AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT SUNTRUST MORTGAGE, INC. Seller and Servicer CITIGROUP GLOBAL MARKETS REALTY CORP. Initial Purchaser DATED AS OF JULY 1, 2005 Fixed and Adjustable Rate Mortgage Loans
AMENDED
AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND SERVICING
AGREEMENT
SUNTRUST
MORTGAGE, INC.
Seller
and Servicer
CITIGROUP
GLOBAL MARKETS REALTY CORP.
Initial
Purchaser
DATED
AS
OF JULY 1, 2005
Fixed
and
Adjustable Rate Mortgage Loans
TABLE
OF
CONTENTS
SECTION
1. Definitions
Buydown
Period
SECTION
2. Agreement
to Purchase
SECTION
3. Mortgage
Loan Schedules
SECTION
4. Purchase
Price
SECTION
5. Examination
of Mortgage Files
SECTION
6. Conveyance
from Seller to Initial Purchaser
Subsection
6.01. Conveyance
of Mortgage Loans; Possession of Servicing Files
Subsection
6.02. Books
and Records
Subsection
6.03. Delivery
of Mortgage Loan Documents
SECTION
7. Representations,
Warranties and Covenants of the Seller: Remedies for Breach
Subsection
7.01. Representations
and Warranties Respecting the Seller
Subsection
7.02. Representations
and Warranties Regarding Individual Mortgage Loans
Subsection
7.03. Remedies
for Breach of Representations and Warranties
Subsection
7.04 Repurchase
of Certain Mortgage Loans
SECTION
8. Closing
SECTION
9. Closing
Documents
SECTION
10. Costs
SECTION
11. Seller’s
Servicing Obligations
SECTION
12. Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole Loan Transfer
or a Pass-Through Transfer on One or More Reconstitution Dates
SECTION
13. The
Seller
Subsection
13.01. Additional
Indemnification by the Seller
Subsection
13.02. Merger
or Consolidation of the Seller
Subsection
13.03. Limitation
on Liability of the Seller and Others
Subsection
13.04. Seller
Not to Resign
Subsection
13.05. No
Transfer of Servicing
SECTION
14. DEFAULT
Subsection
14.01. Events
of Default
Subsection
14.02. Waiver
of Defaults
SECTION
15. Termination
SECTION
16. Successor
to the Seller
SECTION
17. Financial
Statements
SECTION
18. Mandatory
Delivery: Grant of Security Interest
SECTION
19. Notices
SECTION
20. Severability
Clause
SECTION
21. Counterparts
SECTION
22. Governing
Law
SECTION
23. Intention
of the Parties
SECTION
24. Successors
and Assigns
SECTION
25. Waivers
SECTION
26. Exhibits
SECTION
27. General
Interpretive Principles
SECTION
28. Nonsolicitation
SECTION
29. Reproduction
of Documents
SECTION
30. Further
Agreements
SECTION
31. Privacy.
SECTION
32. Third
Party Beneficiary
EXHIBITS
EXHIBIT
1 SELLER’S
OFFICER’S CERTIFICATE
EXHIBIT
2 FORM
OF
OPINION OF COUNSEL TO THE SELLER
EXHIBIT
3 SECURITY
RELEASE CERTIFICATION
EXHIBIT
4 ASSIGNMENT
AND CONVEYANCE
EXHIBIT
5 CONTENTS
OF EACH MORTGAGE FILE
EXHIBIT
6 FORM
OF
CUSTODIAL AGREEMENT
EXHIBIT
7 FORM
OF
CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT
8 FORM
OF
ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT
9 SERVICING
ADDENDUM
EXHIBIT
10 FORM
OF
CONFIRMATION
EXHIBIT
11 FORM
OF
BACK-UP CERTIFICATION
EXHIBIT
12 FORM
OF
ASSIGNMENT AND RECOGNITION
EXHIBIT
13 FORM
OF
INDEMNIFICATION AGREEMENT
SCHEDULE
I MORTGAGE LOAN
SCHEDULE
SCHEDULE
II PREPAYMENT
CHARGE SCHEDULE
AMENDED
AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND SERVICING
AGREEMENT
This
is a
AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
(the
“Agreement”), dated as of July 1, 2005, by and between Citigroup Global Markets
Realty Corp., having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000
(the “Initial Purchaser”, and the Initial Purchaser or the Person, if any, to
which the Initial Purchaser has assigned its rights and obligations hereunder
as
Purchaser with respect to a Mortgage Loan, and each of their respective
successors and assigns, the “Purchaser”) and SunTrust Mortgage, Inc., having an
office at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
“Seller”).
W I T N E
;S S E T H
:
WHEREAS,
the Purchaser and the Seller entered into that certain Master Mortgage Loan
Purchase and Servicing Agreement, dated as of July 1, 2003 (the "Original
Agreement");
WHEREAS,
the Purchaser and the Seller desire to enter into this Agreement in order to
amend and restate the Original Agreement in its entirety;
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first and second lien
mortgage loans, (the “Mortgage Loans”) as described herein on a
servicing-retained basis, and which shall be delivered in groups of whole loans
on various dates as provided herein (each, a “Closing Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first or second lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule for the related
Mortgage Loan Package, which is to be annexed hereto on each Closing Date as
Schedule
I;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer in a whole loan or participation format or a public or
private mortgage-backed securities transaction;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan which provides for the adjustment of the Mortgage Interest Rate
payable in respect thereto.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on such Adjustable Rate
Mortgage Loan is adjusted in accordance with the terms of the related Mortgage
Note.
Agreement:
This
Amended and Restated Master Mortgage Loan Purchase and Servicing Agreement
including all exhibits, schedules, amendments and supplements
hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by an appraiser who met the minimum
requirements of FNMA and FHLMC and the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan,
provided, however, in the case of a Refinanced Mortgage Loan originated more
than 12 months following the purchase of the Mortgaged Property by the related
Mortgagor, such value of the Mortgaged Property is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage
Loan at the time of origination of such Refinanced Mortgage Loan by an appraiser
who met the minimum requirements of FNMA and FHLMC and the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989.
Assignment
and Conveyance:
An
assignment and conveyance of the Mortgage Loans purchased on a Closing Date
in
the form annexed hereto as Exhibit
4.
Assignment
of Mortgage:
With
respect to each Mortgage Loan which is not a MOM Loan, an individual assignment
of the Mortgage, notice of transfer or equivalent instrument in recordable
form,
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to the
Purchaser.
Business
Day:
Any day
other than a Saturday or Sunday, or a day on which banking and savings and
loan
institutions in the State of Virginia or the State of New York are authorized
or
obligated by law or executive order to be closed.
Buydown
Agreement:
An
agreement between the Seller and a Mortgagor, or an agreement among the Seller,
a Mortgagor and a seller of a Mortgaged Property or a third party with respect
to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Seller or any other source, plus interest earned thereon, in
order
to enable the Mortgagor to reduce the payments required to be made from the
Mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Cash-Out
Refinancing:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the principal
balance of any existing first mortgage on the related Mortgaged Property and
related closing costs, and were used to pay any such existing first mortgage,
related closing costs and subordinate mortgages on the related Mortgaged
Property.
Closing
Date:
The
date or dates on which the Purchaser from time to time shall purchase and the
Seller from time to time shall sell to the Purchaser, the Mortgage Loans listed
on the related Mortgage Loan Schedule with respect to the related Mortgage
Loan
Package.
Closing
Documents:
With
respect to any Closing Date, the documents required pursuant to Section
9.
Code:
The
Internal Revenue Code of 1986, or any successor statute thereto.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or part
of a
Mortgaged Property by exercise of the power of condemnation or the right of
eminent domain.
Confirmation:
With
respect to any Mortgage Loan Package purchased and sold on any Closing Date,
the
letter agreement between the Purchaser and the Seller, in the form annexed
hereto as Exhibit
10
(including any exhibits, schedules and attachments thereto), setting forth
the
terms and conditions of such transaction and describing the Mortgage Loans
to be
purchased by the Purchaser on such Closing Date. A Confirmation may relate
to
more than one Mortgage Loan Package to be purchased on one or more Closing
Dates
hereunder.
Convertible
Mortgage Loan:
A
Mortgage Loan that by its terms and subject to certain conditions contained
in
the related Mortgage or Mortgage Note allows the Mortgagor to convert the
adjustable Mortgage Interest Rate on such Mortgage Loan to a fixed Mortgage
Interest Rate.
Credit
Score:
The
credit score of the Mortgagor provided by Fair, Xxxxx & Company, Inc. or
such other organization providing credit scores at the time of the origination
of a Mortgage Loan. If two credit scores are obtained, the Credit Score shall
be
the lower of the two credit scores. If three credit scores are obtained, the
Credit Score shall be the middle of the three credit scores.
Custodial
Account:
The
separate account or accounts, each of which shall be an Eligible Account,
created and maintained pursuant to this Agreement, which shall be entitled
“SunTrust Mortgage, Inc., as servicer, in trust for the Purchaser and various
Mortgagors, Fixed and Adjustable Rate Mortgage Loans”, established at a
financial institution acceptable to the Purchaser.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, a form
of
which agreement is annexed hereto as Exhibit
6.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement, as
therein provided.
Cut-off
Date:
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.
Determination
Date:
With
respect to each Distribution Date, the fifteenth (15th) day of the calendar
month in which such Distribution Date occurs or, if such fifteenth (15th) day
is
not a Business Day, the Business Day immediately following such fifteenth (15th)
day.
Distribution
Date:
The
eighteenth (18th) day of each month, commencing on the eighteenth day of the
month next following the month in which the related Cut-off Date occurs, or
if
such eighteenth (18th) day is not a Business Day, the first Business Day
immediately preceding such eighteenth (18th) day.
Due
Date:
With
respect to each Distribution Date, the first day of the calendar month in which
such Distribution Date occurs, which is the day on which the Monthly Payment
is
due on a Mortgage Loan, exclusive of any days of grace.
Due
Period:
With
respect to each Distribution Date, the period commencing on the second day
of
the month preceding the month of the Distribution Date and ending on the first
day of the month of the Distribution Date.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company that (a) is incorporated under the
laws
of the United States of America or any state thereof, (b) is subject to
supervision and examination by federal or state banking authorities and (c)
has
or is a subsidiary of a holding company that has an outstanding unsecured
commercial paper or other short-term unsecured debt obligations that are rated
A-1 by S&P or Prime-1 by Moody’s (or a comparable rating if another rating
agency is specified by the Initial Purchaser by written notice to the Seller)
at
the time any amounts are held on deposit therein, (ii) an account or accounts
the deposits in which are fully insured by the FDIC or (iii) a trust account
or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear interest.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “SunTrust Mortgage, Inc., as servicer, in
trust for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage Loans”, established at a financial institution acceptable to the
Purchaser.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water charges, sewer
rents, Primary Insurance Policy premiums, fire and hazard insurance premiums
and
other payments required to be escrowed by the Mortgagor with the Mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Event
of Default:
Any one
of the events enumerated in Section 14.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
Xxxxxxx
Mac, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to this
Agreement, a determination made by the Seller that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Seller, in
its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Seller shall maintain records, prepared
by a
servicing officer of the Seller, of each Final Recovery
Determination.
First
Lien:
With
respect to each Mortgaged Property, the lien of the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a first lien on the
Mortgaged Property.
Fixed
Rate Mortgage Loan:
A
Mortgage Loan with respect to which the Mortgage Interest Rate set forth in
the
Mortgage Note is fixed for the term of such Mortgage Loan.
Flood
Zone Service Contract:
A
transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone status relating to such Mortgaged Property.
FNMA:
Xxxxxx
Xxx or any successor thereto.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount set
forth in the related Mortgage Note and the related Final Mortgage Loan Schedule
that is added to the Index on each Adjustment Date in accordance with the terms
of the related Mortgage Note to determine the new Mortgage Interest Rate for
such Mortgage Loan.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the Final
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest rate thereon.
Initial
Closing Date:
The
Closing Date on which the Initial Purchaser purchases and the Seller sells
the
first Mortgage Loan Package hereunder.
Initial
Purchaser:
Citigroup Global Markets Realty Corp., or any successor.
Initial
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and the initial Adjustment Date
therefor, a number of percentage points per annum that is set forth in the
related Final Mortgage Loan Schedule and in the related Mortgage Note, which
is
the amount by which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may increase or decrease on the initial Adjustment Date.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the liquidation of a defaulted Mortgage Loan through trustee’s
sale, foreclosure sale or otherwise, other than amounts received following
the
acquisition of REO Property.
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan, to the Appraised
Value of the Mortgaged Property.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Final Mortgage Loan Schedule and in the related Mortgage Note and is
the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Final Mortgage Loan Schedule and in the related Mortgage Note and is
the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan where MERS acts as the mortgagee of record of such Mortgage Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Advance:
The
aggregate of the advances made by the Seller on any Distribution Date pursuant
to Section 11.21.
Monthly
Payment:
With
respect to any Mortgage Loan, the scheduled combined payment of principal and
interest payable by a Mortgagor under the related Mortgage Note on each Due
Date.
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first or second lien
on
Mortgaged Property securing the Mortgage Note.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit
5
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement or the related Confirmation.
Mortgage
Interest Rate:With
respect to each Fixed Rate Mortgage Loan, the fixed annual rate of interest
provided for in the related Mortgage Note and, with respect to each Adjustable
Rate Mortgage Loan, the annual rate that interest accrues on such Adjustable
Rate Mortgage Loan from time to time in accordance with the provisions of the
related Mortgage Note..
Mortgage
Loan:
Each
first or second lien, residential mortgage loan, sold, assigned and transferred
to the Purchaser pursuant to this Agreement and the related Confirmation and
identified on the Mortgage Loan Schedule annexed to this Agreement on such
Closing Date, which Mortgage Loan includes without limitation the Mortgage
File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed in Section 2 of the Custodial Agreement pertaining to any
Mortgage Loan.
Mortgage
Loan Package:
The
Mortgage Loans listed on a Mortgage Loan Schedule, delivered to the Custodian
and the Purchaser at least five (5) Business Days prior to the related Closing
Date and attached to this Agreement as Schedule
I
on the
related Closing Date.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans to be
annexed hereto as Schedule
I
(or a
supplement thereto) on each Closing Date for the Mortgage Loan Package delivered
on such Closing Date in both hard copy and floppy disk, such schedule setting
forth the following information with respect to each Mortgage Loan in the
Mortgage Loan Package: (1) the Seller’s Mortgage Loan identifying number; (2)
the Mortgagor’s first and last name; (3) the street address of the Mortgaged
Property including the state and zip code; (4) a code indicating whether the
Mortgaged Property is owner-occupied; (5) the type of Residential Dwelling
constituting the Mortgaged Property; (6) the original months to maturity; (7)
the original date of the Mortgage Loan and the remaining months to maturity
from
the Cut-off Date, based on the original amortization schedule; (8) the
Loan-to-Value Ratio at origination and the Combined Loan-to-Value Ratio at
origination; (9) the Mortgage Interest Rate in effect immediately following
the
Cut-off Date; (10) the date on which the first Monthly Payment was due on the
Mortgage Loan; (11) the stated maturity date; (12) the amount of the Monthly
Payment at origination; (13) the amount of the Monthly Payment as of the Cut-off
Date; (14) the last Due Date on which a Monthly Payment was actually applied
to
the unpaid Stated Principal Balance; (15) the original principal amount of
the
Mortgage Loan; (16) the Stated Principal Balance of the Mortgage Loan as of
the
close of business on the Cut-off Date; (17) with respect to each Adjustable
Rate
Mortgage Loan, the first Adjustment Date; (18) with respect to each Adjustable
Rate Mortgage Loan, the Gross Margin; (19) a code indicating the purpose of
the
loan (i.e., purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
(20) with respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage
Interest Rate under the terms of the Mortgage Note; (21) with respect to each
Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest Rate under the
terms of the Mortgage Note; (22) the Mortgage Interest Rate at origination;
(23)
with respect to each Adjustable Rate Mortgage Loan, the Periodic Rate Cap;
(24)
with respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date; (25) with respect to each Adjustable
Rate Mortgage Loan, the Index; (26) the date on which the first Monthly Payment
was due on the Mortgage Loan and, if such date is not consistent with the Due
Date currently in effect, such Due Date; (27) a code indicating whether the
Mortgage Loan is an Adjustable Rate Mortgage Loan or a Fixed Rate Mortgage
Loan;
(28) a code indicating the documentation style (i.e., full, alternative or
reduced); (29) the Appraised Value of the Mortgaged Property; (30) the sale
price of the Mortgaged Property, if applicable; (31) a code indicating whether
the Mortgage Loan is subject to a Prepayment Charge or penalty; (32) the amount
and the term of any prepayment Charge or penalty; (33) the product type (e.g.,
2/28, 15 year fixed, 30 year fixed, 15/30, etc.); (34) the Mortgagor’s debt to
income ratio; (35) a code indicating whether the Mortgaged Property is subject
to a First Lien or a Second Lien; (36) a code indicating the Credit Score of
the
Mortgagor at the time of origination of the Mortgage Loan; (37) the Mortgage
Loan’s payment history; (38) a code indicating the form of appraisal (i.e. form
1004, 2055, etc.); (39) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan and, if so, the corresponding MIN; and (40) a code indicating
if
the Mortgage Loan is an interest-only Mortgage Loan and, if so, the term of
the
interest-only period of such Mortgage Loan; (41) the amount of any fees payable
by the Mortgagor in connection with the origination of such Mortgage Loan;
(42)
the Mortgagor’s income at origination; (43) the amortized original term to
maturity as of the Cut-off Date; (44) with respect to each Adjustable Rate
Mortgage Loan, a code indicating the frequency of adjustment of the related
Mortgage Interest Rate; (45) the number of units in the related Mortgaged
Property; (46) a code indicating whether the related Mortgagor is self-employed;
(47) a code indicating the credit grade; (48) Tax Service Contract provider;
and
(49) Tax Service Contract number. With respect to the Mortgage Loan Package
in
the aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans. Schedule
I
hereto
shall be supplemented as of each Closing Date to reflect the addition of the
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Mortgage
Note:
The
original executed note or other evidence of the Mortgage Loan indebtedness
of a
Mortgagor.
Mortgaged
Property:
The
Mortgagor’s real property securing repayment of a related Mortgage Note,
consisting of a fee simple interest in a single parcel of real property improved
by a Residential Dwelling.
Mortgagor:
The
obligor on a Mortgage Note, the owner of the Mortgaged Property and the grantor
or mortgagor named in the related Mortgage and such grantor’s or mortgagor’s
successor’s in title to the Mortgaged Property.
Net
Mortgage Rate:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable
Mortgage Interest Rate for such Mortgage Loan minus the Servicing Fee
Rate.
Nonrecoverable
Monthly Advance:
Any
Monthly Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the Seller,
will not, or, in the case of a proposed Monthly Advance, would not be,
ultimately recoverable from related late payments, Insurance Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Person on
behalf of whom such certificate is being delivered.
Opinion
of Counsel:
A
written opinion of counsel, who may be salaried counsel for the Person on behalf
of whom the opinion is being given, reasonably acceptable to each Person to
whom
such opinion is addressed.
Pass-Through
Transfer:
The
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
trust to be formed as part of a publicly issued or privately placed
mortgage-backed securities transaction.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related Final
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may increase (without regard to the Maximum Mortgage Interest Rate) or
decrease (without regard to the Minimum Mortgage Interest Rate) on such
Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to
such Adjustment Date.
Permitted
Investments:
Any one
or more of the following obligations or securities acquired at a purchase price
of not greater than par, regardless of whether issued or managed by the Seller
or any of its Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by, any Depository Institution;
(iii) repurchase
obligations with respect to any security described in clause (i) above entered
into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by the Rating Agencies in its highest long-term unsecured
rating category at the time of such investment or contractual commitment
providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by the Rating
Agencies in its highest short-term unsecured debt rating available at the time
of such investment; and
(vi) units
of
money market funds that have been rated “AAA” by S&P, “Aaa” by Moody’s and
“AAA” by Fitch (if rated by Fitch);
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
Person:
An
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Preliminary
Servicing Period:
With
respect to any Mortgage Loans, the period commencing on the related Closing
Date
and ending on the date the Seller enters into Reconstitution Agreements which
amend or restate the servicing provisions of this Agreement.
