[Execution Copy]
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXXXXX MORTGAGE HOME LOANS, INC.
as Seller
and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
as Purchaser
Dated as of
March 1, 2004
TABLE OF CONTENTS
SECTION 1. DEFINITIONS.....................................................1
SECTION 2. PURCHASE AND SALE OF THE MORTGAGE LOANS AND RELATED RIGHTS......6
SECTION 3. MORTGAGE LOAN SCHEDULES.........................................7
SECTION 4. MORTGAGE LOAN TRANSFER..........................................7
SECTION 5. EXAMINATION OF MORTGAGE FILES...................................8
SECTION 6. RECORDATION OF ASSIGNMENTS OF MORTGAGE, ETC....................10
SECTION 7. REPRESENTATIONS AND WARRANTIES OF SELLER CONCERNING THE
MORTGAGE LOANS.................................................12
SECTION 8. REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER...........12
SECTION 9. REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER........13
SECTION 10. CONDITIONS TO CLOSING..........................................14
SECTION 11. FEES AND EXPENSES..............................................16
SECTION 12. ACCOUNTANTS' LETTERS...........................................17
SECTION 13. [RESERVED].....................................................16
SECTION 14. NOTICES........................................................17
SECTION 15. TRANSFER OF MORTGAGE LOANS.....................................18
SECTION 16. TERMINATION....................................................18
SECTION 17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.19
SECTION 18. SEVERABILITY...................................................19
SECTION 19. COUNTERPARTS...................................................19
SECTION 20. AMENDMENT......................................................19
SECTION 21. GOVERNING LAW..................................................19
SECTION 22. FURTHER ASSURANCES.............................................19
SECTION 23. SUCCESSORS AND ASSIGNS.........................................19
SECTION 24. THE SELLER.....................................................20
SECTION 25. ENTIRE AGREEMENT...............................................20
SECTION 26. NO PARTNERSHIP.................................................20
EXHIBITS AND SCHEDULES TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 List of Servicers and Servicing Agreements
Exhibit 2 Mortgage Loan Schedule Information
Exhibit 3 Seller's Representations and Warranties Relating
to the Mortgage Loans
Schedule A Required Ratings for Each Class of Certificates
Schedule B Mortgage Loan Schedule
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of March 1, 2004 (this
"Agreement"), by and between XXXXXXXXX MORTGAGE HOME LOANS, INC., a Delaware
corporation (the "Seller" or "Xxxxxxxxx"), and STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., a Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the Seller
agrees to sell, and the Purchaser agrees to purchase, certain hybrid and
adjustable rate, first lien mortgage loans secured by one- to four-family
residential properties (collectively, the "Mortgage Loans") as described herein
and as listed on Schedule B hereto (the "Mortgage Loan Schedule"). The Purchaser
intends to sell the Mortgage Loans to Xxxxxxxxx Mortgage Securities Trust
2004-1, a Delaware statutory trust (the "Trust") created pursuant to the Trust
Agreement, dated as of March 29, 2004, among the Purchaser, Deutsche Bank
National Trust Company, as trustee (the "Trustee"), and Deutsche Bank Trust
Company Delaware, as Delaware trustee (the "Delaware Trustee"). Pursuant to a
trust, pooling and servicing agreement, to be dated as of March 1, 2004 (the
"Trust, Pooling and Servicing Agreement"), among the Purchaser, as depositor,
Xxxxx Fargo Bank, N.A., as master servicer and securities administrator, the
Trustee, the Delaware Trustee, and Xxxxxxxxx, the Trust will issue its Mortgage
Pass-Through Certificates, Series 2004-1 (the "Certificates").
The Purchaser has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Number 333-106323) relating
to its Mortgage Pass-Through Certificates and the offering of certain series
thereof (including certain classes of the Certificates) from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (the "Securities
Act"). Such registration statement, when it became effective under the
Securities Act, and the prospectus relating to the public offering of certain
classes of the Certificates by the Purchaser (the "Public Offering"), as from
time to time each is amended or supplemented pursuant to the Securities Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated March 29, 2004 to the Prospectus, dated September 29, 2003
relating to certain classes of the Certificates. With respect to the Public
Offering of certain classes of the Certificates, the Purchaser, Bear Xxxxxxx,
Xxxxxx Brothers Inc. and Greenwich Capital Markets, Inc. (collectively, the
"Underwriters") have entered into a terms agreement dated as of March 29, 2004
to an underwriting agreement dated July 29, 2003, between the Purchaser and Bear
Xxxxxxx (collectively, the "Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Certain terms are defined herein. Capitalized terms
used herein but not defined herein shall have the meanings specified in the
Trust, Pooling and Servicing Agreement. The following other terms are defined as
follows:
ACQUISITION PRICE: Cash in an amount equal to $1,102,116,294.70 (plus
$3,729,697.81 in accrued interest) and the Class B-IO Certificates.
ADDITIONAL COLLATERAL: With respect to any Additional Collateral Mortgage
Loan, the marketable securities subject to a security interest pursuant to a
related pledge agreement.
ADDITIONAL COLLATERAL MORTGAGE LOAN: Each Mortgage Loan identified as such
in the Mortgage Loan Schedule and as to which Additional Collateral is then
required to be provided as security therefor.
APPRAISED VALUE: For any Mortgaged Property related to a Mortgage Loan, the
amount, if any, set forth as the appraised value of such Mortgaged Property in
any appraisal made for the mortgage originator in connection with its
origination of the related Mortgage Loan.
BEAR XXXXXXX: Bear, Xxxxxxx & Co. Inc.
CONVERTIBLE MORTGAGE LOAN: Any Mortgage Loan which, at the option of the
Mortgagor and in accordance with the terms of the related Mortgage Note, may
have the related Mortgage Rate converted from an adjustable rate to a fixed
rate.
CLOSING DATE: March 31, 2004.
CODE: The Internal Revenue Code of 1986, as amended.
COOPERATIVE CORPORATION: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
COOPERATIVE LOAN: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
COOPERATIVE LOAN DOCUMENTS: As to any Cooperative Loan, (i) the Cooperative
Shares, together with a stock power in blank; (ii) the original executed
Security Agreement and the assignment of the Security Agreement endorsed in
blank; (iii) the original executed Proprietary Lease and the assignment of the
Proprietary Lease endorsed in blank; (iv) the original executed Recognition
Agreement and the assignment of the Recognition Agreement (or a blanket
assignment of all Recognition Agreements) endorsed in blank; (v) the executed
UCC-1 financing statement with evidence of recording thereon, which has been
filed in all places required to perfect the security interest in the Cooperative
Shares and the Proprietary Lease; and (vi) executed UCC-3 financing statements
(or copies thereof) or other appropriate UCC financing statements required by
state law, evidencing a complete and unbroken line from the mortgagee to the
Trust with evidence of recording thereon (or in a form suitable for
recordation).
COOPERATIVE PROPERTY: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the Cooperative Shares of the Cooperative Corporation.
COOPERATIVE SHARES: Shares issued by a Cooperative Corporation.
COOPERATIVE UNIT: A single-family dwelling located in a Cooperative
Property.
CUT-OFF DATE: March 1, 2004.
CUT-OFF DATE BALANCE: $1,106,707,889.20.
DUE DATE: With respect to any Mortgage Loan, the date in each month on
which its Scheduled Payment is due if such due date is the first day of a month
and otherwise is deemed to be the first day of the following month, or such
other date specified in the related Servicing Agreement.
EMPLOYEE LOAN: Any Mortgage Loan identified as such in the Mortgage Loan
Schedule, which provides for an increase in the Mortgage Rate thereof in the
event of the change of employment of the Mortgagor thereunder.
XXXXXX XXX: Xxxxxx Xxx (also known as the Federal National Mortgage
Association) or any successor thereto.
XXXXXXX MAC: Xxxxxxx Mac (also known as the Federal Home Loan Mortgage
Corporation) or any successor thereto.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
LOST NOTE AFFIDAVIT: With respect to any Lost Note, an affidavit from the
Seller or one of its affiliates certifying that the original Mortgage Note has
been lost, misplaced or destroyed (together with a copy of the related Mortgage
Note and indemnifying the Depositor, the Trustee and the Trust against any loss,
cost or liability resulting from the failure to deliver the original Mortgage
Note).
