Morgan Stanley Mortgage Capital Inc. and Morgan Stanley Credit Corporation THIRD AMENDED AND RESTATED MASTER MORTGAGE
EXECUTION
COPY
Exhibit
99.9b
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
and
Xxxxxx
Xxxxxxx Credit Corporation
_____________________
THIRD
AMENDED AND RESTATED MASTER MORTGAGE
Dated
as of November 1, 2005
______________________
Fixed,
Adjustable Rate, and Pledged Asset Mortgage Loans
Seller
Flow Delivery Program
Table
of Contents
|
Section
1.
|
Definitions.
|
4
|
|
Section
2.
|
Purchase
of Mortgage Loans.
|
16
|
|
Section
3.
|
Delivery
Requirements.
|
17
|
|
Section
4.
|
Examination
of Mortgage Files.
|
20
|
|
Section
5.
|
Representations,
Warranties and Agreements of Seller.
|
20
|
|
Section
6.
|
Representations,
Warranties and Agreements of Purchaser.
|
31
|
|
Section
7.
|
Compliance
with Regulation AB.
|
33
|
|
Section
8.
|
Section
8. Additional Indemnification by the Seller; Third Party
Claims
|
43
|
|
Section
9.
|
Intention
of the Parties.
|
43
|
|
Section
10.
|
Costs.
|
43
|
|
Section
11.
|
Further
Agreements of Seller.
|
43
|
|
Section
12.
|
Mandatory
Delivery.
|
44
|
|
Section
13.
|
Termination.
|
44
|
|
Section
14.
|
Seller’s
Right of First Refusal
|
44
|
|
Section
15.
|
Severability
Clause.
|
44
|
|
Section
16.
|
Waivers.
|
44
|
|
Section
17.
|
Survival.
|
44
|
|
Section
18.
|
Successor
and Assigns: Assignment of Purchase Agreement.
|
45
|
|
Section
19.
|
Notices.
|
45
|
|
Section
20.
|
Counterparts.
|
45
|
|
Section
21.
|
Entire
Agreement.
|
45
|
|
Section
22.
|
Governing
Law and Amendments.
|
45
|
|
Section
23.
|
Exhibits.
|
46
|
|
Section
24.
|
General
Interpretive Principles.
|
46
|
|
Section
25.
|
Reproduction
of Documents.
|
46
|
|
Section
26.
|
Attorney-In-Fact.
|
47
|
|
Section
27.
|
Confidentiality.
|
47
|
|
EXHIBIT
1
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
2
|
FORM
OF AMENDED AND RESTATED MASTER SERVICING
AGREEMENT
|
|
EXHIBIT
3
|
FORM
OF CUSTODIAL AGREEMENT
|
|
EXHIBIT
4
|
UNDERWRITING
GUIDE OF SELLER
|
|
EXHIBIT
5
|
FORM
OF CERTIFICATE OF SELLER
|
|
EXHIBIT
6
|
FORM
OF ASSIGNMENT FOR ADDITIONAL COLLATERAL
AGREEMENTS
|
|
EXHIBIT
7
|
FORM
OF NOTICE OF ASSIGNMENT TO AND ACKNOWLEDGMENT BY
PURCHASER
|
|
EXHIBIT
8
|
FORM
OF WARRANTY XXXX OF SALE
|
|
EXHIBIT
9
|
FORM
OF TRUST RECEIPT
|
|
EXHIBIT
10
|
FORM
OF FINAL TRUST RECEIPT AND CERTIFICATION
|
|
EXHIBIT
11
|
FORM
OF ANNUAL CERTIFICATION
|
-2-
|
EXHIBIT
12
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
|
-3-
THIRD
AMENDED AND RESTATED MASTER MORTGAGE LOAN
PURCHASE
AGREEMENT
This
is a
THIRD AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AGREEMENT (this
“Agreement”), dated as of November 1, 2005, by and between Xxxxxx Xxxxxxx
Mortgage Capital Inc., a New York corporation having its principal office at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and its successors and assigns
(“Purchaser”), and Xxxxxx Xxxxxxx Credit Corporation, a Delaware corporation
having its principal office at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000
(“Seller”).
PRELIMINARY
STATEMENT
Seller
and Purchaser are parties to that certain Amended and Restated Master Mortgage
Loan Purchase Agreement, dated as of March 1, 2000 (the “Original Purchase
Agreement”), pursuant to which Seller may sell, from time to time, to Purchaser,
and Purchaser may purchase, from time to time, from Seller, certain groups
of
fixed- and adjustable-rate, residential first mortgage loans (the “Mortgage
Loans”) as set forth therein (each date on which a closing of such a sale occurs
is referred to as a “Closing Date”) on a servicing-retained basis. In
addition, Purchaser and Seller are parties to that certain Amended and Restated
Master Servicing Agreement, dated as of November 1, 2005 (the “Servicing
Agreement”) pursuant to which Seller services and administers each Mortgage Loan
for Purchaser, its successors and assigns from and after the respective Closing
Date. At the present time, Purchaser and Seller desire to amend and
restate the Original Purchase Agreement as amended and restated by the Amended
and Restated Master Mortgage Loan Purchase Agreement dated as of March 1, 2000
and further amended and restated by the Second Amended and Restated Master
Mortgage Loan Purchase Agreement dated as of February 1, 2004, to make certain
modifications as set forth herein.
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, Purchaser and Seller agree as
follows:
Section
1. Definitions.
For
purposes of this Agreement, the following capitalized terms shall have the
respective meanings set forth below. Other capitalized terms used in
this Agreement and not defined herein shall have the respective meanings set
forth in the form of Amended and Restated Master Servicing
Agreement.
“Additional
Collateral”: With respect to any Additional Collateral Mortgage Loan,
the securities and other assets held in a Trading Account subject to a security
interest securing such Additional Collateral Mortgage Loan.
“Additional
Collateral Mortgage Loan”: A Mortgage Loan secured by Additional
Collateral in the form of a security interest in the securities and other assets
held in a Trading
-4-
Account
and that is identified by Seller as an Additional Collateral Mortgage Loan
as to
which the Additional Collateral is still required to be provided.
“Additional
Collateral Pledge Agreement”: With respect to each Additional
Collateral Mortgage Loan, any pledge and security agreement and account control
agreement in favor of Seller granting a security interest and other rights
in a
securities account to secure the related Mortgage Loan.
“Adjustable
Rate Mortgage Loan”: A Mortgage Loan that provides for the adjustment
of the Mortgage Interest Rate payable with respect thereto in accordance with
the terms of the related Mortgage Note.
“Affiliate”: With
respect to any specified Person, any other Person controlling, controlled by
or
under common control with such specified Person.
“Agreement”: This
Third Amended and Restated Master Mortgage Loan Purchase Agreement and all
exhibits hereto, amendments hereof and supplements hereto.
“Appraised
Value”: With respect to any Mortgage Loan, the value of the related
Mortgaged Property based upon the lesser of (i) the appraisal, made for the
originator at the time of the origination of the Mortgage Loan, and (ii) if
applicable, the sales price of the Mortgaged Property at such time of
origination.
“Assignment”: An
assignment of the Mortgage, notice of transfer or equivalent instrument,
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale or transfer of the Mortgage
Loan, which assignment, notice of transfer or equivalent instrument may be
in
the form of one or more blanket assignments covering Mortgages securing
Mortgaged Properties located in the same county, if permitted by applicable
law
and acceptable for recording by the applicable recording office. With
respect to any Mortgage Loan registered with MERS, an Assignment shall include
a
notice of transfer sufficient under the governing instruments of MERS to reflect
a transfer of the Mortgage Loan. An Assignment shall include, as
applicable, such instruments as are necessary and sufficient under the laws
of
the jurisdiction where a Cooperative Apartment is located to reflect of record
the sale or transfer of the Mortgage Loan and security interest in the Mortgaged
Property affecting such Cooperative Apartment.
“Assumed
Principal Balance”: With respect to any Mortgage Loan as of any date
of determination (i) the outstanding principal balance as of the Cut-off Date,
after application of principal payments due on or before such date whether
or
not received, minus (ii) all amounts previously distributed to Purchaser with
respect to such Mortgage Loan representing (a) payments or other recoveries
of
principal, or (b) advances of principal made pursuant to Section 5.03 of the
Amended and Restated Master Servicing Agreement.
“Balloon
Mortgage Loan”: Any Mortgage Loan which by its original terms or any
modifications thereof provides for amortization beyond its scheduled maturity
date.
-5-
“Business
Day”: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking or savings associations in the States of New York or Illinois
are
authorized or obligated by law or executive order to be closed.
“Certificate
of Seller”: A certificate signed by the Secretary or one of the Assistant
Secretaries of Seller, substantially in the form attached hereto as Exhibit
5.
“Closing
Date”: For each Transaction, the date on which Seller actually sells
to Purchaser, and Purchaser actually purchases from Seller, the Mortgage Loans
listed on the Final Mortgage Loan Schedule attached to the respective Warranty
Xxxx of Sale.
“Closing
Documents”: (i) With respect to the Initial Closing Date, the
following documents:
|
|
(A)
|
two
counterparts of this Agreement;
|
|
|
(B)
|
two
counterparts of the Amended and Restated Master Servicing
Agreement;
|
|
|
(C)
|
three
counterparts of the Custodial
Agreement;
|
|
|
(D)
|
the
Certificate of Seller, dated as of the Initial Closing
Date;
|
|
|
(E)
|
the
Initial Custody Receipt, dated the Initial Closing Date;
and
|
|
|
(F)
|
ten
(10) counterparts of a power of attorney in the form of Exhibit A
to the
Amended and Restated Master Servicing
Agreement.
|
(ii)
With
respect to the Initial Closing Date and each subsequent Closing Date, the
following documents:
|
|
(A)
|
the
Final Mortgage Loan Schedule for the related
Transaction;
|
|
|
(B)
|
the
initial Custody Receipt (as defined in the Custody Agreement) for
the
related Transaction, dated the Closing Date, with only such exceptions
noted on Schedule B thereto as shall be acceptable to
Purchaser;
|
|
|
(C)
|
the
Warranty Xxxx of Sale with respect to the Mortgage Loans for the
related
Transaction, dated the Closing
Date:
|
|
|
(D)
|
An
original assignment in the form of Exhibit 6 attached hereto of the
Additional Collateral Pledge Agreements with respect to the Additional
Collateral Mortgage Loans; and
|
|
|
(E)
|
The
assignment and notice of transfer by Xxxxxx Xxxxxxx Credit Corporation
of
the security interest on the Trading Accounts from Seller to
Purchaser.
|
-6-
“Commission”:
The United States Securities and Exchange Commission
“Converted
Mortgage Loan”: A Convertible Mortgage Loan with respect to which the related
Mortgagor has exercised its option to convert the related Mortgage Note from
a
Mortgage Note with an adjustable interest rate to a Mortgage Note with a fixed
interest rate.
“Convertible
Mortgage Loan”: An Adjustable Rate Mortgage Loan with a Mortgage Note that
contains an option of the Mortgagor to convert the related Mortgage Note from
a
Mortgage Note with an adjustable interest rate to a Mortgage Note with a fixed
interest rate.
“Cooperative
Apartment”: A dwelling unit in a multi-dwelling building owned or leased by a
cooperative housing corporation, which unit the Mortgagor has an exclusive
right
to occupy pursuant to the terms of a proprietary lease in accordance with the
laws of the state in which the building is located.
“Cooperative
Loan”: A Mortgage Loan evidenced by a Mortgage Note and secured by a first lien
against (i) shares issued by a cooperative housing corporation and (ii) the
related Mortgagors' leasehold interest in the Mortgagor's Cooperative
Apartment. The security interest created in the Mortgagor's
Cooperative Apartment and the proprietary lease shall include the following
documentation, as required by the applicable laws of the state in which such
Cooperative Apartment is located: (a) a security agreement, (b) the related
UCC-1 Financing Statement, (c) an assignment of the cooperative lease, (d)
the
stock certificate evidencing ownership of such Cooperative Apartment,
appropriately endorsed, or an equivalent stock power, (e) a recognition
agreement, and (f) such other documents as are necessary and proper for the
perfection of a lien against such Cooperative Apartment, all as are required
under state law.
