________
___________________________
|
|
Re:
|
Notice
of Sale and Release of
Collateral
|
Dear
Sirs:
This
letter serves as notice that ________________________ [COMPANY]
a [type of
entity], organized pursuant to the laws of [the State of incorporation]
(the
“Company”) has committed to sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc.
under a Third Amended and Restated Mortgage Loan Purchase and
Warranties
Agreement, dated as of June 1, 2006, certain mortgage loans originated by
the Association. The Company warrants that the mortgage loans to be
sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. are in addition
to and beyond any
collateral required to secure advances made by the Association
to the
Company.
The
Company acknowledges that the mortgage loans to be sold to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. shall not be used as additional or substitute
collateral
for advances made by the Association. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc. understands that the balance of the Company’s mortgage loan portfolio may
be used as collateral or additional collateral for advances
made by the
Association, and confirms that it has no interest therein.
E-1
Execution
of this letter by the Association shall constitute a full and
complete release
of any security interest, claim, or lien which the Association
may have against
the mortgage loans to be sold to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc.
| Very truly yours, | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Date: | |||
Acknowledged
and approved:
[FEDERAL
HOME LOAN BANK OF]
__________________________
By:_____________________________
Name:___________________________
Title:____________________________
Date:____________________________
E-2
EXHIBIT
F
FORM
OF SECURITY RELEASE CERTIFICATION
I. Release
of Security Interest
The
financial institution named below hereby relinquishes any and
all right, title,
interest, lien or claim of any kind it may have in all mortgage
loans described
on the attached Schedule A (the “Mortgage Loans”), to be purchased
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. from the company named
on the next page
(the “Company”) pursuant to that certain Third Mortgage Loan Purchase
and
Warranties Agreement, dated as of June 1, 2006, and certifies that all
notes, mortgages, assignments and other documents in its possession
relating to
such Mortgage Loans have been delivered and released to the
Company or its
designees, as of the date and time of the sale of such Mortgage
Loans to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. Such release shall be effective
automatically without any further action by any party upon
payment in one or
more installments, in immediately available funds, of $_____________,
in
accordance with the wire instructions set forth below.
Name,
Address and Wire Instructions of Financial Institution
_______________________________
(Name)
_______________________________
(Address)
_______________________________
_______________________________
_______________________________
By:_____________________________
F-1
II. Certification
of Release
The
Company named below hereby certifies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc.
that, as of the date and time of the sale of the above-mentioned
Mortgage Loans
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. the security interests
in the Mortgage
Loans released by the above-named financial institution comprise
all security
interests relating to or affecting any and all such Mortgage
Loans. The Company warrants that, as of such time, there are and will
be no other security interests affecting any or all of such
Mortgage
Loans.
|
|
By:
|
||
| Title: | |||
| Date: | |||
F-2
EXHIBIT
G
UNDERWRITING
GUIDELINES
G-1
EXHIBIT
H
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this
___ day of _______, 200_, [____________] (“Seller”), as the Seller under (i)
that certain Purchase Price and Terms Agreement, dated as of
_________, 200__
(the “PPTA”), and (ii) that certain Third Amended and Restated
Mortgage
Loan Purchase and Warrants Agreement, dated as of June 1, 2006 (the
“Purchase Agreement”), does hereby sell, transfer, assign, set over and
convey to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital, Inc. (“Purchaser”) as the
Purchaser under the Agreements (as defined below) without recourse,
but subject
to the terms of the Agreements, all right, title and interest
of, in and to the
Mortgage Loans listed on the Mortgage Loan Schedule attached
hereto as
Exhibit A (the “Mortgage Loans”), together with the Mortgage Files
and the related Servicing Rights and all rights and obligations
arising under
the documents contained therein. Each Mortgage Loan subject to the
Agreements was underwritten in accordance with, and conforms
to, the
Underwriting Guidelines attached hereto as Exhibit C. Pursuant
to Section 6 of the Purchase Agreement, the Seller has delivered
to the
Custodian the documents for each Mortgage Loan to be purchased
as set forth in
the Purchase Agreement. The contents of each Servicing File required
to be retained by the Interim Servicer to service the Mortgage
Loans pursuant to
the Interim Servicing Agreement and thus not delivered to the
Purchaser are and
shall be held in trust by the Interim Servicer in its capacity
as Interim
Servicer for the benefit of the Purchaser as the owner thereof. The
Interim Servicer’s possession of any portion of the Servicing File is at the
will of the Purchaser for the sole purpose of facilitating
servicing of the
related Mortgage Loan pursuant to the Interim Servicing Agreement,
and such
retention and possession by the Interim Servicer shall be in
a custodial
capacity only. The ownership of each Mortgage Note, Mortgage and the
contents of the Mortgage File and Servicing File is vested
in the Purchaser and
the ownership of all records and documents with respect to
the related Mortgage
Loan prepared by or which come into the possession of the Seller
shall
immediately vest in the Purchaser and shall be retained and
maintained, in
trust, by the Seller at the will of the Purchaser in a custodial
capacity
only. The PPTA and the Purchase Agreement shall collectively be
referred to as the “Agreements” herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are
set forth on Exhibit B hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser
accepts the Mortgage Loans listed on Exhibit A attached
hereto. Notwithstanding the foregoing the Purchaser does not waive
any rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the
meanings set forth in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
H-1
| [SELLER] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Accepted
and Agreed:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
| [SELLER] | ||
|
By:
|
||
| Name: | ||
| Title: | ||
H-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
H-3
EXHIBIT
B
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF
EACH MORTGAGE LOAN
PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on
the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less than
$_____; (2) an origination date earlier than __ months prior
to the related
Cut-off Date; (3) a CLTV of greater than ____%; (4) a FICO
Score of less than
___; or (5) a debt-to-income ratio of more than ___%. Each Mortgage
Loan has a Mortgage Interest Rate of at least ___% per annum
and an outstanding
principal balance of less than $______. Each Adjustable Rate Mortgage
Loan has an Index of [______].
H-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
H-5