MASTER SERVICER: As of the Closing Date, Xxxxx Fargo Bank, N.A. and,
thereafter, its respective successors in interest which meet the qualifications
of the Trust, Pooling and Servicing Agreement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS MORTGAGE LOAN: Any Mortgage Loan as to which (i) the related Security
Instrument or related assignment, has been or will be recorded in the name of
MERS, as agent for the holder from time to time of the Mortgage Note, and (ii)
such Mortgage Loan has been or will be registered on the MERS System.
MERS SYSTEM: The electronic registration system maintained by MERS.
MODIFIABLE MORTGAGE LOAN: Any Mortgage Loan which, at the option of the
Mortgagor and in accordance with the terms of the related Mortgage Note, may
have the related Mortgage Rate modified to any adjustable rate or hybrid product
offered at the time by the related originator.
MOODY'S: Xxxxx'x Investors Service, Inc., or its successors in interest.
MORTGAGE: The mortgage or deed of trust creating a first lien on an
interest in real property securing a Mortgage Note.
MORTGAGE FILE: The definition set forth in Section 2.01(b) of the Trust,
Pooling and Servicing Agreement.
MORTGAGE NOTE: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
MORTGAGE RATE: The annual rate at which interest accrues from time to time
on any Mortgage Loan pursuant to the related Mortgage Note, which rate at the
Cut-Off Date is equal to the "Mortgage Rate" set forth with respect thereto on
the Mortgage Loan Schedule.
MORTGAGED PROPERTY: Any of (x) the fee simple interest in real property,
together with improvements thereto including any exterior improvements to be
completed within 120 days of disbursement of the related Mortgage Loan proceeds,
or (y) in the case of REO Property, such REO Property, or (z) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
MORTGAGOR: The obligor(s) on a Mortgage Note.
NET RATE: For each Mortgage Loan, the Mortgage Rate in effect from time to
time less the sum of the applicable Servicing Fee Rate, the Master Servicing Fee
Rate, the Trustee Fee Rate, the Lender-Paid PMI Rate (if applicable), and the
Retained Interest Rate (if applicable).
NON-MERS MORTGAGE LOAN: Any Mortgage Loan other than a MERS Mortgage Loan.
OPINION OF COUNSEL: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Seller, the Master
Servicer or the Purchaser.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Purchaser.
PERSON: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PROPRIETARY LEASE: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
RATING AGENCY: Each of S&P and Moody's.
RECOGNITION AGREEMENT: With respect to any Cooperative Loan, an agreement
between the related Cooperative Corporation and the originator of such Mortgage
Loan to establish the rights of such originator in the related Cooperative
Property.
REPURCHASE PRICE: With respect to any Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased by the Seller pursuant
to this Agreement or Article II of the Trust, Pooling and Servicing Agreement,
as applicable, an amount equal to the sum of (i) 100% of the Outstanding
Principal Balance of such Mortgage Loan as of the date of repurchase (or if the
related Mortgaged Property was acquired with respect thereto, 100% of the
Outstanding Principal Balance at the date of the acquisition), plus (ii) accrued
but unpaid interest on the Outstanding Principal Balance at the related Mortgage
Rate, through and including the last day of the month of repurchase plus (iii)
any premiums due the insurer under any Primary Mortgage Insurance Policy plus
(iv) in the case of a repurchase of such Mortgage Loan resulting from breach of
a representation or warranty contained in Exhibit 3 hereto, any costs or damages
incurred by the Trust in connection with the violation by such Mortgage Loan of
any predatory or abusive lending law reduced by (iv) any portion of any
Servicing Fee or the Master Servicing Fee, Monthly Advances and advances payable
to the purchaser of the Mortgage Loan.
RETAINED INTEREST: Interest in respect of each Employee Loan, retained by
the Retained Interest Holder at the Retained Interest Rate.
RETAINED INTEREST HOLDER: With respect to each Employee Loan, the Seller or
any successor in interest by assignment or otherwise.
RETAINED INTEREST RATE: As of the Cut-off Date, and for each Due Period
thereafter, 0.00% per annum; provided, however, if the related Mortgagor of the
Employee Loan ceases to be an employee or a director of Xxxxxxxxx or its
affiliates, the amount of the increase in the per annum rate set forth in the
related Mortgage Note.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or its successors in interest.
SECURITIES ACT: The Securities Act of 1933, as amended.
SECURITY AGREEMENT: With respect to any Cooperative Loan, the agreement
between the owner of the related Cooperative Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Cooperative Shares and the related Proprietary Lease.
SECURITY INSTRUMENT: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
SERVICING AGREEMENTS: The list of servicing agreements relating to the
Mortgage Loans as set forth in Exhibit 2 hereto, servicing arrangements for any
Mortgage Loans under the Seller's Correspondents Sellers Guide, and any other
servicing agreement entered into between a successor servicer and the Seller or
the Trustee on behalf of the Trust pursuant to the terms of the Trust, Pooling
and Servicing Agreement.
SUBSTITUTE MORTGAGE LOAN: A mortgage loan tendered to the Trustee on behalf
of the Trust pursuant to this Agreement, the related Servicing Agreement or
Section 2.04 of the Trust, Pooling and Servicing Agreement, as applicable, in
each case, (i) which has an Outstanding Principal Balance not greater nor
materially less than the Mortgage Loan for which it is to be substituted; (ii)
which has a Mortgage Rate and Net Mortgage Rate not less than, and not
materially greater than, such Mortgage Loan; (iii) which has a maturity date not
materially earlier or later than such Mortgage Loan and not later than the
latest maturity date of any Mortgage Loan; (iv) which is of the same property
type and occupancy type as such Mortgage Loan; (v) which has a Loan-to-Value
Ratio not greater than the Loan-to-Value Ratio of such Mortgage Loan; (vi) which
is current in payment of principal and interest as of the date of substitution;
(vii) as to which the payment terms do not vary in any material respect from the
payment terms of the Mortgage Loan for which it is to be substituted, (viii) is
not a Cooperative Loan unless such Mortgage Loan was a Cooperative Loan; (ix)
which has a Gross Margin, Periodic Rate Cap and Maximum Lifetime Mortgage Rate
no less than those of such Mortgage Loan, has the same Index and interval
between Interest Adjustment Dates as such Mortgage Loan, and a Minimum Lifetime
Mortgage Rate no lower than that of such Mortgage Loan; and (x) is a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code; provided, however, that
no mortgage loan will be eligible to become a Substitute Mortgage Loan if its
inclusion in the Trust would be in violation of the provisions of Section 2.04
hereof.
UCC: The Uniform Commercial Code as in effect in the applicable
jurisdiction.
SECTION 2. PURCHASE AND SALE OF THE MORTGAGE LOANS AND RELATED RIGHTS.
(a) Upon satisfaction of the conditions set forth in Section 10 hereof, the
Seller agrees to sell, and the Purchaser agrees to purchase, the Mortgage Loans
with the Cut-off Date Balance in exchange for the Acquisition Price.
(b) The closing for the purchase and sale of the Mortgage Loans and the
closing for the issuance of the Certificates will take place on the Closing Date
at the office of the Seller's counsel in New York, New York or such other place
as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section 10 hereof,
on the Closing Date, the Purchaser shall pay to the Seller the Acquisition Price
for the Mortgage Loans in immediately available funds by wire transfer to such
account or accounts as shall be designated by the Seller, whereupon the Mortgage
Loans (but excluding any Retained Interest on a Mortgage Loan) shall become the
sole property of the Purchaser.