“Custodial
Account”: The separate trust account or accounts created and maintained pursuant
to Section 4.04 of the Amended and Restated Master Servicing Agreement which
shall be entitled “Xxxxxx Xxxxxxx Credit Corporation, in trust for Xxxxxx
Xxxxxxx Mortgage Capital Inc.,” or such other title as is requested by
Purchaser.
“Custodial
Agreement”: The Custodial Agreement, among Seller, Purchaser and the Custodian
for the retention of each Mortgage Note, Mortgage, Assignment and certain other
portions of each Mortgage File, substantially in the form attached to this
Agreement as Exhibit 3, as the same may be amended, modified, restated or
supplemented from time to time.
“Custodian”:
The Custodian under the Custodial Agreement, or its successor.
“Cut-off
Date”: With respect to each Mortgage Loan, the first day of the month in which
the related Closing Date occurs.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by a Qualified
Substitute Mortgage Loan.
-7-
“Due
Date”: As to any Mortgage Loan, the day each Monthly Payment is due on such
Mortgage Loan, exclusive of any days of grace.
“Equity
Refinanced Mortgage Loan”: A Refinanced Mortgage Loan in which the Mortgagor
used less than the entire amount of the proceeds (net of any closing costs,
including discount and origination fees and prepaid items) to refinance an
existing mortgage loan and any junior lien that existed on the related Mortgaged
Property at the date of origination of the Refinanced Mortgage
Loan.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended.
“Xxxxxx
Xxx”: Xxxxxx Xxx, f/k/a the Federal National Mortgage Association, or any
successor organization.
“Xxxxxx
Mae Guides”: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae
Servicers’ Guide, and all amendments or additions thereto.”
“Final
Mortgage Loan Schedule”: The list of Mortgage Loans for a Transaction, which
list shall set forth the following information with respect to each Mortgage
Loan:
|
|
(i)
|
the
loan number;
|
|
|
(ii)
|
the
Mortgagor's name;
|
|
|
(iii)
|
the
street address of the Mortgaged Property, including city, state and
zip
code;
|
|
|
(iv)
|
the
Mortgage Interest Rate at
origination;
|
|
|
(v)
|
for
each Adjustable Rate Mortgage Loan, the first Interest Rate Adjustment
Date and the first Payment Adjustment
Date;
|
|
|
(vi)
|
for
each Adjustable Rate Mortgage Loan, the Gross
Margin;
|
|
|
(vii)
|
for
each Adjustable Rate Mortgage Loan, the Lifetime Rate
Cap;
|
|
|
(viii)
|
for
each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
|
|
|
(ix)
|
the
original term to maturity;
|
|
|
(x)
|
the
original principal balance;
|
|
|
(xi)
|
the
first payment date;
|
|
|
(xii)
|
the
maturity date;
|
|
|
(xiii)
|
the
Monthly Payment in effect as of the related Cut-off
Date;
|
-8-
|
|
(xii)
|
the
maturity date;
|
|
|
(xiii)
|
the
Monthly Payment in effect as of the related Cut-off
Date;
|
|
|
(xiv)
|
the
principal balance as of the related Cut-off Date, after giving
effect to
all payments of principal due on or before such date, whether
or not
received;
|
|
|
(xv)
|
the
Loan-to-Value Ratio as of the date
origination;
|
|
|
(xvi)
|
a
code indicating whether the Mortgaged Property is occupied by
Mortgagor;
|
|
|
(xvii)
|
a
code indicating the type of residential
dwelling;
|
|
|
(xviii)
|
a
code indicating whether the Mortgage Loan is a purchase mortgage
loan,
rate/term refinance loan, limited cash-out loan or cash-out refinance
loan;
|
|
|
(xix)
|
a
code indicating whether the Mortgage Loan is covered by a Primary
Mortgage
Insurance Policy;
|
|
|
(xx)
|
a
code indicating whether the Mortgage Loan is a Limited Documentation
Mortgage Loan;
|
|
|
(xxi)
|
a
code indicating whether the Mortgage Loan is an Additional
Collateral
Mortgage Loan;
|
|
|
(xxii)
|
for
each Adjustable Rate Mortgage Loan, a code indicating the type
of
Index;
|
|
|
(xxiii)
|
a
code indicating whether the Mortgage Loan is a Balloon Mortgage
Loan;
|
|
|
(xxv)
|
the
Servicing Fee Rate applicable to such Mortgage Loan, and if
such Mortgage
Loan is an Adjustable Rate Mortgage Loan whose first Interest
Rate
Adjustment has not occurred, the Servicing Fee Rate (if different)
prior
to the first Interest Rate Adjustment
Date;
|
|
|
(xxvi)
|
a
code indicating whether the Mortgage Loan is a Convertible
Mortgage
Loan;
|
|
|
(xxvii)
|
a
code indicating whether the Mortgagor is
self-employed;
|
|
|
(xxviii)
|
a
code indicating the value of the Mortgagor’s assets at
origination;
|
|
|
(xxix)
|
Appraised
Value; and
|
|
|
(xxx)
|
a
code indicating the Primary Mortgage Insurance Policy provider
and percent
of coverage, if
applicable.
|
Such
schedule shall also set forth the weighted average of the amounts described
under (iv) above for all of the Mortgage Loans. Such list may be in
the form of more than one list, collectively setting forth all of the
information required.
“Fixed
Rate Mortgage Loan”: A Mortgage Loan that provides for a fixed Mortgage Interest
Rate over the term of the related Mortgage Note.
-9-
“Xxxxxxx
Mac”: Xxxxxxx Mac, f/k/a the Federal Home Loan Mortgage Corporation, or any
successor organization.
“Gross
Margin”: With respect to each Adjustable Rate Mortgage Loan, the fixed number of
basis points set forth in the Final Mortgage Loan Schedule that is added to
the
Index on each Interest Rate Adjustment Due Date in accordance with the terms
of
the related Mortgage Note to determine the Mortgage Interest Rate for such
Mortgage Loan, subject to any applicable Periodic Rate Cap and Lifetime Rate
Cap.
“High
Cost Loan”: A Mortgage Loan classified as (a) a “high cost” loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a “high cost
home,” “threshold,” “covered,” “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).
“Index”:
With respect to each Adjustable Rate Mortgage Loan and each Interest Rate
Adjustment Date, the index used to determine the Mortgage Interest Rate on
such
Adjustable Rate Mortgage Loan, as specified in the related Mortgage Note, in
each case as available the number of days prior to any Interest Rate Adjustment
Date set forth in the related Mortgage Note, which index may be (i) the average
of the London Interbank Offered Rates for one- or six-month U.S. dollar
deposits, as published in the “Money Rates” table of The Wall Street
Journal or elsewhere (as specified in the related Mortgage Note) on the
date or dates specified in such Mortgage Note for the determination of such
rate, (ii) the weekly average of the closing market bid yields on actively
traded U.S. Treasury securities adjusted to a constant maturity of one year,
(iii) the weekly average or the monthly average of weekly average auction rates
on U.S. Treasury bills with a maturity of six months, as published by the Board
of Governors of the Federal Reserve System in Federal Reserve Statistical
Release H.15. (519), (iv) the weekly average of the closing market bid yields
on
U.S. Treasury securities adjusted to a constant maturity of one (1) year, as
published by the Board of Governors of the Federal Reserve System in Federal
Reserve Statistical Release H.15. (519), (v) the weekly average of the closing
market bid yields on U.S. Treasury securities adjusted to a constant maturity
of
five (5) years, as published by the Board of Governors of the Federal Reserve
System in Federal Reserve Statistical Release H.15. (519), (vi) the prime rate
specified in the related Mortgage Note, as published in the “Money Rates” table
of The Wall Street Journal, or elsewhere (as specified in such Mortgage
Note), (vii) the monthly weighted average cost of funds of members of the
Federal Home Loan Bank of San Francisco, (viii) such other standard for
determining the change in the interest rate as may be set forth
in
the related Mortgage Note, or (ix) if such index is not so published or is
otherwise unavailable, such comparable alternative index selected by Seller
in
accordance with the terms of the Mortgage Notes and in consultation with
Purchaser.
“Initial
Closing Date”: The first Closing Date to occur.
-10-
“Initial
Custody Receipt”: For each Transaction, the initial Custody Receipt, executed by
the Purchaser or the Custodian with respect to the Mortgage Loans for such
Transaction, substantially in the form of Exhibit One to the Custodial
Agreement.
“Interest
Rate Adjustment Date”: With respect to each Adjustable Rate Mortgage Loan, the
date on which the Mortgage Interest Rate is adjusted in accordance with the
terms of the related Mortgage Note.
“Lifetime
Rate Cap”: With respect to each Adjustable Rate Mortgage Loan, the maximum
Mortgage Interest Rate that may be borne thereby, as set forth in the related
Mortgage Note.
“Limited
Documentation Mortgage Loan”: A Mortgage Loan that was originated pursuant to a
“limited documentation” or “easy qualifier” underwriting program.
“Loan-to-Value
Ratio” or “LTV”: With respect to any Mortgage Loan, as of any date on which a
determination thereof is made, the ratio on such date of the outstanding
principal balance of such Mortgage Loan to the Appraisal Value of the related
Mortgaged Property.
“MERS”:
Mortgage Electronic Registration Systems, Inc.
“Monthly
Payment”: The scheduled monthly payment of interest and, when applicable,
principal on a Mortgage Loan which is payable by a Mortgagor from time to time
under the related Mortgage Note on every Due Date.
“Mortgage”:
The mortgage, trust deed or other instrument securing the
respective Mortgage Loan, as the same may be amended, modified,
restated or supplemented from time to time.
“Mortgage
File”: As to any Mortgage Loan, the mortgage, any related mortgage documents
and, if the Mortgaged Property is a Cooperative Apartment, all documents
relating to the security interest in a Cooperative Apartment, including but
not
limited to all paper, computer generated and microfiche records, pertaining
to a
particular Mortgage Loan which are specified in Exhibit 1 hereto and any
additional documents required to be added to the Mortgage File pursuant to
the
Program Documents.
“Mortgage
Interest Rate”: The annual rate at which interest accrues on any Mortgage Loan,
net of any premium on any related Primary Mortgage Insurance Policy and any
continuing compensation paid to correspondent lenders; provided that, with
respect to any Adjustable Rate Mortgage
Loan, the term “Mortgage Interest Rate” shall mean the annual rate applicable
thereto as the same may be adjusted on any Interest Rate Adjustment Date and
subject to the limitations on such interest rate imposed by the Periodic Rate
Cap and the Lifetime Rate Cap.
“Mortgage
Loan”: An individual Mortgage Loan, including but not limited to all documents
included in the Mortgage File, Monthly Payments, principal prepayments,
insurance
-11-
proceeds,
condemnation proceeds, liquidation proceeds, and any and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith, and
which
is the subject of this Agreement. Each Mortgage Loan set forth on the
Final Mortgage Loan schedule attached to a Warranty Xxxx of Sale will initially
be subject to this Agreement, commencing on the respective Closing Date for
the
related Transaction.
“Mortgage
Loan Documents”: With respect to each Mortgage Loan, the documents specified in
Section 3(b) of this Agreement, which documents Seller shall deliver to
the Purchaser or Custodian pursuant thereto.
“Mortgage
Loan Payments”: With respect to each Mortgage Loan (i) all scheduled principal
due after the related Cut-off-Date, (ii) all other recoveries of principal
collected after the related Cut-off Date and collected by Seller after the
related Cut-off Date, and (iii) all payments of interest on the Mortgage Loans
at the Mortgage Loan Remittance Rate minus that portion of any such payment
that
is allocable to the period prior to the related Cut-Off Date; provided,
however, that payments of scheduled principal and interest prepaid
for a
due date beyond the related Cut-off Date shall not be applied to the principal
balance as of the related Cut-off Date and that such principal and such prepaid
amounts (minus interest at the Servicing Fee Rate) shall constitute a part
of
the Mortgage Loan Payments, which prepaid amounts Seller shall deposit into
the
related Custodial Account established for the benefit of Purchaser for
subsequent remittance by Seller to Purchaser pursuant to the Amended and
Restated Master Servicing Agreement.