Prepayment
Charge:
With
respect to any Mortgage Loan, any prepayment penalty or premium thereon payable
in connection with a principal prepayment on such Mortgage Loan pursuant to
the
terms of the related Mortgage Note.
Prepayment
Charge Schedule:
The
schedule to be annexed hereto as Schedule II indicating whether a Mortgage
Loan
is subject to a Prepayment Charge and if so, the amount and term of such
Prepayment Charge.
Primary
Insurance Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified
Insurer.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon, which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Purchase
Price:
The
price paid on the related Closing Date by the Purchaser to the Seller pursuant
to the related Confirmation in exchange for the Mortgage Loans purchased on
such
Closing Date as calculated as provided in Section 4.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Property is located, duly authorized and licensed in such states
to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by FNMA and FHLMC and whose claims paying
ability is rated in the two highest rating categories by any of the rating
agencies with respect to primary mortgage insurance and in the two highest
rating categories by Best’s with respect to hazard and flood
insurance.
Qualified
Substitute Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of the Stated Principal Balance of the Deleted Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) have
a
Mortgage Interest Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Interest Rate of the Deleted Mortgage Loan, (iii) have
a
Net Mortgage Rate equal to the Net Mortgage Rate of the Deleted Mortgage Loan,
(iv) have a remaining terms to maturity not greater than (and not more than
one
year less than) that of the Deleted Mortgage Loan, (v) have the same Due Date
as
the Due Date on the Deleted Mortgage Loan, (vi) have a Loan-to-Value Ratio
as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of
the
Deleted Mortgage Loan as of such date, (vii) be covered under a Primary
Insurance Policy if such Qualified Substitute Mortgage Loan has a Loan-to-Value
Ratio in excess of 80%, (viii) conform to each representation and warranty
set
forth in Section 7.02 of this Agreement and (ix) be the same type of mortgage
loan (i.e. fixed or adjustable rate with the same Gross Margin and Index as
the
Deleted Mortgage Loan). In the event that one or more mortgage loans are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the Mortgage Interest Rates described in clause (ii) hereof shall
be
determined on the basis of weighted average Mortgage Interest Rates, the Net
Mortgage Rates described in clause (iii) hereof shall be satisfied as to each
such mortgage loan, the terms described in clause (iv) shall be determined
on
the basis of weighted average remaining terms to maturity, the Loan-to-Value
Ratios described in clause (vi) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence,
the
representations and warranties described in clause (ix) hereof must be satisfied
as to each Qualified Substitute Mortgage Loan or in the aggregate, as the case
may be.
Rate/Term
Refinancing:
A
Refinanced Mortgage Loan, the proceeds of which are not in excess of the
existing first mortgage loan on the related Mortgaged Property and related
closing costs, and were used exclusively to satisfy the then existing first
mortgage loan of the Mortgagor on the related Mortgaged Property and to pay
related closing costs.
Reconstitution
Agreements:
The
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer or a Pass-Through Transfer as provided in Section 12.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Whole Loan Transfer or Pass-Through Transfer pursuant to Section 12
hereof.
Record
Date:
With
respect to each Distribution Date, the last Business Day of the month
immediately preceding the month in which such Distribution Date
occurs.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMIC’s, which appear in
Sections 860A through 860G of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Account:
The
separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “SunTrust Mortgage, Inc. in trust for the
Purchaser, as of [date of acquisition of title], Fixed and Adjustable Rate
Mortgage Loans”.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Property:
A
Mortgaged Property acquired as a result of the liquidation of a Mortgage
Loan.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i)(A) prior to the
Reconstitution Date with respect to such Mortgage Loan, the product of the
Stated Principal Balance of such Mortgage Loan times the greater of (x) the
Purchase Price percentage as stated in the related Confirmation and (y) 100%,
and (B) thereafter, the Stated Principal Balance of such Mortgage Loan, plus
(ii) interest on such Stated Principal Balance at the Mortgage Interest Rate
from and including the last Due Date through which interest has been paid by
or
on behalf of the Mortgagor to the first day of the month following the date
of
repurchase, less amounts received in respect of such repurchased Mortgage Loan
which are being held in the Custodial Account for distribution in connection
with such Mortgage Loan, plus (iii) any unreimbursed servicing advances and
monthly advances (including nonrecoverable monthly advances) and any unpaid
servicing fees allocable to such Mortgage Loan paid by any party other than
the
Seller, plus (iv) any costs and expenses incurred by the Purchaser, the
servicer, master servicer or any trustee in respect of the breach or defect
giving rise to the repurchase obligation including, without limitation, any
costs and damages incurred by any such party in connection with any violation
by
any such Mortgage Loan of any predatory or abusive lending law.
Residential
Dwelling:
Any one
of the following: (i) a detached one-family dwelling, (ii) a detached two-
to
four-family dwelling, (iii) a one-family dwelling unit in a FNMA eligible
condominium project, or (iv) a detached one-family dwelling in a planned unit
development, none of which is a co-operative, mobile or manufactured
home.
Second
Lien:
With
respect to each Mortgaged Property, the lien of the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a second lien on the
Mortgaged Property.
Servicing
Addendum:
The
terms and conditions attached hereto as Exhibit 9 which will govern the
servicing of the Mortgage Loans by Seller during the Preliminary Servicing
Period.
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses incurred
by the Seller in the performance of its servicing obligations, including, but
not limited to, the cost of (i) preservation, restoration and repair of a
Mortgaged Property, (ii) any enforcement or judicial proceedings with respect
to
a Mortgage Loan, including foreclosure actions and (iii) the management and
liquidation of REO Property.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual servicing fee the
Purchaser shall pay to the Seller, which shall, for each month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of the Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respectively
which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds and other proceeds, to the extent permitted by Section
11.05) of related Monthly Payment collected by the Seller, or as otherwise
proved under Section 11.05. If the Preliminary Servicing Period includes any
partial month, the Servicing Fee for such month shall be pro rated at a per
diem
rate based upon a 30-day month.
Servicing
Fee Rate:
The per
annum rate at which the Servicing Fee accrues, which rate shall be equal to
the
quotient of the annual Servicing Fee payable with respect to any Mortgage Loan
divided by the Stated Principal Balance of the Mortgage Loan as of any date
of
determination.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser or the Custodian and copies of the Mortgage Loan Documents set forth
in Section 2 of the Custodial Agreement.
S&P:
Standard & Poor’s, a division of the XxXxxx-Xxxx Companies, Inc. or its
successor in interest.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
the Mortgage Loan as of the Cut-off Date after giving effect to payments of
principal due on or before such date, whether or not collected from the
Mortgagor on or before such date, minus (ii) all amounts previously distributed
to the Purchaser with respect to the related Mortgage Loan representing payments
or recoveries of principal.
Tax
Service Contract:
A
contract maintained for the Mortgaged Property with a tax service provider
for
the purpose of obtaining current information from local taxing authorities
relating to such Mortgaged Property.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
third party, which sale or transfer is not a Pass-Through Transfer.
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell, and the Purchaser agrees to purchase, from time-to-time,
Mortgage Loans having an aggregate principal balance on the related Cut-off
Date
in an amount as set forth in the related Confirmation, or in such other amount
as agreed by the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser on the related
Closing Date.
SECTION
3. Mortgage
Loan Schedules.
The
Seller shall deliver the Mortgage Loan Schedule for a Mortgage Loan Package
to
be purchased on a particular Closing Date to the Purchaser at least five (5)
Business Days prior to the related Closing Date.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan listed on the related Mortgage Loan
Schedule shall be the percentage of par as stated in the related Confirmation
(subject to adjustment as provided therein), multiplied by its Stated Principal
Balance as of the related Cut-off Date. If so provided in the related
Confirmation, portions of the Mortgage Loans shall be priced
separately.
In
addition to the Purchase Price as described above, the Initial Purchaser shall
pay to the Seller, at closing, accrued interest on the Stated Principal Balance
of each Mortgage Loan as of the related Cut-off Date at its Net Mortgage
Interest Rate less the Servicing Fee Rate from the related Cut-off Date through
the day prior to the related Closing Date, both inclusive.
The
Purchaser shall own and be entitled to receive with respect to each Mortgage
Loan purchased, (1) all scheduled principal due after the related Cut-off Date,
(2) all other recoveries of principal collected after the related Cut-off Date
(provided, however, that all scheduled payments of principal due on or before
the related Cut-off Date and collected by the Seller after the related Cut-off
Date shall belong to the Seller), and (3) all payments of interest on the
Mortgage Loans net of the Servicing Fee (minus that portion of any such interest
payment that is allocable to the period prior to the related Cut-off Date).
The
Stated Principal Balance of each Mortgage Loan as of the related Cut-off Date
is
determined after application to the reduction of principal of payments of
principal due on or before the related Cut-off Date whether or not collected.
Therefore, for the purposes of this Agreement, 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. Such prepaid
amounts (minus the applicable Servicing Fee) shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the Custodial
Account, which account is established for the benefit of the Purchaser, for
remittance by the Seller to the Purchaser on the first related Distribution
Date. All payments of principal and interest, less the applicable Servicing
Fee,
due on a Due Date following the related Cut-off Date shall belong to the
Purchaser.
SECTION
5. Examination
of Mortgage Files.
In
addition to the rights granted to the Initial Purchaser under the related
Confirmation to underwrite the Mortgage Loans and review the Mortgage Files
prior to the Closing Date, prior to the related Closing Date, the Seller shall
(a) deliver to the Custodian in escrow, for examination with respect to each
Mortgage Loan to be purchased on such Closing Date, the related Mortgage File,
including the Assignment of Mortgage, pertaining to each Mortgage Loan, or
(b)
make the related Mortgage File available to the Initial Purchaser for
examination at the Seller’s offices or such other location as shall otherwise be
agreed upon by the Initial Purchaser and the Seller. Such examination may be
made by the Initial Purchaser or its designee at any reasonable time before
or
after the related Closing Date. If the Initial Purchaser makes such examination
prior to the related Closing Date and identifies any Mortgage Loans that do
not
conform to the terms of the related Confirmation or the Initial Purchaser’s
underwriting standards, such Mortgage Loans may, at the Initial Purchaser’s
option, be rejected for purchase by the Initial Purchaser. If not purchased
by
the Initial Purchaser, such Mortgage Loans shall be deleted from the related
Mortgage Loan Schedule. The Initial Purchaser may, at its option and without
notice to the Seller, purchase all or part of any Mortgage Loan Package without
conducting any partial or complete examination. The fact that the Initial
Purchaser has conducted or has determined not to conduct any partial or complete
examination of the Mortgage Files shall not affect the Initial Purchaser’s (or
any of its successors’) rights to demand repurchase or other relief or remedy
provided for in this Agreement.
SECTION
6. Conveyance
from Seller to Initial Purchaser.
Subsection
6.01. Conveyance
of Mortgage Loans; Possession of Servicing Files.
The
Seller, simultaneously with the payment of the Purchase Price, shall execute
and
deliver to the Initial Purchaser an Assignment and Conveyance with respect
to
the related Mortgage Loan Package in the form attached hereto as Exhibit
4.
The
Servicing File retained by the Seller with respect to each Mortgage Loan
pursuant to this Agreement shall be appropriately identified in the Seller’s
computer system to reflect clearly the sale of such related Mortgage Loan to
the
Purchaser. The Seller shall release from its custody the contents of any
Servicing File retained by it only in accordance with this Agreement, except
when such release is required in connection with a repurchase of any such
Mortgage Loan pursuant to Subsection 7.03 or 7.04.
Subsection
6.02. Books
and Records.
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, the Purchaser, the Custodian or one
or
more designees of the Purchaser, as the Purchaser shall designate.
Notwithstanding the foregoing, beneficial ownership of each Mortgage and the
related Mortgage Note shall be vested solely in the Purchaser or the appropriate
designee of the Purchaser, as the case may be. All rights arising out of the
Mortgage Loans including, but not limited to, all funds received by the Seller
after the related Cut-off Date on or in connection with a Mortgage Loan as
provided in Section 4 shall be vested in the Purchaser or one or more designees
of the Purchaser; provided, however, that all such funds received on or in
connection with a Mortgage Loan as provided in Section 4 shall be received
and
held by the Seller in trust for the benefit of the Purchaser or the assignee
of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by the Seller
and not a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a debt or other obligation of the Seller. Consequently, the sale of each
Mortgage Loan shall be reflected as a sale on the Seller’s business records, tax
returns and financial statements.
Subsection
6.03. Delivery
of Mortgage Loan Documents.
Pursuant
to the Custodial Agreement to be executed among and delivered by the Initial
Purchaser, the Custodian and the Seller prior to the Initial Closing Date,
the
Seller shall from time to time in connection with each Closing Date, at least
five (5) Business Days prior to such Closing Date, deliver and release to the
Custodian those Mortgage Loan Documents as required by the Custodial Agreement
with respect to each Mortgage Loan to be purchased and sold on the related
Closing Date and set forth on the related Mortgage Loan Schedule delivered
with
such Mortgage Loan Documents.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Trust Receipt and Initial Certification of the
Custodian in the form annexed to the Custodial Agreement. The Seller shall
be
responsible for maintaining the Custodial Agreement during the Preliminary
Servicing Period. The fees and expenses of the Custodian during such period
shall be paid by the Seller, and the Seller shall provide customary
indemnification to the Custodian pursuant to the Custodial
Agreement.
The
Seller shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian with
a
certified true copy of any such document submitted for recordation within two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
SECTION
7. Representations,
Warranties and Covenants of the Seller: Remedies for Breach.
Subsection
7.01. Representations
and Warranties Respecting the Seller.
The
Seller represents, warrants and covenants to the Purchaser as of the initial
Closing Date and each subsequent Closing Date or as of such date specifically
provided herein or in the applicable Assignment and Conveyance:
(i) The
Seller is duly organized, validly existing and in good standing under the laws
of the state of its incorporation and has all licenses necessary to carry on
its
business as now being conducted. It is licensed in, qualified to transact
business in and is in good standing under the laws of the state in which any
Mortgaged Property is located and is and will remain in compliance with the
laws
of each state in which any Mortgaged Property is located to the extent necessary
to ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement. No licenses or
approvals obtained by Seller have been suspended or revoked by any court,
administrative agency, arbitrator or governmental body and no proceedings are
pending which might result in such suspension or revocation;
(ii) The
Seller has the full power and authority to hold each Mortgage Loan, to sell
each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or its assets;
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Seller is an approved seller/servicer for FNMA and FHLMC in good standing and
is
a HUD approved mortgagee pursuant to Section 203 of the National Housing Act.
No
event has occurred, including but not limited to a change in insurance coverage,
which would make the Seller unable to comply with FNMA, FHLMC or HUD eligibility
requirements or which would require notification to FNMA, FHLMC or
HUD;
(vi) The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vii) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to the
Custodial Agreement, have been delivered to the Custodian all in compliance
with
the specific requirements of the Custodial Agreement. With respect to each
Mortgage Loan, the Seller is in possession of a complete Mortgage File in
compliance with Exhibit
5,
except
for such documents as have been delivered to the Custodian;
(viii) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note and upon the payment of the Purchase Price by
the
Purchaser, in the event that the Seller retains record title, the Seller shall
retain such record title to each Mortgage, each related Mortgage Note and the
related Mortgage Files with respect thereto in trust for the Purchaser as the
owner thereof and only for the purpose of servicing and supervising the
servicing of each Mortgage Loan;
(ix) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans
or
the consummation of the transactions contemplated by this Agreement or (C)
that
might prohibit or materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, this
Agreement;
(x) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(xi) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(xii) The
information delivered by the Seller to the Purchaser with respect to the
Seller’s loan loss, foreclosure and delinquency experience for the twelve (12)
months immediately preceding the Initial Closing Date on mortgage loans
underwritten to the same standards as the Mortgage Loans and covering mortgaged
properties similar to the Mortgaged Properties, is true and correct in all
material respects;
(xiii) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading;
(xiv) The
transfer of the Mortgage Loans shall be treated as a sale on the books and
records of Seller, and Seller has determined that, and will treat, the
disposition of the Mortgage Loans pursuant to this Agreement for tax and
accounting purposes as a sale. Seller shall maintain complete records for each
Mortgage Loan which shall be clearly marked to reflect the ownership of each
Mortgage Loan by Purchaser;
(xv) The
consideration received by the Seller upon the sale of the Mortgage loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans; and
(xvi) Seller
is
solvent and will not be rendered insolvent by the consummation of the
transactions contemplated hereby. The Seller is not transferring any Mortgage
loan with any intent to hinder, delay or defraud any of its
creditors.
(xvi) To
the
extent any Mortgage Loan is a MERS Mortgage Loan, the Seller is a member of
MERS
in good standing, will comply in all material respects with the rules and
procedures of MERS and is current in payment of all fees and assessments imposed
by MERS.
(xvi) To
the
extent any Mortgage Loan is a MERS Mortgage Loan, the Seller will comply in
all
material respects with the rules and procedures of MERS in connection with
the
servicing of the Mortgage Loans that are registered with MERS.