(d) In addition to the foregoing, effective on the Closing Date, the Seller
assigns to the Purchaser the following other assets relating to the Mortgage
Loans: (i) such assets relating to the Mortgage Loans as from time to time may
be held by the Servicers in each Servicer Account, the Master Servicer in the
Master Servicer Collection Account and the Trustee in the Distribution Account
(but, in each case, excluding all investment earnings thereon), for the benefit
of the Trust, (ii) any REO Property, (iii) the Required Insurance Policies
(including the MLCC Limited Purpose Surety Bond) and any amounts paid or payable
by the insurer under any Insurance Policy (to the extent the mortgagee has a
claim thereto), (iv) the rights of the Seller in, but none of the obligations of
the Seller with respect to, this Agreement, including but not limited to the
Seller's rights and obligations pursuant to each of the Servicing Agreements
(noting that the Seller has also retained the right in the event of breach of
the representations, warranties and covenants, if any, with respect to the
related Mortgage Loans of the related Servicer under the related Servicing
Agreement to enforce the provisions thereof and to seek all or any available
remedies), (v) the Seller's rights with respect to each of the Servicing
Agreements, (vi) with respect to Additional Collateral Mortgage Loans (a) the
Seller's rights as assignee under any security agreements, pledge agreements or
guarantees relating to the Additional Collateral supporting any Additional
Collateral Mortgage Loan, (b) the Seller's security interest in and to any
Additional Collateral, and (c) the Seller's right to receive payments in respect
of any Additional Collateral Mortgage Loan pursuant to the related Servicing
Agreement, in each case, as previously conveyed to the Seller, and the Depositor
and (vii) any proceeds of the foregoing.
SECTION 3. MORTGAGE LOAN SCHEDULES. The Seller agrees to provide to the
Purchaser as of the date hereof a preliminary listing of the Mortgage Loans (the
"PRELIMINARY MORTGAGE LOAN SCHEDULE") setting forth the information listed on
EXHIBIT 2 to this Agreement with respect to each of the Mortgage Loans being
sold by the Seller. If there are changes to the Preliminary Mortgage Loan
Schedule, the Seller shall provide to the Purchaser as of the Closing Date a
final schedule (the "FINAL MORTGAGE LOAN SCHEDULE") setting forth the
information listed on EXHIBIT 2 to this Agreement with respect to each of the
Mortgage Loans being sold by the Seller to the Purchaser. The Final Mortgage
Loan Schedule shall be delivered to the Purchaser on the Closing Date, shall be
attached to this Agreement as Schedule B. If there are no changes to the
Preliminary Mortgage Loan Schedule, the Preliminary Mortgage Loan Schedule shall
be the Final Mortgage Loan Schedule for all purposes hereof.
SECTION 4. MORTGAGE LOAN TRANSFER.
(a) The Purchaser will be entitled to all scheduled payments of principal
and interest on the Mortgage Loans due after the Cut-off Date (regardless of
when actually collected) and all payments thereof other than scheduled payments
of principal and interest received after the Cut-off Date. The Seller will be
entitled to all scheduled payments of principal and interest on the Mortgage
Loans due on or before the Cut-off Date (including payments collected after the
Cut-off Date) and all payments thereof other than scheduled payments of
principal and interest on the Mortgage Loans received on or before the Cut-off
Date. Such principal amounts and any interest thereon belonging to the Seller as
described above will not be included in the aggregate outstanding principal
balance of the Mortgage Loans as of the Cut-off Date as set forth on the
Mortgage Loan Schedule.
(b) Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Trust, Pooling and Servicing Agreement, the
Purchaser will assign on the Closing Date all of its right, title and interest
in and to the Mortgage Loans and the other assets set forth in Section 2(d)
hereof, to the Trustee, on behalf of the Trust, for the benefit of the
Certificateholders. In connection with the transfer and assignment of the
Mortgage Loans, the Seller has delivered or will deliver or cause to be
delivered to the Trustee by the Closing Date or such later date as is agreed to
by the Purchaser and the Seller (each of the Closing Date and such later date is
referred to as a "MORTGAGE FILE DELIVERY DATE"), the items of each Mortgage
File. The Seller shall take, or cause the applicable Servicer to take, all
actions specified in Section 2.01(c) of the Trust, Pooling and Servicing
Agreement in the manner specified therein.
(c) The Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans and the related servicing (including the rights of the Seller
under the Servicing Agreements) will ultimately be assigned to the Trust or
Trustee, on behalf of the Trust, for the benefit of the Certificateholders, on
the date hereof.
SECTION 5. EXAMINATION OF MORTGAGE FILES.
(a) On or before the Mortgage File Delivery Date, the Seller will have made
the Mortgage Files available to the Purchaser or its agent for examination which
may be at the offices of the Trustee or the Seller and/or the Seller's
custodian. The fact that the Purchaser or its agent has conducted or has failed
to conduct any partial or complete examination of the Mortgage Files shall not
affect the Purchaser's rights to demand cure, repurchase, substitution or other
relief as provided in this Agreement. In furtherance of the foregoing, the
Seller shall make the Mortgage Files available to the Purchaser or its agent
from time to time so as to permit the Purchaser to confirm the Seller's
compliance with the delivery and recordation requirements of this Agreement and
the Trust, Pooling and Servicing Agreement. In addition, upon request of the
Purchaser, the Seller agrees to provide to the Purchaser, the Underwriters and
to any investors or prospective investors in the Certificates information
regarding the Mortgage Loans and their servicing, to make the Mortgage Files
available to the Purchaser, the Underwriters and to such investors or
prospective investors (which may be at the offices of the Seller and/or the
Seller's custodian) and to make available personnel knowledgeable about the
Mortgage Loans for discussions with the Purchaser, the Underwriters and such
investors or prospective investors, upon reasonable request during regular
business hours, sufficient to permit the Purchaser, the Underwriters and such
investors or potential investors to conduct such due diligence as any such party
reasonably believes is appropriate.
(b) Pursuant to the Trust, Pooling and Servicing Agreement, on the Closing
Date the Trustee, for the benefit of the Trust and the Certificateholders, will
review certain items of the Mortgage Files and will deliver to the Seller a
certification in the form attached as Exhibit C-1 to the Trust, Pooling and
Servicing Agreement.
(c) Pursuant to the Trust, Pooling and Servicing Agreement, the Trustee
will review the Mortgage Files within 90 and again within 180 days of the
Closing Date and will deliver to the Seller and the Master Servicer an interim
and a final certification, respectively, substantially in the forms of Exhibits
C-2 and C-3, as applicable, to the Trust, Pooling, and Servicing Agreement. If
the Trustee is unable to deliver a certification with respect to the items
required by Section 2.01(b) of the Trust, Pooling and Servicing Agreement
because any document is missing, has not been executed or appears to be
unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B of the
Trust, Pooling and Servicing Agreement or appears to be defective on its face,
upon notification by the Trustee or the Custodian as its agent, the Seller shall
correct or cure any such defect within 90 days from the date of notice from the
Trustee (or the Custodian) of the defect or, in the case of a defect in
connection with a final certification of the Trustee, shall deliver to the
Trustee an Opinion of Counsel to the effect that such defect does not materially
or adversely affect the interests of the Trust or the Certificateholders in such
Mortgage Loan. If the Seller is unable to cure such defect within such period,
and if such defect materially and adversely affects the interests of the Trust
or the Certificateholders in the related Mortgage Loan, the Seller will, in
accordance with the terms of the Trust, Pooling and Servicing Agreement, within
90 days of notice, purchase the related Mortgage Loan at the Repurchase Price
and in accordance with Section 2.02(c) of the Trust, Pooling and Servicing
Agreement. The foregoing repurchase obligation shall not apply in the event that
the Seller cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such receipt is not available, an Officer's Certificate confirming that such
documents have been accepted for recording, and delivery to the Trustee (or the
Custodian, as its agent) shall be effected by the Seller within thirty days of
its receipt of the original recorded document.
(d) In lieu of purchasing a Mortgage Loan pursuant to Section 5(c) hereof,
the Seller may deliver a Substitute Mortgage Loan in accordance with Section
2.04 of the Trust, Pooling and Servicing Agreement, including delivery of the
cash specified therein; provided, however, that delivery of a Substitute
Mortgage Loan in lieu of a purchase pursuant to Section 5(c) hereof and Section
2.02 of the Trust, Pooling and Servicing Agreement, shall not be permitted after
the two-year period beginning with the Start-up Day, or to the extent otherwise
prohibited pursuant to Section 2.04 of the Trust, Pooling and Servicing
Agreement. At the time of any substitution, the Seller shall, in accordance with
the provisions of Section 2.04 of the Trust, Pooling and Servicing Agreement,
deliver or cause to be delivered the Substitute Mortgage Loan, the related
Mortgage File and any other documents and payments required to be delivered in
connection with a substitution pursuant to the Trust, Pooling and Servicing
Agreement. At the time of any purchase or substitution, the Trustee shall, in
accordance with the provisions of Section 2.04 of the Trust, Pooling and
Servicing Agreement, (i) assign to the Seller and cause the Trustee to release
the documents (including, but not limited to, the Mortgage, Mortgage Note and
other contents of the Mortgage File) in the possession of the Trustee relating
to the repurchased or substituted Mortgage Loan and (ii) execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be necessary to vest in the Seller title to such repurchased or
substituted Mortgage Loan.