“Mortgage
Loan Remittance Rate”: With respect to each Mortgage Loan, the
related Mortgage Interest Rate minus the Servicing Fee Rate.
“Mortgage
Note”: The note or other evidence of the indebtedness of a Mortgagor secured by
a Mortgage.
“Mortgaged
Property”: The underlying real property securing repayment of a Mortgage Note,
consisting of a fee simple or leasehold interest in a single parcel of real
property improved by a residential dwelling or a single Cooperative Apartment
including the stock certificates evidencing ownership in such Cooperative
Apartment, the proprietary lease and all attendant right, title and interest
thereto.
“Mortgagor”:
The obligor on a Mortgage Note.
“Payment
Adjustment Date”: With respect to each Adjustable Rate Mortgage Loan, the first
date on which payments thereon may be adjusted and all subsequent such dates
of
adjustment,
as set forth in the related Final Mortgage Loan Schedule and in the related
Mortgage Note.
“Periodic
Rate Cap”: With respect to each Adjustable Rate Mortgage Loan as to which the
related Final Mortgage Loan Schedule indicates the existence of Periodic
Rate
Cap, the provision of the related Mortgage Note that provides for a maximum
amount by which the
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Mortgage
Interest Rate may increase (or, if so indicated on such Final Mortgage Loan
Schedule, decrease) on an Interest Rate Adjustment Date above the Mortgage
Interest Rate immediately prior to such Interest Rate Adjustment
Date.
“Person”:
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Preliminary
Mortgage Loan Schedule”: The initial list of Mortgage Loans for a proposed
Transaction, which list shall set forth at least the information with respect
to
each Mortgage Loan described in items (i), (ii), (iv), (ix), (xii), (xiii),
(xiv), (xvi), (xx), (xxi), (xxii) and (xxiii) of the definition of “Final
Mortgage Loan Schedule”. The Preliminary Mortgage Loan Schedule may
be electronically delivered to Purchaser.
“Primary
Mortgage Insurance Policy”: With respect to each Mortgage Loan, the policy of
primary mortgage insurance, if any, in effect as indicated on the related Final
Mortgage Loan Schedule, or any replacement policy therefor obtained by Seller
pursuant to the Amended and Restated Master Servicing Agreement.
“Program
Documents”: With respect to each Transaction, the related Purchase Price and
Terms Letter, the related Warranty Xxxx of Sale, the Amended and Restated Master
Servicing Agreement, the Custodial Agreement, this Agreement and each other
document or instrument executed or delivered by Seller in connection with any
of
the foregoing.
“Purchase
Price”: With respect to each Mortgage Loan listed on the Final Mortgage Loan
Schedule for a Transaction the price paid on the related Closing Date by
Purchaser to Seller in exchange for such Mortgage Loan, which amount shall
equal
the sum of (i) the related Purchase Price Percentage multiplied by the unpaid
principal balance of such Mortgage Loan as of the related Cut-off Date, after
application of scheduled payments of principal due on or before such Cut-off
Date whether or not collected, and (ii) interest scheduled to accrue on the
unpaid principal balance of such Mortgage Loan at the Mortgage Loan Remittance
Rate, from the related Cut-off Date to the day prior to the related Closing
Date, inclusive.
“Purchase
Price and Terms Letter”: with respect to each Transaction, the letter agreement
or agreements setting forth the general terms and conditions of such Transaction
to be consummated as provided herein, with a copy of the related Preliminary
Mortgage Loan Schedule, if requested by Purchaser, by and between Seller and
Purchaser. The related Purchase Price and Terms Letter shall set
forth among other matters, (i) the approximate dollar amount of Mortgage Loans
for the related Transaction, (ii) the related Cut-off Date, (iii) the proposed
Closing
Date, (iv) the related Purchase Price Percentage, (v) the related
Servicing Fee Rate, and (vi) the characteristics, including the characteristics
set forth in the related Warranty Xxxx of Sale, for the related Mortgage Loans,
both individually and in the aggregate. All of the individual
Purchase Price and Terms Letters shall be referred to, collectively, as the
“Purchase Price and Terms Letter”.
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“Purchase
Price Percentage”: With respect to each Mortgage Loan, the percentage of par set
forth in the related Purchase Price and Terms Letter (subject to adjustment
as
provided therein) at which Purchaser will purchase the Mortgage Loan from Seller
on the Closing Date.
“Qualified
Correspondent”: Any Person from which the Seller purchased Mortgage Loans,
provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller
and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller (“Designated Guidelines”) or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans
were in fact underwritten as described in clause (i) above and were acquired
by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans
properly applied the underwriting criteria designated by the
Seller.
“Qualified
Substitute Mortgage Loan”: A Mortgage Loan substituted by Seller for a Deleted
Mortgage Loan which must, on the date of such substitution (i) have an
outstanding 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 outstanding principal balance of the Deleted Mortgage Loan
(the
amount of any shortfall to be deposited into the Custodial Account by Seller
in
the month of substitution pursuant to Section 4.04 (vii) of the Amended and
Restated Master Servicing Agreement), (ii) have a Mortgage Interest Rate which
is within one percent (1%) per annum 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, and (iv) comply with each
representation and warranty set forth Section 5(b) of this
Agreement.
“Reconstitution”:
Any Securitization Transaction or Whole Loan Transfer.
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
“Refinanced
Mortgage Loan”: A Mortgage Loan that was made to a Mortgagor who owned the
Mortgaged Property prior to the origination of such Mortgage Loan and the
proceeds
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of
which
(net of any closing costs, including discount and origination fees and prepaid
items) were used in whole or part to satisfy an existing mortgage.
“Securities
Act”: The Securities Act of 1933, as amended.
“Securitization
Transfer”: 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.
“Servicing
Criteria”: The “servicing criteria” set forth in Item 1122(d) of Regulation AB,
as such may be amended from time to time.
“Servicing
Fee”: With respect to any Mortgage Loan and any Remittance Date, the fee payable
monthly to Seller, as servicer, under Section 7.03 of the Amended and Restated
Master Servicing Agreement.
“Servicing
Fee Rate”: With respect to each Mortgage Loan, the rate per annum set forth in
the related Final Mortgage Loan Schedule as the “Servicing Fee
Rate”.
“Static
Pool Information”: Static pool information as described in Item 1105(a)(1)-(3)
and 1105(c) of Regulation AB.
“Subcontractor”:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
“Subsequent
Purchaser”: Any Person that acquires an interest in a Mortgage Loan from
Purchaser.
“Subservicer”:
Any Person that services Mortgage Loans on behalf of the Seller or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Seller under this Agreement
or any Reconstitution Agreement that are identified in Item 1122(d) of
Regulation AB.
“Surety
Bond Issuer”: Shall mean AMBAC Assurance Corporation or any successor
thereto.
“Third-Party
Originator”: Each Person, other than a Qualified Correspondent, that originated
Mortgage Loans acquired by the Seller.
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“Trading
Account”: With respect to any Additional Collateral Mortgage Loan as to which a
Additional Collateral Pledge Agreement was made, the account in which is held
the securities and other assets that are subject to such Additional Collateral
Pledge Agreement.
“Transaction”:
The sale by Seller to Purchaser, and the purchase by Purchaser from Seller,
of
one or more Mortgage Loans on a Closing Date, as evidenced by the execution
and
delivery by Seller to Xxxxxx Xxxxxxx Mortgage Capital, Inc. as the initial
Purchaser, of the Warranty Xxxx of Sale.
“Underwriting
Guide”: The Underwriting Guide of Seller attached hereto as Exhibit 4, as
amended, modified, restated or supplemented from time to time.
“Warranty
Xxxx of Sale”: The warranty xxxx of sale executed and delivered by Seller to
Purchaser on a Closing Date, evidencing the sale of the related Mortgage Loans
by Seller to Purchaser and setting forth certain representations and warranties
of Seller with respect thereto, in the form attached hereto as Exhibit
8.
“Whole
Loan Transfer”: Any sale or transfer of some or all of the Mortgage Loans, other
than a Securitization Transaction.
Section
2. Purchase
of Mortgage Loans.
(a) Sale
and Conveyance of Mortgage Loans. From time to xxxx Xxxxxx may offer to sell
to Purchaser, and Purchaser may elect to purchase form Seller, Mortgage Loans
in
one or more Transactions pursuant to the terms and conditions of the Program
Documents. The agreement of Seller to sell to Purchaser and of
Purchaser to purchase from Seller, Mortgage Loans on a particular Closing Date
shall be evidenced by the execution of a Purchase Price and Terms
Letter. The obligation of Purchaser to purchase any Mortgage Loan
from Seller on any particular Closing Date shall be subject to the satisfaction
of the conditions precedent to Purchaser's obligation to purchase set forth
in
Section 2(b). The sale of each Mortgage Loan shall be
reflected in Seller's balance sheet and other financial statements as a sale
of
assets by Seller.
(b) Conditions
of Closing. On each respective Closing Date (i) Seller will sell, transfer,
assign, set over and convey to purchaser without recourse, all of the right,
title and interest of Seller in and to the Mortgage Loans included in such
Transaction, including all Mortgage Loan Payments, and (ii) Purchaser shall
pay
to Seller, by wire transfer of immediately available funds to the account of
Seller, the Purchase Price for each Mortgage Loan included in such
Transaction, subject to the satisfaction of the following conditions
to Purchaser's obligation to purchase the Mortgage Loans:
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(A)
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All
of the representation and warranties of Seller under the Program
Documents
shall be true and correct in all material respects as of the Closing
Date,
and no event shall have occurred that, with notice or the passage
of time,
would
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constitute
a default under any Program Document, including an Event of Default
under
the Amended and Restated Master Servicing
Agreement;
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(B)
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Purchaser
shall have received, or Purchaser's attorneys shall have received
in
escrow, the Closing Documents, in such forms as are agreed upon and
as are
acceptable to Purchaser, duly executed by all signatories other than
Purchaser required pursuant to the respective terms
thereof:
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(C)
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Seller
shall have delivered and released to Purchaser or the Custodian all
documents required under the Program Documents;
and
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(D)
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Seller
shall have complied with all other terms and conditions of this
Agreement.
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(c) Record
Title and Possession of Mortgage Files. From and after the sale
of each Mortgage Loan, the contents of the related Mortgage File and all rights,
benefits, proceeds and obligations arising therefrom or in connection therewith,
shall be transferred to, and assumed by, Purchaser. All rights,
arising out of each Mortgage Loan, including, but not limited to, all funds
received on or in connection with such Mortgage Loans and all records or
documents with respect to such Mortgage Loan prepared by or which come into
the
possession of Seller shall be received and held by Seller in trust for the
benefit of Purchaser as the owner of the Mortgage Loan. Any portion
of the Mortgage File held by Seller for servicing purposes shall be
appropriately marked to clearly reflect ownership of the Mortgage Loan by
Purchaser and Seller shall promptly release such portion of the Mortgage File
to
Purchaser, when Seller's servicing needs no longer necessitate retaining such
documents.
Section
3. Delivery
Requirements.
(a) Final
Mortgage Loan Schedules. On or before the date on which Seller
and Purchaser execute a Purchase Price and Terms Letter, Seller shall provide
Purchaser with the respective Preliminary Mortgage Loan Schedule. Not
less than one (1) Business Day prior to the related Closing Date, Seller either
(i) shall deliver the related Final Mortgage Loan Schedule to Purchaser or
(ii)
shall deliver to Purchaser all information with respect to the Mortgage Loans
to
be sold to Purchaser on such Closing Date that is necessary to enable Purchaser
to prepare the related Final Mortgage Loan Schedule, which information shall
be
delivered on a computer disk on a machine-readable tape or in such other format
as Purchaser may reasonably specify.
(b) Delivery
of Mortgage Loan Documents. Seller is currently in possession of
the following original Mortgage Loan Documents for each Mortgage
Loan:
(A) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the Seller
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; and
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(B) the
original Mortgage with evidence of recording thereon. 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 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 Seller to be a true and complete
copy of the original recorded Mortgage;
(D) The
original policy of title insurance, if applicable (or a preliminary title report
if the original title insurance policy has not been received from the title
insurance company or if a preliminary title report is the documentation required
by Seller).