Subsection
7.02. Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(i) The
information set forth in the related Mortgage Loan Schedule is complete, true
and correct;
(ii) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation, and the characteristics of the related Mortgage Loan Package
as
set forth in the related Confirmation are true and correct;
(iii) All
payments required to be made up to the close of business on the Closing Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made; the
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
the
Mortgage Note or Mortgage; and there has been no delinquency, exclusive of
any
period of grace, in any payment by the Mortgagor thereunder since the
origination of the Mortgage Loan;
(iv) 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;
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien priority
of
the Mortgage, and which have been delivered to the Custodian; the substance
of
any such waiver, alteration or modification has been approved by the insurer
under the Primary Insurance Policy, if any, and the title insurer, to the extent
required by the related policy, and is reflected on the related Mortgage Loan
Schedule. 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 insurer under the Primary Insurance
Policy, if any, the title insurer, to the extent required by the policy, and
which assumption agreement has been delivered to the Custodian and the terms
of
which are reflected in the related Mortgage Loan Schedule;
(vi) The
Mortgage Note and the Mortgage 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 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 no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto. Each
Prepayment Charge or penalty with respect to any Mortgage Loan is permissible,
enforceable and collectible under applicable federal, state and local
law;
(vii) All
buildings upon the Mortgaged Property are insured by an insurer acceptable
to
FNMA and FHLMC against loss by fire, hazards of extended coverage and such
other
hazards as are customary in the area where the Mortgaged Property is located,
pursuant to insurance policies conforming to the requirements of the Servicing
Addendum. All such insurance policies contain a standard mortgagee clause naming
the Seller, its successors and assigns as mortgagee and all premiums thereon
have been paid. If the Mortgaged Property is in an area identified on a Flood
Hazard Map or Flood Insurance Rate Map issued 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 FNMA and FHLMC. The Mortgage obligates
the Mortgagor thereunder to maintain all such insurance at the Mortgagor’s cost
and expense, and on the Mortgagor’s failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at Mortgagor’s cost and expense and to
seek reimbursement therefor from the Mortgagor;
(viii) Any
and
all requirements of any federal, state or local law including, but not limited
to, all applicable predatory and abusive lending, usury, truth in lending,
real
estate settlement procedures, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans have been
complied with and the consummation of the transactions contemplated hereby
will
not involve the violation of any such laws, and the Seller shall maintain in
its
possession, available for the inspection of the Purchaser or its designee,
and
shall deliver to the Purchaser or its designee, upon two Business Days’ request,
evidence of compliance with such requirements;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(x) The
related Mortgage is properly recorded and is a valid, existing and enforceable
(A) first lien and first priority security interest with respect to each
Mortgage Loan which is indicated by the Seller to be a First Lien (as reflected
on the Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the Seller
to
be a Second Lien (as reflected on the Mortgage Loan Schedule), in either case,
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 the 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, (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property and (d) with respect to each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
(as reflected on the Mortgage Loan Schedule) a First Lien on the 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, existing and enforceable (A) first lien and first priority
security interest with respect to each Mortgage Loan which is indicated by
the
Seller to be a First Lien (as reflected on the Mortgage Loan Schedule) or (B)
second lien and second priority security interest with respect to each Mortgage
Loan which is indicated by the Seller to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule), in either case, on the property
described therein and the Seller has full right to sell and assign the same
to
the Purchaser. The Mortgaged Property was not, as of the date of origination
of
the Mortgage Loan, subject to a mortgage, deed of trust, deed to secure debt
or
other security instrument creating a lien subordinate to the lien of the
Mortgage;
(xi) 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;
(xii) 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. The Mortgagor is a natural person;
(xiii) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage have been paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage Note
and the Mortgage. The Seller has full right and authority under all governmental
and regulatory bodies having jurisdiction over such Seller, subject to no
interest or participation of, or agreement with, any party, to transfer and
sell
the Mortgage Loan to the Purchaser pursuant to this Agreement free and clear
of
any encumbrance or right of others, equity, lien, pledge, charge, mortgage,
claim, participation interest or security interest of any nature (collectively,
a “Lien”); and immediately upon the transfers and assignments herein
contemplated, the Seller shall have transferred and sold all of its right,
title
and interest in and to each Mortgage Loan and the Purchaser will hold good,
marketable and indefeasible title to, and be the owner of, each Mortgage Loan
subject to no Lien;
(xv) All
parties which have had any interest in the Mortgage Loan, whether as originator,
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were): (A) organized under the laws
of
such state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal offices in
such
state, or (D) not doing business in such state so as to require qualification
or
licensing, or (E) not otherwise required to be licensed in such state. All
parties which have had any interest in the Mortgage Loan were in compliance
with
any and all applicable “doing business” and licensing requirements of the laws
of the state wherein the Mortgaged Property is located or were not required
to
be licensed in such state;
(xvi) The
Mortgage Loan is covered by an American Land Title Association (“ALTA”) ALTA
lender’s title insurance policy acceptable to FNMA and FHLMC (which, in the case
of an Adjustable Rate Mortgage Loan has an adjustable rate mortgage endorsement
in the form of ALTA 6.0 or 6.1), issued by a title insurer acceptable to FNMA
and FHLMC and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained above in
(x)(a) and (b) and, with respect to each Mortgage Loan which is indicated by
the
Seller to be a Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Schedule) clause (d)) the Seller, its successors and assigns as to the first
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan and, with respect to any Adjustable Rate Mortgage Loan, against any loss
by
reason of the invalidity or unenforceability of the lien resulting from the
provisions of the Mortgage providing for adjustment in the Mortgage Interest
Rate and Monthly Payment. Additionally, such lender’s title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged Property,
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;
(xvii) 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;With respect
to
each Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan (as reflected on the Final Mortgage Loan Schedule) (i) the First Lien
is in
full force and effect, (ii) there is no default, breach, violation or event
of
acceleration existing under such First Lien mortgage or the related mortgage
note, (iii) 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 thereunder, and either (A) the First Lien
mortgage contains a provision which allows or (B) applicable law requires,
the
mortgagee under the Second Lien Mortgage Loan to receive notice of, and affords
such mortgagee an opportunity to cure any default by payment in full or
otherwise under the First Lien mortgage;
(xviii) 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 coordinate with, the lien of the related
Mortgage;
(xix) 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;
(xx) The
Mortgage Loan was originated by the Seller or by a savings and loan association,
a savings bank, a commercial bank or similar banking institution which is
supervised and examined by a federal or state authority, or by a mortgagee
approved as such by the Secretary of HUD.
(xxi) Payments
on the Mortgage Loan shall commence (with respect to any newly originated
Mortgage Loans) or commenced no more than sixty days after the proceeds of
the
Mortgage Loan were disbursed. The Mortgage Loan bears interest at the Mortgage
Interest Rate. With respect to each Mortgage Loan, the Mortgage Note is payable
on the first day of each month in Monthly Payments, which, (A) in the case
of a
Fixed Rate Mortgage Loan, are sufficient to fully amortize the original
principal balance over the original term thereof (other than with respect to
a
Mortgage Loan identified on the related Mortgage Loan Schedule as an
interest-only Mortgage Loan during the interest-only period) and to pay interest
at the related Mortgage Interest Rate, and (B) in the case of an Adjustable
Rate
Mortgage Loan, are changed on each Adjustment Date, and in any case, are
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate. The
Index for each Adjustable Rate Mortgage Loan is as defined in the related
Mortgage Loan Schedule. With respect to each Mortgage Loan identified on the
Mortgage Loan Schedule as an interest-only Mortgage Loan, the interest-only
period shall not exceed the period specified on the Mortgage Loan Schedule
and
following the expiration of such interest-only period, the remaining Monthly
Payments shall be sufficient to fully amortize the original principal balance
over the remaining term of the Mortgage Loan. The Mortgage Note does not permit
negative amortization. No Mortgage Loan is a Convertible Mortgage
Loan;
(xxii) The
origination, servicing and collection practices used by the Seller with respect
to each Mortgage Note and Mortgage, including without limitation the
establishment, maintenance and servicing of the Escrow Accounts and Escrow
Payments, if any, since origination have been in all respects legal, proper,
prudent and customary in the mortgage origination and servicing industry. The
Mortgage Loan has been serviced by the Seller and any predecessor servicer
in
accordance with all applicable laws, rules and regulations, the terms of the
Mortgage Note and Mortgage, and the FNMA and FHLMC servicing guides. With
respect to any Mortgage Loan which provides for an adjustable interest rate,
all
rate adjustments have been performed in accordance with the terms of the related
Mortgage Note or subsequent modifications, if any. With respect to escrow
deposits and Escrow Payments(other than with respect to each Mortgage Loan
which
is indicated by the Seller to be a Second Lien Mortgage Loan and for which
the
mortgagee under the First Lien is collecting Escrow Payments (as reflected
on
the Mortgage Loan Schedule)), if any, all such payments are in the possession
of, or under the control of, the Seller and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof
have
not been made. No escrow deposits or Escrow Payments or other charges or
payments due the Seller have been capitalized under any Mortgage or the related
Mortgage Note and no such escrow deposits or Escrow Payments are being held
by
the Seller for any work on a Mortgaged Property which has not been
completed;
(xxiii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxiv) The
Mortgage and related Mortgage Note contain 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. The
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection under
applicable bankruptcy laws. There is no 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. The
Mortgagor has not notified the Seller and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act;
(xxv) The
Mortgage Loan was underwritten in accordance with the underwriting standards
of
the Seller in effect at the time the Mortgage Loan was originated which
underwriting standards satisfy the standards of FNMA and FHLMC; and the Mortgage
Note and Mortgage are on forms acceptable to FNMA and FHLMC;
(xxvi) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(x) above;
(xxvii) The
Mortgage File contains an appraisal of the related Mortgaged Property which,
(a)
with respect to First Lien Mortgage Loans, was on appraisal form 1004 or form
2055 with an interior inspection, or (b) with respect to Second Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior only inspection,
and (c) with respect to (a) or (b) above, was made and signed, prior to the
approval of the Mortgage Loan application, by a qualified appraiser, duly
appointed by the Seller, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of FNMA and FHLMC. Each appraisal of
the
Mortgage Loan was made in accordance with the relevant provisions of the
Financial Institutions Reform, Recovery, and Enforcement Act of
1989;
(xxviii) 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 Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxix) With
respect to each Buydown Mortgage Loan:
(a) On
or
before the date of origination of such Mortgage Loan, the Seller and the
Mortgagor, or the Seller, the Mortgagor and the seller of the Mortgaged Property
or a third party entered into a Buydown Agreement. The Buydown Agreement
provides that the seller of the Mortgaged Property (or third party) shall
deliver to the Seller temporary Buydown Funds in an amount equal to the
aggregate undiscounted amount of payments that, when added to the amount the
Mortgagor on such Mortgage Loan is obligated to pay on each Due Date in
accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payment due on such Mortgage Loan. The temporary Buydown
Funds
enable the Mortgagor to qualify for the Buydown Mortgage Loan for the first
six
months of the term of such Mortgage Loan at an interest rate of not more than
1.0% less per annum than the Mortgage Interest Rate. The effective interest
rate
will increase in the seventh month of the Buydown Mortgage Loan so that the
effective interest rate will be equal to the interest rate as set forth in
the
related Mortgage Note.
(b) The
Mortgage and Mortgage Note reflect the permanent payment terms rather than
the
payment terms of the Buydown Agreement. The Buydown Agreement provides for
the
payment by the Mortgagor of the full amount of the Monthly Payment on any Due
Date that the Buydown Funds are not available. The Buydown Funds were not used
to reduce the original principal balance of the Mortgage Loan or to increase
the
Appraised Value of the Mortgaged Property when calculating the Loan-to-Value
Ratios for purposes of this Agreement and, if the Buydown Funds were provided
by
the Seller and if required under Agency Guidelines, the terms of the Buydown
Agreement were disclosed to the appraiser of the Mortgaged
Property;
(c) The
Buydown Funds may not be refunded to the Mortgagor unless the Mortgagor makes
a
principal payment for the outstanding balance of the Mortgage Loan;
and
(d) As
of the
date of origination of the Mortgage Loan, the provisions of the related Buydown
Agreement complied with the requirements of FNMA and FHLMC regarding buydown
agreements.
(xxx) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans, and
adjustable rate mortgage loans in the case of Adjustable Rate Mortgage Loans
and
rescission materials with respect to Refinanced Mortgage Loans, and such
statement is and will remain in the Mortgage File;
(xxxi) No
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of a
Mortgaged Property;
(xxxii) The
Seller has no knowledge of any circumstances or condition with respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value of the Mortgage Loan;
(xxxiii)
Each
Mortgage Loan with an LTV at origination in excess of 80% is and will be subject
to a Primary Insurance Policy, issued by a Qualified Insurer, which insures
that
portion of the Mortgage Loan in excess of the portion of the Appraised Value
of
the Mortgaged Property required by FNMA. All provisions of such Primary
Insurance Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. Any Mortgage
subject to any such Primary Insurance Policy obligates the Mortgagor thereunder
to maintain such insurance and to pay all premiums and charges in connection
therewith. The Mortgage Interest Rate for the Mortgage Loan does not include
any
such insurance premium;
(xxxiv) The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. No improvement located on or being part of any
Mortgaged Property is in violation of any applicable zoning and subdivision
law,
ordinance or regulation;
(xxxv) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(xxxvi) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(xxxvii) (xxxi) Any
principal advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term reflected on the Mortgage Loan Schedule. The lien of
the
Mortgage securing the consolidated principal amount is expressly insured as
having (A) first lien priority with respect to each Mortgage Loan which is
indicated by the Seller to be a First Lien (as reflected on the Mortgage Loan
Schedule), or (B) second lien priority with respect to each Mortgage Loan which
is indicated by the Seller to be a Second Lien Mortgage Loan (as reflected
on
the Mortgage Loan Schedule), in either case, by a title insurance policy, an
endorsement to the policy insuring the mortgagee’s consolidated interest or by
other title evidence acceptable to FNMA and FHLMC. The consolidated principal
amount does not exceed the original principal amount of the Mortgage
Loan;
(xxxviii) No
Mortgage Loan has a balloon payment feature;
(xxxix) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of FNMA and FHLMC;
(xl) No
Mortgage Loan which is a Cash-out Refinancing was originated in the State of
Texas;
(xli) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Seller;
(xlii) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(xliii) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller nor, to the Seller’s knowledge, the related
Mortgagor, has received any notice of any violation or potential violation
of
such law;
(xliv) No
Mortgage Loan is (a) subject to the provisions of the Homeownership and Equity
Protection Act of 1994, as amended (“HOEPA”), (b) a “high cost”, “covered”,
“abusive”, “predatory”, “Section 10” or “high risk” mortgage loan (or a
similarly designated loan using different terminology) under any federal, state
or local law, or any other statute or regulation providing assignee liability
to
holders of such mortgage loans, or (c) in violation of any such or comparable
federal, state or local statutes or regulations. No Mortgage Loan is a high
cost
loan or a covered loan, as applicable (as such terms are defined in the Standard
& Poor’s LEVELS Version 5.6 Glossary Revised, Appendix E as of the related
Closing Date);
(xlv) No
predatory, abusive or deceptive lending practices, including but not limited
to,
the extension of credit to a mortgagor without regard for the mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a mortgagor
which has no apparent benefit to the mortgagor, were employed in connection
with
the origination of the Mortgage Loan;
(xlvi) None
of
the proceeds of the Mortgage Loan were used to finance the purchase of single
premium credit life or disability insurance policies or any comparable
insurance;
(xlvii) The
Mortgage Loans were not selected from the outstanding fixed rate one to
four-family mortgage loans in the Seller’s portfolio at the related Closing Date
as to which the representations and warranties set forth in this Agreement
could
be made in a manner so as to affect adversely the interests of the
Purchaser;
(xlviii) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(xlix) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Colorado, Idaho, Indiana, Iowa, Kansas, Maine,
Oklahoma, South Carolina, Utah and Wyoming, has been originated by a properly
licensed entity, and in all other respects, complies with all of the material
requirements of any such applicable laws;
(l) The
information set forth in the Prepayment Charge Schedule is complete, true and
correct in all material respects and each Prepayment Charge is permissible,
enforceable and collectable under applicable federal and state law;
(li) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the Seller
has not received notification from a Mortgagor that a prepayment in full shall
be made after the Closing Date;
(lii) The
seller has no knowledge of any circumstances or condition with respect to the
Mortgage, the mortgaged property, the Mortgagor or the Mortgagor’s credit
standing that can be reasonably be expected to cause the mortgage Loan to be
an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value of the Mortgage Loan;
(liii) No
Mortgage Loan is a “home loan” under the Georgia Fair Lending Act, or each
Mortgage Loan secured by a mortgaged property located in the State of Georgia
was originated after March 7, 2003;
(liv) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property; and
(xlxv) Each
Mortgage Loan is eligible for sale in the secondary market or for inclusion
in a
Pass-Through Transfer without unreasonable credit enhancement.
(lvi) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(lvii)With
respect to each MOM Loan, Seller has not received any notice of liens or legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(lviii) With
respect to each Mortgage Loan which is a Second Lien, (i) the related first
lien
does not permit negative amortization, and (ii) either no consent for the
Mortgage Loan is required by the holder of the first lien or such consent has
been obtained and is contained in the Mortgage File;
(lix) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and is improved by a Residential Dwelling;
(lx) No
Mortgage Loan had an original term to maturity of more than thirty (30)
years;
(lxi) The
Mortgage Loan Documents with respect to each Mortgage Loan subject to Prepayment
Charges specifically authorizes such Prepayment Charges to be collected, such
Prepayment Charges are permissible and enforceable in accordance with the terms
of the related Mortgage Loan Documents and all applicable federal, state and
local laws (except to the extent that the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors’ rights generally or the collectability thereof may be
limited due to acceleration in connection with a foreclosure) and each
Prepayment Charge was originated in compliance with all applicable federal,
state and local laws;
(lxii) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”). The Seller has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor
and
the origin of the assets used by the said Mortgagor to purchase the property
in
question, and maintains, and will maintain, sufficient information to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering Laws; no
Mortgage Loan is subject to nullification pursuant to Executive Order 13224
(the
“Executive Order”) or the regulations promulgated by the Office of Foreign
Assets Control of the United States Department of the Treasury (the “OFAC
Regulations”) or in violation of the Executive Order or the OFAC Regulations,
and no Mortgagor is subject to the provisions of such Executive Order or the
OFAC Regulations nor listed as a “blocked person” for purposes of the OFAC
Regulations;
(lxiii) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(lxiv) Each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1);
(lxv) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(xi) above;
(lxvi) The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(lxvii) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded, or
are
in the process of being recorded, in the appropriate jurisdictions wherein
such
recordation is necessary to perfect the lien thereof as against creditors of
the
Seller. As to any Mortgage Loan which is not a MERS Mortgage Loan, the
Assignment of Mortgage is in recordable form (except for the name of the
assignee which is blank) and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(lxviii) Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI, Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance Code. With
respect to each Texas Refinance Loan that is a Cash Out Refinancing, the related
Mortgage Loan Documents state that the Mortgagor may prepay such Texas Refinance
Loan in whole or in part without incurring a Prepayment Charge. The Seller
does
not collect any such Prepayment Charges in connection with any such Texas
Refinance Loan;
(lxix) The
Seller shall, at its own expense, cause each Mortgage Loan to be covered by
a
“life of loan” Tax Service Contract which is assignable to the Purchaser or its
designee at no cost to the Purchaser or its designee; provided however, that
if
the Seller fails to purchase such Tax Service Contract, the Seller shall be
required to reimburse the Purchaser for all costs and expenses incurred by
the
Purchaser in connection with the purchase of any such Tax Service
Contract;
(lxx) Each
Mortgage Loan is covered by a “life of loan” Flood Zone Service Contract which
is assignable to the Purchaser or its designee at no cost to the Purchaser
or
its designee or, for each Mortgage Loan not covered by such Flood Zone Service
Contract, the Seller agrees to purchase such Flood Zone Service
Contract;
(lxxi) Each
Mortgage Loan has a valid and original Credit Score, with a minimum Credit
Score
as set forth in the related Confirmation;
(lxxii) No
Mortgage Loan originated or modified on or after October 1, 2002 and prior
to
March 7, 2003 is secured by a Mortgaged Property located in the State of
Georgia;
(lxxiii) No
Mortgage Loan is a “manufactured housing loan” pursuant to the NJ Act, and one
hundred percent of the amount financed of any purchase money Second Lien
Mortgage Loan subject to the NJ Act was used for the purchase of the related
Mortgaged Property;
(lxxiv) With
respect to any Mortgage Loan for which a mortgage loan application was submitted
by the Mortgagor after April 1, 2004, no such Mortgage Loan secured by a
Mortgage Property located in the State of Illinois is in violation of the
provisions of the Illinois Interest Act, including Section 4.1a which provides
that no such Mortgage Loan with a Mortgage Interest Rate in excess of 8.0%
per
annum has lender-imposed fees (or other charges) in excess of 3.0% of the
original principal balance of the Mortgage Loan;
(lxxv) No
Mortgage Loan is secured in whole or in part by the interest of the Mortgagor
as
a lessee under a ground lease of the related Mortgaged Property;
(lxxvi) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth of
Massachusetts was made to pay off or refinance an existing loan or other debt
of
the related borrower (as the term “borrower” is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
Massachusetts House Xxxx 4880 (2004)) unless either (1) (a) the related Mortgage
Interest Rate (that would be effective once the introductory rate expires,
with
respect to Adjustable Rate Mortgage Loans) did or would not exceed by more
than
2.25% the yield on United States Treasury securities having comparable periods
of maturity to the maturity of the related Mortgage Loan as of the fifteenth
day
of the month immediately preceding the month in which the application for the
extension of credit was received by the related lender or (b) the Mortgage
Loan
is an “open-end home loan” (as such term is used in the Massachusetts House Xxxx
4880 (2004)) and the related Mortgage Note provides that the related Mortgage
Interest Rate may not exceed at any time the Prime rate index as published
in
The Wall Street Journal plus a margin of one percent, or (2) such Mortgage
Loan
is in the "borrower's interest," as documented by a "borrower's interest
worksheet" for the particular Mortgage Loan, which worksheet incorporates the
factors set forth in Massachusetts House Xxxx 4880 (2004) and the regulations
promulgated thereunder for determining "borrower's interest," and otherwise
complies in all material respects with the laws of the Commonwealth of
Massachusetts;
(lxxvii) The
Mortgagor has not made or caused to be made any payment in the nature of an
“average” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxxviii) [Reserved];
(lxxix) With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a Prepayment Charge upon a Principal Prepayment prior to maturity: (i) prior
to
the Mortgage Loan’s origination, the Mortgagor agreed to such Prepayment Charge
in exchange for a monetary benefit, including but not limited to a Mortgage
Interest Rate or fee reduction, (ii) prior to the Mortgage Loan’s origination,
the Mortgagor was offered the option of obtaining a Mortgage Loan that did
not
require payment of a Prepayment Charge, (iii) the Prepayment Charge is disclosed
to the Mortgagor in the Mortgage Loan Documents pursuant to applicable state
and
federal law, (iv) for Mortgage Loans originated on or after September 1, 2004,
the duration of the prepayment period shall not exceed three (3) years from
the
date of the Mortgage Note, unless the Mortgage Loan was modified to reduce
the
prepayment period to no more than three years from the date of the Mortgage
Note
and the Mortgagor was notified in writing of such reduction in the prepayment
period, (v) no Mortgage Loan originated prior to October 1, 2002 has a
Prepayment Charge longer than five years (vi) notwithstanding any state or
federal law to the contrary, the Seller shall not impose such Prepayment Charge
in any instance when the Mortgage debt is accelerated as the result of the
Mortgagor’s default in making the Monthly Payments; Each Prepayment Charge is
permissible, collectable and enforceable.