SECTION 6. RECORDATION OF ASSIGNMENTS OF MORTGAGE, ETC.
(a) The Seller will, with respect to each Non-MERS Mortgage Loan (other
than a Cooperative Loan), promptly after the Closing Date at its expense, cause
each Mortgage and each assignment of Mortgage from the Seller to the Trustee,
and all unrecorded intervening assignments, if any, delivered on or prior to the
Closing Date, to be recorded in all recording offices in the jurisdictions where
the related Mortgaged Properties are located; PROVIDED, HOWEVER, the Seller need
not cause to be recorded any assignment which relates to a Mortgage Loan in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Seller to the Trustee and the Rating Agencies, the recordation
of such assignment is not necessary to protect the Trustee's interest in the
related Mortgage Loan; PROVIDED, HOWEVER, notwithstanding the delivery of any
Opinion of Counsel, each assignment of Mortgage with respect to a NON-MERS
Mortgage Loan (other than a Cooperative Loan) shall be submitted for recording
by the Seller in the manner described above, at no expense to the Trust or
Trustee, upon the earliest to occur of (i) reasonable direction by the Holders
of Certificates evidencing Fractional Undivided Interests aggregating not less
than 51% of the Trust, (ii) the occurrence of a bankruptcy or insolvency
relating to the Seller or the Purchaser, or (iii) with respect to any one
assignment of Mortgage, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage.
While each such Mortgage or assignment is being recorded, if necessary, the
Seller shall leave or cause to be left with the Trustee a certified copy of such
Mortgage or assignment. In the event that, within 180 days of the Closing Date,
the Trustee has not received an Opinion of Counsel as described above or
received evidence of recording with respect to each Mortgage Loan delivered to
the Purchaser pursuant to the terms hereof or as set forth above, the failure to
provide evidence of recording or such Opinion of Counsel shall be considered a
material defect, and the provisions of Section 5(c) and (d) shall apply. All
customary recording fees and reasonable expenses relating to the recordation of
the assignments of mortgage to the Trustee or the Opinion of Counsel, as the
case may be, shall be borne by the Seller.
With respect to each Cooperative Loan, the Seller will take, or cause the
applicable Servicer to take, at the expense of the Seller and with the
cooperation of the Seller, the Trustee and the Master Servicer, such actions as
are necessary under applicable law in order to perfect the interest of the Trust
in the related Mortgaged Property.
With respect to each MERS Mortgage Loan, the Seller will take, or cause the
applicable Servicer to take, at the expense of the Seller and at the direction
and with the cooperation of the Seller, the Trustee and the Master Servicer,
such actions as are necessary to cause the Trust to be clearly identified as the
owner of each such Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS.
In addition, in instances where a title insurance policy is required to be
delivered to the Trustee, as specified in Section 2.01(b) of the Trust, Pooling
and Servicing Agreement, and is not so delivered, the Seller will provide a copy
of such title insurance policy to the Trustee, or to the Custodian on behalf of
the Trustee, as promptly as practicable after the execution and delivery hereof,
but in any case within 180 days of the Closing Date.
For Mortgage Loans (if any) that have been prepaid in full after the
Cut-Off Date and prior to the Closing Date, the Seller, in lieu of delivering
the above documents, shall comply with Section 2.01(e) of the Trust, Pooling and
Servicing Agreement.
(b) It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Seller to the Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held by a court to continue to be property of the Seller,
then (a) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans and all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, to the extent
the Purchaser would otherwise be entitled to own such Mortgage Loans and
proceeds pursuant to Section 4 hereof, including all amounts, other than
investment earnings, from time to time held or invested in any accounts created
pursuant to the Trust, Pooling and Servicing Agreement, whether in the form of
cash, instruments, securities or other property; (c) the possession by the
Purchaser or the Trustee of Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-313 (or comparable provision) of the
applicable Uniform Commercial Code; and (d) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof or pursuant to the Trust, Pooling and Servicing
Agreement shall also be deemed to be an assignment of any security interest
created hereby. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be reasonably necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Trust, Pooling and Servicing Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE SELLER CONCERNING THE
MORTGAGE LOANS. The Seller hereby makes the representations and warranties set
forth in Exhibit 3 hereto applicable to the Mortgage Loans, as of the Closing
Date or, if applicable, such other date as may be specified therein.
Upon discovery or receipt of notice by the Seller, the Purchaser or the
Trustee of a breach of any representation or warranty of the Seller set forth in
Exhibit 3 hereto which materially and adversely affects the value of the
interests of the Purchaser, the Trust, the Certificateholders or the Trustee in
any of the Mortgage Loans delivered to the Purchaser pursuant to this Agreement,
the party discovering or receiving notice of such breach shall give prompt
written notice to the others. In the case of any such breach of a representation
or warranty set forth in Exhibit 3 hereto, within 90 days from the earliest of
the date of receipt of notice or discovery by the Seller of such breach, the
Seller will (i) cure such breach in all material respects, (ii) purchase the
affected Mortgage Loan at the applicable Repurchase Price or (iii) if within two
years of the Closing Date, substitute a qualifying Substitute Mortgage Loan in
exchange for such Mortgage Loan in the case of clauses (ii) and (iii), in
accordance with Section 5(c) or 5(d) hereof, as applicable. The obligations of
the Seller to cure, purchase or substitute a qualifying Substitute Mortgage Loan
shall constitute the Purchaser's, the Trust's, the Trustee's and the
Certificateholders' sole and exclusive remedy under this Agreement or otherwise
respecting a breach of representations or warranties hereunder with respect to
the Mortgage Loans.
Any cause of action against the Seller or relating to or arising out of a
breach by the Seller of any representations and warranties made in this Section
7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Seller or notice thereof by the party discovering such breach and (ii) failure
by the Seller to cure such breach, purchase such Mortgage Loan or substitute a
qualifying Substitute Mortgage Loan pursuant to the terms hereof.
Notwithstanding whether any representation or warranty made by the Seller
in Exhibit 3 hereof is made only to the best of the Seller's knowledge, the
Seller shall be obligated under this Section 7 to repurchase any Mortgage Loan
with respect to which such representation or warranty was untrue as of the
Cut-off Date, the Closing Date, or otherwise, as applicable, irrespective of the
Seller's lack of knowledge thereof.
SECTION 8. REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER. As of the
date hereof and as of the Closing Date, the Seller represents and warrants to
the Purchaser as to itself in the capacity indicated as follows:
(a) the Seller (i) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and (ii) is qualified and
in good standing to do business in each jurisdiction where such qualification is
necessary, except where the failure so to qualify would not reasonably be
expected to have a material adverse effect on the Seller's business as presently
conducted or on the Seller's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(b) the Seller has full power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under this
Agreement;
(c) the execution and delivery by the Seller of this Agreement have been
duly authorized by all necessary action on the part of the Seller; and neither
the execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under, any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Seller or its properties or the charter or by-laws of the
Seller, except those conflicts, breaches or defaults which would not reasonably
be expected to have a material adverse effect on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this Agreement
and the consummation of the transactions contemplated hereby do not require the
consent or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except those consents, approvals, notices,
registrations or other actions as have already been obtained, given or made and,
in connection with the recordation of the Mortgages, powers of attorney or
assignments of Mortgages not yet completed;
(e) this Agreement has been duly executed and delivered by the Seller and,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a valid and binding obligation of the Seller enforceable against it in
accordance with its terms (subject to applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally); and
(f) there are no actions, suits or proceedings pending or, to the knowledge
of the Seller, threatened against the Seller, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter which in the judgment of the Seller will be determined adversely to
the Seller and will if determined adversely to the Seller materially and
adversely affect the Seller's ability to perform its obligations under this
Agreement; and the Seller is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement.