(E) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(F) the
original Assignment of Mortgage for each Mortgage Loan, executed in blank and
in
form and substance acceptable for recording;
(G) the
originals of all intervening assignments of mortgage 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 Officers Certificate of the Seller 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 Seller to be a true and complete copy of the original
recorded intervening assignment;
(H) With
respect to the Additional Collateral Mortgage Loan, a copy of any related
pledge, security or control agreement, as the case may be.
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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 Seller to be a true and complete copy of the original
recorded intervening assignment;
(H) With
respect to the Additional Collateral Mortgage Loan, a copy of any related
pledge, security or control agreement, as the case may be.
(I) With
respect to the Additional Collateral Mortgage Loan, a copy of any filed UCC-1
financing statements or, if the UCC-1 has not yet been returned from the
recording office, a copy of such UCC-1 which has been delivered for recording
and an original form UCC-3 assignment, if applicable.
If
(1)
the original Mortgage was not delivered pursuant to clause (B) above, (2) any
original intervening assignment was not delivered pursuant to clause (F) above
or (3) the original title insurance policy was not delivered pursuant to clause
(C) above, Seller shall use reasonable efforts to promptly secure the delivery
of such originals and shall cause such originals to be delivered to Purchaser
or
the Custodian promptly upon receipt thereof. If any such document is
not so delivered to Purchaser or the Custodian within one hundred eighty (180)
days following the Closing Date (or such longer period of time as may be
necessitated solely as a result in delays caused by a party other than the
Seller), the related Mortgage Loan shall, upon the request of Purchaser, (i)
be
repurchased by Seller at the price specified in Section 5(c), or (ii) be
replaced by a Qualified Substitute Mortgage Loan (the election of (i) or (ii)
being at the option of Purchaser), provided that the Purchaser gives the Seller
notice within ten (10) days of the expiration of such delivery
period.
No
Assignment of Mortgage evidencing the transactions contemplated hereby shall
be
recorded by Seller unless required by law. Purchaser may at its
option and expense (including recordation fees) prepare and record any
Assignment of Mortgage.
From
and
after the related Closing Date, Seller, as bailee (the “Bailee”), shall
continue to hold the Mortgage Files as custodian and bailee for the Purchaser,
the owner of the related Mortgage Loans, and shall issue in the name of the
Purchaser or its designee, a trust receipt in the form of Exhibit 9
hereto (the “Trust Receipt”) evidencing the ownership of the Mortgage
Loans related thereto.
At
the
Purchaser’s request, the Bailee shall issue, within 2 Business Days from such
request, a final trust receipt and certification evidencing the Purchaser’s
ownership of the related Mortgage Loans in the form of Exhibit 10 hereto
(the “Final Trust Receipt and Certification”), which Final Trust Receipt
and Certification shall have attached thereto a list of document exceptions,
if
any, based upon the documents to be contained in the Mortgage File as listed
above.
Upon
3
Business Days prior written notice from the Purchaser to the Bailee, the Bailee
shall deliver or cause to be delivered to the Purchaser or any party designated
in such notice, the Mortgage Files, and shall release them to the Purchaser
or
its designee in accordance with
the
directions of the Purchaser. Such delivery date(s) shall herein be
known as release date(s) (each, a “Release Date”).
In
the
event that the Bailee fails to deliver any Mortgage File, or any component
thereof, in connection with the Purchaser’s instructions, the Bailee shall
indemnify the Purchaser for and hold the Purchaser harmless against any and
all
liability, costs and expenses (including attorneys’ fees) arising out of such
failure to deliver any Mortgage File.
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From
and
after the Closing Date and until the applicable Release Date, the Bailee shall
maintain continuous custody and control of the Mortgage Files as custodian
and
bailee for the Purchaser.
(c) Purchaser
hereby acknowledges that Seller may register the Mortgages subject to this
Agreement with MERS as a nominee for Seller, either through the recordation
of a
mortgage or deed of trust which shows MERS as a nominee for Seller or by the
recordation of an Assignment which shows MERS as a nominee for Seller, for
purposes of facilitating the transfer of the Mortgage Loan and/or Mortgage
Loan
Documents. Purchaser and Seller hereby acknowledge that MERS will
have no beneficial interest in the Mortgage Loan and that the registration
of
the Mortgage Loan with MERS will not in any way affect the rights, title,
interest, obligations or responsibilities of Purchaser and Seller under the
terms of this Agreement. Purchaser and Seller agree to cooperate in
all ways necessary to effectuate the use of MERS for the purpose of facilitating
the transfer of applicable Mortgage Loan Documents, and withstanding any other
provisions in this Agreement to the contrary, agree to accept such documentation
and evidence of transfer provided by MERS under its operating documents to
accomplish the transfer of ownership in the Mortgage Loan.
Section
4. Examination
of Mortgage Files.
Prior
to
the respective Closing Date, Seller, shall make available to Purchaser, for
examination, the Mortgage File pertaining to each related Mortgage Loan at
the
offices of Seller, or such other location as Seller and Purchaser shall mutually
designate. Such examination may be made by Purchaser of the related Mortgage
Loan at any time before the related Closing Date and may be made by Purchaser
or
any prospective Subsequent Purchaser of such Mortgagee Loan at any time after
such Closing Date. If Purchaser makes such examination prior to the
Closing Date and identifies any Mortgage Loan that does not conform to the
terms
of the Purchase Price and Terms Letter, such Mortgage Loan shall be deleted
from
the Final Mortgage Loan Schedule and may be replaced by a substitute Mortgage
Loan that conforms to the terms of the Purchase Price and Terms Letter and
that
is reasonably acceptable to Purchaser. Purchaser may, at its option
and without notice to Seller, purchase all or part of the Mortgage Loans for
a
Transaction without conducting any partial or complete
examination. The failure or omission by Purchaser or any Subsequent
Purchaser of the Mortgage Loans to conduct any partial or complete examination
of the Mortgage Files shall not affect Purchaser's rights to demand repurchase
or other relief as provided under any Program Document.
Section
5. Representations,
Warranties and Agreements of Seller.
(a) Seller
represents and warrants to Purchaser that as of the date hereof and as of
each
respective Closing Date (or as of such other date or dates as may be expressly
set forth below);
(i) Seller
is duly incorporated, validly existing and in good standing as a corporation
under the laws of the State of Delaware. Seller has full power and
authority, corporate and otherwise, to own its properties and conduct its
business as presently
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conducted
by it, and to enter into and perform its obligations under the Program Documents
and to sell each Mortgage Loan. To the extent material to Purchaser's rights
hereunder, Seller holds all material licenses necessary to carry on its business
as now being conducted and is licensed in, qualified to transact business in
and
is in good standing under the laws of each state in which any Mortgaged Property
is located if the laws of such state require licensing or qualification in
order
to conduct business of the type conducted by Seller, and in any event Seller
was
and is in compliance with the laws of any such state to the extent necessary
to
ensure the enforceability of each Mortgage Loan.
(ii) This
Agreement, the Amended and Restated Master Servicing Agreement and the Custodial
Agreement have been duly authorized, executed and delivered by Seller, and
assuming the due authorization, execution and delivery thereof by Purchaser
and
the enforceability thereof against Purchaser, constitutes the legal, valid
and
binding agreement of Seller, enforceable against Seller in accordance with
its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, liquidation, moratorium, reorganization or other similar laws
affecting the rights of creditors generally or by general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or at
law.
(iii) As
of the respective Closing Date, the related Purchased Price and Terms Letter
has
been duly authorized, executed and delivered by Seller, and such Purchase Price
and Terms letter, assuming the due authorization, execution and delivery thereof
by Purchaser and the enforceability thereof against Purchaser, constitutes
the
legal, valid and binding agreement of Seller, enforceable against Seller in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, liquidation, moratorium, reorganization or other
similar laws affecting the rights of creditors generally or by general
principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
(iv) As
of the respective Closing Date, the related Warranty Xxxx of Sale has been
duly
authorized, executed and delivered by Seller, and such Warranty Xxxx of Sale
constitutes the legal, valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, liquidation, moratorium,
reorganization or other similar laws affecting
the rights of creditors generally or by general principles of equity, regardless
of whether enforcement is sought in a proceeding in equity or at law.
(v) the
representations and warranties made by Seller under the Amended and Restated
Master Servicing Agreement and the related Warranty Xxxx of Sale are true
and
correct in all material respects as of the respective Closing Date.
(vi) Neither
the delivery of the Mortgage Loans to Purchaser, nor the sale of the Mortgage
Loans to Purchaser, nor the execution or delivery of the Program Documents,
nor
the consummation of any of the Transactions herein or therein
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contemplated,
nor the fulfillment of the terms hereof or thereof, will result in the breach
of
any term or provision of the certificate of incorporation or by-laws of Seller,
or conflict with, result in a material breach or cause an
acceleration of or constitute a default under any material term of any material
indenture or other material agreement or instrument to which Seller is a party
or by which Seller is bound, or any statute, order or regulation applicable
to
Seller of any court, regulatory body, administrative agency, government body
or
arbitrator having jurisdiction over Seller.
(vii) There
are no actions, proceedings or investigations pending or, to Seller's knowledge,
threatened against Seller that, in Seller's judgment, if determined adversely
to
Seller, would prevent the consummation of any of the Transactions or would
materially and aversely affect the interests of Purchaser in the Mortgage Loans,
taken as a whole, the validity or enforceability of any of the Program Documents
or the ability of Seller to fulfill the terms of any of the Program
Documents.
(viii) Seller
has complied with all applicable anti-money laundering laws and regulations,
including without limitation, the USA Patriot Act of 2001.
(b) Seller
hereby represents and warrants to Purchaser, as to each Mortgage Loan as of
each
respective Closing Date or such other date as may be specified below,
that:
(i) The
information set forth in the Final Mortgage Loan Schedule is true and correct
in
all material respects.
(ii) As
of the related Closing Date, the Mortgage Loan is not delinquent in payment
more
than 29 days and the Mortgage Loan has not been dishonored; there are no
material defaults under the terms of the Mortgage Loan; Seller has not advanced
funds, or induced, solicited or knowingly received any advance of funds from
a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan.
(iii) With
respect to those Mortgage Loans which are required to deposit funds into an
escrow account for payment of taxes, assessments, insurance premiums and similar
items as they become due, there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments or other outstanding charges which constitute
a lien on the
related Mortgaged Property, and all escrow deposits have been collected, are
under the control of Seller, and have been applied to the payment of such items
in a timely fashion, in accordance with such Mortgage. With respect
to those Mortgage Loans for which escrow deposits are not required, to Seller's
knowledge, there are no delinquent taxes or other outstanding charges affecting
the related Mortgaged Property which constitute a lien on the related Mortgaged
Property.
(iv) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments contained
in
the Mortgage File, approved, if necessary, by the insurer under any Primary
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Mortgage
Insurance Policy and recorded in all places necessary to maintain the first
priority of the lien, the substance of which waiver, alteration or modification
is reflected on the Final Mortgage Loan Schedule. No Mortgagor has
been released, in whole or in part, except by operation of law or in connection
with an assumption agreement which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the Final Mortgage Loan
Schedule.
(v) Neither
the Mortgage Note nor the Mortgage is subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and, to Seller's knowledge, no such
right of rescission, set-off, counterclaim or defense has been asserted by
any
Person with respect thereto.
(vi) All
buildings upon the Mortgaged Property are required to be insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are customarily included in extended coverage in the area
where
the Mortgaged Property is located, pursuant to standard property insurance
policies in compliance with Seller's policies as from time to time in
effect. To the best knowledge of Seller, all such property policies
are in effect. On the date of origination, such standard property
policies contained a standard mortgage clause naming Seller or the originator
of
the Mortgage Loan and their respective successors in interest as mortgagee
and
to the best knowledge of Seller, such clause is still in effect and, to Seller's
knowledge, all premiums due thereon have been paid. If the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency as having special flood hazards under the National Flood Insurance Act
of
1994, as amended, such Mortgaged Property is covered by flood insurance in
the
amount required under the National Flood Insurance Act of 1994. The
Mortgage obligates the Mortgagor to maintain such insurance, authorizes the
holder of the Mortgage to maintain such insurance at Mortgagor's cost and
expense should the Mortgagor fail to do so and to seek reimbursement therefor
from the Mortgagor.