(lxxx) No
predatory, abusive or deceptive lending practices, including but not limited
to,
the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no tangible net benefit to the Mortgagor, were employed in connection
with the origination of the Mortgage Loan. Each Mortgage Loan is in compliance
with the anti-predatory lending eligibility for purchase requirements of FNMA’s
Selling Guide. No Mortgagor was encouraged or required to select a Mortgage
Loan
product offered by the Mortgage Loan’s originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Mortgage
Loan’s origination, such Mortgagor did not qualify taking into account credit
history and debt to income ratios for a lower cost credit product then offered
by the Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s
originator. If, at the time of the related loan application, the Mortgagor
may
have qualified for a lower cost credit product then offered by any mortgage
lending affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s
originator referred the Mortgagor’s application to such affiliate for
underwriting consideration;
(lxxxi) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the Mortgagor’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan;
(lxxxii) All
points, fees and charges, including finance charges (whether or not financed,
assessed, collected or to be collected), in connection with the origination
and
servicing of each Mortgage Loan were disclosed in writing to the related
Mortgagor in accordance with applicable state and federal law and regulation.
Except in the case of a Mortgage Loan in an original principal amount of less
than $60,000 which would have resulted in an unprofitable origination, no
related Mortgagor was charged “points and fees” (whether or not financed) in an
amount greater than 5% of the principal amount of such loan, such 5% limitation
is calculated in accordance with FNMA’s anti-predatory lending requirements as
set forth in the FNMA Selling Guide;
(lxxxiii) The
Seller will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage Loan,
Seller agrees it shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(lxxxiv) No
Mortgagor was required to purchase any credit life, disability, accident or
health insurance product or debt cancellation agreement as a condition of
obtaining the extension of credit. No Mortgagor obtained a prepaid single
premium credit life, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan, and no proceeds from
any
Mortgage Loan were used to finance single-premium credit insurance policies
or
debt cancellation agreements as part of the origination of, or as a condition
to
closing, such Mortgage Loan;
(lxxxv) The
Seller and any predecessor servicer has fully furnished, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories) on a monthly basis; and the Seller will fully furnish,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Credit Information
Company (three of the credit repositories), on a monthly basis;
(lxxxvi) With
respect to each Mortgage Loan, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction;
No Mortgagor agreed to submit to arbitration to resolve any dispute arising
out
of or relating in any way to the Mortgage Loan transaction; and
(lxxxvii) The
Seller has no knowledge of any condition or circumstance relating to such
Mortgage Loan that would indicate that the current Appraised Value of the
Mortgaged Property is less than the Appraised Value at the origination of such
Mortgage Loan.
Subsection
7.03. Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding
any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or lack of examination of any Mortgage File. Upon
discovery by either the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties (notwithstanding any representation
and
warranty given to the best of Seller’s knowledge), which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of the
Purchaser in the related Mortgage Loan in the case of a representation and
warranty relating to a particular Mortgage Loan), the party discovering such
breach shall give prompt written notice to the other.
Within
60
days (or with respect to a breach of Subsection 7.02(lvi), within ten (10)
days)
of the earlier of either discovery by or notice to the Seller of any breach
of a
representation or warranty which materially and adversely affects the value
of a
Mortgage Loan or the Mortgage Loans, the Seller shall use its best efforts
promptly to cure such breach in all material respects and, if such breach cannot
be cured, the Seller shall, at the Purchaser’s option, repurchase such Mortgage
Loan at the Repurchase Price within two (2) Business Days following the
expiration of the related cure period. In the event that a breach shall involve
any representation or warranty set forth in Subsection 7.01 and such breach
cannot be cured within 60 days of the earlier of either discovery by or notice
to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser’s option, be repurchased by the Seller at the Repurchase Price. The
Seller shall, at the request of the Purchaser and assuming that Seller has
a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans; provided that such substitution
shall be effected not later than 120 days after the related Closing Date. If
the
Seller has no Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
foregoing provisions of this Subsection 7.03 shall occur on a date designated
by
the Purchaser and shall be accomplished by deposit in the Custodial Account
of
the amount of the Repurchase Price for distribution to the Purchaser on the
next
scheduled Distribution Date. Notwithstanding anything to the contrary contained
herein, it is understood by the parties hereto that a breach of the
representations and warranties made in Subsections 7.02 (lxii), (lxiv), (lxxii),
(lxxiii), (lxxix), (lxxxiv), (lxxxv) and (lxxxviii) will be deemed to materially
and adversely affect the value of the related Mortgage Loan or the interest
of
the Purchaser therein.
At
the
time of repurchase of any deficient Mortgage Loan, the Purchaser and the Seller
shall arrange for the reassignment of the repurchased Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the repurchased Mortgage Loan. In the event the Repurchase Price
is
deposited in the Custodial Account, the Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken place.
Upon such repurchase the related Mortgage Loan Schedule shall be amended to
reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
If
the
Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller
shall either (i) cause MERS to execute and deliver an Assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Seller and shall
cause
such Mortgage to be removed from registration on the MERS System in accordance
with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS
System the Seller or its designee as the beneficial holder of such Mortgage
Loan.
As
to any
Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser for such Qualified Substitute Mortgage Loan or Loans the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are required by the Custodial Agreement, with the Mortgage
Note endorsed as required therein. The 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 such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution will be retained by the Seller. For the
month
of substitution, distributions to the Purchaser will include the Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by
the
Seller in respect of such Deleted Mortgage Loan. The Seller shall give written
notice to the Purchaser that such substitution has taken place and shall amend
the 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, such Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
covenants, representations and warranties set forth in Sections 7.01 and
7.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller 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 Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
An amount equal to the product of the amount of such shortfall multiplied by
the
Repurchase Price shall be distributed by the Seller in the month of substitution
pursuant to the Servicing Addendum. Accordingly, on the date of such
substitution, the Seller will deposit from its own funds into the Custodial
Account an amount equal to such amount.
In
addition to such cure, repurchase and substitution obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary 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
the Seller’s representations and warranties contained in this Section 7. It is
understood and agreed that the obligations of the Seller set forth in this
Subsection 7.03 to cure or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Subsection 7.03 constitute the sole remedies
of the Purchaser respecting a breach of the foregoing representations and
warranties.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Subsections 7.01 or 7.02 shall accrue
as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Seller by the Purchaser for compliance with the relevant
provisions of this Agreement.
Subsection
7.04 Repurchase
of Certain Mortgage Loans.
In
the
event that (i) the first Due Date for a Mortgage Loan is subsequent to the
Cut-off Date and the initial Monthly Payment is not made within 30 days of
such
Due Date, (ii) a Monthly Payment due prior to the related Cut-off Date is not
made within 30 days of the related Due Date or (iii) the principal balance
due
on a Mortgage Loan is paid in full within sixty (60) days following the related
Closing Date, then, in each case, the Seller shall repurchase the affected
Mortgage Loans at the Repurchase Price provided that, Purchaser provides
statement of amount to be reimbursed within 30 days of Purchaser's knowledge
of
such pay off.
SECTION
8. Closing.
The
closing for each Mortgage Loan Package shall take place on the related Closing
Date. At the Purchaser’s option, the closing shall be either: by telephone,
confirmed by letter or wire as the parties shall agree, or conducted in person,
at such place as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
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(a)
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all
of the representations and warranties of the Seller under this Agreement
shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would
constitute a default under this
Agreement;
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(b)
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the
Initial Purchaser shall have received, or the Initial Purchaser’s
attorneys shall have received in escrow, all Closing Documents as
specified in Section 9, in such forms as are agreed upon and acceptable
to
the Purchaser, duly executed by all signatories other than the Purchaser
as required pursuant to the terms
hereof;
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(c)
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the
Seller shall have delivered and released to the Custodian all documents
required pursuant to the Custodial Agreement;
and
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(d)
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all
other terms and conditions of this Agreement shall have been complied
with.
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Subject
to the foregoing conditions, the Initial Purchaser shall pay to the Seller
on
the related Closing Date the Purchase Price, plus accrued interest pursuant
to
Section 4, by wire transfer of immediately available funds to the account
designated by the Seller.
SECTION
9. Closing
Documents.
(a)
On or before the Initial Closing Date, the Seller shall submit to the
Initial Purchaser fully executed originals of the following
documents:
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1.
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this
Agreement, in four counterparts;
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2.
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the
Custodial Agreement, in six counterparts, in the form attached as
Exhibit
6
hereto;
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3.
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a
Custodial Account Letter Agreement in the form attached as Exhibit
7
hereto;
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4.
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as
Escrow Account Letter Agreement in the form attached as Exhibit
8
hereto;
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5.
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an
Officer’s Certificate, in the form of Exhibit
1
hereto, including all attachments
thereto;
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6.
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an
Opinion of Counsel to the Seller, in the form of Exhibit
2
hereto;
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7.
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an
Opinion of Counsel to the Custodian, in a form acceptable to the
Initial
Purchaser; and
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8.
the
Seller’s underwriting guidelines.
(b)
The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
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1.
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the
related Confirmation;
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2.
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the
related Mortgage Loan Schedule, one copy to be attached hereto and
one
copy to be attached to the Custodian’s counterpart of the Custodial
Agreement, as the Mortgage Loan Schedule
thereto;
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3.
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a
Custodian’s Trust Receipt and Initial Certification, as required under the
Custodial Agreement, in a form acceptable to the Initial
Purchaser;
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4.
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an
Officer’s Certificate, in the form of Exhibit
1
hereto, including all attachments
thereto;
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5.
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if
requested by the Initial Purchaser, an Opinion of Counsel to the
Seller,
in the form of Exhibit
2
hereto;
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6.
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if
requested by the Initial Purchaser, an Opinion of Counsel to the
Custodian, in a form acceptable to the Initial
Purchaser;
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7.
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a
Security Release Certification, in the form of Exhibit
3
hereto executed by any Person, as requested by the Initial Purchaser,
if
any of the Mortgage Loans has at any time been subject to any security
interest, pledge or hypothecation for the benefit of such
Person;
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8.
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a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable; and
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9.
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an
Assignment and Conveyance in the form of Exhibit
4
hereto.
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SECTION
10. Costs.
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys. All other costs and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans, including without
limitation recording fees, fees for title policy endorsements and continuations,
fees for recording Assignments of Mortgage, the fees of the Custodian and the
Seller’s attorney’s fees, shall be paid by the Seller.
SECTION
11. Seller’s
Servicing Obligations.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans during the Preliminary Servicing Period in accordance with the
terms and provisions set forth in the Servicing Addendum attached as
Exhibit
9,
which
Servicing Addendum is incorporated herein by reference.
SECTION
12. Removal
of Mortgage Loans from Inclusion under This Agreement Upon a Whole Loan Transfer
or a Pass-Through Transfer on One or More Reconstitution Dates.
The
Seller and the Initial Purchaser agree that with respect to some or all of
the
Mortgage Loans, the Initial Purchaser may effect either:
(1)
one
or
more Whole Loan Transfers; and/or
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(2)
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one
or more Pass-Through Transfers.
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With
respect to each Whole Loan Transfer or Pass-Through Transfer, as the case may
be, entered into by the Initial Purchaser, the Seller agrees:
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(1)
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to
cooperate fully with the Purchaser and any prospective purchaser
with
respect to all reasonable requests and due diligence procedures and
with
respect to the preparation (including, but not limited to, the
endorsement, delivery, assignment, and execution) of the Mortgage
Loan
Documents and other related documents, and with respect to servicing
requirements reasonably requested by the rating agencies and credit
enhancers;
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(2)
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to
execute any Reconstitution Agreements, the Assignment and Recognition
Agreement substantially in the form set forth as Exhibit 11 attached
hereto, and the Indemnification Agreement substantially in the form
set
forth as Exhibit 12 attached hereto, provided that each of the Seller
and
the Purchaser is given an opportunity to review and reasonably negotiate
in good faith the content of such documents not specifically referenced
or
provided for herein;
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(3)
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with
respect to any Whole Loan Transfer or Pass-Through Transfer, the
Seller
shall make the representations and warranties regarding the Seller
and the
Mortgage Loans as of the date of the Whole Loan Transfer or Pass-Through
Transfer, modified to the extent necessary to accurately reflect
the pool
statistics of the Mortgage Loans as of the date of such Whole Loan
Transfer or Pass-Through Transfer and supplemented by additional
representations and warranties that are not unreasonable under the
circumstances as of the date of such Whole Loan Transfer or Pass-Through
Transfer, to the extent that any events or circumstances, including
changes in applicable law occurring subsequent to the related Closing
Date(s), would render a related Mortgage Loan unmarketable to a material
segment of the secondary mortgage or mortgage-backed securities
market;
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(4)
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to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller,
its
underwriting guidelines, its financial condition and its mortgage
loan
delinquency, foreclosure and loss experience and any additional
information requested by the Purchaser, and to deliver to the Purchaser
any similar non public, unaudited financial information, in which
case the
Purchaser shall bear the cost of having such information audited
by
certified public accountants if the Purchaser desires such an audit,
or as
is otherwise reasonably requested by the Purchaser and which the
Seller is
capable of providing without unreasonable effort or expense, and
to
indemnify the Purchaser and its affiliates for material misstatements
or
omissions or any alleged misstatements or omissions contained (i)
in such
information and (ii) on the Mortgage Loan
Schedule;
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(5)
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to
deliver to the Purchaser and to any Person designated by the Purchaser,
at
the Purchaser’s expense, such statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 above as shall be reasonably requested
by the
Purchaser;
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(6)
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to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Purchaser to be necessary in connection with Whole
Loan
Transfers or Pass-Through Transfers, as the case may be, such in-house
Opinions of Counsel for a Pass-Through Transfer to be in the form
reasonably acceptable to the Purchaser, it being understood that
the cost
of any opinions of outside special counsel that may be required for
a
Whole Loan Transfer or Pass-Through Transfer, as the case may be,
shall be
the responsibility of the
Purchaser;
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(7)
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to
negotiate and execute one or more subservicing agreements between
the
Seller and any master servicer which is generally considered to be
a
prudent master servicer in the secondary mortgage market, designated
by
the Purchaser in its sole discretion after consultation with the
Seller
and/or one or more custodial and servicing agreements among the Purchaser,
the Seller and a third party custodian/trustee which is generally
considered to be a prudent custodian/trustee in the secondary mortgage
market designated by the Purchaser in its sole discretion after
consultation with the Seller, in either case for the purpose of pooling
the Mortgage Loans with other Mortgage Loans for resale or
securitization;
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(8)
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in
connection with any securitization of any Mortgage Loans, to execute
a
pooling and servicing agreement, which pooling and servicing agreement
may, at the Purchaser’s direction, contain contractual provisions
including, but not limited to, a 24-day certificate payment delay
(54-day
total payment delay), servicer advances of delinquent scheduled payments
of principal and interest through liquidation (unless deemed
non-recoverable) and prepayment interest shortfalls (to the extent
of the
monthly servicing fee payable thereto), servicing and mortgage loan
representations and warranties which in form and substance conform
to the
representations and warranties in this Agreement and to secondary
market
standards for securities backed by mortgage loans similar to the
Mortgage
Loans and such provisions with regard to servicing responsibilities,
investor reporting, segregation and deposit of principal and interest
payments, custody of the Mortgage Loans, and other covenants as are
required by the Purchaser and one or more nationally recognized rating
agencies for “AAA” rated mortgage pass-through transactions which are
“mortgage related securities” for the purposes of the Secondary Mortgage
Market Enhancement Act of 1984, unless otherwise mutually agreed.
At the
option of the Purchaser, the facilities of the Depository Trust Company
(“DTC”) may be used in connection with any class of security issued
pursuant to any pooling agreement, subject only to the consent of
the DTC.
If the Purchaser deems it advisable at any time to pool the Mortgage
Loans
with other mortgage loans for the purpose of resale or securitization,
the
Seller agrees to execute one or more subservicing agreements between
itself (as servicer) and a master servicer designated by the Purchaser
at
its sole discretion, and/or one or more servicing agreements among
the
Seller (as servicer), the Purchaser and a trustee designated by the
Purchaser at its sole discretion, such agreements in each case
incorporating terms and provisions substantially identical to those
described in the immediately preceding
paragraph;
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(9)
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to
transfer the servicing rights to the Purchaser or its designee as
described in Section 15 upon the direction of the Purchaser;
and
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(10)
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with
respect to each Whole Loan Transfer and Pass-Through Transfer, the
Seller
shall establish and maintain one or more Custodial Accounts and Escrow
Accounts with respect to the Mortgage Loans sold pursuant to such
Whole
Loan Transfer or Pass-Through Transfer, which accounts shall be
established and maintained in addition to, and separate and apart
from,
any other Custodial Account or Custodial Accounts and Escrow Account
or
Escrow Accounts established and maintained pursuant to this Agreement.
The
sale or transfer of the Mortgage Loans pursuant to a Whole Loan Transfer
or Pass-Through Transfer shall be deemed to create a separate and
distinct
servicing agreement by the Seller with respect to such Mortgage Loan
or
Loans. In connection therewith, the obligation of the Seller in respect
of
compensating interest payments for Prepayment Interest Shortfalls
with
respect to the Mortgage Loans sold pursuant to a Whole Loan Transfer
or
Pass-Through Transfer, or sold pursuant to one Whole Loan Transfer
or
Pass-Through Transfer and separated by loan group (each, a “Loan Group”),
shall accrue with respect to the related Mortgage Loans or Loan Group,
and
shall not be made on an aggregate basis with all of the Mortgage
Loans
purchased pursuant to or in connection with this Agreement or with
the
Mortgage Loans of a different Loan Group. In addition, any reimbursement
of the Seller in respect of Monthly Advances, Servicing Advances
and
unreimbursed Servicing Fees shall be reimbursed first on a loan by
loan
basis and, if reimbursed out of general collections on the related
Mortgage Loans, shall be reimbursed from collections on the Mortgage
Loans
sold pursuant to the related Whole Loan Transfer or Pass-Through
Transfer
or, with respect to Mortgage Loans sold pursuant to one Whole Loan
Transfer or Pass-Through Transfer and separated by Loan Group, out
of
collections of the Mortgage Loans in the related Loan
Group.
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All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Pass-Through Transfer shall be subject to this Agreement and shall continue
to
be serviced for the remainder of the Preliminary Servicing Period in accordance
with the terms of this Agreement and with respect thereto this Agreement shall
remain in full force and effect.
SECTION
13. The
Seller.
Subsection
13.01. Additional
Indemnification by the Seller.
In
addition to the indemnification provided in Subsection 7.03, the Seller shall
indemnify the Purchaser and hold the Purchaser 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 obligations under this Agreement including but not limited to
its
obligation to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement or any Reconstitution Agreement entered into
pursuant to Section 12.
Subsection
13.02. Merger
or Consolidation of the Seller.
The
Seller shall keep in full force and effect its existence, rights and franchises
as a corporation under the laws of the state of its incorporation except as
permitted herein, and shall obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or
shall be necessary to protect the validity and enforceability of this Agreement
or any of the Mortgage Loans, and to enable the Seller to perform its duties
under this Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business is the origination and servicing of mortgage loans, shall be
a
FNMA or FHLMC approved seller/servicer and shall satisfy any requirements of
Section 16 with respect to the qualifications of a successor to the
Seller.
Subsection
13.03. Limitation
on Liability of the Seller and Others.