SECTION 9. REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER. As of
the date hereof and as of the Closing Date, the Purchaser represents and
warrants to the Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (ii) is qualified
and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Purchaser's business as presently conducted or on the Purchaser's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) the Purchaser has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement have been
duly authorized by all necessary corporate action on the part of the Purchaser;
and neither the execution and delivery of this Agreement, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Purchaser or its properties or the
articles of incorporation or by-laws of the Purchaser, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Purchaser's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made;
(e) this Agreement has been duly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery by the Seller,
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally); and
(f) there are no actions, suits or proceedings pending or, to the knowledge
of the Purchaser, threatened against the Purchaser, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter which in the judgment of the Purchaser will be determined adversely
to the Purchaser and will if determined adversely to the Purchaser materially
and adversely affect the Purchaser's ability to perform its obligations under
this Agreement; and the Purchaser is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement.
SECTION 10. CONDITIONS TO CLOSING.
(a) The obligations of the Purchaser under this Agreement will be subject
to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(1) Each of the obligations of the Seller required to be performed at
or prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects; all of the
representations and warranties of the Seller under this Agreement shall be true
and correct as of the date or dates specified in all material respects; and no
event shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement, or the Trust, Pooling and Servicing
Agreement; and the Purchaser shall have received certificates to that effect
signed by authorized officers of the Seller.
(2) The Purchaser shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser as required
pursuant to the respective terms thereof:
(i) The Final Mortgage Loan Schedule containing the information set
forth on EXHIBIT 2 hereto to be attached to this Agreement as Schedule B
and to the Trust, Pooling and Servicing Agreement as Exhibit B;
(ii) The Trust, Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Trustee and the Purchaser, and all documents
required thereby duly executed by all signatories;
(iii) A certificate of an officer of the Seller, dated as of the
Closing Date, in a form reasonably acceptable to the Purchaser, and
attached thereto the resolutions of the Seller authorizing the transactions
contemplated by this Agreement, together with copies of the charter and
by-laws of the Seller;
(iv) One or more opinions of counsel from the Seller's counsel
otherwise in form and substance reasonably satisfactory to the Purchaser,
the Trustee and the Rating Agencies;
(v) Letters from one or more acceptable certified public accounting
firms shall have been received by the Seller, regarding the matters set
forth in Section 12 hereof;
(vi) A letter from each of the Rating Agencies giving each Class of
Certificates set forth on Schedule A the rating set forth on Schedule A;
and
(vii) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary
to secure the intended ratings from each of the Rating Agencies for the
Certificates.
(3) The Certificates to be sold to the Underwriters pursuant to the
Underwriting Agreement shall have been issued and sold to the Underwriters.
(4) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and opinions of
counsel to evidence fulfillment of the conditions set forth in this Agreement
and the transactions contemplated hereby as the Purchaser and its counsel may
reasonably request.
(b) The obligations of the Seller under this Agreement shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
(1) The obligations of the Purchaser required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall be
true and correct in all material respects as of the date hereof and as of the
Closing Date, and no event shall have occurred which would constitute a breach
by it of the terms of this Agreement, and the Seller shall have received a
certificate to that effect signed by an authorized officer of the Purchaser.
(2) The Seller shall have received copies of all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Seller, duly executed by all signatories other than the Seller as required
pursuant to the respective terms thereof:
(i) The Trust, Pooling and Servicing Agreement, in form and substance
reasonably satisfactory to the Seller, and all documents required thereby
duly executed by all signatories;
(ii) A certificate of an officer of the Purchaser dated as of the
Closing Date, in a form reasonably acceptable to the Seller, and attached
thereto the resolutions of the Purchaser authorizing the transactions
contemplated by this Agreement and the Trust, Pooling and Servicing
Agreement, together with copies of the Purchaser's articles of
incorporation, and evidence as to the good standing of the Purchaser dated
as of a recent date;
(iii) One or more opinions of counsel from the Purchaser's counsel in
form and substance reasonably satisfactory to the Seller; and
(iv) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary
to secure the intended rating from each of the Rating Agencies for the
Certificates.
SECTION 11. FEES AND EXPENSES. Subject to Section 16 hereof, the Seller
shall pay on the Closing Date or such later date as may be agreed to by the
Purchaser (i) the fees and expenses of the Seller's attorneys and the reasonable
fees and expenses of the Purchaser's attorneys, (ii) the fees and expenses of
Deloitte & Touche LLP and the fees and expenses of all other certified public
accounting firms providing letters regarding information contained in the
Prospectus and the Prospectus Supplement, (iii) the fee for the use of
Purchaser's Registration Statement based on the aggregate original principal
amount of the Certificates offered publicly and the filing fee of the Commission
as in effect on the date on which the Registration Statement was declared
effective, (iv) the fees and expenses including counsel's fees and expenses in
connection with any "blue sky" and legal investment matters, (v) the fees and
expenses of the Trustee (and the Delaware Trustee) which shall include without
limitation all related fees and expenses (and the fees and disbursements of
their counsels) with respect to (A) legal and document review of this Agreement,
the Trust, Pooling and Servicing Agreement, the Servicing Agreements, the
Certificates and related agreements, (B) attendance at the Closing and (C)
review of the Mortgage Loans to be performed by the Trustee, (vi) the fees and
expenses of the Master Servicer and Securities Administrator which shall include
without limitation all related fees and expenses (and the fees and disbursements
of its counsel) with respect to legal and document review of this Agreement, the
Trust, Pooling and Servicing Agreement, the Servicing Agreements, the
Certificates and related agreements, (vii) the expenses for printing or
otherwise reproducing the Certificates, the Prospectus and the Prospectus
Supplement, (viii) the fees and expenses of each of the Rating Agencies (both
initial and ongoing), (ix) the fees and expenses relating to the preparation and
recordation of mortgage assignments, if required, (including intervening
assignments, if any and if available, to evidence a complete chain of title from
the originator to the Trustee) from the Seller to the Trustee or the expenses
relating to the Opinion of Counsel referred to in Section 6(a) hereof, as the
case may be, and (x) Mortgage File due diligence expenses and other
out-of-pocket expenses incurred by the Purchaser in connection with the purchase
of the Mortgage Loans and by the Underwriters in connection with the sale of the
Certificates. The Seller additionally agrees to pay directly to any third party
on a timely basis the fees provided for above which are charged by such third
party and which are billed periodically.
SECTION 12. ACCOUNTANTS' LETTERS.
(a) It is a condition to closing that Deloitte & Touche LLP shall have
reviewed the characteristics of a sample of the Mortgage Loans described in the
Final Mortgage Loan Schedule and compared those characteristics to the
description of the Mortgage Loans contained in the Prospectus Supplement under
the captions "Summary of Terms--The Mortgage Pool" and "Description of the
Mortgage Loans" and in the numerical information contained in Annex I thereto
and confirmed certain calculations set forth under the captions "Yield and
Prepayment Considerations" in the Prospectus Supplement. The Seller will
cooperate with the Purchaser in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review and
to deliver the letters required of them under the Underwriting Agreement.
Deloitte & Touche LLP will also confirm certain calculations as set forth under
the captions "Yield and Prepayment Considerations" in the Prospectus Supplement.
(b) To the extent statistical information with respect to any Servicer's
servicing portfolio is included in the Prospectus Supplement under the caption
"The Master Servicer and the Servicers," the Seller will cause a letter from the
certified public accountant for each such Servicer to be delivered to the
Purchaser dated the date of the Prospectus Supplement, in the form previously
agreed to by the Seller and the Purchaser, with respect to such statistical
information.
SECTION 13. [RESERVED]
SECTION 14. NOTICES. All demands, notices and communications hereunder
shall be in writing but may be delivered by facsimile transmission subsequently
confirmed in writing. Notices to the Seller shall be directed to Xxxxxxxxx
Mortgage Home Loans, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xx, Xxx
Xxxxxx, 00000, Attention: Xxxxxxx Xxxxx, Vice President--Mortgage Loan
Securitization, and notices to the Purchaser shall be directed to Structured
Asset Mortgage Investments II Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, (Telecopy: (212-272-5591)), Attention: Vice President-Servicing;
or to any other address as may hereafter be furnished by one party to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt) provided that it is received on a business day
during normal business hours and, if received after normal business hours, then
it shall be deemed to be received on the next business day.