(vii) At
the time of origination of such Mortgage Loan and thereafter, all requirements
of any federal or state law, including, without limitation, usury,
truth-in-lending,
real estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws required to be complied with by Seller as the
originator of the Mortgage Loan and applicable to the Mortgage Loan have been
complied with in all material respects.
(viii) The
Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not
been
released from the lien of the Mortgage, in whole or in part (except for a
release that does not materially impair the security of the Mortgage Loan
or
release the effect of which is
-23-
reflected
in the loan-to-value ratio for the Mortgage Loan as set forth in the Final
Mortgage Loan Schedule), nor to Seller's knowledge has any instrument been
executed that would effect any such release, cancellation, subordination or
rescission.
(ix) Ownership
of the Mortgaged Property is held in fee simple or leasehold
estate. With respect to Mortgage Loans that are secured by a
leasehold estate, to Seller's knowledge: (i) the lease is valid, in full force
and effect, and conforms to all of Xxxxxx Mae's requirements for leasehold
estates; (ii) all rents and other payments due under the lease have been paid;
(iii) the lessee is not in default under any provision of the lease; (iv) the
term of the lease exceeds the maturity date of the related Mortgage Loan by
at
least five (5) years; and (v) the terms of the lease provide a Mortgagee with
an
opportunity to cure any defaults. Except as permitted by the fifth
sentence of this paragraph (ix), the Mortgage is a valid, subsisting and
enforceable first lien on the Mortgaged Property, including all buildings on
the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems affixed to such buildings, and all
additions, alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not contain any
evidence on their face of any security interest or other interest or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject only
to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights of
way,
easements and other matters reflected in the public record as of the date of
recording which are acceptable to mortgage lending institutions generally,
or
which are specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and either (A) which are
referred to or otherwise considered in the appraisal made for the originator
of
the Mortgage Loan, or (B) which do not in the aggregate adversely affect the
Appraised Value of the Mortgaged Property as set forth in such appraisal, and
(3) other matters to which like properties are commonly subject which do not
in
the aggregate materially interfere with the benefits of the security intended
to
be provided by the Mortgage or the use, enjoyment, value or marketability of
the
related Mortgaged Property. Any security agreement, chattel mortgage
or equivalent document related to and delivered in connection with the Mortgage
Loan establishes and creates a valid, subsisting and enforceable first lien
and
first priority security interest on the property described
therein. With respect to each Cooperative Loan, the security
instruments create a valid, enforceable and subsisting first priority security
interest in the Cooperative Apartment securing
the related Mortgage Note subject only to (a) the lien of the related
cooperative for unpaid assessments representing the Mortgagor's pro rata share
of payments for a blanket mortgage, if any, 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 the collateral
is
commonly subject which do not materially interfere with the benefits of the
security intended to be provided; provided, however, that the related
proprietary lease for the Cooperative Apartment may be subordinated or otherwise
subject to the lien of a Mortgage on the cooperative building.
-24-
(x) The
Mortgage Note is not subject to a third party's security interest or other
rights therein.
(xi) The
Mortgage Note and the related Mortgage are genuine and, to Seller's knowledge,
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, subject to bankruptcy, insolvency
and
other laws of general application affecting the rights of
creditors. To Seller's knowledge, all parties to the Mortgage Note
and the Mortgage had the legal capacity to enter into the Mortgage Loan and
to
execute and deliver the Mortgage Note and the Mortgage. To Seller's
knowledge, the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. To Seller’s knowledge 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. Seller has
reviewed all of the documents constituting the Mortgage File and has made such
inquiries as it deems necessary to make and confirm the accuracy of the
representations set forth herein. An obligor of the debt evidenced by
the Mortgage Note is a natural person. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements in the Mortgage as to completion of
any
on-site or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with.
(xii) Seller
has good title to, and the full right to transfer and sell, the Mortgage Loan
free and clear of any encumbrance, equity, lien, pledge, charge, claim or
security interest including, to the best knowledge of Seller, any lien, claim
or
other interest arising by operation of law. Seller 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 clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security
interest.
(xiii) Each
Mortgage Loan is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in paragraph (ix) (1)
(2)
and (3) above) Seller, its successors and assigns, the first priority lien
of
the Mortgage in the original principal amount of the Mortgage
Loan. Seller is the sole insured of such lender's title insurance
policy, such title insurance policy has been duly and validly endorsed to
Purchaser or the assignment to Purchaser of Seller's interest therein does
not
require the consent of or notification to the insurer and such lender's title
insurance policy is in full force and effect and will be in full force and
effect upon the consummation of the transactions contemplated by this
Agreement. To Seller's knowledge, no claims have been made under such
lender's title insurance policy, and no prior holder of the related
-25-
Mortgage
has done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy.
(xiv) To
Seller's knowledge, there is no default, breach, violation or event of
acceleration existing under the Mortgage or the related 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
permitting acceleration, except for any Mortgage Loan Payment which is not
late
by more than 30 days, and Seller has not waived any default, breach, violation
or event permitting acceleration.
(xv)
To Seller's knowledge, there are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and, to Seller's knowledge, no
rights are outstanding that under law could give rise to such lien) affecting
the related Mortgaged Property which are or may be liens prior to, or equal
or
coordinate with, the lien of the related Mortgage.
(xvi) To
Seller's knowledge, all material improvements subject to the Mortgage, lie
wholly within the boundaries and building restrictions lines of the Mortgaged
Property (and wholly within the project with respect to a condominium unit)
and
no improvements on adjoining properties materially encroach upon the Mortgaged
Property, except those which are insured against by the title insurance policy
referred to in paragraph (xiii) above and all improvements on the property
comply with all applicable zoning and subdivision laws and
ordinances.
(xvii) Each
Mortgage Loan (except for any Mortgage Loan designated as originated by others
on any Final Mortgage Loan Schedule) was originated by Seller, and at the time
of each such origination of such Mortgage Loan Seller was (except for any
Mortgage Loan designated as “originated prior to HUD approval” on any Final
Mortgage Loan Schedule) a mortgagee approved by the Secretary of Housing and
Urban Development (the “Secretary”) pursuant to Sections 203 and 211 of the
National Housing Act. Each Mortgage Loan was underwritten generally
in accordance with the Underwriting Guide as in effect at the time of
origination. The Mortgage contains the usual and customary provision
of Seller, if any, in the applicable jurisdiction at the time of origination
for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan if the related Mortgaged Property is sold without the prior consent of
the
Mortgagee thereunder.
(xviii) The
Mortgaged Property at origination or acquisition was and, to Seller's knowledge,
is free of material damage and waste and at origination there was, and to
Seller's knowledge there is, no proceeding pending for the total or partial
condemnation thereof.
(xix) The
related 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,
-26-
including,
(1) in the case of a Mortgage designated as a deed of trust, by trustee's sale
or judicial foreclosure, and (2) otherwise by judicial
foreclosure. Seller has no knowledge of any homestead or other
exemption available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage.
(xx) If
the Mortgage constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and currently
so serves as named in the Mortgage, and no fees or expenses are or
will become payable to the trustee under the deed of trust, except in connection
with a trustee's sale or attempted sale after default by the
Mortgagor.
(xxi) With
respect to each Mortgage Loan, there is an appraisal on a Xxxxxx Xxx or Xxxxxxx
Mac approved form (or a narrative residential appraisal) of the related
Mortgaged Property that conforms to the applicable requirements of the Financial
Institutions Reform Recovery and Enforcement Act and that was signed prior
to
the origination of such Mortgage Loan application by a qualified appraiser,
appointed by Seller or the originator of such Mortgage Loan, as appropriate,
who
has 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 such Mortgage Loan.
(xxii) No
Mortgage Loan contains “subsidized buydown” or graduated payment
features.
(xxiii) The
Mortgaged Property has a single-family (one to four-unit) dwelling residence
erected thereon, or is an individual condominium unit in a condominium, or
a
Cooperative Apartment or an individual unit in a planned unit development or
in
a de minimis planned unit development as defined by Xxxxxx
Mae. No such residence is a mobile home or a manufactured dwelling
which is not permanently attached to the land.
(xxiv) Except
as
set forth on the Final Mortgage Loan Schedule no Mortgage Loan is a Converted
Mortgage Loan. No Mortgage Loan provides for negative
amortization.
(xxv) No
Mortgage Loan has an original term in excess of thirty (30) years.
(xxvi) With
respect to each Cooperative Loan, (a) there is no provision in any proprietary
lease which requires the Mortgagor to offer for sale the cooperative shares
owned by such Mortgagor first to the cooperative, (b) there is no prohibition
in
the proprietary lease against pledging the cooperative shares or assigning
the
proprietary lease, (c) to Seller's knowledge, the Cooperative Apartment is
lawfully occupied under applicable law, and (d) to Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Cooperative
-27-
Apartment
and the related project have been made or obtained from the appropriate
authorities.
(xxvii) There
exists no circumstance or condition with respect to the Mortgage Loan, the
Mortgaged Property or use thereof, the Mortgagor, the Mortgagor’s credit
standing or the documentation in the Mortgage File that can reasonably be
expected to cause private institutional investors to regard the Mortgage Loan
as
an unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan.
(xxviii) No
Mortgage
Loan is subject to a prepayment penalty; provided, however, that any Mortgage
Loan that is subject to a prepayment penalty as provided in the related Mortgage
Note (i) is identified on the related Final Mortgage Loan Schedule, (ii) with
respect to Mortgage Loans originated prior to October 1, 2002, no such
prepayment penalty may be imposed for a term in excess of five (5) years
following origination and (iii) with respect to Mortgage Loans originated on
or
after October 1, 2002, no such prepayment penalty may be imposed for a term
in excess of three (3) years following origination.
(xxix) No
Mortgage Loan is a High Cost Loan. 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.
(xxx) The
Mortgage Loan is a “qualified mortgage under Section 860G(a)(3) of the
Internal Revenue Code of 1986, as amended.
(xxxi) There
is no
Mortgage Loan that was originated or modified on or after October 1, 2002 and
on
or prior to March 7, 2003, which is secured by property located in the State
of
Georgia.
(xxxii) Seller
has, in its capacity as servicer for each Mortgage Loan, caused to be fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., 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.
(xxxiii) No
Mortgagor
was required to purchase any credit life, disability, accident or health
insurance product as a condition of obtaining the extension of credit.
No
Mortgagor obtained a prepaid single premium credit life, disability, accident
or
health insurance policy in connection with the origination of the
Mortgage Loan. In connection with the origination of any Mortgage
Loan, no proceeds from such Mortgage Loan were used to finance or acquire
a
single premium credit insurance policy.
-28-
(xxxiv) The
Mortgagor
has not notified Seller, and Seller has no knowledge, of any relief requested
or
allowed to the Mortgagor under the Servicemembers Civil Relief Act, or other
similar state statute.
(xxxv) Each
Mortgage Loan is covered by a paid in full, life of loan, flood service contract
issued by either First American Flood Data Services, Integrated Loan Services
or
Fidelity, and such contract is transferable.
(xxxvi) Each
Mortgage
Loan is covered by a paid in full, life of loan, tax service contract issued
by
First American Real Estate Tax Service or Fidelity, and such contract is
transferable.