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith in connection with the servicing of
the
Mortgage Loans pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Seller or any such person
against any breach of warranties or representations made herein, or failure
to
perform its obligations in strict compliance with any standard of care set
forth
in this Agreement, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement. The Seller and
any
officer, employee or agent of the Seller may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Seller shall not be under any obligation
to
appear in, prosecute or defend any legal action which is not incidental to
its
obligation to sell or duty to service the Mortgage Loans in accordance with
this
Agreement and which in its opinion may result in its incurring any expenses
or
liability; provided, however, that the Seller may, with the consent of the
Purchaser, undertake any such action which it may deem necessary or desirable
in
respect to this Agreement and the rights and duties of the parties hereto.
In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities for which the
Purchaser shall be liable, the Seller shall be entitled to reimbursement
therefor from the Purchaser upon written demand except when such expenses,
costs
and liabilities are subject to the Seller’s indemnification under Subsections
7.03 or 13.01.
Subsection
13.04. Seller
Not to Resign.
The
Seller shall not assign this Agreement or resign from the obligations and duties
hereby imposed on it except by mutual consent of the Seller and the Purchaser
or
upon the determination that its servicing duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Seller in which event the Seller may resign as servicer. Any such determination
permitting the resignation of the Seller as servicer shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser and which
shall be provided at the cost of the Seller. No such resignation shall become
effective until a successor shall have assumed the Seller’s responsibilities and
obligations hereunder in the manner provided in Section 16.
Subsection
13.05. No
Transfer of Servicing.
The
Seller acknowledges that the Purchaser has acted in reliance upon the Seller’s
independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and
the
continuance thereof. Without in any way limiting the generality of this Section,
the Seller shall not either assign this Agreement or the servicing hereunder
or
delegate its rights or duties hereunder or any portion thereof, or sell or
otherwise dispose of all or substantially all of its property or assets, without
the prior written approval of the Purchaser, which consent will not be
unreasonably withheld.
SECTION
14. DEFAULT.
Subsection
14.01. Events
of Default.
In
case
one or more of the following Events of Default by the Seller shall occur and
be
continuing, that is to say:
(i) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period of
one
Business Day after the date upon which written notice of such failure, requiring
the same to be remedied, shall have been given to the Seller by the Purchaser;
or
(ii) failure
on the part of the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth in
this
Agreement or in the Custodial Agreement which continues unremedied for a period
of thirty days (except that such number of days shall be fifteen in the case
of
a failure to pay any premium for any insurance policy required to be maintained
under this Agreement) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Seller by the
Purchaser or by the Custodian; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Seller and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(iv) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Seller
or of
or relating to all or substantially all of its property; or
(v) the
Seller shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) failure
by the Seller to be in compliance with the “doing business” or licensing laws of
any jurisdiction where a Mortgaged Property is located; or
(vii) the
Seller has its right to service temporarily or permanently suspended by FNMA
or
FHLMC or otherwise ceases to meet the qualifications of either a FNMA or FHLMC
seller/servicer; or
(viii) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof; or
(ix) the
Seller fails to duly perform, within the required time period, its obligations
under Sections 11.24, 11.25 or 11.26 of the Servicing Addendum, which failure
continues unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Seller by any party to this Agreement or by any master
servicer responsible for master servicing the Mortgage Loans pursuant to a
securitization of such Mortgage Loans; or
(x)
to
the
extent any Mortgage Loan is a MERS Mortgage Loan, the Seller’s membership in
MERS is terminated for any reason; or
(xi)
a
Rating
Agency lowers Seller’s servicing rating below “average”, or its equivalent
rating, anytime after the date of this Agreement;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Seller may, in addition
to
whatever rights the Purchaser may have at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Seller as servicer under this Agreement. On or after the
receipt by the Seller of such written notice, all authority and power of the
Seller to service the Mortgage Loans under this Agreement shall on the date
set
forth in such notice pass to and be vested in the successor appointed pursuant
to Section 16.
If
any of
the Mortgage Loans are MERS Mortgage Loans, in connection with the termination
or resignation (as described in Section 13.04) of the Seller hereunder, either
(i) the successor Seller shall represent and warrant that it is a member of
MERS
in good standing and shall agree to comply in all material respects with the
rules and procedures of MERS in connection with the servicing of the Mortgage
Loans that are registered with MERS, or (ii) the Seller shall cooperate with
the
successor company either (x) in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Purchaser and to execute and deliver such other notices, documents and
other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS System to the
successor company or (y) in causing MERS to designate on the MERS System the
successor company as the servicer of such Mortgage Loan.
Subsection
14.02. Waiver
of Defaults.
The
Purchaser may waive any default by the Seller in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so
waived.
SECTION
15. Termination.
The
respective obligations and responsibilities of the Seller, as servicer, shall
terminate upon the distribution to the Purchaser of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of same by
the
Seller) or the disposition of all property acquired upon foreclosure or deed
in
lieu of foreclosure with respect to the last Mortgage Loan and the remittance
of
all funds due hereunder unless terminated with respect to all or a portion
of
the Mortgage Loans on an earlier date at the option of the Purchaser pursuant
to
this Section 15 or pursuant to Section 14. In the event that the Seller is
terminated pursuant to this Section 15 without cause, the Purchaser shall pay
to
the Seller a termination fee in an amount equal to 1% of the Stated Principal
Balance, as of the date of such termination, of the Mortgage Loans with respect
to which the Seller is being terminated as servicer. Upon written request from
the Purchaser in connection with any such termination, the Seller shall prepare,
execute and deliver, any and all documents and other instruments, place in
the
Purchaser’s possession all Mortgage Files, and do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise, at the Seller’s sole
expense. The Seller agrees to cooperate with the Purchaser and such successor
in
effecting the termination of the Seller’s responsibilities and rights hereunder
as servicer, including, without limitation, the transfer to such successor
for
administration by it of all cash amounts which shall at the time be credited
by
the Seller to the Custodial Account, REO Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
SECTION
16. Successor
to the Seller.
Prior
to termination of Seller’s responsibilities and duties under this Agreement
pursuant to Section 12, 14 or 15, the Purchaser shall (i) succeed to and assume
all of the Seller’s responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Seller as
servicer under this Agreement. In connection with such appointment and
assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Seller’s duties, responsibilities and liabilities
as servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Seller shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of the Purchaser or such successor. The termination of the Seller
as
servicer pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section 16 and shall
in no
event relieve the Seller of the representations and warranties made pursuant
to
Subsections 7.01 and 7.02 and the remedies available to the Purchaser under
Subsection 7.03 or 7.04, it being understood and agreed that the provisions
of
such Subsections 7.01, 7.02 and 7.03 and 7.04 shall be applicable to the Seller
notwithstanding any such resignation or termination of the Seller, or the
termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Seller and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Seller, with like
effect as if originally named as a party to this Agreement and the Custodial
Agreement provided, however, that such successor shall not assume, and Seller
shall indemnify such successor for, any and all liabilities arising out of
the
Seller’s acts as servicer. Any termination of the Seller as servicer pursuant to
Section 12, 14 or 15 shall not affect any claims that the Purchaser may have
against the Seller arising prior to any such termination or resignation or
remedies with respect to such claims.
The
Seller shall timely deliver to the successor the funds in the Custodial Account,
REO Account and the Escrow Account and the Mortgage Files and related documents
and statements held by it hereunder and the Seller shall account for all funds.
The Seller shall execute and deliver such instruments and do such other things
all as may reasonably be required to more fully and definitely vest and confirm
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Seller as servicer. The successor shall make arrangements
as it may deem appropriate to reimburse the Seller for amounts the Seller
actually expended as servicer pursuant to this Agreement which the successor
is
entitled to retain hereunder and which would otherwise have been recovered
by
the Seller pursuant to this Agreement but for the appointment of the successor
servicer.
SECTION
17. Financial
Statements.
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
the
Seller’s financial statements for the most recently completed three fiscal years
respecting which such statements are available. The Seller also shall make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members
or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller also shall make available information
on
its servicing performance with respect to mortgage loans serviced for others,
including delinquency ratios.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller, its loan origination or servicing practices or the
financial statements of the Seller.
SECTION
18. Mandatory
Delivery: Grant of Security Interest.
The
sale and delivery of each Mortgage Loan on or before the related Closing Date
is
mandatory from and after the date of the execution of the related Confirmation,
it being specifically understood and agreed that each Mortgage Loan is unique
and identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Initial Purchaser for the losses and damages
incurred by the Initial Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller’s failure to deliver each of
the related Mortgage Loans or one or more Mortgage Loans otherwise acceptable
to
the Initial Purchaser on or before the related Closing Date. The Seller hereby
grants to the Initial Purchaser a lien on and a continuing security interest
in
each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Initial Purchaser subject to the Initial Purchaser’s (i) right to reject
any Mortgage Loan under the terms of this Agreement and the related
Confirmation, and (ii) obligation to pay the related Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
SECTION
19. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
(i) if
to the
Purchaser:
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx Xxxxxxxxx
(ii) if
to the
Seller:
SunTrust
Mortgage, Inc.
000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxx Pack
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
SECTION
20. Severability
Clause.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION
21. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
22. Governing
Law.
The
Agreement shall be construed in accordance with the laws of the State of New
York without regard to any conflicts of law provisions and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with the laws of the State of New York, except to the extent preempted by
Federal law.
SECTION
23. Intention
of the Parties.
It is
the intention of the parties that the Initial Purchaser is purchasing, and
the
Seller is selling, the Mortgage Loans and not a debt instrument of the Seller
or
another security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Initial Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Initial Purchaser
in
the course of such review.
SECTION
24. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective successors and assigns of the Seller
and the Purchaser. The Purchaser may assign this Agreement to any Person to
whom
any Mortgage Loan is transferred whether pursuant to a sale or financing and
to
any Person to whom the servicing or master servicing of any Mortgage Loan is
sold or transferred. Upon any such assignment, the Person to whom such
assignment is made shall succeed to all rights and obligations of the Purchaser
under this Agreement to the extent of the related Mortgage Loan or Mortgage
Loans and this Agreement, to the extent of the related Mortgage Loan or Loans,
shall be deemed to be a separate and distinct Agreement between the Seller
and
such Purchaser, and a separate and distinct Agreement between the Seller and
each other Purchaser to the extent of the other related Mortgage Loan or Loans.
In the event that this Agreement is assigned to any Person to whom the servicing
or master servicing of any Mortgage Loan is sold or transferred, the rights
and
benefits under this agreement which inure to the Purchaser shall inure to the
benefit of both the Person to whom such Mortgage Loan is transferred and the
Person to whom the servicing or master servicing of the Mortgage Loan has been
transferred; provided that, the right to require a Mortgage Loan to be
repurchased by the Seller pursuant to Subsection 7.03 or 7.04 shall be retained
solely by the Purchaser. This Agreement shall not be assigned, pledged or
hypothecated by the Seller to a third party without the consent of the
Purchaser.
SECTION
25. 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
26. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
27. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
28. Nonsolicitation.
The
Seller covenants and agrees that it shall not take any action to solicit the
refinancing of any Mortgage Loan following the date hereof or provide
information to any other entity to solicit the refinancing of any Mortgage
Loan;
provided that, the foregoing shall not preclude the Seller from engaging in
solicitations to the general public by newspaper, radio, television or other
media which are not directed toward the Mortgagors or from refinancing the
Mortgage Loan of any Mortgagor who, without solicitation, contacts the Seller
to
request the refinancing of the related Mortgage Loan.
SECTION
29. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
30. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Without
limiting the generality of the foregoing, the Seller shall cooperate with the
Purchaser in connection with any Whole Loan Transfer or Pass-Through Transfer
contemplated by the Initial Purchaser pursuant to Section 12 hereof. In such
connection, the Seller shall (a) execute any agreement in accordance with the
provisions of Section 12, and (b) provide to the Initial Purchaser or any
prospective purchaser: (i) any and all information and appropriate verification
of information, whether through letters of its auditors and counsel or
otherwise, as the Initial Purchaser shall reasonably request; and (ii) such
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as
are
reasonably believed necessary by the Initial Purchaser in connection with such
transactions. The requirement of the Seller pursuant to (ii) above shall
terminate on the final Reconstitution Date. Prior to incurring any out-of-pocket
expenses pursuant to this paragraph, the Seller shall notify the Initial
Purchaser in writing of the estimated amount of such expense. The Initial
Purchaser shall reimburse the Seller for any such expense following its receipt
of appropriate details thereof.
SECTION
31. Privacy.
The
Initial Purchaser agrees and acknowledges that as to all nonpublic personal
information received or obtained by it with respect to any Mortgagor: (a) such
information is and shall be held by the Initial Purchaser in accordance with
the
privacy provisions of the Xxxxx-Xxxxx Xxxxxx Act, as amended from time to time;
(b) such information is in connection with a proposed or actual secondary market
sale related to a transaction of the Mortgagor for purposes of 16
C.F.R.§313.14(a)(3); and (c) the Initial Purchaser is hereby prohibited from
disclosing or using any such information other than to carry out the express
provisions of this Agreement, or as otherwise permitted by applicable
law
SECTION
32. Third
Party Beneficiary.
For
purposes of this Agreement any master servicer shall be considered a third
party
beneficiary to this Agreement entitled to all the rights and benefits accruing
to any master servicer herein as if it were a direct party to this
Agreement.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
SUNTRUST
MORTGAGE, INC.
(Seller)
By:
/s/
[Authorized
Signatory]
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Initial
Purchaser)
|
|
By:
/s/ [Authorized
Signatory]
|
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
EXHIBIT
1
SELLER’S
OFFICER’S CERTIFICATE
I,
________________________, hereby certify that I am the duly elected
______________ of [SELLER], a ______________ (the “Seller”), and further
certify, on behalf of the Seller as follows:
1. Attached
hereto as Attachment I are a true and correct copy of the [Certificate of
Incorporation and by-laws][Certificate of limited partnership and limited
partnership agreement] of the Seller as are in full force and effect on the
date
hereof.
2. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Seller are pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Seller, signed (a) the
Amended and Restated Master Mortgage Loan Purchase and Servicing Agreement
(the
“Purchase Agreement”), dated as of ____ 1, 200_, by and between the Seller and
Citigroup Global Markets Realty Corp. (the “Purchaser”); (b) the Confirmation,
dated _____________ 200_, between the Seller and the Purchaser (the
“Confirmation”); (c) the Custodial Agreement, dated as of ____ 1, 200_, among
the Purchaser, the Seller and ____________ (the “Custodial Agreement”); and (d)
any other document delivered prior hereto or on the date hereof in connection
with the sale and servicing of the Mortgage Loans in accordance with the
Purchase Agreement and the Confirmation was, at the respective times of such
signing and delivery, and is as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures
of
such persons appearing on such documents are their genuine
signatures.
4. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Seller on ________________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Seller dated
______________, 200_. No event has occurred since ___________________, 200_
which has affected the good standing of the Seller under the laws of the State
of ___________.
6. All
of
the representations and warranties of the Seller contained in Subsections 7.01
and 7.02 of the Purchase Agreement were true and correct in all material
respects as of the date of the Purchase Agreement and are true and correct
in
all material respects as of the date hereof.
7. The
Seller has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the related Closing
Date pursuant to the Purchase Agreement and the related
Confirmation.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Seller.
Dated:
_____________________________
[Seal]
[SELLER]
(Seller)
|
|
|
By:
______________________________________
|
|
|
Name:
____________________________________
|
Title:
Vice President
I,
_______________________, Secretary of the Seller, hereby certify that
_________________________ is the duly elected, qualified and acting Vice
President of the Seller and that the signature appearing above is his genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
_________________________
[Seal]
[SELLER]
(Seller)
|
|
|
By:
______________________________________
|
|
|
Name:
____________________________________
|
Title:
[Assistant] Secretary
EXHIBIT
2
[FORM
OF
OPINION OF COUNSEL TO THE SELLER]
______________________________
(DATE)
Citigroup
Global Markets Realty Corp.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Amended
and Restated Master Mortgage Loan Purchase and Servicing Agreement,
dated
as of ____ 1, 200_
|
Gentlemen:
I
have
acted as counsel to [SELLER], a _________________ (the “Seller”), in connection
with the sale of certain mortgage loans by the Seller to Citigroup Global
Markets Realty Corp. (the “Purchaser”) pursuant to (i) a Amended and Restated
Master Mortgage Loan Purchase and Servicing Agreement, dated as of ____ 1,
200_,
between the Seller and the Purchaser (the “Purchase Agreement”), the Custodial
Agreement, dated as of _____ 1, 200_, among the Seller, the Purchaser, and
_________________ (the “Custodial Agreement”) [and the Confirmation, dated
__________, 200_, between the Seller and the Purchaser (the “Confirmation”)].
Capitalized terms not otherwise defined herein have the meanings set forth
in
the Purchase Agreement.
In
connection with rendering this opinion letter, I, or attorneys working under
my
direction, have examined, among other things, originals, certified copies or
copies otherwise identified to my satisfaction as being true copies of the
following:
A.
The
Purchase Agreement;
B.
[The
Confirmation;]
C.
The
Custodial Agreement;
|
D.
|
The
Seller’s [Certificate of Incorporation and by-laws][certificate of limited
partnership and limited partnership agreement], as amended to date;
and
|
|
E.
|
Resolutions
adopted by the Board of Directors of the Seller with specific reference
to
actions relating to the transactions covered by this opinion (the
“Board
Resolutions”).
|
For
the
purpose of rendering this opinion, I have made such documentary, factual and
legal examinations as I deemed necessary under the circumstances. As to factual
matters, I have relied upon statements, certificates and other assurances of
public officials and of officers and other representatives of the Seller, and
upon such other certificates as I deemed appropriate, which factual matters
have
not been independently established or verified by me. I have also assumed,
among
other things, the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to me as originals,
and the conformity to original documents of all documents submitted to me as
copies and the authenticity of the originals of such copied
documents.
On
the
basis of and subject to the foregoing examination, and in reliance thereon,
and
subject to the assumptions, qualifications, exceptions and limitations expressed
herein, I am of the opinion that:
1. The
Seller has been duly [incorporated][formed] and is validly existing and in
good
standing under the laws of the State of __________ with corporate power and
authority to own its properties and conduct its business as presently conducted
by it. The Seller has the corporate power and authority to service the Mortgage
Loans, and to execute, deliver, and perform its obligations under the Purchase
Agreement, the Custodial Agreement [and the Confirmation] (sometimes
collectively, the “Agreements”).
2. The
Purchase Agreement, the Custodial Agreement [and the Confirmation] have been
duly and validly authorized, executed and delivered by the Seller.
3. The
Purchase Agreement, the Custodial Agreement [and the Confirmation] constitute
valid, legal and binding obligations of the Seller, enforceable against the
Seller in accordance with their respective terms.
4. No
consent, approval, authorization or order of any state or federal court or
government agency or body is required for the execution, delivery and
performance by the Seller of the Purchase Agreement, the Custodial Agreement
[and the Confirmation], or the consummation of the transactions contemplated
by
the Purchase Agreement, the Custodial Agreement [and the Confirmation], except
for those consents, approvals, authorizations or orders which previously have
been obtained.
5. Neither
the servicing of the Mortgage Loans by the Seller as provided in the Purchase
Agreement [and the Confirmation,] nor the fulfillment of the terms of or the
consummation of any other transactions contemplated in the Purchase Agreement,
the Custodial Agreement [and the Confirmation] will result in a breach of any
term or provision of the [certificate of incorporation or by-laws][certificate
of limited partnership or limited partnership agreement] of the Seller, or,
to
the best of my knowledge, will conflict with, result in a breach or violation
of, or constitute a default under, (i) the terms of any indenture or other
agreement or instrument known to me to which the Seller is a party or by which
it is bound, (ii) any State of ____________ or federal statute or regulation
applicable to the Seller, or (iii) any order of any State of ____________ or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over the Seller, except in any such case where the default,
breach or violation would not have a material adverse effect on the Seller
or
its ability to perform its obligations under the Purchase Agreement and the
Custodial Agreement.
6. There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Seller which, in my judgment, either in any
one instance or in the aggregate, would draw into question the validity of
the
Purchase Agreement or the Custodial Agreement or which would be likely to impair
materially the ability of the Seller to perform under the terms of the Purchase
Agreement or the Custodial Agreement.
7. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Purchase Agreement is sufficient fully to transfer to the Purchaser all right,
title and interest of the Seller thereto as noteholder and
mortgagee.
8. The
Assignments of Mortgage are in recordable form and upon completion will be
acceptable for recording under the laws of the State of ___________. When
endorsed, as provided in the Custodial Agreement, the Mortgage Notes will be
duly endorsed under ______________ law.
The
opinions above are subject to the following additional assumptions, exceptions,
qualifications and limitations:
A. I
have
assumed that all parties to the Agreements other than the Seller have all
requisite power and authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the Agreements have been
duly
authorized by all necessary corporate action on the part of such parties, have
been executed and delivered by such parties and constitute the legal, valid
and
binding obligations of such parties.
B. My
opinion expressed in paragraphs 3 and 7 above is subject to the qualifications
that (i) the enforceability of the Agreements may be limited by the effect
of
laws relating to (1) bankruptcy, reorganization, insolvency, moratorium or
other
similar laws now or hereafter in effect relating to creditors’ rights generally,
including, without limitation, the effect of statutory or other laws regarding
fraudulent conveyances or preferential transfers, and (2) general principles
of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions of the Agreements and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors’ rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought; and (ii) I express no opinion
herein with respect to the validity, legality, binding effect or enforceability
of (a) provisions for indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to public policy or
(b)
Section 18 of the Purchase Agreement.
C. I
have
assumed, without independent check or certification, that there are no
agreements or understandings among the Seller, the Purchaser and any other
party
which would expand, modify or otherwise affect the terms of the documents
described herein or the respective rights or obligations of the parties
thereunder.
I
am
admitted to practice in the State of ___________, and I render no opinion herein
as to matters involving the laws of any jurisdiction other than the State of
_________ and the Federal laws of the United States of America.
Very
truly yours,
EXHIBIT
3
SECURITY
RELEASE CERTIFICATION
I. Release
of Security Interest
___________________________,
hereby relinquishes any and all right, title and interest it may have in and
to
the Mortgage Loans described in Exhibit A attached hereto upon purchase thereof
by Citigroup Global Markets Realty Corp. from the Seller named below pursuant
to
that certain Amended and Restated Master Mortgage Loan Purchase and Servicing
Agreement, dated as of _____ 1, 200_, as of the date and time of receipt by
______________________________ of $__________ for such Mortgage Loans (the
“Date
and Time of Sale”), and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Seller named below or its designees as of the
Date
and Time of Sale.
Name
and
Address of Financial Institution
(Name)
(Address)
By:
______________________________
II. Certification
of Release
The
Seller named below hereby certifies to Citigroup Global Markets Realty Corp.
that, as of the Date and Time of Sale of the above mentioned Mortgage Loans
to
Citigroup Global Markets Realty Corp., the security interests in the Mortgage
Loans released by the above named corporation comprise all security interests
relating to or affecting any and all such Mortgage Loans. The Seller warrants
that, as of such time, there are and will be no other security interests
affecting any or all of such Mortgage Loans.
Seller
By:
______________________________________
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
EXHIBIT
4
ASSIGNMENT
AND CONVEYANCE
On
this
_______ day of ________, 200_, [SELLER] (“Seller”) as the Seller under that
certain Amended and Restated Master Mortgage Loan Purchase and Servicing
Agreement, dated as of ____ 1, 200_ (the “Agreement”) does hereby sell,
transfer, assign, set over and convey to Citigroup Global Markets Realty Corp.
as Purchaser under the Agreement, without recourse, but subject to the terms
of
the Agreement, all rights, title and interest of the Seller in and to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto, together
with the related Mortgage Files and all rights and obligations arising under
the
documents contained therein. Pursuant to Section 6.03 of the Agreement, the
Seller has delivered to the Custodian the documents for each Mortgage Loan
to be
purchased as set forth in the Custodial Agreement. The contents of each related
Servicing File required to be retained by the Seller to service the Mortgage
Loans pursuant to the Agreement and thus not delivered to the Purchaser are
and
shall be held in trust by the Seller for the benefit of the Purchaser as the
owner thereof. The Seller’s possession of any portion of each such Servicing
File is at the will of the Purchaser for the sole purpose of facilitating
servicing of the related Mortgage Loan pursuant to the Agreement, and such
retention and possession by the Seller shall be in a custodial capacity only.
The ownership of each Mortgage Note, Mortgage, and the contents of the Mortgage
File and Servicing File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by
or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at
the
will of the Purchaser in such custodial capacity only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Sections 7.01 and 7.02 of the Agreement are true and correct as of
the
date hereof, and that all statements made in the Seller’s Officer’s Certificates
and all Attachments thereto remain complete, true and correct in all respects
as
of the date hereof, and makes the following additional representations and
warranties to the Purchaser, which additional representations and warranties
are
hereby incorporated into Section 7.02 of the Agreement:
|
(1)
|
When
measured by aggregate Stated Principal Balance as of the Cut-off
Date, no
more than ____________ percent (__%) of the Mortgage Loans are Rate/Term
Refinancings and no more than _____________ percent (__%) of the
Mortgage
Loans are Cash-Out Refinancings.
|
|
(2)
|
When
measured by aggregate Stated Principal Balance as of the Cut-off
Date, (i)
no less than ______________ percent (__%) of the Mortgage Loans are
secured by detached one-family dwellings or detached one-family dwellings
in planned unit developments, (ii) no more than ____________ percent
(__%)
of the Mortgage Loans are secured by attached one-family dwellings
in a
planned unit development, (iii) no more than ______ percent (__%)
of the
Mortgage Loans are secured by individual condominium units, and (iv)
no
more than _____ percent (__%) of the Mortgage Loans are secured by
detached two-to-four family
dwellings;
|
|
(3)
|
When
measured by aggregate Stated Principal Balance as of the Cut-off
Date, no
more than ______ percent (--%) of the Mortgage Loans had Loan-to-Value
Ratio at origination in excess of 80%, and the weighted average
Loan-to-Value Ratio for all Mortgage Loans at origination did not
exceed
__%;
|
|
(4)
|
With
respect to all of the Mortgage Loans, at the time that the Mortgage
Loan
was made, the Mortgagor represented that the Mortgagor would occupy
the
Mortgaged Property as Mortgagor’s primary
residence;
|
|
(5)
|
No
Mortgage Loan had a principal balance at origination in excess of
$______
and the average principal balance of the Mortgage Loans on the Cut-off
Date was not in excess of $______. When measured by the aggregate
Stated
Principal Balance as of the Cut-off Date, no more than __% of the
Mortgage
Loans had a principal balance at origination in excess of
$_________;
|
|
(6)
|
Each
Mortgage Loan has a Mortgage Interest Rate of at least ______%. The
Mortgage Loans have a weighted average Mortgage Interest Rate of
______%
as of the Cut-off Date;
|
|
(7)
|
All
of the Mortgage Loans had an original term to maturity of 30 years;
and
|
|
(8)
|
When
measured by aggregate Closing Date Principal Balance as of the Cut-off
Date, no more than five percent (5%) of the Mortgage Loans are secured
by
Mortgaged Properties located in the same United States postal zip
code.
|
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
[SELLER]
(Seller)
By:
______________________________________
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
EXHIBIT
5
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
which shall be retained by the Seller or delivered to the
Custodian:
|
1.
|
Mortgage
Loan Documents.
|
|
2.
|
Residential
loan application.
|
|
3.
|
Mortgage
Loan closing statement.
|
|
4.
|
Verification
of employment and income.
|
|
5.
|
Verification
of acceptable evidence of source and amount of
downpayment.
|
|
6.
|
Credit
report on Mortgagor.
|
|
7.
|
Residential
appraisal report.
|
|
8.
|
Photograph
of the Mortgaged Property.
|
|
9.
|
Survey
of the Mortgaged Property.
|
|
10.
|
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, home association
declarations, etc.
|
|
11.
|
All
required disclosure statements and statement of Mortgagor confirming
receipt thereof.
|
|
12.
|
If
available, termite report, structural engineer’s report, water potability
and septic certification.
|
|
13.
|
Sales
Contract, if applicable.
|
|
14.
|
Hazard
insurance policy.
|
|
15.
|
Tax
receipts, insurance premium receipts, ledger sheets, payment history
from
date of origination, insurance claim files, correspondence, current
and
historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in
a
mortgage loan file and which are required to document the Mortgage
Loan or
to service the Mortgage Loan.
|
|
16.
|
Amortization
schedule, if available.
|
|
17.
|
Payment
history for Mortgage Loans that have been closed for more than 90
days.
|
EXHIBIT
6
CUSTODIAL
AGREEMENT
EXHIBIT
7
CUSTODIAL
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To: ______________________________
(the
“Depository”)
As
Seller
under the Amended and Restated Master Mortgage Loan Purchase and Servicing
Agreement, dated as of ____ 1, 200_, we hereby authorize and request you to
establish an account, as a Custodial Account, to be designated as “[SELLER] in
trust for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage Loans.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. You may refuse any deposit which would
result in violation of the requirement that the account be fully insured as
described below. This letter is submitted to you in duplicate. Please execute
and return one original to us.
[SELLER]
(Seller)
By:
______________________________________
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
|
|
Date:
_____________________________________
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
_________________________________________
Depository
By:
______________________________________
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
|
|
Date:
_____________________________________
|
EXHIBIT
8
ESCROW
ACCOUNT LETTER AGREEMENT
,
200_
To: ______________________________
(the
“Depository”)
As
Seller
under the Amended and Restated Master Mortgage Loan Purchase and Servicing
Agreement, dated as of ____ 1, 200_, we hereby authorize and request you to
establish an account, as an Escrow Account, to be designated as “[SELLER] in
trust for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage Loans.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Seller. You may refuse any deposit which would
result in violation of the requirement that the account be fully insured as
described below. This letter is submitted to you in duplicate. Please execute
and return one original to us.
[SELLER]
(Seller)
By:
______________________________________
|
|
Name:
____________________________________
|
|
|
Title:
_____________________________________
|
|
|
Date:
_____________________________________
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The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
&
#160;
Depository
By:
______________________________________
|
|
Name:
____________________________________
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|
|
Title:
_____________________________________
|
|
|
Date:
_____________________________________
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EXHIBIT
9
SERVICING
ADDENDUM
Section
11.01 Seller
to Act as Servicer.
The
Seller, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and shall have full power
and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which the Seller may deem
necessary or desirable and consistent with the terms of this
Agreement.
Consistent
with the terms of this Agreement, the Seller may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Seller’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser; provided,
however, that the Seller shall not permit any modification with respect to
any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make additional
advances of additional principal or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, the Seller
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by the Seller, the Purchaser shall
furnish the Seller with any powers of attorney and other documents necessary
or
appropriate to enable the Seller to carry out its servicing and administrative
duties under this Agreement.
The
Servicer shall notify MERS of the ownership interest of Purchaser in each MOM
Loan through the MORNET system or MIDANET system, as applicable, or any other
comparable system acceptable to MERS. At any time during the term of this
Agreement, Purchaser may direct Servicer to cause any MOM Loan to be deactivated
from the MERS System.
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures including collection procedures and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account giving due consideration to accepted mortgage servicing
practices of prudent lending institutions and the Purchaser’s reliance on the
Seller.
Section
11.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Seller shall proceed diligently to collect all payments due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Primary Insurance Policy, follow such
collection procedures as it follows with respect to mortgage loans comparable
to
the Mortgage Loans and held for its own account. Further, the Seller shall
take
special care in ascertaining and estimating annual ground rents, taxes,
assessments, water rates, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in the Mortgage, will become
due and payable to the end that the installments payable by the Mortgagors
will
be sufficient to pay such charges as and when they become due and
payable.
Section
11.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Seller shall use its best efforts, consistent with the procedures that the
Seller would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Section 11.01. The Seller
shall use its best efforts to realize upon defaulted Mortgage Loans in such
a
manner as will maximize the receipt of principal and interest by the Purchaser,
taking into account, among other things, the timing of foreclosure proceedings.
The foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, the Seller shall not be required to expend
its own funds toward the restoration of such property in excess of $2,000 unless
it shall determine in its discretion (i) that such restoration will increase
the
proceeds of liquidation of the related Mortgage Loan to Purchaser after
reimbursement to itself for such expenses, and (ii) that such expenses will
be
recoverable by the Seller through Insurance Proceeds or Liquidation Proceeds
from the related Mortgaged Property, as contemplated in Section 11.05. In the
event that any payment due under any Mortgage Loan is not paid when the same
becomes due and payable, or in the event the Mortgagor fails to perform any
other covenant or obligation under the Mortgage Loan and such failure continues
beyond any applicable grace period, the Seller shall take such action as it
shall deem to be in the best interest of the Purchaser. In the event that any
payment due under any Mortgage Loan remains delinquent for a period of 90 days
or more, the Seller shall commence foreclosure proceedings, provided that prior
to commencing foreclosure proceedings, the Seller shall notify the Purchaser
in
writing of the Seller’s intention to do so, and the Seller shall not commence
foreclosure proceedings if the Purchaser objects to such action within ten
(10)
Business Days of receiving such notice. The Seller shall notify the Purchaser
in
writing of the commencement of foreclosure proceedings. In such connection,
the
Seller shall be responsible for all costs and expenses incurred by it in any
such proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related Mortgaged Property, as contemplated in Section
11.05.
(b) Notwithstanding
the foregoing provisions of this Section 11.03, with respect to any Mortgage
Loan as to which the Seller has received actual notice of, or has actual
knowledge of, the presence of any toxic or hazardous substance on the related
Mortgaged Property the Seller shall not either (i) obtain title to such
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, or
(ii) otherwise acquire possession of, or take any other action, with respect
to,
such Mortgaged Property if, as a result of any such action, the Purchaser would
be considered to hold title to, to be a mortgagee-in-possession of, or to be
an
owner or operator of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended from time to time, or any comparable law, unless the Seller has also
previously determined, based on its reasonable judgment and a prudent report
prepared by a Person who regularly conducts environmental audits using customary
industry standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Purchaser to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Purchaser to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 11.03 shall
be
advanced by the Seller, subject to the Seller’s right to be reimbursed therefor
from the Custodial Account as provided in Section 11.05(vi).
If
the
Seller determines, as described above, that it is in the best economic interest
of the Purchaser to take such actions as are necessary to bring any such
Mortgaged Property into compliance with applicable environmental laws, or to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Seller shall take
such
action as it deems to be in the best economic interest of the Purchaser. The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Seller, subject to the Seller’s right to be reimbursed therefor
from the Custodial Account as provided in Section 11.05(vi).
(c)
Proceeds received in connection with any Final Recovery Determination, as well
as any recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied in the
following order of priority: first,
to
reimburse the Seller for any related unreimbursed Servicing Advances, pursuant
to Section 11.05(iii); second,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third,
as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the Seller as follows: first,
to
unpaid Servicing Fees; and second,
to the
balance of the interest then due and owing.
Section
11.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts. The creation of any Custodial Account
shall be evidenced by a Custodial Account Letter Agreement in the form of
Exhibit 7.
The
Seller shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received by it subsequent to
the
Cut-off Date, or received by it prior to the Cut-off Date but allocable to
a
period subsequent thereto, other than in respect of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal on the Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans;
(iii)
all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 11.10 and 11.11, other than proceeds to be held in the Escrow Account
and applied to the restoration or repair of the Mortgaged Property or released
to the Mortgagor in accordance with the Seller’s normal servicing procedures,
the loan documents or applicable law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Seller’s normal servicing procedures, the
loan documents or applicable law;
(vi) all
Monthly Advances;
(vii) all
proceeds of any Mortgage Loan repurchased in accordance with Sections 7.03
and
7.04 and all amounts required to be deposited by the Seller in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans pursuant
to Section 7.03;
(viii) any
amounts required to be deposited by the Seller pursuant to Section 11.11 in
connection with the deductible clause in any blanket hazard insurance policy.
Such deposit shall be made from the Seller’s own funds, without reimbursement
therefor;
(ix) any
amounts required to be deposited by the Seller in connection with any REO
Property pursuant to Section 11.13;
(x) any
amounts required to be deposited in the Custodial Account pursuant to Sections
11.19 or 11.20; and
(xi) with
respect to each Principal Prepayment in full or in part received during the
related Prepayment Period, an amount (to be paid by the Seller out of its own
funds without reimbursement therefor) which, when added to all amounts allocable
to interest received in connection with such Principal Prepayment, equals one
month’s interest on the amount of principal so prepaid at the Mortgage Interest
Rate; provided, however, that in no event shall the aggregate of deposits made
by the Seller pursuant to this clause (xi) exceed the aggregate amount of the
Seller’s servicing compensation received in the calendar month in which such
deposits are required; and
(xii) any
amounts required to be deposited pursuant to Section 11.34 in connection with
any losses realized on Permitted Investments with respect to funds held in
the
Custodial Account.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Section 11.01, need not be deposited by the Seller
in
the Custodial Account. Such Custodial Account shall be an Eligible Account.
Any
interest or earnings on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Seller and the Seller
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 11.05(iii). The Seller shall give notice to the
Purchaser of the location of the Custodial Account when established and prior
to
any change thereof.
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Seller shall, on or before twelve o’clock noon Eastern
time on such Business Day, withdraw from the Custodial Account any and all
amounts payable to the Purchaser and remit such amounts to the Purchaser by
wire
transfer of immediately available funds.
Section
11.05 Permitted
Withdrawals From the Custodial Account.
The
Seller may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Purchaser in the amounts and in the manner provided for
in
Section 11.14;
(ii) to
reimburse itself for Monthly Advances, the Seller’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Seller’s right thereto shall be prior to the
rights of Purchaser, except that, where the Seller is required to repurchase
a
Mortgage Loan, pursuant to Subsection 7.03, the Seller’s right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Subsection 7.03, and all other amounts required
to
be paid to the Purchaser with respect to such Mortgage Loans;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Seller’s right to
reimburse itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Seller
from
the Mortgagor or otherwise relating to the Mortgage Loan, it being understood
that, in the case of such reimbursement, the Seller’s right thereto shall be
prior to the rights of the Purchaser, except that, where the Seller is required
to repurchase a Mortgage Loan, pursuant to Section 7.03, the Seller’s right to
such reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to Section 7.03 and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loans;
(iv) to
pay to
itself pursuant to Section 11.22 as servicing compensation (a) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Distribution Date), and (b) the Servicing Fee from
that portion of any payment or recovery as to interest on a particular Mortgage
Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 7.03 all amounts received thereon and not distributed as of the date
on
which the related Repurchase Price is determined;
(vi) to
reimburse the Seller for any Monthly Advance previously made which the Seller
has determined to be a Nonrecoverable Monthly Advance;
(vii) to
pay,
or to reimburse the Seller for advances in respect of, expenses incurred in
connection with any Mortgage Loan pursuant to Section 11.03(b), but only to
the
extent of amounts received in respect of the Mortgage Loans to which such
expense is attributable;
(viii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Seller shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (vii) above. The Seller
shall provide written notification in the form of an Officers’ Certificate to
the Purchaser, on or prior to the next succeeding Distribution Date, upon making
any withdrawals from the Custodial Account pursuant to subclause (vi)
above.
Section
11.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Seller shall segregate and hold all funds collected and received pursuant to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts, in the form of time deposit or demand accounts. The creation
of
any Escrow Account shall be evidenced by Escrow Account Letter Agreement in
the
form of Exhibit 8.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein, (i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged Property. The Seller
shall make withdrawals therefrom only to effect such payments as are required
under this Agreement, and for such other purposes as shall be as set forth
or in
accordance with Section 11.08. The Seller shall be entitled to retain any
interest paid on funds deposited in the Escrow Account by the depository
institution other than interest on escrowed funds required by law to be paid
to
the Mortgagor and, to the extent required by law, the Seller shall pay interest
on escrowed funds to the Mortgagor notwithstanding that the Escrow Account
is
non-interest bearing or that interest paid thereon is insufficient for such
purposes.