SECTION 15. TRANSFER OF MORTGAGE LOANS. The Purchaser retains the right to
assign the Mortgage Loans and any or all of its interest under this Agreement to
the Trust, or the Trustee on behalf of the Trust, without the consent of the
Seller, and, upon such assignment, the Trust, or the Trustee on its behalf,
shall succeed to the applicable rights and obligations of the Purchaser
hereunder; PROVIDED, HOWEVER, the Purchaser shall remain entitled to the
benefits set forth in Sections 11 and 17 hereto and as provided in Section 2(a).
Notwithstanding the foregoing, the sole and exclusive right and remedy of the
Trust, the Trustee or any Certificateholder with respect to a breach of
representation or warranty of the Seller shall be the purchase or substitution
obligations of the Seller contained in Sections 5 and 7 hereof.
SECTION 16. TERMINATION. This Agreement may be terminated (a) by the mutual
consent of the parties hereto prior to the Closing Date, (b) by the Purchaser,
if the conditions to the Purchaser's obligation to close set forth under Section
10(a) hereof are not fulfilled as and when required to be fulfilled or (c) by
the Seller, if the conditions to the Seller's obligation to close set forth
under Section 10(b) hereof are not fulfilled as and when required to be
fulfilled. In the event of termination pursuant to clause (b), the Seller shall
pay, and in the event of termination pursuant to clause (c), the Purchaser shall
pay, all reasonable out-of-pocket expenses incurred by the other in connection
with the transactions contemplated by this Agreement. In the event of a
termination pursuant to clause (a), each party shall be responsible for its own
expenses.
SECTION 17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Seller submitted pursuant hereto,
shall remain operative and in full force and effect and shall survive delivery
of the Mortgage Loans to the Purchaser (and by the Purchaser to the Trust, or
the Trustee on its behalf). Subsequent to the delivery of the Mortgage Loans to
the Purchaser, the Seller's representations and warranties contained herein with
respect to the Mortgage Loans shall be deemed to relate to the Mortgage Loans
actually delivered to the Purchaser and included in the Final Mortgage Loan
Schedule and any Substitute Mortgage Loan and not to those Mortgage Loans
deleted from the Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof
prior to the Closing.
SECTION 18. SEVERABILITY. If any provision of this Agreement shall be
prohibited or invalid under applicable law, the Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
SECTION 19. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be an original, but which together shall constitute one and
the same agreement.
SECTION 20. AMENDMENT. This Agreement cannot be amended or modified in any
manner without the prior written consent of each party.
SECTION 21. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
AND PERFORMED IN THE STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF
SUCH STATE.
SECTION 22. FURTHER ASSURANCES. Each of the parties agrees to execute and
deliver such instruments and take such actions as another party may, from time
to time, reasonably request in order to effectuate the purpose and to carry out
the terms of this Agreement including any amendments hereto which may be
required by each Rating Agency.
SECTION 23. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of and be enforceable by
the Seller and the Purchaser and their permitted successors and assigns and
their directors, officers and controlling persons (within the meaning of federal
securities laws). The Seller acknowledges and agrees that the Purchaser may
assign its rights under this Agreement (including, without limitation, with
respect to the Seller's representations and warranties respecting the Mortgage
Loans) to the Trust, or the Trustee on its behalf. Any person into which the
Seller may be merged or consolidated (or any person resulting from any merger or
consolidation involving the Seller), any person resulting from a change in form
of the Seller or any person succeeding to the business of the Seller, shall be
considered the "successor" of the Seller hereunder and shall be considered a
party hereto without the execution or filing of any paper or any further act or
consent on the part of any party hereto. Except as provided in the two preceding
sentences, this Agreement cannot be assigned, pledged or hypothecated by either
party hereto without the written consent of the other parties to this Agreement
and any such assignment or purported assignment shall be deemed null and void.
SECTION 24. THE SELLER. The Seller will keep in full effect all rights as
are necessary to perform its obligations under this Agreement.
SECTION 25. ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding between the parties with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof.
SECTION 26. NO PARTNERSHIP. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective duly authorized officers as of the date first above
written.
XXXXXXXXX MORTGAGE HOME LOANS,
INC., as Seller
By: /S/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as
Purchaser
By: /S/ XXXX X. XXXXXXXX
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT 1
LIST OF SERVICING AGREEMENTS
1. Amended and Restated Correspondent Loan Purchase Agreement, dated as of
Xxxxx 00, 0000 (xxx "Xxxxx Xxxxxxxx Agreement"), between Xxxxxxxxx and
First Republic Bank ("First Republic"), including the related Transfer
Notice, dated as of March 18, 2004, from Xxxxxxxxx to First Republic.
2. Amended and Restated Correspondent Loan Purchase Agreement, dated as of
March 21, 2002, between Xxxxxxxxx and Colonial Savings, F.A. ("Colonial"),
including the related Transfer Notice, dated as of March 18, 2004, from
Xxxxxxxxx to Colonial.
3. (a) Servicing Agreement, dated as of March 1, 2002, between Xxxxxxxxx, as
seller and servicer, and Xxxxx Fargo, as master servicer, (b) Amendment to
Servicing Agreement, dated as of December 1, 2002, between Xxxxxxxxx, as
seller and servicer, and Xxxxx Fargo, as master servicer, (c) the
Subservicing Acknowledgement Agreement, dated as of March 1, 2002, between
Xxxxxxxxx, as servicer, and Cenlar FSB, as sub-servicer ("Cenlar"), and (d)
the Amendment to Sub-Servicing Acknowledgment Agreement, dated as of
December 1, 2002, between Xxxxxxxxx, as servicer, and Cenlar, as
sub-servicer, including the related Transfer Notice, dated as of March 18,
2004, from Xxxxxxxxx, as seller, to Xxxxxxxxx, as servicer, and Cenlar, as
sub-servicer.
4. Seller's Warranties and Servicing Agreement, dated as of February 1, 2004,
between Xxxxx Fargo Home Mortgage, Inc. ("WFHM") and Xxxxxxxxx, as
purchaser, as reconstituted pursuant to the Reconstituted Servicing
Agreement, dated as of March 1, 2004, between Xxxxxxxxx, as seller, and
WFHM, as servicer, and acknowledged by Xxxxx Fargo Bank, N.A. ("Xxxxx
Fargo"), as master servicer and Deutsche Bank National Trust Company
("Deutsche Bank"), as trustee.
5. (a) Mortgage Flow Purchase, Sale & Servicing Agreement, dated as of
December 23, 2002, by and among Xxxxxxxxx, Xxxxxx'x Gate Residential
Mortgage Trust (formerly known as Cendant Residential Mortgage Trust)
("Xxxxxx'x Gate") and Cendant Mortgage Corporation ("Cendant"), (b)
Additional Collateral Assignment and Servicing Agreement, dated as of
December 23, 2002, by and among Xxxxxxxxx, Xxxxxx'x Gate and Cendant and
(c) Assignment, Assumption and Recognition Agreement, dated of March 1,
2004, by and among Xxxxxxxxx Mortgage Securities Trust 2004-1, as assignee,
Xxxxxxxxx, as assignor, Xxxxxx'x Gate, as a seller, and Cendant, as
servicer and a seller, and acknowledged by Xxxxx Fargo, as master servicer,
and Deutsche Bank, as trustee.