(c) The
representations and warranties set forth in Sections 5(a) and 5(b)
shall survive the sale of the Mortgage Loans and the delivery of the Mortgage
Files to Purchaser notwithstanding any restrictive or qualified endorsement
on
any Mortgage Note or Assignment or the examination of any Mortgage File. Upon
discovery by either Seller or Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the
interests of Purchaser in any Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other. Seller shall have a
period of ninety (90) days from its discovery or its receipt of notice of any
such breach within which to correct or cure such breach. If any such
breach cannot be corrected or cured within such ninety-day period, Seller shall,
not later than ninety (90) days following discovery or its receipt of notice
of
such breach, repurchase such Mortgage Loan. Notwithstanding the above
sentence, within ninety (90) days of its discovery or its receipt of notice
of
any breach of the representations or warranties set forth in clause (xxviii),
(xxix), (xxx), (xxxi), (xxxii) and (xxxiii) of Section 5(b), Seller
shall repurchase such Mortgage Loan. Any such repurchase shall be at
a price equal to (i) the Assumed Principal Balance of the Mortgage Loan plus
(ii) accrued interest on such Assumed Principal Balance at the Mortgage Loan
Remittance Rate from the date to which interest on such Assumed Principal
Balance at the Mortgage Loan Remittance Rate has last been paid and distributed
to Purchaser to the date of repurchase. Any such repurchase shall be
accomplished by deposit in the Custodial Account of the amount of the repurchase
price, after deducting therefrom any amounts received in respect of such
repurchased Mortgage Loan and being held in the Custodial Account for future
distribution in accordance with the Amended and Restated Master Servicing
Agreement.
If
Seller
is required to repurchase any Mortgage Loan pursuant to the preceding paragraph
on or prior to the one hundred and twentieth (120th) day following the related
Closing Date, Seller may, at its option, substitute a Qualified Substitute
Mortgage Loan for such deficient Mortgage Loan within such one hundred and
twenty (120) day period, in lieu of repurchasing such deficient Mortgage
Loan. As to any Deleted Mortgage Loan for which Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, Seller shall effect such
substitution by delivering to Purchaser for such Qualified Substitute Mortgage
Loan or Loans the Mortgage Note, the Mortgage, the Assignment and such other
documents and agreements as are required by Section
3(b). Seller shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage Loan
or
Loans in the month following the date of
-29-
such
substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution will be retained by
Seller. For the month of substitution, distribution to Purchaser will
include the Monthly Payment due on such Deleted Mortgage Loan in the month
of
substitution, and Seller shall thereafter be entitled to retain all amounts
subsequently received by Seller in respect of such Deleted Mortgage
Loan. Seller shall give written notice to Purchaser that such
substitution has taken place and shall amend the related Final 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 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 Section 5(a) and 5(b)
hereof. Purchaser shall promptly effect the reconveyance of such
Deleted Mortgage Loan to Seller.
For
any
month in which Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, Seller will 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 outstanding 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 shall be distributed by
Seller in the month of substitution pursuant to Section 6.01 of the Amended
and
Restated Master Servicing Agreement. Accordingly, on the date of such
substitution, Seller will deposit from its own funds into the Custodial Account
an amount equal to the amount of such shortfall in accordance with the Amended
and Restated Master Servicing Agreement. Accordingly, on the date of
such substitution, the Seller will remit to the Purchaser from its own funds
an
amount equal to the amount of such shortfall plus one month’s interest thereon
at the applicable Mortgage Interest Rate minus the related Servicing
Fee.
In
addition to such cure, repurchase or substation obligation, Seller shall
indemnify Purchaser and hold it harmless against any loss, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and other costs
and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of Seller's representations and
warranties contained in Sections 5(a) and 5(b)
hereof. Seller's obligation to cure a breach, or to repurchase or
substitute a defective Mortgage Loan and to indemnify Purchaser as provided
in
this Section 5(c), constitute the sole remedies of Purchaser
respecting a breach of the foregoing representations and
warranties.
(d) Seller
shall repurchase each Converted Mortgage Loan on or before the first day of
the
month immediately following the date of such conversion at a price equal to
(i)
the Assumed Principal Balance of the Mortgage Loan, plus (ii) accrued interest
on such Assumed Principal Balance at the Mortgage Interest Rate from the date
to
which interest has last been paid and
distributed to Purchaser to the date of repurchase. Any such
repurchase shall be accomplished by deposit into the Custodial Account of the
amount set forth in the preceding sentence.
-30-
(e) SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
COLLECTABILITY OF THE MORTGAGE LOANS, THE SECURITY THEREFOR OR THE STATUS OF
ANY
MORTGAGOR. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER CONCERNING THE MORTGAGE LOANS OR THE
MORTGAGE FILES, INCLUDING, WITHOUT LIMITATION, ANY DOCUMENTS RELATED TO MORTGAGE
LOANS OR THE ORIGINATION OF THE MORTGAGE LOANS. THE MORTGAGE LOANS
AND THE RELATED DOCUMENTS SHALL BE CONSIDERED FOR ALL PURPOSES TO BE PURCHASED
BY PURCHASER “AS-IS, WHERE-IS, WITH ALL FAULTS” AND PURCHASED WITHOUT RECOURSE
OF ANY KIND TO SELLER. ANY PRIOR REPRESENTATION OR STATEMENTS,
WHETHER ORAL OR WRITTEN, AS TO THE MORTGAGE LOANS OR ANY MATTER RELATED THERETO
ARE MERGED HEREIN AND ANY SUCH REPRESENTATIONS OR STATEMENTS NOT SPECIFICALLY
INCLUDED IN THIS AGREEMENT ARE HEREBY WITHDRAWN BY SELLER, AND PURCHASER
ACKNOWLEDGES THAT IS NOT RELYING ON THEM.
Section
6. Representations,
Warranties and Agreements of Purchaser.
(a) Purchaser,
without conceding that any Mortgage Loans are securities, hereby make the
following representations, warranties and agreements, which shall have been
deemed to have been made as of the respective Closing Date:
(i) Purchaser
is acquiring the Mortgage Loans for its own account only and not for any other
Person.
(ii) Purchaser
considers itself a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of investment in the Mortgage
Loans.
(iii) Purchaser
has been furnished with all information regarding the Mortgage Loans which
it
has requested.
(iv) Neither
Purchaser nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage
Loan or any other similar security to, or solicited any offer to buy or accept
a
transfer, pledge or other disposition of any Mortgage Loan, any interest in
any
Mortgage Loan or any other similar security from, or otherwise approached or
negotiated with respect to any Mortgage Loan, any interest in any Mortgage
Loan
or other similar security with, any Person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action that would constitute a distribution of the
Mortgage Loans under the Securities Act, or that would render the disposition
of
any Mortgage Loan a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will it act, nor has it authorized or will
it
authorize any Person to act, in such manner with respect to the Mortgage
Loans.
-31-
(b) Purchaser
represents and warrants to Seller that as of the date hereof, as of the date
of
each respective Purchase Price and Terms Letter as of each respective Closing
Date (or as of such other date or dates as may be expressly set forth
below):
(i) Purchaser
is duly organized, validly existing and in good standing as a corporation under
the laws of the state of New York. Purchaser has full power and
authority (corporate and otherwise) to enter into and perform its obligations
under the Program Documents.
(ii) This
Agreement, the Amended and Restated Master Servicing Agreement and the Custodial
Agreement each has been duly authorized, executed and delivered by Purchaser,
and each constitutes the legal, valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms.
(iii) As
of the date of respective Purchase Price and Terms Letter and as of the
respective Closing Date, the Purchase Price and Terms Letter has been duly
authorized, executed and delivered by Purchaser, and the Purchase Price and
Terms Letter constitutes the legal, valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms.
(iv) Neither
the delivery of the related Purchase Price to Seller, nor the purchase of the
Mortgage Loans by Purchaser, nor the execution or delivery of the related
Program Documents, nor the consummation of any of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof or thereof, will
result in the breach of any term or provision of the charter or by-laws of
Purchaser, or conflict with, result in a breach, violation or acceleration
of or
constitute a default under a material term of any indenture or other agreement
or instrument to which Purchaser is a party or by which Purchaser is bound
or
any statute, order or regulation or any court, regulatory body, administrative
agency, governmental body or arbitrator.
(v) There
are no actions, proceedings or investigations pending or, to Purchaser's
knowledge, threatened against Purchaser that, either in any one instance or
in
the aggregate, could draw into question the validity of any of the Program
Documents or prevent the consummation of any of the Transactions.
(vi) No
consent, approval, authorization or order of any court, regulatory body,
administrative agency, governmental body or arbitrator is required for the
execution or delivery by Purchaser of any of the Program documents, the
performance by Purchaser of its obligations hereunder or the consummation by
Purchaser of any of the Transactions.
(vii) Purchaser
has not dealt with any broker, investment banker, agent or other person,
except
Seller, who may be entitled to any commission or compensation in connection
with
the purchase of the Mortgage Loans.
-32-
Section
7. Compliance
with Regulation AB.
Subsection
7.01 Intent of Parties;
Reasonableness.
From
and
after each Closing Date, Seller will service and administer each Mortgage Loan
purchased on such Closing Date pursuant to the terms of the Amended and Restated
Master Servicing Agreement for the benefit of Purchaser, as the initial
“Purchaser” thereof, and such Mortgage Loan will be deemed to be added to the
“MSA Mortgage Loan Schedule” under the Amended and Restated Master Servicing
Agreement.
The
Purchaser and the Seller acknowledge and agree that the purpose of Section
7 of
this Agreement is to facilitate compliance by the Purchaser with the provisions
of Regulation AB and related rules and regulations of the
Commission. The Purchaser shall not 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. 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 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), any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser to permit the Purchaser to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Seller, any Subservicer, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser to
be
necessary in order to effect such compliance.
Subsection
7.02 Additional Representations and Warranties
of the Seller
(a) The
Seller shall be deemed to represent to the Purchaser, as of the date on which
information is first provided to the Purchaser under Subsection 7.03 that,
except as disclosed in writing to the Purchaser 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 Seller 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 Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes to the
Seller’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage
loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the
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Seller’s
financial condition that could have a material adverse effect on the performance
by the Seller of its servicing obligations under this Agreement or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller, any
Subservicer or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions relating to the Seller, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction of a
type
described in Item 1119 of Regulation AB.
(b) If
so requested by the Purchaser on any date following the date on which
information is first provided to the Purchaser under Subsection 7.03, 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
7.03 Information to Be Provided by the
Seller
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser, provide to the Purchaser
(or,
as applicable, cause each Third-Party Originator and each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to the
Purchaser, the information and materials specified in paragraphs (a), (b),
(c)
and (f) of this Section, and (ii) as promptly as practicable following notice
to
or discovery by the Seller, provide to the Purchaser (in writing and in form
and
substance reasonably satisfactory to the Purchaser) the information specified
in
paragraph (d) of this Section.
(a) If
so requested by the Purchaser, 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, and (iii) as applicable, each Subservicer, as is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117
and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) 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,
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 may reasonably request for the purpose of compliance with Item
1110(b)(2) of Regulation AB;
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(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser in writing in advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser, 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 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 shall be entitled to specify
whether some or all of such information shall be provided pursuant to this
paragraph. The content of such Static Pool Information may be in a
form customarily provided by the Seller, and need not be customized for the
Purchaser. 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.
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
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corrected
Static Pool Information to the Purchaser, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser, 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, 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 shall reasonably
request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser shall designate, which may include,
by way of example, any Sponsor 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.
(c) If
so requested by the Purchaser, the Seller shall provide such information
regarding the Seller, as servicer of the Mortgage Loans, and each Subservicer
(each of the Seller and each Subservicer, for purposes of this paragraph, a
“Servicer”), as is requested for the purpose of compliance with Items 1108 of
Regulation AB. Such information shall include, at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser, to any
analysis of the servicing of the Mortgage Loans or the related asset-backed
securities, as applicable, including, without limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
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(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience.
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(d) If
so requested by the Purchaser 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 Subservicer and Third-Party
Originator to) (i) notify the Purchaser in writing of (A) any material
litigation or governmental proceedings pending against the Seller, any
Subservicer or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the requesting party) with
respect to such Securitization Transaction, and (ii) provide to the Purchaser
a
description of such proceedings, affiliations or relationships.
(e) As
a condition to the succession to the Seller or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser, at least fifteen (15) calendar days
prior
to the effective date of such succession or appointment, (x) written notice
to
the Purchaser of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Purchaser, all information
reasonably requested by the Purchaser in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Purchaser, the Seller shall provide such information reasonably available to
the
Seller regarding the performance or servicing of the Mortgage Loans as is
reasonably required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB.
Subsection
7.04 Servicer Compliance
Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser a statement of compliance addressed to the Purchaser
and signed by an authorized officer of the Seller, to the effect that (i) a
review of the Seller’s activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under this Agreement
and
any applicable Reconstitution Agreement during such period has been made under
such officer’s supervision, and (ii) to the best of such officers’ knowledge,
based on such review, the Seller has fulfilled all of its obligations under
this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
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Subsection
7.05 Report on Assessment of Compliance and
Attestation.
(a) On
or before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver
to the Purchaser a report (in form and substance reasonably satisfactory to
the
Purchaser) regarding the Seller’s assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required under
Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser and signed by an
authorized officer of the Seller, and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit
12
hereto delivered to the Purchaser concurrently with the execution of this
Agreement;
(ii) deliver
to the Purchaser a report of a registered public accounting firm reasonably
acceptable to the Purchaser that attests to, and reports on, the assessment
of
compliance made by the Seller and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Seller pursuant
to
Subsection 7.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser an assessment
of compliance and accountants’ attestation as and when provided in paragraphs
(a) and (b) of this Section; and
(iv) deliver
to the Purchaser and any other Person that will be responsible for signing
the
certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx
Act of 2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification in the form attached hereto as
Exhibit 11.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
7.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 12 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Subsection 7.05(a)(iii) need not address any elements of the
Servicing Criteria other than those specified by the Seller pursuant to
Subsection 7.06.
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Subsection
7.06 Use of Subservicers and
Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Section. The Seller shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Seller as servicer under this Agreement or any
Reconstitution Agreement unless the Seller complies with the provisions of
paragraph (b) of this Section.
(a) It
shall not be necessary for the Seller to seek the consent of the Purchaser
to
the utilization of any Subservicer. The Seller shall cause any
Subservicer used by the Seller (or by any Subservicer) for the benefit of the
Purchaser to comply with the provisions of this Section and with Subsections
7.02, 7.03(c) and (e), 7.04, 7.05 and 7.07 of this Agreement to the same extent
as if such Subservicer were the Seller, and to provide the information required
with respect to such Subservicer under Subsection 7.03(d) of this
Agreement. The Seller shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser any servicer compliance statement
required to be delivered by such Subservicer under Subsection 7.04, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Subsection 7.05 and any certification required to be delivered
to the Person that will be responsible for signing the Sarbanes
Certification under Subsection 7.05 as and when required to be
delivered.
(b) It
shall not be necessary for the Seller to seek the consent of the Purchaser
to
the utilization of any Subcontractor. The Seller shall promptly upon
request provide to the Purchaser a written description (in form and substance
satisfactory to the Purchaser) of the role and function of each Subcontractor
utilized by the Seller or any Subservicer, specifying (i) the identity of each
such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser to comply with the
provisions of Subsections 7.05 and 7.07 of this Agreement to the same extent
as
if such Subcontractor were the Seller. The Seller shall be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser any assessment of compliance and attestation required to be delivered
by such Subcontractor under Subsection 7.05, in each case as and when required
to be delivered.
Subsection
7.07 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization
Transaction: each sponsor and issuing
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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 (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 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
any
information, report, certification, accountants’ letter or other material
provided under this Section 7 by or on behalf of the Seller, or provided under
this Section 7 by or on behalf of any Subservicer, Subcontractor or 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;
(ii) any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 7, including
any failure by the Seller to identify pursuant to Subsection 7.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii) any
breach by the Seller of a representation or warranty set forth in Subsection
7.02(a) or in a writing furnished pursuant to Subsection 7.02(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 7.02(b) to the extent made as of a date subsequent to such closing
date.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Seller shall promptly reimburse the Purchaser, 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,
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accountants’
letter
or other material not delivered
as required by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator.
(b) (i) Any
failure by the Seller, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 7, or any
breach by the Seller of a representation or warranty set forth in Subsection
7.02(a) or in a writing furnished pursuant to Subsection 7.02(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 7.02(b) to the extent made as of a date subsequent to such closing
date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, in its sole
discretion to terminate the rights and obligations of the Seller as servicer
under this Agreement and/or any applicable Reconstitution Agreement without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Seller;
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 Seller as servicer,
such provision shall be given effect.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 7.04 or 7.05, including any failure by the Seller to identify
pursuant to Subsection 7.06(b) any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such information,
report, certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Seller under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser,
in
its sole discretion to terminate the rights and obligations of the Seller as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement to the contrary)
of
any compensation to the Seller; 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 Seller as servicer, such provision shall be given
effect.
(iii) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer), for all reasonable expenses incurred by the
Purchaser (or such designee), as such are incurred, in connection with the
termination of the Seller as servicer and the transfer of servicing of the
Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Purchaser
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may
have under other provisions of this Agreement
and/or any applicable Reconstitution Agreement or otherwise, whether in equity
or at law, such as an action for damages, specific performance or injunctive
relief.
Section
8. Additional
Indemnification by the Seller; Third Party Claims
The
Seller shall indemnify the Purchaser and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Seller
to perform its duties and service the Mortgage Loans in strict compliance with
the terms of this Agreement. The Seller immediately shall notify the
Purchaser if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans, assume (with the prior written consent of the Purchaser)
the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or the Purchaser in respect of such
claim. The Purchaser promptly shall reimburse the Seller for all
amounts advanced by it pursuant to the preceding sentence except when the claim
is in any way related to Seller’s indemnification pursuant to Section 5 or the
failure of the Seller to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement.
Section
9. Intention
of the Parties.
With
respect to each Transaction, it is the intention of the parties that Purchaser
is purchasing, and Seller is selling, interests in the related Mortgage Loans
and not a debt instrument of Seller or any other
security. Accordingly, the parties each intend to treat each
Transaction for federal income tax purposes as a sale by Seller, and a purchase
by Purchaser, of the related Mortgage Loans.
Section
10. Costs.
Seller
shall pay any commissions due its salesmen and the legal fees and expenses
of
its attorneys and those expenses incurred in connection with the transfer and
delivery by Seller of the Mortgage Loans pursuant hereto. The fees
and expenses due under the Amended and Restated Master Servicing Agreement
and
those of the Custodian and Purchaser's brokers' and attorneys' fees and
expenses, shall be paid by Purchaser.
Section
11. Further
Agreements of Seller.
Seller
and Purchaser each agree to execute and deliver to the other such reasonable
and
appropriate additional documents, instruments or agreements, and take such
actions, as may be necessary or appropriate to effectuate the purposes of this
Agreement.
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Section
12. Mandatory
Delivery.
The
sale
and delivery on any Closing Date of the Mortgage Loans described on the related
Final Mortgage Loan Schedule is mandatory from and after the date of the
execution of the related Purchase Price and Terms Letter.
Section
13. Termination.
Either
Seller or Purchaser may terminate this Agreement as to future Transactions
upon
notice to the other party, but no such termination shall affect any Transaction
previously consummated or the rights and obligations of Seller and Purchaser
with respect thereto under the Program Documents.
Section
14. Seller’s
Right of First Refusal
If
Purchaser shall elect to sell any Mortgage Loans purchased under this Agreement
to any third party other than an Affiliate of Purchaser, Purchaser hereby agrees
that Seller will have a non-exclusive right to bid to purchase such Mortgage
Loans and, if Purchaser shall elect to seek from one or more third parties
bids
to purchase such Mortgage Loans, Seller will have a right to review such bids
and to purchase such Mortgage Loan in the event that Seller offers Purchaser
equivalent or better terms than those actually offered by any third party as
part of a bona fide, independent offer.
Section
15. Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement that 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
of
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.
Section
16. 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
17. Survival.
Each
party agrees that the representations, warranties and agreements made by such
party herein and in any certificate or other instrument delivered pursuant
hereto shall be deemed to be relied upon by the other party, notwithstanding
any
investigation heretofore or hereafter made by the other party or on the other
party's behalf.
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Section
18. Successor
and Assigns: Assignment of Purchase
Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by Seller
and Purchaser and the respective successors and assigns of Seller and Purchaser;
provided that this Agreement cannot be assigned, pledged or hypothecated
by
Seller or Purchaser to a third party without the consent of the other party,
which consent shall not be unreasonably withheld or delayed;
provided, however, that either party may assign this Agreement without the
consent of the other party to any Affiliate; further provided,
however, that no novation shall occur as a result of any such assignment
(whether or not such consent is received). Purchaser acknowledges
that the assignment of any or all of its rights under this Agreement without
the
consent of the Surety Bond Issuer may affect, impair or eliminate the insurance
provided by the Surety Bond to the extent set forth therein. No assignment
shall
relieve the Assignor from any liability hereunder without the consent of
the
other party hereto.
Section
19. Notices.
Any
notices or other communications permitted or required hereunder shall be in
writing and shall be deemed conclusively to have been duly given if personally
delivered, sent by overnight courier, or mailed by registered mail, postage
prepaid, and return receipt requested, or transmitted by telex or telegraph
and
confirmed by a similar mailed writing, or otherwise received, if to Purchaser,
addressed to Purchaser at Xxxxxx Xxxxxxx Mortgage Capital Inc. at 0000 Xxxxxxxx,
Xxx Xxxx, XX 00000, Attention: Whole Loan Operations Manager, or to
such other address as Purchaser may designate in writing to Seller, and, if
to
Seller, addressed to Xxxxxx Xxxxxxx Credit Corporation at 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000, Attention: Law Division, with a copy to the
Vice President, Secondary Marketing, at the same address, or to such other
address as Seller may have designated in writing to Purchaser.
Section
20. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall
constitute an original, but all of which together shall constitute one
instrument notwithstanding that all parties are not signatories to the same
counterparts.
Section
21. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the matters and transactions contemplated by this Agreement and
supersedes any prior agreement and understandings with respect to those matters
and transactions; provided, however, that this Agreement shall not
be deemed to supersede any other Program Document or any agreement, instrument
or other document executed in connection therewith.
Section
22. Governing
Law and Amendments.
This
Agreement is to be governed by, and construed in accordance with, the internal
laws (as compared to conflicts of law provisions) of the State of New
York. Neither this Agreement
-45-
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.
Section
23. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
24. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to “Articles”, “sections”, “Subsections”, Paragraphs”,
and other subdivisions without reference to a document are to be
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of
this Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words “herein”, “hereof”, “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision; and
(vi) the
terms “include” or “including” shall mean without limitation by reason of
enumeration.
Section
25. 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
-46-
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
26. Attorney-In-Fact.
Purchaser
is hereby irrevocably appointed as Seller’s attorney in fact for the limited
purpose of completing and recording Assignments of the Mortgages, and is
hereby
granted express authority to complete such Assignments in the name of Purchaser
and to record the same at
Purchaser’s expense; provided, however, that no such authority shall
exist with respect to any Mortgage which is repurchased or replaced by a
Qualified Substitute Mortgage Loan in accordance with the terms and conditions
of this Agreement. In the event that Purchaser has already recorded
an Assignment with respect to a Mortgage Loan which is subsequently repurchased
or replaced by a Qualified Substitute Mortgage Loan under this Agreement,
Purchaser shall execute and record an additional Assignment assigning such
Mortgage Loan back to Seller. .
Section
27. Confidentiality.
Purchaser
and Seller will consult with each other regarding press releases or other public
announcements related to this Agreement and the transactions contemplated
hereby, and neither Purchaser nor Seller shall issue any such press release
or
announcement without the prior written consent of the other, except as otherwise
required by applicable law. Purchaser and Seller shall hold in
confidence and shall not disclose to any Person the amount of the Purchase
Price, the terms of the Purchase Price and Terms Letter or the Purchase Price
Percentage, except (a) to any Governmental Authority with jurisdiction over
Purchaser or Seller or any Affiliate of Purchaser or Seller or as otherwise
required by applicable law, (b) as part of any filing to be made with any
Governmental Authority, (c) in response to any subpoena or other legal process,
(d) to any prospective successor or assign (subject to such Person entering
into
a comparable confidentiality agreement in favor of Purchaser and Seller), or
(e)
to legal counsel, accountants and financial advisors of Purchaser or Seller
or
their Affiliates. Purchaser agrees to treat all information provided
to it by Seller regarding any Mortgagor in a manner consistent with federal
or
state laws regulating a customers’ right to privacy.
[Signature
Page Follows]
-47-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first set forth above.
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
By:_______________________________________
Name:
Title:
Xxxxxx
Xxxxxxx Credit Corporation
By:_______________________________________
Name:
Title:
EXHIBIT
1
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items (in such format as may be agreed upon by both
parties):
1. The
documents specified in Section 3(b) of the Agreement.
2. Copy
of survey of the Mortgaged Property, if any.
3. Copy
of each instrument necessary to complete identification of any exception set
forth in the exception schedule in the title policy, i.e., map or plat,
restrictions, easements, sewer agreements, homes association declarations,
etc.
4. Evidence
of property insurance policy and endorsement and, if required by law, evidence
of flood insurance policy and endorsement.
5. Closing
statement.
6. Loan
application.
7. Verification
of acceptable evidence of source and amount of down payment.
8. Credit
report on the Mortgagor.
9. Appraisal
report.
10. Photograph
of the Mortgaged Property.
11. Executed
disclosure statement.
12. All
other papers and records received by Seller or to documents the Mortgage
Loan.
In
addition to the above, with respect to each Cooperative Loan, the Mortgage
File
shall contain each of the following items:
1. a
copy of the proprietary lease;
2. a
copy of the recognition agreement;
3. a
copy of the security agreement;
4. a
copy of the assignment of proprietary lease;
5. a
copy of the cooperative stock certificate; and
6. a
copy of UCC-1 Financing Statements.
-2-
EXHIBIT
2
FORM
OF MASTER AMENDED AND RESTATED SERVICING AGREEMENT
EXHIBIT
3
FORM
OF CUSTODIAL AGREEMENT
EXHIBIT
4
UNDERWRITING
GUIDE OF SELLER
EXHIBIT
5
FORM
OF CERTIFICATE OF SELLER
I,
Xxxxxx
X. Xxxxx, hereby certify that I am the duly elected Secretary of Xxxxxx Xxxxxxx
Credit Corporation, a corporation organized under the laws of the State of
Delaware (“Seller”), and further as follows:
1. Attached
hereto as Exhibit A is a true and correct copy of the certificate of
incorporation of Seller which is in full force and effect on the date
hereof. There has been no amendments or modifications to the
certificate of incorporation since April 2, 1993. Attached hereto as
Exhibit B is a true and correct copy of the by-laws of Seller which are
in full force and effect on the date hereof. There have been no
amendments or modifications of the by-laws since June 10, 1993. No
event has occurred that has affected the good standing of Seller
under the laws of the State of Delaware.
2. Each
person who, as an officer or representative of Seller, signed (a) the Third
Amended and Restated Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2005 between Xxxxxx Xxxxxxx Mortgage Capital
Inc. (“Purchaser”) and Seller (the “Master Mortgage Loan Purchase
Agreement”), (b) the Amended and Restated Master Servicing Agreement, Seller
Flow Delivery Program, dated as of February 1, 2004 between Seller and Purchaser
(the “Master Servicing Agreement”), (c) any Warranty Xxxx of Sale executed by
Seller (a “Warranty Xxxx of Sale”; the Master Mortgage Loan Purchase Agreement,
the Master Servicing Agreement, and each Warranty Xxxx of Sale are
herein referred to, collectively, as the “Agreements”), (d) any of the
Assignments (as defined in the Master Mortgage Loan Purchase Agreement) or
(e)
any other document delivered prior hereto or on the date hereof in connection
with the purchase described in the Agreements, was, at the respective times
of
such signing and delivery, duly elected or appointed, qualified and acting
as
such officer or representative, and the signatures of such persons appearing
on
such documents are their genuine signatures.
3. The
sale of the Mortgage Loans and the transactions contemplated by the Agreements
are in the ordinary course of Seller's business.
IN
WITNESS WHEREOF, I have hereunto signed my name as of ________________ ___,
200__.
__________________________________________
Name: Xxxxxx
X. Xxxxx
Title: Secretary
of Xxxxxx Xxxxxxx Xxxx WitterCredit Corporation
EXHIBIT
6
FORM
OF ASSIGNMENT FOR ADDITIONAL COLLATERAL AGREEMENTS
ASSIGNMENT
Reference
is made to the Third Amended and Restated Master Mortgage Loan Purchase
Agreement (the “Purchase Agreement”) dated as of November 1, 2005, between
Xxxxxx Xxxxxxx Credit Corporation, as seller (“Seller”), and Xxxxxx Xxxxxxx
Mortgage Capital Inc., as purchaser (“Purchaser”), pursuant to which Seller is
selling to Purchaser the Additional Collateral Mortgage Loans listed on the
Final Mortgage Loan Schedule. Capitalized terms used and not defined
shall have the meanings assigned in the Purchase Agreement.
For
good
and valuable consideration, receipt of which is hereby acknowledged, Seller
hereby sells, transfers, assigns, sets over and conveys to Purchaser without
recourse all of Seller's right, title and interest in and to each pledge
agreement and control agreement securing any Additional Collateral Mortgage
Loan
listed on such Final Mortgage Loan Schedule.
IN
WITNESS WHEREOF, the undersigned has caused this agreement to be duly executed
this _____ day of ___________________, 200_.
Xxxxxx
Xxxxxxx Credit Corporation
By:_______________________________________
Name:
Title:
EXHIBIT
7
FORM
OF NOTICE OF ASSIGNMENT TO AND ACKNOWLEDGMENT BY
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
______
__, 2000
TO: Xxxxxx
Xxxxxxx Mortgage Capital Inc.
FROM: Xxxxxx
Xxxxxxx Credit Corporation
RE: Notice
of Assignment
This
shall serve as notice that Xxxxxx Xxxxxxx Credit Corporation (“Seller”) has
sold, assigned, and transferred certain Additional Collateral Mortgage Loans
designated as such on the attached to Xxxxxx Xxxxxxx Mortgage Capital
Inc. (“Purchaser”) pursuant to that certain Third Amended and
Restated Master Loan Purchase Agreement dated as of November 1, 2005, executed
by Seller and Purchaser (“Agreement”). In connection with such sale,
Seller has assigned to Purchaser its security interest in the control agreements
and collateral subject thereto set forth in Schedule A attached
hereto.
Xxxxxx
Xxxxxxx Credit Corporation
By: ______________________________
Name:
Title:
Acknowledged:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
By: ______________________________
Name:
Title:
EXHIBIT
8
FORM
OF WARRANTY XXXX OF SALE
On
this
___ day of _______, 200_, Xxxxxx Xxxxxxx Credit Corporation (“Seller”) does
hereby sell, transfer, assign, set over and convey to Xxxxxx Xxxxxxx Mortgage
Capital Inc. (“Purchaser”), without recourse in accordance with the terms of
that certain Third Amended and Restated Master Mortgage Loan Purchase Agreement
dated as of November 1, 2005, between Seller and Purchaser (as amended,
modified, restated or supplemented from time to time, the “Purchase Agreement”;
all capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Amended and Restated Master Servicing
Agreement), all of the right, title and interest of Seller in and to each
Mortgage Loan set forth on the Final Mortgage Loan Schedule attached hereto
as
Schedule I, including all interest and principal received by Seller on or
with respect to each such Mortgage Loan after the Cut-off Date (other than
payments of principal and interest due on such Mortgage Loan on or before the
Cut-off Date), any related Mortgage Loan Documents and the related Mortgage
Files. Each Mortgage Loan set forth on the attached Final Mortgage
Loan Schedule shall be subject to the Amended and Restated Master Servicing
Agreement, dated as of February 1, 2004, between Seller and Purchaser, from
the
date hereof, and Seller hereafter shall service and administer each such
Mortgage Loan pursuant thereto for Purchaser as the “Owner”
thereunder.
This
Warranty Xxxx of Sale shall be governed by, and construed in accordance with
the
internal laws (as compared to conflicts of law provision) of the State of
Illinois.
Xxxxxx
Xxxxxxx Credit Corporation
By:_________________________________
Name:
Title:
EXHIBIT
9
TRUST
RECEIPT
__________ ___, 200_
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mr.
[Xxxxxxx X. Xxxxxx]
|
|
Re: Third
Amended and Restated Agreement, dated as of November 1, 2005 (the
“Agreement”), between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
“Purchaser”) and Xxxxxx Xxxxxxx Credit Corporation
(“Seller”).
|
|
Ladies
and Gentlemen:
|
|
Seller,
as bailee pursuant to Section 3(b) of the above-referenced Agreement,
hereby certifies that the Purchaser is the holder of this Trust
Receipt. Pursuant to the Agreement, the Bailee is entitled to
possession of the Mortgage Loan Documents; provided, however, that
in the event that the Purchaser requests release of any Mortgage Loan Documents
from the possession of the Bailee, the related Mortgage Loan shall no longer
be
subject to or entitled to the benefits of Section 3(b) of the
Agreement.
The
Bailee hereby certifies that it has received the Mortgage Loan Documents with
respect to each Mortgage Loan identified on the Mortgage Loan Schedule attached
hereto and is holding all Mortgage Loan Documents as bailee for the
Purchaser.
XXXXXX
XXXXXXX CREDIT CORPORATION
By: _________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT
10
FINAL
TRUST RECEIPT AND CERTIFICATION
__________ ___, 200_
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mr.
[Xxxxxxx X. Xxxxxx]
|
|
Re: Third
Amended and Restated Agreement, dated as of November 1, 2005 (the
“Agreement”), between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
“Purchaser”) and Xxxxxx Xxxxxxx Credit Corporation
(“Seller”).
|
|
|
Ladies
and Gentlemen:
|
In
accordance with the provisions of Section 3(b) of the above-referenced
Agreement, the undersigned, as Bailee, hereby certifies that as to each mortgage
loan described in the Final Mortgage Loan Schedule attached to the Agreement
and
a copy of which is attached as Exhibit A hereto (other than any
mortgage loan listed as Exhibit B attached hereto), it has reviewed the
related Mortgage Loan Documents and has determined that (i) all documents
to be delivered to the Bailee listed in Section 3(b) of the Agreement are
in its possession, (ii) such documents have been reviewed by it and appear
regular on their face and relate to such mortgage loan, and (iii) based on
its examination, the foregoing documents on their face satisfy the requirements
set forth in Section 3(b) of the Agreement.
The
Bailee hereby confirms that it is holding all Mortgage Loan Documents as agent
and bailee for the exclusive use and benefit of the Purchaser pursuant to the
terms of Section 3(b) the Agreement.
All
initially capitalized terms used herein shall have the meanings ascribed to
them
in the above-referenced Agreement.
XXXXXX
XXXXXXX CREDIT CORPORATION
By: _________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT
11
FORM
OF ANNUAL CERTIFICATION
|
|
Re:
|
The
Third Amended and Restated Master Mortgage Loan Purchase Agreement
dated
as of November 1, 2005 (the “Agreement”), among Xxxxxx Xxxxxxx Mortgage
Capital Inc. and Xxxxxx Xxxxxxx Credit
Corporation
|
I,
________________________________, the _______________________ of [NAME OF
SELLER], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have reviewed the servicer compliance statement of the Seller provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Seller’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Seller during 200[ ] that were delivered by the
Seller to the [Depositor] [Master Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the “Seller Servicing
Information”);
(2) Based
on my knowledge, the Seller Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Seller Servicing Information;
(3) Based
on my knowledge, all of the Seller Servicing Information required to be provided
by the Seller under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am responsible for reviewing the activities performed by the Seller as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Seller has fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Seller pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Seller and by any Subservicer or Subcontractor pursuant to the Agreement, have been provided to the [Depositor] [Master Servicer]. Any material instances of noncompliance described in such reports have been disclosed to the [Depositor] [Master Servicer]. Any material instance of noncompliance with the Servicing Criteria has been disclosed in such reports.
Date: _________________________
By: ________________________________
Name:
Title:
3
EXHIBIT 12
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by Xxxxxx Xxxxxxx Credit Corporation
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
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1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
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1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
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1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
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|
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1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
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|
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1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
5
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
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|
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XXXXXX
XXXXXXX CREDIT CORPORATION
Date: _________________________
By: ________________________________
Name:
Title:
6