Section
11.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Seller (i) to effect timely payments
of ground rents, taxes, assessments, water rates, hazard insurance premiums,
Primary Insurance Policy premiums, if applicable, and comparable items, (ii)
to
reimburse the Seller for any Servicing Advance made by the Seller with respect
to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder, (iii) to refund to the Mortgagor any funds as may be determined
to
be overages, (iv) for transfer to the Custodial Account in accordance with
the
terms of this Agreement, (v) for application to restoration or repair of the
Mortgaged Property, (vi) to pay to the Seller, or to the Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow Account,
or (vii) to clear and terminate the Escrow Account on the termination of this
Agreement.
Section
11.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Insurance Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges, including insurance renewal premiums and shall effect payment thereof
prior to the applicable penalty or termination date and at a time appropriate
for securing maximum discounts allowable, employing for such purpose deposits
of
the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Seller in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage and applicable law. To the extent that the
Mortgage does not provide for Escrow Payments, the Seller shall determine that
any such payments are made by the Mortgagor at the time they first become due.
The Seller assumes full responsibility for the timely payment of all such bills
and shall effect timely payments of all such bills irrespective of the
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments.
The
Seller shall maintain in full force and effect, a Primary Insurance Policy,
issued by a Qualified Insurer, with respect to each Mortgage Loan for which
such
coverage is required. Such coverage shall be maintained until the Loan-to-Value
Ratio of the related Mortgage Loan is reduced to that amount for which FNMA
no
longer requires such insurance to be maintained. The Seller will not cancel
or
refuse to renew any Primary Insurance Policy in effect on the Closing Date
that
is required to be kept in force under this Agreement unless a replacement
Primary Insurance Policy for such cancelled or non- renewed policy is obtained
from and maintained with a Qualified Insurer. The Seller shall not take any
action which would result in non-coverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of the Seller, would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 11.19, the Seller shall
promptly notify the insurer under the related Primary Insurance Policy, if
any,
of such assumption or substitution of liability in accordance with the terms
of
such policy and shall take all actions which may be required by such insurer
as
a condition to the continuation of coverage under the Primary Insurance Policy.
If such Primary Insurance Policy is terminated as a result of such assumption
or
substitution of liability, the Seller shall obtain a replacement Primary
Insurance Policy as provided above.
In
connection with its activities as servicer, the Seller agrees to prepare and
present, on behalf of itself, and the Purchaser, claims to the insurer under
any
Primary Insurance Policy in a timely fashion in accordance with the terms of
such policies and, in this regard, to take such action as shall be necessary
to
permit recovery under any Primary Insurance Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 11.04, any amounts collected by the Seller
under any Primary Insurance Policy shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 11.05.
Section
11.09 Transfer
of Accounts.
The
Seller may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made only
upon
obtaining the consent of the Purchaser, which consent shall not be unreasonably
withheld. In any case, the Custodial Account and Escrow Account shall be
Eligible Accounts.
Section
11.10 Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the amount necessary to fully compensate for any damage or loss to the
improvements which are a part of such property on a replacement cost basis
or
(ii) the outstanding principal balance of the Mortgage Loan, in each case in
an
amount not less than such amount as is necessary to prevent the Mortgagor and/or
the Mortgagee from becoming a co-insurer. If the Mortgaged Property is in an
area identified on a Flood Hazard Boundary Map or Flood Insurance Rate Map
issued by the Flood Emergency Management Agency as having special flood hazards
and such flood insurance has been made available, the Seller will cause to
be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the lesser
of (i) the outstanding principal balance of the Mortgage Loan or (ii) the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended.
The Seller also shall maintain on any REO Property, fire and hazard insurance
with extended coverage in an amount which is at least equal to the lesser of
(i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage
Loan
at the time it became an REO Property plus accrued interest at the Mortgage
Interest Rate and related Servicing Advances, liability insurance and, to the
extent required and available under the National Flood Insurance Act of 1968
or
the Flood Disaster Protection Act of 1973, as amended, flood insurance in an
amount as provided above. Pursuant to Section 11.04, any amounts collected
by
the Seller under any such policies other than amounts to be deposited in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance with the
Seller’s normal servicing procedures, shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 11.05. Any cost incurred
by
the Seller in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Purchaser, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or
other
additional insurance need be required by the Seller of the Mortgagor or
maintained on property acquired in respect of the Mortgage Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. All such policies shall
be
endorsed with standard mortgagee clauses with loss payable to the Seller, or
upon request to the Purchaser, and shall provide for at least thirty days prior
written notice of any cancellation, reduction in the amount of, or material
change in, coverage to the Seller. The Seller shall not interfere with the
Mortgagor’s freedom of choice in selecting either his insurance carrier or
agent, provided, however, that the Seller shall not accept any such insurance
policies from insurance companies unless such companies currently reflect a
General Policy Rating of A:VI or better in Best’s Key Rating Guide and are
licensed to do business in the state wherein the property subject to the policy
is located.
Section
11.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Seller shall obtain and maintain a mortgage impairment or blanket
policy issued by an issuer that has a Best rating of A:VI insuring against
hazard losses on all of Mortgaged Properties securing the Mortgage Loans, then,
to the extent such policy provides coverage in an amount equal to the amount
required pursuant to Section 11.10 and otherwise complies with all other
requirements of Section 11.10, the Seller shall conclusively be deemed to have
satisfied its obligations as set forth in Section 11.10, it being understood
and
agreed that such policy may contain a deductible clause, in which case the
Seller shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with Section
11.10, and there shall have been one or more losses which would have been
covered by such policy, deposit in the Custodial Account the amount not
otherwise payable under the blanket policy because of such deductible clause.
In
connection with its activities as servicer of the Mortgage Loans, the Seller
agrees to prepare and present, on behalf of the Purchaser, claims under any
such
blanket policy in a timely fashion in accordance with the terms of such policy.
Upon request of the Purchaser, the Seller shall cause to be delivered to the
Purchaser a certified true copy of such policy and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without thirty days prior written notice to the Purchaser.
Section
11.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Seller shall maintain, at its own expense, a blanket fidelity bond and an errors
and omissions insurance policy, with broad coverage with responsible companies
that would meet the requirements of FNMA or FHLMC on all officers, employees
or
other persons acting in any capacity with regard to the Mortgage Loans to handle
funds, money, documents and papers relating to the Mortgage Loans. The fidelity
bond and errors and omissions insurance shall be in the form of the Mortgage
Banker’s Blanket Bond and shall protect and insure the Seller against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. Such fidelity bond shall also protect and insure
the Seller against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of
the
indebtedness secured thereby. No provision of this Section 11.12 requiring
the
fidelity bond and errors and omissions insurance shall diminish or relieve
the
Seller from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by FNMA in the FNMA Servicing Guide
or by FHLMC in the FHLMC Sellers’ and Servicers’ Guide. Upon request of the
Purchaser, the Seller shall cause to be delivered to the Purchaser a certified
true copy of the fidelity bond and insurance policy and a statement from the
surety and the insurer that such fidelity bond or insurance policy shall in
no
event be terminated or materially modified without thirty days’ prior written
notice to the Purchaser.
Section
11.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the person designated by the Purchaser, or in the event such person
is
not authorized or permitted to hold title to real property in the state where
the REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an opinion of counsel obtained by the Seller from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The
Seller shall either itself or through an agent selected by the Seller, manage,
conserve, protect and operate each REO Property (and may temporarily rent the
same) in the same manner that it manages, conserves, protects and operates
other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. If a REMIC
election is or is to be made with respect to the arrangement under which the
Mortgage Loans and any REO Property are held, the Seller shall manage, conserve,
protect and operate each REO Property in a manner which does not cause such
REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by such REMIC of any
“income from non-permitted assets” within the meaning of Section 860F(a)(2)(B)
of the Code or any “net income from foreclosure property” within the meaning of
Section 860G(c)(2) of the Code. The Seller shall cause each REO Property to
be
inspected promptly upon the acquisition of title thereto and shall cause each
REO Property to be inspected at least annually thereafter. The Seller shall
make
or cause to be made a written report of each such inspection. Such reports
shall
be retained in the Mortgage File and copies thereof shall be forwarded by the
Seller to the Purchaser. The Seller shall use its best efforts to dispose of
the
REO Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless the
Seller determines, and gives appropriate notice to the Purchaser, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than one year is necessary to sell any REO property, (i) the
Seller shall report monthly to the Purchaser as to the progress being made
in
selling such REO Property and (ii) if, with the written consent of the
Purchaser, a purchase money mortgage is taken in connection with such sale,
such
purchase money mortgage shall name the Seller as mortgagee, and a separate
servicing agreement between the Seller and the Purchaser shall be entered into
with respect to such purchase money mortgage. Notwithstanding the foregoing,
if
a REMIC election is made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, such REO Property shall be
disposed of within two years or such other period as may be permitted under
Section 860G(a)(8) of the Code.
With
respect to each REO Property, the Seller shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets and shall establish
and
maintain a separate REO Account for each REO Property in the form of a
non-interest bearing demand account, unless an Opinion of Counsel is obtained
by
the Seller to the effect that the classification as a grantor trust or REMIC
for
federal income tax purposes of the arrangement under which the Mortgage Loans
and the REO Property is held will not be adversely affected by holding such
funds in another manner. Each REO Account shall be established with the Seller
or, with the prior consent of the Purchaser, with a commercial bank, a mutual
savings bank or a savings association. The creation of any REO Account shall
be
evidenced by a letter agreement substantially in the form of the Custodial
Account Letter Agreement attached as Exhibit 7 hereto. An original of such
letter agreement shall be furnished to any Purchaser upon request.
The
Seller shall deposit or cause to be deposited, on a daily basis in each REO
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 11.10 hereof and the fees of any managing agent
acting on behalf of the Seller. The Seller shall not be entitled to retain
interest paid or other earnings, if any, on funds deposited in such REO Account.
On or before each Determination Date, the Seller shall withdraw from each REO
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the REO Account.
The
Seller shall furnish to the Purchaser on each Distribution Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Each
REO
Disposition shall be carried out by the Seller at such price and upon such
terms
and conditions as the Seller deems to be in the best interest of the Purchaser
only with the prior written consent of the Purchaser. If as of the date title
to
any REO Property was acquired by the Seller there were outstanding unreimbursed
Servicing Advances with respect to the REO Property, the Seller, upon an REO
Disposition of such REO Property, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances from proceeds received in connection
with such REO Disposition. The proceeds from the REO Disposition, net of any
payment to the Seller as provided above, shall be deposited in the REO Account
and shall be transferred to the Custodial Account on the Determination Date
in
the month following receipt thereof for distribution on the succeeding
Distribution Date in accordance with Section 5.01.
Section
11.14 Distributions.
On
each
Distribution Date, the Seller shall distribute to the Purchaser all amounts
credited to the Custodial Account as of the close of business on the preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Section 11.05; plus (ii) all Monthly Advances, if any,
which
the Seller is obligated to distribute pursuant to Section 11.21, minus (iii)
any
amounts attributable to Principal Prepayments received after the last day of
the
calendar month immediately preceding the related Distribution Date and (iv)
any
amounts attributable to Monthly Payments collected but due on a Due Date or
Dates subsequent to the preceding Determination Date.
All
distributions made to the Purchaser on each Distribution Date will be made
to
the Purchaser of record on the preceding Record Date, and shall be based on
the
Mortgage Loans owned and held by the Purchaser, and shall be made by wire
transfer of immediately available funds to the account of the Purchaser at
a
bank or other entity having appropriate facilities therefor, if the Purchaser
shall have so notified the Seller or by check mailed to the address of the
Purchaser.
With
respect to any remittance received by the Purchaser on or after the second
Business Day following the Business Day on which such payment was due, the
Seller shall pay to the Purchaser interest on any such late payment at an annual
rate equal to the rate of interest as is publicly announced from time to time
at
its principal office by JPMorgan Chase Bank, New York, New York, as its prime
lending rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be paid by the Seller to the Purchaser on the date
such
late payment is made and shall cover the period commencing with the day
following such second Business Day and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted along
with
such late payment. The payment by the Seller of any such interest shall not
be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Seller.
Section
11.15 Remittance
Reports.
No
later
than the fifth Business Day of each month the Purchaser shall receive from
the
Servicer electronic(Excel or Text) information related to each mortgage loan
serviced on behalf of the Purchaser. All reports shall be generated by the
Servicers’s loan servicing system and outline loan activity that transpired
during the immediately preceding calendar month.
Section
11.16 Statements
to the Purchaser.
Not
later
than fifteen days after each Distribution Date, the Seller shall forward to
the
Purchaser or its designee a statement prepared by the Seller setting forth
the
status of the Custodial Account as of the close of business on such Distribution
Date and showing, for the period covered by such statement, the aggregate amount
of deposits into and withdrawals from the Custodial Account of each category
of
deposit specified in Section 11.04 and each category of withdrawal specified
in
Section 11.05.
In
addition, not more than sixty days after the end of each calendar year, the
Seller shall furnish to each Person who was the Purchaser at any time during
such calendar year, (i) as to the aggregate of remittances for the applicable
portion of such year, an annual statement in accordance with the requirements
of
applicable federal income tax law, and (ii) listing of the principal balances
of
the Mortgage Loans outstanding at the end of such calendar year.
The
Seller shall prepare and file any and all tax returns, information statements
or
other filings required to be delivered to any governmental taxing authority
or
to any Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the Seller shall
provide the Purchaser with such information concerning the Mortgage Loans as
is
necessary for the Purchaser to prepare its federal income tax return as any
Purchaser may reasonably request from time to time.
Section
11.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 11.02, with respect to any
REO
Property, the Seller shall furnish to the Purchaser a statement covering the
Seller’s efforts in connection with the sale of such REO Property and any rental
of such REO Property incidental to the sale thereof for the previous month,
together with the operating statement. Such statement shall be accompanied
by
such other information as the Purchaser shall reasonably request.
Section
11.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Seller shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
Section
11.19 Assumption
Agreements.
The
Seller shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause applicable thereto; provided, however, that the Seller shall not exercise
any such rights if prohibited by law from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Insurance Policy, if any. If the Seller reasonably believes it is unable under
applicable law to enforce such “due-on-sale” clause, the Seller shall enter into
an assumption agreement with the person to whom the Mortgaged Property has
been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. Where an assumption is allowed
pursuant to this Section 11.01, the Seller, with the prior written consent
of
the insurer under the Primary Insurance Policy, if any, is authorized to enter
into a substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which
the
original Mortgagor is released from liability and such Person is substituted
as
Mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption
agreement.
In
connection with any such assumption or substitution of liability, the Seller
shall follow the underwriting practices and procedures of prudent mortgage
lenders in the state in which the related Mortgaged Property is located. With
respect to an assumption or substitution of liability, Mortgage Interest Rate,
the amount of the Monthly Payment, and the final maturity date of such Mortgage
Note may not be changed. The Seller shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Seller for entering into an assumption or
substitution of liability agreement [in excess of 1% of the outstanding
principal balance of the Mortgage Loan] shall be deposited in the Custodial
Account pursuant to Section 11.04.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Seller shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Seller may be restricted
by
law from preventing, for any reason whatsoever. For purposes of this Section
11.19, the term “assumption” is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
Section
11.20 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Seller will immediately notify the Purchaser by a
certification of a servicing officer of the Seller (a “Servicing Officer”),
which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required
to
be deposited in the Custodial Account pursuant to Section 11.04 have been or
will be so deposited, and shall request execution of any document necessary
to
satisfy the Mortgage Loan and delivery to it of the portion of the Mortgage
File
held by the Purchaser or the Purchaser’s designee. Upon receipt of such
certification and request, the Purchaser, shall promptly release the related
mortgage documents to the Seller and the Seller shall prepare and process any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Purchaser.
In
the
event the Seller satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Seller, upon written demand, shall remit to the Purchaser
the
then outstanding principal balance of the related Mortgage Loan by deposit
thereof in the Custodial Account. The Seller shall maintain the fidelity bond
insuring the Seller against any loss it may sustain with respect to any Mortgage
Loan not satisfied in accordance with the procedures set forth
herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for this purpose collection under any Primary Insurance Policy,
the Purchaser shall, upon request of the Seller and delivery to the Purchaser
of
a servicing receipt signed by a Servicing Officer, release the requested portion
of the Mortgage File held by the Purchaser to the Seller. Such servicing receipt
shall obligate the Seller to return the related Mortgage documents to the
Purchaser when the need therefor by the Seller no longer exists, unless the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the
Mortgage Loan have been deposited in the Custodial Account or the Mortgage
File
or such document has been delivered to an attorney, or to a public trustee
or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially, and the Seller has delivered to the
Purchaser a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. Upon receipt of a certificate
of a
Servicing Officer stating that such Mortgage Loan was liquidated, the servicing
receipt shall be released by the Purchaser to the Seller.
Section
11.21 Monthly
Advances by the Seller.
(a) Not
later
than the close of business on the Business Day preceding each Distribution
Date,
the Seller shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Seller, whether or not deferred pursuant
to Section 11.01, of principal (due after the Cut-off Date) and interest not
allocable to the period prior to the Cut-off Date, at the Mortgage Interest
Rate
net of the Servicing Fee, which were due on a Mortgage Loan and delinquent
at
the close of business on the related Determination Date.
(b) The
obligation of the Seller to make such Monthly Advances is mandatory,
notwithstanding any other provision of this Agreement, and, with respect to
any
Mortgage Loan or REO Property, shall continue until a Final Recovery
Determination in connection therewith; provided that, notwithstanding anything
herein to the contrary, no Monthly Advance shall be required to be made
hereunder by the Seller if such Monthly Advance would, if made, constitute
a
Nonrecoverable Monthly Advance. The determination by the Seller that it has
made
a Nonrecoverable Monthly Advance or that any proposed Monthly Advance, if made,
would constitute a Nonrecoverable Monthly Advance, shall be evidenced by an
Officers’ Certificate delivered to the Purchaser.
Section
11.22 Servicing
Compensation.
As
compensation for its services hereunder, the Seller shall, subject to Section
11.04(xi), be entitled to withdraw from the Custodial Account or to retain
from
interest payments on the Mortgage Loans the amounts provided for as the Seller’s
Servicing Fee. Additional servicing compensation in the form of assumption
fees,
as provided in Section 11.19, and late payment charges or otherwise shall be
retained by the Seller to the extent not required to be deposited in the
Custodial Account. The Seller shall be required to pay all expenses incurred
by
it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided
for.
Section
11.23 Special
Remittance Provisions for Principal Prepayments
Prepayments
received during the month of such remittance date, shall be remitted on the
next
succeeding remittance date as applicable. However the Purchaser and the Servicer
may mutually agree in writing on any changes.
Section
11.24 Statement
as to Compliance.
(a)
The
Seller will deliver to the Purchaser On or before February 28 of each year
beginning February 28, 2004, an Officers’ Certificate stating, as to each
signatory thereof, that (i) a review of the activities of the Seller during
the
preceding year and of performance under this Agreement has been made under
such
officers’ 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 throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. Copies of such statement shall be
provided by the Purchaser to any Person identified as a prospective purchaser
of
the Mortgage Loans.
(b)With
respect to any Loans that are subject to a Pass-Through Transfer or other
securitization transaction, by February 28 of each year (or if not a Business
Day, the immediately preceding Business Day), or at any other time upon thirty
(30) days written request, an officer of the Seller shall execute and deliver
an
Officer’s Certificate to the Purchaser, any master servicer which is master
servicing loans in connection with such transaction (a “Master Servicer”) and
any related depositor (a “Depositor”) for the benefit of each such entity and
such entity’s affiliates and the officers, directors and agents of any such
entity and such entity’s affiliates, an Officer’s Certificate in the form
attached hereto as Exhibit 11.
(c)
The
Seller shall indemnify and hold harmless the Master Servicer, the Depositor,
the
Purchaser (and if this Agreement has been assigned in whole or in part by the
Purchaser, any and all Persons previously acting as “Purchaser” hereunder), and
their respective officers, directors, agents and affiliates, and such
affiliates’ officers, directors and agents (any such person, an “Indemnified
Party”) from and against any losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach by the Seller or any of its officers,
directors, agents or affiliates of its obligations under this Section 11.24,
Section 11.25 or Section 11.26, or the negligence, bad faith or willful
misconduct of the Seller in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless any
Indemnified Party, then the Seller agrees that it shall contribute to the amount
paid or payable by the Indemnified Party as a result of the losses, claims,
damages or liabilities of the Indemnified Party in such proportion as is
appropriate to reflect the relative fault of the Indemnified Party on the one
hand and the Seller in the other in connection with a breach of the Seller’s
obligations under this Section 11.24, Section 11.25 or Section 11.26, or the
Seller’s negligence, bad faith or willful misconduct in connection
therewith.