EXHIBIT 2
MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules 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 (including city, state and zip code) of the
Mortgaged Property;
(iv) identify type of Mortgage Loan, e.g. or conventional or
non-conventional
(v) the property type;
(vi) the Mortgage Rate;
(vii) the name of the Servicer;
(viii) the related Servicing Fee Rate;
(ix) origination date;
(x) [Reserved];
(xi) the original term;
(xii) the maturity date;
(xiii) [Reserved];
(xiv) the original principal balance;
(xv) the first payment date;
(xvi) the principal and interest payment in effect as of the Cut-off
Date;
(xvii) the Unpaid Principal Balance as of the Cut-off Date;
(xviii) the Loan-to-Value Ratio;
(xix) paid-through date;
(xx) the amount of the Scheduled Payment;
(xxi) [Reserved];
(xxii) a code indicating whether the Mortgage Loan is negatively
amortizing, if applicable;
(xxiii) the Index, if applicable;
(xxiv) the next Interest Rate Adjustment Date, if applicable;
(xxv) the Gross Margin, if applicable;
(xxvi) the minimum and maximum Mortgage Rate, if applicable;
(xxvii) the periodic rate cap, if applicable;
(xxviii) [Reserved];
(xxix) whether the Mortgage Loan is a MERS Mortgage Loan;
(xxx) whether the Mortgage Loan is a hybrid Mortgage Loan;
(xxxi) whether the Mortgage Loan is a Convertible Mortgage Loan or a
Modifiable Mortgage Loan;
(xxxii) the Originator of the Mortgage Loan;
(xxxiii) the occupancy status;
(xxxiv) whether the Mortgage Loan has any Primary Mortgage Insurance;
(xxxv) the interest rate adjustment frequency, if applicable;
(xxxvi) the payment adjustment frequency;
(xxxvii) a code indicating if the Mortgage Loan has a balloon payment;
Such schedule also shall set forth for all of the Mortgage Loans and for all the
Mortgage Loans being sold, the total number of Mortgage Loans, the total of each
of the amounts described under (xiv) and (xvii) above, the weighted average by
principal balance as of the Cut-off Date of each of the rates described under
(vi), (viii) and (x) above, and the weighted average remaining term to maturity
by unpaid principal balance as of the Cut-off Date.
EXHIBIT 3
SELLER'S REPRESENTATIONS AND
WARRANTIES RELATING TO
THE MORTGAGE LOANS
The Seller hereby represents and warrants to, and covenants with, the
Purchaser that, as to each Mortgage Loan, as of the Cut-off Date or such other
date specifically set forth herein, and with respect to representation (i)
listed below, as of the Closing Date:
(i) (a) The information set forth in the Final Mortgage Loan Schedule is
complete, true and correct in all material respects and (b) the
Mortgage File with respect to each Mortgage Loan has been delivered to
the Trustee or its designee and each Mortgage File contains the
documents required to be contained therein.
(ii) None of the Mortgage Loans as of the Cut-off Date were more than 30
days delinquent. The Seller has not advanced funds to, or induced,
solicited or knowingly received any advance of funds from a party
other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan.
(iii) To the best of the Seller's knowledge, there are no delinquent taxes,
ground rents, water charges, sewer rents, assessments, insurance
premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related
Mortgaged Property.
(iv) The terms of the Mortgage Note and the Mortgage (including with
respect to provisions relating to any Additional Collateral (if
applicable)) have not been impaired, waived, altered or modified in
any respect, except by written instruments which have been recorded,
if necessary to protect the interests of the Trust, and which are
included in the Mortgage File, the substance of which waiver,
alteration or modification has been approved by the primary mortgage
guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and is reflected on the Mortgage Loan
Schedule. Except for any modification agreement or similar document
contained in the Mortgage File permitting a borrower to modify his
loan, no instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by the
primary mortgage insurer, if any, and title insurer, to the extent
required by the policy, and which assumption agreement is part of the
Mortgage File.
(v) The Mortgage Note and the Mortgage (including with respect to
provisions relating to any Additional Collateral (if applicable)) are
not subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, nor will the operation of any
of the terms of the Mortgage Note and Mortgage, or the exercise of any
right thereunder, render the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and to the Seller's knowledge
no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto.
(vi) All buildings upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the
Mortgaged Property is located. All such insurance policies contain a
standard mortgagee clause naming the Master Servicer or the applicable
Servicer, their successors and assigns as mortgagee and to the
Seller's knowledge all premiums thereon have been paid. If upon
origination of the Mortgage Loan, the Mortgaged Property was in an
area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements
of Xxxxxx Xxx or Xxxxxxx Mac. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to maintain such insurance at Mortgagor's cost
and expense and to seek reimbursement therefor from the Mortgagor.
(vii) (i) None of the Mortgage Loans are loans (1) subject to 12 CFR Part
226.31, 12 CFR Part 226.32 or 12 CFR Part 226.34 of Regulation Z, the
regulation implementing TILA, which implements the Home Ownership and
Equity Protection Act of 1994, as amended or (2) classified and/or
defined as a "high cost" loan under any other state, federal or local
law including, but not limited to, the States of Georgia, North
Carolina and New York and (ii) each Mortgage Loan at the time it was
made otherwise complied in all material respects with any and all
requirements of any federal, state or local law including, but not
limited to, all predatory lending laws, usury, truth in lending, real
estate settlement procedures (including the Real Estate Settlement
Procedures Act of 1974, as amended), consumer credit protection, equal
credit opportunity or disclosure laws applicable to such Mortgage
Loan.
(viii) The Mortgage has not been satisfied, canceled or subordinated, or
rescinded, in whole or in part, and the Mortgaged Property has not
been released from the lien of the Mortgage except for a release that
does not materially impair the security of the Mortgage Loan or is
reflected in the loan-to-value ratio, in whole or in part, nor has any
instrument been executed that would effect any such release,
cancellation, subordination or rescission unless payoff funds have
been deposited in the custodial account at closing.
(ix) The Mortgage is a valid, existing and enforceable first lien on the
Mortgaged Property, including all improvements on the Mortgaged
Property subject only to (A) the lien of current real property taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording being acceptable to mortgage
lending institutions generally and specifically referred to in a
lender's title insurance policy delivered to the originator of the
Mortgage Loan and which do not adversely affect the Appraised Value of
the Mortgaged Property, and (C) other matters to which like properties
are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage or
the use, enjoyment, value or marketability of the related Mortgaged
Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage
establishes and creates a valid, existing and enforceable first lien
and first priority security interest on the property described therein
and the Seller has full right to sell and assign the same to the
Purchaser.
(x) The Mortgage Note and the related Mortgage are genuine and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, or reorganization or other laws
relating to the rights of creditors.
(xi) All parties to the Mortgage Note and the Mortgage had legal capacity
to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage
have been duly and properly executed by such parties.
(xii) The proceeds of the Mortgage Loan have been fully disbursed, there is
no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been
complied with (except for escrow funds for exterior items which could
not be completed due to weather and escrow funds for the completion of
swimming pools); and all costs, fees and expenses incurred in making,
closing or recording the Mortgage Loan have been paid, except
recording fees with respect to Mortgages not recorded as of the
Closing Date.
(xiii) The Seller has acquired its ownership of each Mortgage Loan in good
faith without notice of any adverse claim, and as of the Closing Date,
the Mortgage Note and the Mortgage are not assigned or pledged, and
immediately prior to the sale of the Mortgage Loan to the Purchaser,
the Seller was the sole owner thereof and with full right to transfer
and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest
and with full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to this Agreement.
(xiv) To the Seller's best knowledge, the Seller or, if the Mortgage Loan
was not originated by the Seller, the originator is or was (or, during
the period in which they held and disposed of such interest, were) (A)
in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located, and
(B) either (i) organized under the laws of such state, or (ii)
qualified to do business in such state, or (iii) federal savings and
loan associations or national banks or subsidiaries having preemptive
authority under federal law or under applicable state law to engage in
business in such state without qualification, or (iv) not doing
business in such state.
(xv) The Mortgage Loan is covered by an ALTA lender's title insurance
policy 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 (ix)(A) through (C)
above) the originator or the Seller, their respective successors and
assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan. Additionally, such lender's
title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller is the sole insured of such lender's
title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender's title insurance policy, and
no prior holder of the related Mortgage, including the Seller, has
done, by act or omission, anything which would impair the coverage of
such lender's title insurance policy.
(xvi) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or
event of acceleration, and the Seller has not waived any default,
breach, violation or event of acceleration.
(xvii) To the best of the Seller's knowledge, there are no mechanics' or
similar liens or claims which have been filed for work, labor or
material (and no rights are outstanding that under law could give rise
to such lien) affecting the related Mortgaged Property which are or
may be liens prior to, or equal or on parity with, the lien of the
related Mortgage.
(xviii) To the Seller's best knowledge, all improvements which were considered
in determining the Appraised Value of the related Mortgaged Property
lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property.
(xix) The Mortgage Loan was originated by the Seller or a subsidiary of the
Seller or was purchased by the Seller from a third party, each of
which was, at the time of origination, (A) a Xxxxxx Xxx-approved or
Xxxxxxx Mac-approved seller/servicer and (B) a U.S. Department of
Housing and Urban Development approved mortgage banker, or a savings
and loan association, a savings bank, a commercial bank or similar
banking institution which is supervised and examined by a federal or
state authority. Each Mortgage Note has a Mortgage Rate that adjusts
periodically (not always in correlation to the index calculation
term), based on the One-month LIBOR, Six-month LIBOR, One-year LIBOR,
One-year U.S. Treasury or Three-year U.S. Treasury (as each is defined
in the Prospectus Supplement) index, except that some Mortgage Loans
first adjust after an initial period of three, five, seven or ten
years following origination.
(xx) The origination practices used by the Seller or the originator of the
Mortgage Loan and the collection practices used by the Master Servicer
or the applicable Servicer with respect to each Mortgage Note and
Mortgage have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing business. With
respect to escrow deposits and escrow payments, if any, all such
payments are in the possession of, or under the control of, the
applicable Servicer and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have
not been made.
(xxi) At the time of origination of the Mortgage Loan the Mortgaged Property
was free of damage and waste and there is no proceeding pending for
the total or partial condemnation thereof.
(xxii) The Mortgage contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the
security provided thereby, including, (A) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (B) otherwise by
judicial foreclosure. There is no other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage.
(xxiii) The Mortgage Loan was underwritten generally in accordance with either
(i) the Seller's underwriting standards, (ii) in the case of a
Mortgage Loan acquired from First Republic Bank, First Republic Bank's
underwriting standards or (iii) in the case of a Mortgage Loan
acquired from a bulk seller, the related bulk seller's underwriting
standards, in each case as in effect at the time the Mortgage Loan was
originated.
(xxiv) The mortgage file in possession of the related Servicer contains an
appraisal of the related Mortgaged Property signed prior to the
approval of the Mortgage Loan application by a qualified appraiser,
duly appointed by the originator of the Mortgage Loan, who had no
interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected
by the approval or disapproval of the Mortgage Loan.
(xxv) In the event the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and
no fees or expenses are or will become payable by the Depositor to the
trustee under the deed of trust, except, in connection with a
trustee's sale after default by the Mortgagor.
(xxvi) No Mortgage Loan contains provisions pursuant to which Scheduled
Payments are paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or anyone
on behalf of the Mortgagor or paid by any source other than the
Mortgagor. No Mortgage Loan was a graduated payment mortgage loan as
of the date of its origination. No Mortgage Loan has a shared
appreciation or other contingent interest feature.
(xxvii) No Mortgage Loan had a Loan-To-Value Ratio in excess of 100%. The
portion of the unpaid principal balance of each Mortgage Loan which is
in excess of 80% of the Loan-to-Value Ratio either (a) has Additional
Collateral or (b) is and will be insured as to payment defaults under
a Primary Mortgage Insurance Policy issued by primary mortgage insurer
licensed to do business in the state in which the Mortgaged Property
is located and acceptable to Xxxxxx Xxx or Xxxxxxx Mac as of the
Closing Date, so as to reduce the Mortgagee's exposure in accordance
with the standards of Xxxxxx Mae or Xxxxxxx Mac and applicable law.
All provisions of such Primary Mortgage Insurance Policy have been and
are being complied with; such policy is valid and in full force and
effect and all premiums due thereunder have been paid.
(xxviii) Except for any Additional Collateral Mortgage Loans, the Mortgage Note
is not and has not been secured by any collateral, pledged account, or
other security except the lien of the Mortgage, and the security
interest of any applicable security agreement or chattel mortgage
referred to above.
(xxix) [Reserved]
(xxx) The Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of the related Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, had been made
or obtained from the appropriate authorities.
(xxxi) No defense against coverage under any Primary Mortgage Insurance
Policy (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely
payment of the full amount of the loss otherwise due thereunder to the
insured) exists arising out of actions, representations, errors,
omissions, negligence, or fraud of the Seller, and the Seller is not
aware of any fact that could reasonably lead the Seller to believe
that any such defense exists arising out of the actions,
representations, errors, omissions, negligence or fraud of the related
Mortgagor or any party involved in the application for such coverage.
(xxxii) Each assignment of Mortgage is in recordable form, is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged
Property is located and includes all applicable recording information,
except where the related original Mortgage has been delivered for
recording to the appropriate public recording office but has not yet
been returned to the Seller.
(xxxiii) If the Mortgaged Property is a condominium unit or a planned unit
development (other than a de minimis planned unit development) such
condominium or planned unit development project meets Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements.
(xxxiv) Each Mortgage is a "qualified mortgage" for purposes of the REMIC
provisions of the Code.
(xxxv) To the Seller's best knowledge, no fraud was committed by the
originator of the Mortgage Loan and the Seller is not aware of any
fact that would reasonably lead the Seller to believe that any
Mortgagor had committed fraud in connection with the origination of
such Mortgage Loan.
(xxxvi) As of the Cut-off Date, the Mortgagor has not notified the Seller, and
the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Relief Act.
(xxxvii) The Seller has no knowledge of any toxic or hazardous substances
affecting the Mortgaged Property or any violation of any local, state,
or federal environmental law, rule, or regulation. The Seller has no
knowledge of any pending action or proceeding directly involving any
Mortgaged Property in which compliance with any environmental law,
rule, or regulation is an issue.
(xxxviii) As to any Additional Collateral Mortgage Loan, such Mortgage Loan is
secured by a perfected first priority security interest in the related
Additional Collateral.
(xxxix) As to any Additional Collateral Mortgage Loan, the applicable pledge
agreement is in place, is genuine and is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its
terms subject to bankruptcy, insolvency and other laws of general
application affecting the rights of creditors.
(xl) With respect to each Cooperative Loan (i) there is no provision in the
related proprietary lease which requires the related Mortgagor to
offer for sale the shares owned by such Mortgagor first to the
Cooperative Corporation for a price less than the outstanding amount
of the Cooperative Loan, (ii) there is no prohibition in the related
proprietary lease against pledging such shares or assigning the
proprietary lease that has been violated in connection with the
origination of the Cooperative Loan.
(xli) With respect to each Cooperative Loan, as of the closing of such
Cooperative Loan, the originator of the Cooperative Loan obtained
evidence that, if the Cooperative Property is in a federally
designated flood area, a flood insurance policy has been obtained in
an amount equal to at least that required by applicable law, which
insurance the Cooperative Corporation is obligated to maintain at the
Cooperative Corporation's cost and expense.
(xlii) With respect to each Cooperative Loan, as of the Closing Date, such
Cooperative Loan is secured by shares held by a "tenant-stockholder"
of a corporation that qualifies as a "cooperative housing corporation"
as such terms are defined in Section 216(b)(1) of the Code and to the
best of the Seller's knowledge, no Cooperative Corporation is subject
to proceedings which would, if adversely determined, result in such
Cooperative Corporation losing its status as a "cooperative housing
corporation" under Section 216(b)(1) of the Code.
(xliii) With respect to each Cooperative Loan, the related Mortgage and
related UCC financing statement creates a first-priority security
interest in the stock in the Cooperative Corporation and the related
proprietary lease of the related Cooperative Unit which were pledged
to secure such Cooperative Loan, and the Cooperative Corporation owns
the Cooperative Corporation as an estate in fee simple in real
property or pursuant to a leasehold acceptable to Xxxxxx Mae.
SCHEDULE A
REQUIRED RATINGS FOR EACH CLASS OF CERTIFICATES
PUBLIC CERTIFICATES
Class S&P/Moody's
Class I-1A AAA/Aaa
Class I-2A AAA/Aaa
Class II-1A
AAA/Aaa
Class II-2A
AAA/Aaa
Class II-3A
AAA/Aaa
Class II-4A
AAA/Aaa
Class I-M
AA/NR
Class II-M
AA/NR
Class R-1
AAA/NR
Class R-2
AAA/NR
None of the above ratings has been lowered since the respective dates of such
letters.
"NR" indicates that a Class of Certificates is not rated by such Rating Agency.
SCHEDULE B
MORTGAGE LOAN SCHEDULE
(Available Upon Request)