Section
11.25 Independent
Public Accountants’ Servicing Report.
On
or
before February 28 of each year beginning February 28, 2004, the Seller at
its
expense shall cause a firm of independent public accountants (which may also
render other services to the Seller) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Purchaser or
its
designee to the effect that such firm has examined certain documents and records
relating to the servicing of the Mortgage Loans under this Agreement or of
mortgage loans under pooling and servicing agreements (including the Mortgage
Loans and this Agreement) substantially similar one to another (such statement
to have attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm confirms that such servicing has been conducted
in
compliance with such pooling and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers requires it to
report. Copies of such statement shall be provided by the Purchaser to any
Person identified as a prospective purchaser of the Mortgage Loans.
Section
11.26 Annual
Statement as to Compliance.
(a)
On or
before February 28 of each year (or if not a Business Day, the immediately
preceding Business Day), beginning on February 28, 2004, or at any other time
upon thirty days written request, an officer of the Seller shall, if the
Mortgage Loans are being master serviced by a master servicer in a
securitization transaction, execute and deliver to such master servicer for
the
benefit of such master servicer and its officers, directors and affiliates
a
certification in the form of Exhibit 11 attached hereto.
(b)
The
Seller shall indemnify and hold harmless the Initial Purchaser or its designee
and their officers, directors, agents and affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach by the Seller or any of its officers, directors, agents or
affiliates of its obligations under this Section 11.26 or the negligence, bad
faith or willful misconduct of the Seller in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Initial Purchaser or its designee, then the Seller agrees that
it
shall contribute to the amount paid or payable by the Initial Purchaser or
its
designee as a result of the losses, claims, damages or liabilities of the
Initial Purchaser or its designee in such proportion as is appropriate to
reflect the relative fault of the Initial Purchaser or its designee on the
one
hand and the Seller on the other in connection with a breach of the Seller’s
obligations under this Section 11.26 or the Seller’s negligence, bad faith or
willful misconduct in connection therewith.
Section
11.27 Access
to Certain Documentation.
The
Seller shall provide to the Office of Thrift Supervision, the FDIC and any
other
federal or state banking or insurance regulatory authority that may exercise
authority over the Purchaser access to the documentation regarding the Mortgage
Loans serviced by the Seller required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Seller. In addition, access
to the documentation will be provided to the Purchaser and any Person identified
to the Seller by the Purchaser without charge, upon reasonable request during
normal business hours at the offices of the Seller.
Section
11.28 Reports
and Returns to be Filed by the Seller.
The
Seller shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
such Sections 6050H, 6050J and 6050P of the Code.
Section
11.29 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Seller shall not take any action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contributions” to a REMIC set forth in Section 860G(d) of
the Code) unless the Seller has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section
11.30 Application
of Buydown Funds.
With
respect to each Buydown Loan, the Seller shall segregate and hold all Buydown
Funds in the Custodial Account separate and apart from the Seller’s funds and
general assets.
With
respect to each Buydown Mortgage Loan, the Seller shall have deposited into
the
Custodial Account, no later than the Closing Date, Buydown Funds in an amount
equal to the aggregate undiscounted amount of payments that, when added to
the
amount the Mortgagor on such Mortgage Loan is obligated to pay on all Due Dates
in accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payments which are required to be paid by the Mortgagor under
the terms of the related Mortgage Note (without regard to the related Buydown
Agreement as if the Mortgage Loan were not subject to the terms of the Buydown
Agreement). With respect to each Buydown Mortgage Loan, the Seller will
distribute to the Purchaser on each Distribution Date an amount of Buydown
Funds
equal to the amount that, when added to the amount required to be paid on such
date by the related Mortgagor, pursuant to and in accordance with the related
Buydown Agreement, equals the full Monthly Payment that would otherwise be
required to be paid on such Mortgage Loan by the related Mortgagor under the
terms of the related Mortgage Note (as if the Mortgage Loan were not a Buydown
Mortgage Loan and without regard to the related Buydown Agreement).
If
the
Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the
Buydown period and the Mortgaged Property securing such Buydown Mortgage Loan
is
sold in the liquidation thereof (either by the Seller or the insurer under
any
related Primary Insurance Policy) the Seller shall, on the Distribution Date
following the date upon which Liquidation Proceeds or REO Disposition Proceeds
are received with respect to any such Buydown Mortgage Loan, distribute to
the
Purchaser all remaining Buydown Funds for such Mortgage Loan then remaining
in
the Custodial Account. Pursuant to the terms of each Buydown Agreement, any
amounts distributed to the Purchaser in accordance with the preceding sentence
will be applied to reduce the outstanding principal balance of the related
Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such
Mortgage Loan in its entirety during the related Buydown Period, the Seller
shall be required to withdraw from the Custodial Account any Buydown Funds
remaining in the Custodial Account with respect to such Buydown Mortgage Loan
in
accordance with the related Buydown Agreement. If a Principal Prepayment by
a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Custodial Account related to such
Buydown Mortgage Loan, would result in a Principal Prepayment in full, the
Seller shall distribute to the Purchaser on the Distribution Date occurring
in
the month immediately succeeding the month in which such Principal Prepayment
is
received, all Buydown Funds related to such Mortgage Loan so remaining in the
Custodial Account.
Section
11.31 Superior
Liens.
With
respect to each Second Lien Mortgage Loan, the Seller shall, for the protection
of the Purchaser’s interest, file (or cause to be filed) of record a request for
notice of any action by a superior lienholder where permitted by local law
and
whenever applicable state law does not require that a junior lienholder be
named
as a party defendant in foreclosure proceedings in order to foreclose such
junior lienholder’s equity of redemption. The Seller shall also notify any
superior lienholder in writing of the existence of the Mortgage Loan and request
notification of any action (as described below) to be taken against the
Mortgagor or the Mortgaged Property by the superior lienholder.
If
the
Seller is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Seller shall take whatever actions
are necessary to protect the interests of the Purchaser, and/or to preserve
the
security of the related Mortgage Loan, subject to any requirements applicable
to
real estate mortgage investment conduits pursuant to the Code. The Seller shall
make a Servicing Advance of the funds necessary to cure the default or reinstate
the superior lien if the Seller determines that such Servicing Advance is in
the
best interests of the Purchaser. The Seller shall not make such a Servicing
Advance except to the extent that it determines in its reasonable good faith
judgment that such advance will be recoverable from Liquidation Proceeds on
the
related Mortgage Loan. The Seller shall thereafter take such action as is
necessary to recover the amount so advanced.
Section
11.32 Notification
of Adjustments.
On
each
Adjustment Date, the Seller shall make interest rate adjustments for each
Adjustable Rate Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note. The Seller shall execute and deliver the notices
required by each Mortgage and Mortgage Note regarding interest rate adjustments.
The Seller also shall provide timely notification to the Purchaser of all
applicable data and information regarding such interest rate adjustments and
the
Seller’s methods of implementing such interest rate adjustments. Upon the
discovery by the Seller or the Purchaser that the Seller has failed to adjust
a
Mortgage Interest Rate or a Monthly Payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Seller shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss caused
thereby without reimbursement therefor.
Section
11.33 Officer’s
Certificates.
Not
later
than the end of each calendar year, the Seller shall deliver to the Purchaser
or
its designee an Officer’s Certificate stating that (i) the Seller is an approved
seller/servicer for FNMA and FHLMC in good standing and is a HUD approved
mortgagee pursuant to Section 203 of the National Housing Act, and that no
event
has occurred, including but not limited to a change in insurance coverage,
which
would make the Seller unable to comply with FNMA, FHLMC or HUD eligibility
requirements or which would require notification to FNMA, FHLMC or HUD and
(ii)
in the event any Mortgage Loan is a MERS Mortgage Loan, the Seller is a member
of MERS in good standing, and will comply in all material respects with the
rules and procedures of MERS in connection with the servicing of the MERS
Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
In
addition, the Seller shall deliver to the Purchaser or its designee a notice
in
the event that the Seller fails to meet such eligibility requirements.
Section
11.34 Investment
of Funds in the Collection Account.
The
Seller may direct any depository institution maintaining the Custodial Account
to invest the funds on deposit in such account, (each such account, for the
purposes of this Section 11.33, an “Investment Account”). All investments
pursuant to this Section 11.33 shall be in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand
no later than the Business Day immediately preceding the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement.
All such Permitted Investments shall be held to maturity, unless payable on
demand. All income and gain realized from the investment of funds deposited
in
the Custodial Account shall be for the benefit of the Servicer and shall be
subject to its withdrawal in accordance with Section 11.04. The Servicer shall
deposit in the Custodial Account the amount of any loss incurred in respect
of
any such Permitted Investment immediately upon realization of such
loss.
EXHIBIT
10
FORM
OF
CONFIRMATION
EXHIBIT
11
FORM
OF
BACK-UP CERTIFICATION
I,
[identify certifying individual], certify to the [Initial Purchaser], [Mortgage
Loan Seller] [Depositor], [Trustee], [Securities Administrator] and [Master
Servicer] that:
(i) Based
on
my knowledge, the information in the Annual Statement of Compliance, the Annual
Independent Public Accountant’s Servicing Report and all servicing reports,
officer’s certificates and other information relating to the servicing of the
Mortgage Loans 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 light of the circumstances under which such statements were made,
not
misleading as of the date of this certification;
(ii) The
servicing information required to be provided by the Seller under this Servicing
Agreement has been provided to the Initial Purchaser and the Master
Servicer;
(iii) I
am is
responsible for reviewing the activities performed by the Seller under the
Agreement and based upon the review required by the Agreement, and except as
disclosed in the Annual Statement of Compliance or the Annual Independent Public
Accountant’s Servicing Report, the Seller has, as of the date of this
certification fulfilled its obligations under the Agreement; and
(iv) Such
officer has disclosed to the Initial Purchaser and the Master Servicer all
significant deficiencies relating to the Seller’s compliance with the minimum
servicing standards in accordance with a review conducted in compliance with
the
Uniform Single Attestation Program for Mortgage Bankers or similar standard
as
set forth in the Servicing Agreement.
EXHIBIT
12
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated ____________, 200__, (“Agreement”)
among
Citigroup Global Markets Realty Corp. (“Assignor”),
________________________ (“Assignee”)
and
_____________ (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser, in,
to
and under (a) those certain Mortgage Loans listed as being originated by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master Mortgage Loan Purchase and
Interim Servicing Agreement dated as of ____________, 20__, as amended (the
“Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates to
the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to the servicing rights or any mortgage loans subject
to
the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement.
The
Assignor and the Assignee each hereby retain the right to enforce the
representations and warranties set forth in Section 7.01 and Section 7.02 with
respect to the Company and the Mortgage Loans against the Company; provided,
however, that in no event shall the Company be required to pay the Repurchase
Price with respect to any Mortgage Loan more than once in connection with the
repurchase of a Mortgage Loan pursuant to Section 7.03, 7.04 or 7.05 of the
Purchase Agreement. In addition, the right to require the Company to repurchase
a Mortgage Loan shall be exercised solely the Assignee, its successors and
assigns.
Recognition
of the Company
2. [For
Securitization Transactions include this sentence: From and after the date
hereof, the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to
______________________________ (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of
_______________, 200__ (the “Pooling
Agreement”),
among
the Assignee, the Assignor, ____________________, as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the “Trustee”), _________________________, as servicer (including its successors
in interest and any successor servicer under the Pooling Agreement, the
“Servicer”).]
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the [Trust][Assignee] will be the owner of the Mortgage Loans, (ii) the Company
shall look solely to the [Trust][Assignee] for performance of any obligations
of
the Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
[Assignee][Trust (including the Trustee and the Servicer acting on the Trust’s
behalf)] shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements and remedies with respect to breaches of representations and
warranties set forth in the Purchase Agreement, and shall be entitled to enforce
all of the obligations of the Company thereunder insofar as they relate to
the
Mortgage Loans, and (iv) all references to the Purchaser (insofar as they relate
to the rights, title and interest and, with respect to obligations of the
Purchaser, only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Company under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to
refer
to the [Assignee] [Trust (including the Trustee and the Servicer acting on
the
Trust’s behalf)]. Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Purchase Agreement which amendment, modification, waiver or other alteration
would materially and adversely affect the Mortgage Loans or the Company’s
performance under the Purchase Agreement with respect to the Mortgage Loans
without the prior written consent of the [Assignee][Trustee.]
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee [and the Trust]
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the
due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may
be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
4. Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee [and the Trust,] that
the representations and warranties set forth in Subsections 7.01 and 7.02 of
the
Purchase Agreement, are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof except that the
representation and warranty set forth in Section 7.02(i) shall, for purposes
of
this Agreement, relate to the Mortgage Loan Schedule attached
hereto.
[Additional
Representations and Warranties Necessary for Securitization]
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee [and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf)] in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4
hereof shall be as set forth in Section 7.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. 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[, with the prior written consent of the
Trustee].
8. This
Agreement shall inure to the benefit of [(i)] the successors and assigns of
the
parties hereto [and (ii) the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf)]. Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee [and by Assignee to the Trust]
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
10. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
11. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
CITIGROUP
GLOBAL MARKETS REALTY CORP.
By:
Name:
Its:
[SELLER]
By:
Name:
Its:
EXHIBIT
13
FORM
OF
INDEMNIFICATION AGREEMENT
Indemnification
Agreement dated as of _________ __, 200__ (the “Agreement”) between
_____________ (the “Company”) and _____________________ (the
“Depositor”).
Reference
is made to the issuance of ____________________, Series ________, Asset-Backed
Certificates (the “Certificates”), pursuant to a Pooling and Servicing
Agreement, dated as of _______________ (the “Pooling and Servicing Agreement”),
among the Depositor as depositor, _________________ as master servicer and
_____________________ as trustee (the “Trustee”). The Depositor will sell
certain of the Certificates to _______________ (the “Underwriter”) for offer and
sale pursuant to the terms of an Underwriting Agreement, dated ______________,
____ (the “Underwriting Agreement”), between the Depositor and the Underwriter.
Further reference is made to the Master Mortgage Loan Purchase and Interim
Servicing Agreement, (the “Purchase Agreement”) dated as of ____________, 20__
between the Company and Citigroup Global Markets Realty Corp. (“CGMRC”) which
agreement was assigned to the Depositor pursuant to the terms of the Assignment
as Recognition Agreement dated as of ______ among the Company, ___________
and
CGMRC. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Pooling and Servicing Agreement.
Reference
is also made to the information provided by ____________ contained in the
Prospectus Supplement, including any supplement or amendment thereto, under
the
caption, “The Originators—______________” and “__________” (the “Company
Information”).
1. Pursuant
to Section 12 of the Purchase Agreement:
(a) Company
(also referred to herein as the “Indemnifying Party”) agrees to indemnify and
hold harmless the Depositor and each of its directors and officers and
affiliates and each person, if any, who controls the Depositor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(the “CGMRC Indemnified Party”) and not any assignee thereof, against any and
all actual losses, claims, expenses, damages or liabilities to which the
Depositor or any CGMRC Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(x)
any untrue statement of any material fact contained in the Company Information
or omission to state therein, a material fact required to be stated therein
or
necessary to make the statements made therein, in light of the circumstances
under which such statements were made, not misleading (in each case, regardless
of whether a final judgment has been entered by a finder of fact) or (y) any
material misstatement or omission contained in the Prospectus Supplement
regarding information or statistics therein regarding the Mortgage Loans
included in the Prospectus Supplement solely to the extent such information
was
actually provided to the Depositor or its affiliates by Company; and will
reimburse any such reasonable legal or other expenses reasonably incurred by
such CGMRC Indemnified Party in connection with investigating or defending
any
such loss, claim, damage, liability or action. This indemnity agreement will
be
in addition to any liability which Company may otherwise have.
Depositor
(also
referred to herein as the “Depositor Indemnifying
Party”
and
together with the SunTrust Indemnifying Party referred to in paragraph (a),
above, the “Indemnifying Parties”)
agrees
to indemnify and hold harmless the Company
and each
of its directors and officers and affiliates and each person, if any, who
controls the Company
within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (the “SunTrust Indemnified
Party”
and
together with the Depositor Indemnified Party referred to in paragraph (a),
above, the “Indemnified Parties”)
and
not any assignee thereof, against any and all actual losses, claims, expenses,
damages or liabilities to which the Company
or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(x)
any untrue statement of any material fact contained in any
information in the Prospectus (or any supplement thereto other than the
Company Information (such
information other than the Company Information, the “CGMRC
Information”)
or
omission to state in
such
CGMRC Information,
a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which such statements were
made, not misleading (in each case, regardless of whether a final judgment
has
been entered by a finder of fact) or (y) any material misstatement or omission
contained in the Prospectus Supplement regarding information or statistics
therein regarding the Mortgage Loans based on the
CGMRC
Information;
and
will reimburse any such reasonable legal or other expenses reasonably incurred
by the Company
or any
such director, officer or controlling person in connection with investigating
or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the
Depositor
may
otherwise have.
(b) Promptly
after receipt by the Indemnified Party under this Section 1 of notice of the
commencement of any action described therein, the Indemnified Party will, if
a
claim in respect thereof is to be made against the Indemnifying Party under
this
Section 1, notify the Indemnifying Party of the commencement thereof, but the
omission so to notify the Indemnifying Party will not relieve the Indemnifying
Party from any liability that it may have to the Indemnified Party (a) under
this Agreement except to the extent that the omission to notify the Indemnifying
Party with respect to this Agreement materially adversely affects the
Indemnifying Party’s ability to perform under this Agreement or (b) otherwise
than under this Agreement. In case any such action is brought against the
Indemnified Party, and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein, and,
to
the extent that it may wish to do so, jointly with any other Indemnifying Party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnified Party, and, after notice from the Indemnifying
Party to the Indemnified Party under this Section 1, the Indemnifying Party
shall not be liable for any legal or other expenses subsequently incurred by
the
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation.
The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of the Indemnified Party unless: (i) the
employment thereof has been specifically authorized by the Indemnifying Party
in
writing; (ii) the Indemnified Party shall have been advised by such counsel
that
there may be one or more legal defenses available to it which are different
from
or additional to those available to the Indemnifying Party and in the reasonable
judgment of such counsel it is advisable for the Indemnified Party to employ
separate counsel; (iii) a conflict or potential conflict exists (based on advice
of counsel to the Indemnified Party) between the Indemnified Party and the
Indemnifying Party (in which case the Indemnifying Party will not have the
right
to direct the defense of such action on behalf of the Indemnified Party) or
(iv)
the Indemnifying Party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the Indemnified Party, in which case,
if the Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense of such action
on behalf of the Indemnified Party, it being understood, however, the
Indemnifying Party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for the Indemnified Party, which firm
shall be designated in writing by the Depositor or any of the Depositor’s
directors, officers or controlling persons.
The
Indemnified Party, as a condition of the indemnity agreements contained in
Section 1(a) and Section 1(b), shall use its best efforts to cooperate with
the
Indemnifying Party in the defense of any such action or claim. The Indemnifying
Party shall not be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld).
2. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by facsimile and confirmed
by
similar mailed writing as follows: (i) if to Company: ________________, [__],
Attention: [__], and (ii) if to the Depositor:
____________________________________, Facsimile (___) ___-____, Attention:
Legal. Any party hereto may alter the address to which communications or copies
are to be sent by giving notice of such change of address in conformity with
the
provisions of this Section for the giving of notice.
3. This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute one instrument.
4. This
Agreement shall be construed in accordance with the laws of the State of New
York.
IN
WITNESS WHEREOF, the Depositor and Company have caused their names to be signed
by their respective officers thereunto duly authorized as of the date first
above written.
_______________________________
By:____________________________
Name:
Title:
_______________________________
By:____________________________
Name:
Title:
