FIFTH AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
Exhibit
99.11b
FIFTH
AMENDED AND RESTATED
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
US
BANK,
N.A.,
Seller
Dated
as
of April 1, 2007
Conventional,
Fixed
and
Adjustable Rate
Residential
Mortgage Loans
TABLE
OF
CONTENTS
| Page | ||
|
SECTION
1.
|
Definitions
|
1
|
|
SECTION
2.
|
Agreement
to Purchase
|
15
|
|
SECTION
3.
|
Mortgage
Schedules
|
15
|
|
SECTION
4.
|
Purchase
Price
|
15
|
|
SECTION
5.
|
Examination
of Mortgage Files
|
16
|
|
SECTION
6.
|
Conveyance
from Seller to Purchaser
|
16
|
|
SECTION
7.
|
Servicing
of the Mortgage Loans
|
19
|
|
SECTION
8.
|
[Reserved]
|
19
|
|
SECTION
9.
|
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach
|
19
|
|
SECTION
10.
|
Closing
|
40
|
|
SECTION
11.
|
Closing
Documents
|
41
|
|
SECTION
12.
|
Costs
|
43
|
|
SECTION
13.
|
Cooperation
of Seller with a Reconstitution
|
43
|
|
SECTION
14.
|
The
Seller
|
45
|
|
SECTION
15.
|
Financial
Statements
|
46
|
|
SECTION
16.
|
Mandatory
Delivery; Grant of Security Interest
|
46
|
|
SECTION
17.
|
Notices
|
47
|
|
SECTION
18.
|
Severability
Clause
|
48
|
|
SECTION
19.
|
Counterparts
|
48
|
|
SECTION
20.
|
Governing
Law
|
48
|
|
SECTION
21.
|
Intention
of the Parties
|
49
|
|
SECTION
22.
|
Successors
and Assigns; Assignment of Purchase Agreement
|
49
|
|
SECTION
23.
|
Waivers
|
49
|
|
SECTION
24.
|
Exhibits
|
49
|
|
SECTION
25.
|
General
Interpretive Principles
|
50
|
|
SECTION
26.
|
Reproduction
of Documents
|
50
|
|
SECTION
27.
|
Further
Agreements
|
50
|
|
SECTION
28.
|
Recordation
of Assignments of Mortgage
|
51
|
|
SECTION
29.
|
No
Solicitation
|
51
|
|
SECTION
30.
|
Waiver
of Trial by Jury
|
51
|
|
SECTION
31.
|
Governing
Law Jurisdiction; Consent to Service of Process
|
52
|
|
SECTION
32.
|
Privacy
|
52
|
|
SECTION
33.
|
Compliance
with Regulation AB
|
53
|
EXHIBITS
|
EXHIBIT
A
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
i
|
EXHIBIT
D
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
|
EXHIBIT
E
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
ii
FIFTH
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT
This
FIFTH AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT (the “Agreement”), dated as of April 1, 2007, by and between
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation (the
“Purchaser”), and US Bank, N.A., a national banking association (the
“Seller”).
W I T N E S S E T H:
WHEREAS,
the Purchaser and the Seller are parties to that certain Mortgage Loan Purchase
and Warranties Agreement, dated as of November 1, 2003, as
amended and restated by the parties on or about February
1, 2004, as further amended and restated by the parties on or about April 1,
2004, as further amended and restated by the parties on or about January 1,
2005, as further amended and restated by the parties on or about February 1,
2005, pursuant to which agreement, as further amended hereby, the Seller may
sell, from time to time, to the Purchaser, and the Purchaser may purchase,
from
time to time, from the Seller, certain adjustable and fixed rate residential
first lien and second lien mortgage loans (the “Mortgage Loans”) and
which shall be delivered in pools of whole loans (each, a “Mortgage Loan
Package”) on various dates as provided therein (each, a “Closing
Date”);
WHEREAS,
the Purchaser and the Seller have entered into separate agreements which provide
for the servicing of the Mortgage Loans purchased hereunder on a servicing
released basis;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located, which practices
(i) shall be in accordance with the requirements of the Servicer’s policies and
procedures and (ii) shall be, at a minimum, at least as prudent as the
requirements of Xxxxxx Mae as set forth from time to time in the Xxxxxx Xxx
Selling and Servicing Guide, as amended from time to time.
Act: The
National Housing Act, as amended from time to time.
Adjustable
Rate Mortgage Loan: An adjustable rate Mortgage Loan purchased
pursuant to this Agreement.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agency
Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac
Transfer.
Agreement: This
Fifth Amended and Restated Mortgage Loan Purchase and Warranties Agreement
and
all amendments and supplements hereto.
ALTA: The
American Land Title Association or any successor thereto.
Appraised
Value: The value set forth in an appraisal made in connection
with the origination of the related Mortgage Loan as the value of the Mortgaged
Property.
Assignment
and Conveyance Agreement: As defined in Subsection
6.01.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Purchaser.
Balloon
Mortgage Loan: Any Mortgage Loan which by its original terms or
any modifications thereof provides for amortization beyond its scheduled
maturity date.
Business
Day: Any day other than (i) a Saturday or Sunday,
(ii) a day on which banking and savings and loan institutions, in the State
of New York or the State in which the Servicer’s servicing operations are
located or (iii) the state in which the Custodian’s operations are located,
are authorized or obligated by law or executive order to be closed.
Closing
Date: The date or dates on which the Purchaser from time to time
shall purchase, and the Seller from time to time shall sell, the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Closing
Documents: The documents required to be delivered on each Closing
Date pursuant to Section 11.
CLTV: As
of any date and as to any Second Lien Loan, the ratio, expressed as a
percentage, of (a) the sum of (i) the outstanding principal balance of the
Second Lien Loan and (ii) the outstanding principal balance as of such date
of
any mortgage loan or mortgage loans that are senior or equal in priority to
the
Second Lien Loan and which are secured by the same Mortgaged Property to (b)
the
Appraised Value as determined pursuant to the Underwriting Guidelines of the
related Mortgaged Property as of the origination of the Second Lien
Loan.
Code: Internal
Revenue Code of 1986, as amended, or any successor statute thereto.
2
Commission: The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of condemnation or the right of
eminent domain, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: Shall have the meaning set forth in the then most recently
issued version of the Standard & Poor's LEVELS GlossaryÒ, Appendix
E, as the
same may be amended, restated, supplemented or otherwise modified from time
to
time.
Custodial
Account: The separate trust account created and maintained
pursuant to Subsection 2.04 of the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
Custodial
Agreement: The agreement(s) governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at any given time, all of the individual Custodial Agreements shall
collectively be referred to as the “Custodial Agreement.”
Custodian: The
custodian under a Custodial Agreement, and its successors in interest, or any
successor to the Custodian under the Custodial Agreement as therein
provided.
Cut-off
Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Deemed
Material and Adverse Representation: Each representation and
warranty identified as such in Section 9.02 of this
Agreement.
Deleted
Mortgage Loan: A Mortgage Loan that is repurchased or replaced or
to be replaced with a Qualified Substitute Mortgage Loan by the Seller in
accordance with the terms of this Agreement.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
3
Determination
Date: The date specified in the Interim Servicing
Agreement.
Due
Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event
of Default: As defined in the Interim Servicing
Agreement.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
Xxxxxx
Xxx: The Federal National Mortgage Association, or any successor
thereto.
Xxxxxx
Mae Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae
Servicers’ Guide, as amended or restated from time to time.
Xxxxxx
Xxx Transfer: As defined in Section 13.
FHA: The
Federal Housing Administration, an agency within the United States Department
of
Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development
where appropriate under the FHA Regulations.
First
Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
Fitch: Fitch,
Inc., or its successor in interest.
Fixed
Rate Mortgage Loan: A fixed rate mortgage loan purchased pursuant
to this Agreement.
Xxxxxxx
Mac: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Xxxxxxx
Mac Transfer: As defined in Section 13.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount
is
added to the Index in accordance with the terms of the related Mortgage Note
to
determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for
such Mortgage Loan.
High
Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 (“HOEPA”), (b) with an “annual
percentage rate” or total “points
4
and
fees”
(as each such term is calculated under HOEPA) payable by the related Mortgagor
that exceed the thresholds set forth by HOEPA and its implementing regulations,
including 12 C.F.R. § 226.32(a)(1)(i) and (ii), (c) classified as a “high
cost home,” “threshold,” “covered,” (excluding New Jersey “Covered Home Loans”
as that term was defined in clause (1) of the definition of that term in
the New Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), “high risk home,” “predatory” or similar
loan under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees) or (d) a Mortgage Loan
categorized as High Cost pursuant to Appendix E of Standard & Poor’s
Glossary. For avoidance of doubt, the parties agree that this
definition shall apply to any law regardless of whether such law is presently,
or in the future becomes, the subject of judicial review or
litigation.
HUD: The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes
of this Agreement, is also deemed to include subdivisions thereof such as the
FHA and Government National Mortgage Association.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of any FHA
or VA insurance, title policy, hazard policy or other policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim
Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Interim
Servicer: The servicer under the Interim Servicing Agreement, or
its successor in interest, or any successor to the Interim Servicer under the
Interim Servicing Agreement, as therein provided.
Interim
Servicing Agreement: That certain Third Amended and Restated
Interim Servicing Agreement, dated as of April 1, 2007, between the Purchaser
and US Bank, N.A., as interim servicer, with respect to the servicing of
Mortgage Loans purchased on a servicing released basis.
Investor: With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest
5
Rate
thereunder. The Mortgage Interest Rate during the term of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan
Schedule.
Liquidation
Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee’s sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, other than amounts received following the
acquisition of REO Property, Insurance Proceeds and Condemnation
Proceeds.
Loan-to-Value
Ratio or LTV: With respect to any Mortgage Loan, the ratio
(expressed as a percentage) of the outstanding principal amount of the Mortgage
Loan as of the related Cut-off Date (unless otherwise indicated), to the lesser
of (a) the Appraised Value of the Mortgaged Property at origination and
(b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
Manufactured
Home: A single family residential unit that is constructed in a
factory in sections in accordance with the Federal Manufactured Home
Construction and Safety Standards adopted on July 15, 1976, by the Department
of
Housing and Urban Development (“HUD Code”), as amended in 2000, which
preempts state and local building codes. Each unit is identified by
the presence of a HUD Plate/Compliance Certificate label. The
sections are then transported to the site and joined together and affixed to
a
pre-built permanent foundation (which satisfies the manufacturer’s requirements
and all state, county, and local building codes and regulations). The
manufactured home is built on a non-removable, permanent frame chassis that
supports the complete unit of walls, floors, and roof. The underneath
part of the home may have running gear (wheels, axles, and brakes) that enable
it to be transported to the permanent site. The wheels and hitch are
removed prior to anchoring the unit to the permanent foundation. The
manufactured home must be classified as real estate and taxed
accordingly. The permanent foundation may be on land owned by the
mortgager or may be on leased land.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, and its
successors in interest.
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedures Manual and (b) the
Seller has designated or will designate the Purchaser as the Investor on the
MERS System.
MERS
Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
6
MERS
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly
Payment: The scheduled monthly payment of principal and interest
payable by a Mortgagor under the related Mortgage Note on each Due
Date.
Moody’s: Xxxxx’x
Investors Service, Inc., and any successor thereto.
Mortgage: The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien in the case of a First Lien Loan, or a second lien, in
the
case of a Second Lien Loan, on the related on the Mortgaged
Property. With respect to a Co-op Loan, the Security
Agreement.
Mortgage
File: The items pertaining to a particular Mortgage Loan referred
to in Exhibit A annexed hereto, and any additional documents required to be
added to the Mortgage File pursuant to this Agreement.
Mortgage
Interest Rate: The annual rate of interest borne on a Mortgage
Note with respect to each Mortgage Loan.
Mortgage
Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in the
related Mortgage Note.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
Servicing Rights and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased mortgage loans.
Mortgage
Loan Documents: The documents required to be delivered to the
Custodian pursuant to Subsection 6.03 with respect to any Mortgage
Loan.
Mortgage
Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage
Loan Schedule: The schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan in the related Mortgage
Loan Package: (1) the Seller’s Mortgage Loan identifying number;
(2) the Mortgagor’s name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or a
second home; (5) the number and type of residential units constituting the
Mortgaged Property (e.g. single family residence, a two- to
four-family dwelling, condominium, planned unit development or cooperative);
(6) the original months to maturity or the remaining months to maturity
from the related Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner but based
on the actual amortization schedule; (7) the LTV or CLTV, as applicable, at
origination; (8) the Mortgage Interest Rate as of the related
Cut-
7
off
Date;
(9) the date on which the first Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
the Due Date; (10) the stated maturity date; (11) the amount of the
Monthly Payment as of the related Cut-off Date; (12) the last payment date
on which a payment was actually applied to the actual unpaid principal balance;
(13) the original principal amount of the Mortgage Loan; (14) the
actual unpaid principal balance of the Mortgage Loan as of the close of business
on the related Cut-off Date, after deduction of payments of principal due and
collected on or before the related Cut-off Date; (15) with respect to
Adjustable Rate Mortgage Loans, the Interest Rate Adjustment Date;
(16) with respect to Adjustable Rate Mortgage Loans, the Gross Margin;
(17) with respect to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap
under the terms of the Mortgage Note; (18) with respect to Adjustable Rate
Mortgage Loans, a code indicating the type of Index; (19) the product type
of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate, First Lien Loan or Second
Lien Loan), and with respect to each Second Lien Loan, the product type of
the
related first lien loan; (20) a code indicating the purpose of the loan
(i.e., purchase, rate/term refinance or cash-out refinance); (21) a code
indicating the documentation style (i.e. no documents, full, alternative,
reduced, no income/no asset, stated income, no ration, reduced or NIV);
(22) the loan credit classification (as described in the Underwriting
Guidelines); (23) whether such Mortgage Loan provides for a Prepayment
Penalty; (24) the Prepayment Penalty period of such Mortgage Loan, if
applicable; (25) a description of the Prepayment Penalty, if applicable,
including whether the applicable Prepayment Penalty provision is “hard” or
“soft”; (26) the Mortgage Interest Rate as of origination; (27) the
credit risk score (FICO score); (28) the date of origination;
(29) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment period; (30) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate adjustment percentage; (31) with respect
to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate floor;
(32) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (33) with respect to Adjustable Rate Mortgage Loans, the
Periodic Rate Cap as of the first Interest Rate Adjustment Date; (34) a
code indicating whether the Mortgage Loan is a Balloon Mortgage Loan;
(35) the original Monthly Payment due; (36) the Appraised Value;
(37) a code indicating whether the Mortgage Loan is covered by a PMI Policy
and, if so, identifying the PMI Policy provider; (38) in connection with a
condominium unit, a code indicating whether the condominium project where such
unit is located is low-rise or high-rise; (39) a code indicating whether
the Mortgaged Property is a leasehold estate; (40) a code indicating
whether the Mortgage Loan is a MERS Designated Mortgage Loan and the MERS
Identification Number, if applicable, (41) the social security number of the
Mortgagor; (42) a code indicating whether the Mortgagor’s race and/or ethnicity
is (i) native American or Alaskan native, (ii) Asian/Pacific islander, (iii)
African American, (iv) white, (v) Hispanic or Latino, (vi) other minority,
(vii)
not provided by the Mortgagor, (viii) not applicable (if the Mortgagor is an
entity) and (ix) unknown or missing; (43) a code indicating whether the
Mortgagor is self-employed; (44) whether the Mortgage Loan has Monthly Payments
that are interest-only for a period of time, and the interest-only period,
if
applicable (and with respect to each Second Lien Loan, whether the related
first
lien mortgage loan has monthly payments that are interest-only for a period
of
time, and the interest-only period, if applicable); (45) the schedule of the
payment delinquencies in the prior 12 months; (46) the Servicing Fee Rate;
(47)
with respect to each Mortgage Loan with a second lien behind it, the combined
principal balance of the Mortgage Loan and the applicable second lien loan,
at
origination, (48) a code indicating whether there is a simultaneous second;
(49)
asset verification (Y/N); (50) with respect to each Adjustable Rate
8
Mortgage
Loan, a code indicating whether the Mortgage Loan provides for negative
amortization; (51) a code indicating whether the Mortgage Loan has negative
amortization and the maximum of such negative amortization; (52) appraisal
type;
(53) appraisal date; (54) the certificate number of the PMI Policy, if
applicable; (55) the amount of coverage of the PMI Policy, if applicable; (56)
with respect to the related Mortgagor, the debt-to-income ratio; (57) sales
price; (58) automated valuation model (AVM); (59) a field indicating whether
such Mortgage Loan is a Home Loan; and (60) the DU or LP number, if
applicable. With respect to the Mortgage Loans in the aggregate, the
related Mortgage Loan Schedule shall set forth the following information, as
of
the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate actual unpaid principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; (4) the weighted average maturity of the Mortgage Loans;
(5) the average actual unpaid principal balance of the Mortgage Loans;
(6) the applicable Cut-off Date; and (7) the applicable Closing
Date.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged
Property: With respect to a Mortgage Loan that is not a Co-op
Loan, the Mortgagor’s real property securing repayment of a related Mortgage
Note, consisting of an unsubordinated estate in fee simple or, with respect
to
real property located in jurisdictions in which the use of leasehold estates
for
residential properties is a widely-accepted practice, a leasehold estate, in
a
single parcel or multiple parcels of real property improved by a Residential
Dwelling, which is acceptable for purchase by Xxxxxx Xxx or Xxxxxxx Mac under
applicable Xxxxxx Mae or Xxxxxxx Mac guidelines. With respect to a
Co-op Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan
and
the related Co-op Lease.
Mortgagor: The
obligor on the related Mortgage Note.
Nonrecoverable
Advance: Any advance previously made or proposed to be made in
respect of a Mortgage Loan which, in the good faith judgment of the Servicer,
will not or, in the case of a proposed advance, would not, be ultimately
recoverable from related Insurance Proceeds, Liquidation Proceeds or
otherwise. The determination by the Servicer that it has made a
Nonrecoverable Advance or that any proposed advance of principal and interest,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officers’ Certificate delivered to the Purchaser.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or a President or a Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Interim Servicer, and delivered to the Purchaser as required
by this Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Seller, reasonably acceptable to the Purchaser, provided that any Opinion
of
Counsel relating to (a) the qualification of any account required to be
maintained pursuant to this Agreement as an Eligible Account (as defined in
the
Interim Servicing Agreement), (b) qualification of the Mortgage Loans in a
REMIC or (c) compliance with the REMIC Provisions, must be
(unless
9
otherwise
stated in such Opinion of Counsel) an opinion of counsel who (i) is in fact
independent of the Seller and any servicer of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the Seller or
any
servicer of the Mortgage Loans or in an Affiliate of either and (iii) is
not connected with the Seller or any servicer of the Mortgage Loans as an
officer, employee, director or person performing similar functions.
Periodic
Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan
is the rate set forth as such on the related Mortgage Loan
Schedule.
Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Preliminary
Mortgage Schedule: As defined in Section 3.
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, and which is not accompanied by
an
amount of interest representing scheduled interest due on any date or dates
in
any month or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase
Price and Terms Agreement: Each agreement setting forth the
general terms and conditions of the purchase and sale of the Mortgage Loans
to
be purchased from time to time under this Agreement.
Purchase
Price Percentage: As defined in the related Purchase Price and
Terms Agreement.
Purchaser: Xxxxxx
Xxxxxxx Mortgage Capital Inc., a New York corporation, and its successors in
interest and assigns, or any successor to the Purchaser under this Agreement
as
herein provided.
Qualified
Appraiser: An appraiser, duly appointed by the Seller, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan made
on
the security thereof, and whose compensation was not affected by the approval
or
disapproval of the Mortgage Loan, and such appraiser and the appraisal made
by
such appraiser both satisfied the requirements of Xxxxxx Mae or Xxxxxxx Mac
and
Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act
of
1989, as amended and in effect from time to time, and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated.
10
Qualified
Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to
an agreement between the Seller and such Person that contemplated that such
Person would underwrite mortgage loans from time to time, for sale to the
Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact
underwritten as described in clause (i) above and were acquired by the
Seller within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Seller in origination of mortgage loans of the same type as the
Mortgage Loans for the Seller’s own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed, at the
time such Mortgage Loans were acquired by the Seller, pre-purchase or
post-purchase quality assurance procedures (which may involve, among other
things, review of a sample of mortgage loans purchased during a particular
time
period or through particular channels) designed to ensure that Persons from
which it purchased mortgage loans properly applied the underwriting criteria
designated by the Seller.
Qualified
Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date
of
such substitution, (i) have an actual unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or in
the
case of a substitution of more than one mortgage loan for a Deleted Mortgage
Loan, an aggregate actual unpaid principal balance), not in excess of the actual
unpaid principal balance of the Deleted Mortgage Loan (the amount of any
shortfall will be deposited in the Custodial Account by the Seller in the month
of substitution); (ii) have a Mortgage Interest Rate not less than and not
more than 1% greater than the Mortgage Interest Rate of the Deleted Mortgage
Loan; (iii) have a remaining term to maturity not greater than and not more
than one year less than that of the Deleted Mortgage Loan; (iv) be of the
same type as the Deleted Mortgage Loan (i.e., fixed rate or adjustable rate
with
same Mortgage Interest Rate Caps); (v) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 9;
(vi) be current in the payment of principal and interest; (vii) be
secured by a Mortgaged Property of the same type and occupancy status as secured
the Deleted Mortgage Loan; and (viii) have payment terms that do not vary
in any material respect from those of the Deleted Mortgage Loan.
Rating
Agency: Any of Fitch, Xxxxx’x or Standard & Poor’s, or their
respective successors designated by the Purchaser.
Reconstitution: Any
Securitization Transaction or a Whole Loan Transfer.
Reconstitution
Agreements: The agreement or agreements entered into by the
Seller and the Purchaser and/or certain third parties on the Reconstitution
Date
or Dates with respect to any or all of the Mortgage Loans sold hereunder, in
connection with a Whole Loan Transfer, Agency Transfer or a Securitization
Transaction pursuant to Section 13, including, but not limited to, a
seller’s warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect
to a
Securitization Transaction.
11
Reconstitution
Date: As defined in Section 13.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506–1,631 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
REMIC: A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
Provisions: Provisions of the federal income tax law relating to
a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1,
Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance
Date: The date specified in the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
Repurchase
Price: With respect to any Mortgage Loan, a price in an amount
equal to: (a) during the first year immediately following the related Closing
Date and prior to any Securitization Transaction, the sum of (1) the
product of (A) the related Purchase Price Percentage and (B) the then
outstanding actual unpaid principal balance of such Mortgage Loan as of the
date
through which such repurchase takes place, plus (2) accrued interest on
such Mortgage Loan at the applicable mortgage interest rate from the last
“interest paid to” date through the last day of the month in which such
repurchase takes place, plus (3) the amount of any outstanding
advances owed to any servicer, plus (4) all costs and expenses
incurred by the Purchaser or any servicer arising out of or based upon such
breach, including without limitation, costs and expenses incurred in the
enforcement of the Seller’s repurchase obligation hereunder, less (5)
amounts received or advanced in respect of such Mortgage Loan which are being
held in the Custodial Account for distribution in the month of repurchase,
and
(b) thereafter, the sum of (1) the then outstanding actual unpaid
principal balance of such Mortgage Loan as of the date through which such
repurchase takes place, plus (2) accrued interest on such Mortgage Loan
at the applicable mortgage interest rate from the last “interest paid to” date
through the last day of the month in which such repurchase takes place,
plus (3) the amount of any outstanding advances owed to any
servicer, plus (4) all costs and expenses incurred by the
Purchaser or any servicer arising out of or based upon such breach, including
without limitation, costs and expenses incurred in the enforcement of the
Seller’s repurchase obligation hereunder, less (5) amounts received or
advanced in respect of such Mortgage Loan which are being held in the Custodial
Account for distribution in the month of repurchase. In the
event the Purchaser has securitized or sold a Mortgage Loan, the
Repurchase Price for such Mortgage Loan shall be as set forth in
clause (b) above in all cases, without regard to when the repurchase
obligation, if any, arises.
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
12
condominium
project or (iv) a one-family dwelling in a planned unit development, none
of which is a co-operative, mobile or Manufactured Home.
RESPA: The
Real Estate Settlement Procedures Act, as amended from time to
time.
Second
Lien Loan: A Mortgage Loan secured by a second lien Mortgage on
the related Mortgaged Property.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly
to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
Security
Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As
defined in the initial paragraph of the Agreement, together with its successors
in interest.
Seller
Information: As defined in Subsection
33.04(a).
Servicer: US
Bank, N.A., in its capacity as interim servicer under the Interim Servicing
Agreement, as applicable, or its successors and assigns.
Servicing
Fee: As to each Mortgage Loan Package, the amount of the fee the
Purchaser shall pay to the Servicer for servicing the Mortgage Loans in
accordance with the terms of the Interim Servicing Agreement, which shall,
with
respect to each Mortgage Loan, be equal to $7.00 per calendar
month.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Servicer 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.
Servicing
Rights: Any and all of the following: (a) any and
all rights to service the Mortgage Loans; (b) any payments to or monies
received by the Seller for servicing the Mortgage Loans; (c) any late fees,
penalties or similar payments with respect to the Mortgage Loans; (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights and all rights of
the
Seller thereunder; (e) Escrow Payments or other similar payments with
respect to the Mortgage Loans and any amounts actually collected by the Seller
with respect thereto; (f) all accounts and other rights to
13
payment
related to any of the property described in this paragraph; and (g) any and
all documents, files, records, servicing files, servicing documents, servicing
records, data tapes, computer records, or other information pertaining to the
Mortgage Loans or pertaining to the past, present or prospective servicing
of
the Mortgage Loans.
Sponsor: The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard
& Poor’s: Standard & Poor’s Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Static
Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor
Servicer: Any servicer of one or more Mortgage Loans designated
by the Purchaser as being entitled to the benefits of the indemnifications
set
forth in Subsections 9.03 and 14.01.
Stated
Principal Balance: As to each Mortgage Loan on any date of
determination, (i) the principal balance of such Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, to the extent actually received, minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal on such Mortgage
Loan.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy of
which is attached as an exhibit to the related Assignment and
Conveyance.
VA: The
United States Department of Veterans Administration, or any successor
thereto.
VA
Mortgage Loan: A Mortgage Loan partially guaranteed by the VA
pursuant to the Servicemen’s Readjustment Act of 1944, as amended, or Chapter 37
of Title 38 of the United States Code.
14
VA
Vendee Loan: A purchase money mortgage loan made by VA in
connection with the sale of a property that it has acquired (a) from a private
lender pursuant to its obligations under the VA Loan Guaranty Program for
Veterans upon termination of a residential mortgage loan made to a veteran
borrower under one of VA’s loan guaranty programs and (b) as result
of its enforcement of the security instrument covering a property securing
a VA
Vendee Loan after default by the borrower thereunder.
Whole
Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION
2. Agreement
to Purchase.
Subsection
2.01
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate actual unpaid principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate actual unpaid principal
balance of the Mortgage Loans accepted by the Purchaser on each Closing
Date.
SECTION
3. Mortgage
Schedules.
The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on
each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary Mortgage
Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage Loans
to be purchased on a particular Closing Date to the Purchaser at least five
(5)
Business Days prior to the related Closing Date. The related Mortgage
Loan Schedule shall be the related Preliminary Mortgage Schedule with those
Mortgage Loans which have not been funded prior to the related Closing Date
deleted.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment as
provided therein), multiplied by the aggregate actual unpaid principal balance,
as of the related Cut-off Date, of the Mortgage Loans listed on the related
Mortgage Loan Schedule, after application of scheduled payments of principal
due
on or before the related Cut-off Date, but only to the extent such payments
were
actually received. The initial principal amount of the related
Mortgage Loans shall be the aggregate actual unpaid principal balance of the
Mortgage Loans, so computed as of the related Cut-off Date. If so
provided in the related Purchase Price and Terms Agreement, portions of the
Mortgage Loans shall be priced separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest from the last “interest paid to” date
through the day
15
immediately
preceding the related Closing Date, inclusive, on the aggregate actual unpaid
principal amount of the related Mortgage Loans as of the related Cut-off Date
at
the weighted average Mortgage Interest Rate of those Mortgage Loans, net of
any
applicable Servicing Fees. The Purchase Price plus accrued interest
as set forth in the preceding paragraph shall be paid to the Seller by wire
transfer of immediately available funds to an account designated by the Seller
in writing.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans net of applicable Servicing Fees (minus that portion of any
such
payment which is allocable to the period prior to the related Cut-off
Date). The actual unpaid principal balance of each Mortgage Loan as
of the related Cut-off Date is determined after application of payments of
principal due on or before the related Cut-off Date, to the extent actually
collected, together with any unscheduled principal prepayments collected prior
to such Cut-off Date; provided, however, that payments of scheduled principal
and interest paid prior to such Cut-off Date, but to be applied on a Due Date
beyond the related Cut-off Date shall not be applied to the actual unpaid
principal balance as of the related Cut-off Date. Such prepaid
amounts shall be the property of the Purchaser. The Seller shall
deposit any such prepaid amounts into the Custodial Account, which account
is
established for the benefit of the Purchaser for subsequent remittance by the
Seller to the Purchaser.
SECTION
5. Examination
of Mortgage Files.
At
least
ten (10) Business Days prior to the related Closing Date, the Seller shall
(a) deliver to the Purchaser or its designee in escrow, for examination
with respect to each Mortgage Loan to be purchased, the related Mortgage File,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination may be made by the Purchaser or its
designee at any reasonable time before or after the related Closing
Date. If the Purchaser makes such examination prior to the related
Closing Date and determines, in its sole discretion, that any Mortgage Loans
are
unacceptable to the Purchaser for any reason, such Mortgage Loans shall be
deleted from the related Mortgage Loan Schedule, and may be replaced by a
Qualified Substitute Mortgage Loan (or Loans) acceptable to the
Purchaser. The Purchaser may, at its option and without notice to the
Seller, purchase some or all of the Mortgage Loans without conducting any
partial or complete examination. The fact that the Purchaser or its
designee has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the Purchaser’s (or any of
its successor’s) rights to demand repurchase, substitution or other relief as
provided herein.
SECTION
6. Conveyance
from Seller to Purchaser.
Subsection
6.01 Conveyance
of Mortgage Loans.
The
Seller, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall
16
execute
and deliver an Assignment and Conveyance Agreement in the form attached hereto
as Exhibit H (the “Assignment and Conveyance
Agreement”). The Seller shall cause the Servicing File retained
by the Servicer pursuant to this Agreement to be appropriately identified in
the
Seller’s computer system and/or books and records, as appropriate, to clearly
reflect the sale of the related Mortgage Loan to the Purchaser. The
Seller shall cause the Servicer to release from its custody the contents of
any
Servicing File retained by it only in accordance with this Agreement or the
Interim Servicing Agreement, except when such release is required in connection
with a repurchase of any such Mortgage Loan pursuant to Subsection
9.03.
Subsection
6.02 Books
and Records.
Record
title to each Mortgage as of the related Closing Date shall be in the name
of
the Seller, an Affiliate of the Seller, the Purchaser or one or more designees
of the Purchaser, as the Purchaser shall select; provided,
however, that if a Mortgage has been recorded in the name of MERS
or
its designee, the Seller is shown as the owner of the related Mortgage Loan
on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. Notwithstanding
the foregoing, each Mortgage and related Mortgage Note shall be possessed solely
by the Purchaser or the appropriate designee of the Purchaser, as the case
may
be. All rights arising out of the Mortgage Loans including, but not
limited to, all funds received by the Seller or the Servicer after the related
Cut-off Date on or in connection with a Mortgage Loan shall be vested in the
Purchaser or one or more designees of the Purchaser; provided, however, that
all
funds received on or in connection with a Mortgage Loan shall be received and
held by the Seller or the Servicer in trust for the benefit of the Purchaser
or
the appropriate designee of the Purchaser, as the case may be, as the owner
of
the Mortgage Loans pursuant to the terms of this Agreement.
The
Seller shall be or shall cause the Servicer to be responsible for maintaining,
and shall maintain, a complete set of books and records for each Mortgage Loan
which shall be marked clearly to reflect the ownership of each Mortgage Loan
by
the Purchaser. In particular, the Seller shall or shall cause the
Servicer to maintain in its possession, available for inspection by the
Purchaser, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the Xxxxxx Mae Guides. To the
extent that original documents are not required for purposes of realization
of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Seller
or the Servicer may be in the form of microfilm or microfiche so long as the
Seller or the Servicer complies with the requirements of the Xxxxxx Xxx
Guides.
The
sale
of each Mortgage Loan shall be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller.
Subsection
6.03 Delivery
of Mortgage Loan Documents.
The
Seller shall deliver and release to the Custodian no later than two (2) Business
Days prior to the related Closing Date those Mortgage Loan Documents set forth
on
17
Exhibit
A hereto as required by the Custodial Agreement with respect to each
Mortgage Loan set forth on the related Mortgage Loan Schedule.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Initial Certification of the Custodian in the form
annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian.
The
Seller shall or shall cause the Servicer to forward to the Custodian, or to
such
other Person as the Purchaser shall designate in writing, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with this Agreement within two weeks
of
their execution, provided, however, that the Seller shall provide the Custodian,
or to such other Person as the Purchaser shall designate in writing, with a
certified true copy of any such document submitted for recordation within two
weeks of its execution, and shall promptly provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within ninety days of its submission for recordation.
In
the
event any document required to be delivered to the Custodian in the Custodial
Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered
to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, within 90 days following the related Closing Date (other than with
respect to the Assignments of Mortgage which shall be delivered to the Custodian
in blank and recorded subsequently by the Purchaser or its designee), and in
the
event that the Seller does not cure such failure within 30 days of discovery
or
receipt of written notification of such failure from the Purchaser, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by the
Seller at the price and in the manner specified in Subsection
9.03. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver an original document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that the Seller shall instead deliver a recording receipt
of such recording office or, if such recording receipt is not available, an
officer’s certificate of a servicing officer of the Seller, confirming that such
documents have been accepted for recording; provided that, upon request of
the
Purchaser and delivery by the Purchaser to the Seller of a schedule of the
related Mortgage Loans, the Seller shall reissue and deliver to the Purchaser
or
its designee said officer’s certificate.
The
Seller shall pay all initial recording fees, if any, for the assignments of
mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser or
the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall
be responsible for recording the Assignments of Mortgage and shall be reimbursed
by the Seller for the costs associated therewith pursuant to the preceding
sentence. Notwithstanding the foregoing, the Seller agrees that all
Mortgage Loans will be MERS Designated Mortgage Loans as of the related Closing
Date.
Subsection
6.04 Quality
Control Procedures.
18
The
Seller shall, or shall cause the Servicer to, have an internal quality control
program that verifies, on a regular basis, the existence and accuracy of the
legal documents, credit documents, property appraisals, and underwriting
decisions. The program shall include evaluating and monitoring the
overall quality of the Seller loan production and the servicing activities
of
the Servicer. The program is to ensure that the Mortgage Loans are
originated in accordance with the Underwriting Guidelines; guard against
dishonest, fraudulent, or negligent acts; and guard against errors and omissions
by officers, employees, or other authorized persons.
Subsection
6.05 MERS
Designated Loans.
With
respect to each MERS Designated Mortgage Loan, the Seller shall, no later than
two (2) Business Days following the related Closing Date, designate the
Purchaser as the Investor and the Custodian as custodian, and no Person shall
be
listed as Interim Funder on the MERS System. In addition, on or prior
to the related Closing Date, Seller shall provide the Custodian and the
Purchaser with a MERS Report listing the Purchaser as the Investor, the
Custodian as custodian and no Person as Interim Funder with respect to each
MERS
Designated Mortgage Loan.
SECTION
7. Servicing
of the Mortgage Loans.
The
Purchaser shall retain the Servicer as contract servicer of the Mortgage Loans
in accordance with the terms and conditions contained in the Interim Servicing
Agreement.
SECTION
8. [Reserved].
SECTION
9. Representations,
Warranties and Covenants of the Seller; Remedies for Breach.
Subsection
9.01 Representations
and Warranties Regarding the Seller and Purchaser. The Seller
represents, warrants and covenants to the Purchaser that as of the date hereof
and as of each Closing Date:
(a) Due
Organization and Authority. The Seller is a national banking
association validly existing, and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Seller. The Seller has corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement has been duly executed and delivered
and constitutes the valid, legal, binding and enforceable obligation of the
Seller, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors and
(ii) general principles of equity, whether enforcement is sought in a
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proceeding
in equity or at law. All requisite corporate action has been taken by
the Seller to make this Agreement valid and binding upon the Seller in
accordance with its terms;
(b) No
Consent Required. No consent, approval, authorization or order is
required for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority having
jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary
Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No
Conflicts. Neither the execution and delivery of this Agreement,
the acquisition or origination of the Mortgage Loans by the Seller, the sale
of
the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any
of
the terms, conditions or provisions of the Seller’s charter or by-laws or any
legal restriction or any agreement or instrument to which the Seller is now
a
party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the Mortgage
Loans, impair the value of the Mortgage Loans, or impair the ability of the
Purchaser to realize the full amount of any insurance benefits accruing pursuant
to this Agreement;
(e) No
Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability
to Perform; Solvency. The Seller does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Seller is solvent and the
sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Seller’s creditors;
20
(g) Seller’s
Origination. The Seller’s decision to originate any mortgage loan
or to deny any mortgage loan application is an independent decision based upon
the Underwriting Guidelines, and is in no way made as a result of Purchaser’s
decision to purchase, or not to purchase, or the price Purchaser may offer
to
pay for, any such mortgage loan, if originated;
(h) Anti-Money
Laundering Laws. The Seller has complied with all applicable
anti-money laundering laws, executive orders and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the “Anti-Money
Laundering Laws”); the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has conducted
the requisite due diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including with respect
to
the legitimacy of the applicable Mortgagor and the origin of the assets used
by
the said Mortgagor to purchase the property in question, and maintains, and
will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws;
(i) Financial
Statements. The Seller has delivered to the Purchaser annual
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent
results of operations and changes in financial position for each of such periods
and the financial position at the end of each such period of the Seller and
its
subsidiaries and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto. In addition, the Seller has
delivered information as to its loan gain and loss experience in respect of
foreclosures and its loan delinquency experience for the immediately preceding
three-year period, in each case with respect to mortgage loans owned by it
and
such mortgage loans serviced for others during such period, and all such
information so delivered shall be true and correct in all material
respects. There has been no change in the business, operations,
financial condition, properties or assets of the Seller since the date of the
Seller’s financial statements that would have a material adverse effect on its
ability to perform its obligations under this Agreement. The Seller
has completed any forms requested by the Purchaser in a timely manner and in
accordance with the provided instructions;
(j) Selection
Process. The Mortgage Loans were selected from among the
outstanding one- to four-family mortgage loans in the Seller’s portfolio at the
related Closing Date as to which the representations and warranties set forth
in
Subsection 9.01 could be made and such selection was not made in a manner
so as to affect adversely the interests of the Purchaser;
(k) Delivery
to the Custodian. The Mortgage Note, the Mortgage, the Assignment
of Mortgage and any other documents required to be delivered with respect to
each Mortgage Loan pursuant to the Custodial Agreement shall be delivered to
the
Custodian all in compliance with the specific requirements of the Custodial
Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit A
hereto, except for such documents as will be delivered to the
Custodian;
21
(l) Mortgage
Loan Characteristics. The characteristics of the related Mortgage
Loan Package are as set forth on the description of the pool characteristics
for
the applicable Mortgage Loan Package delivered pursuant to Section 11 on
the related Closing Date in the form attached as Exhibit B to each
related Assignment and Conveyance Agreement;
(m) No
Untrue Information. Neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to
be
furnished pursuant to this Agreement or any Reconstitution Agreement or in
connection with the transactions contemplated hereby (including any
Securitization Transaction or Whole Loan Transfer) contains or will contain
any
untrue statement of fact or omits or will omit to state a fact necessary to
make
the statements contained herein or therein not misleading;
(n) No
Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(o) Sale
Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans will be treated as a sale on the books and
records of the Seller and the Seller has determined that the disposition of
the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes;
(p) Approved
Seller. The Seller is an approved seller of residential mortgage
loans for Xxxxxx Xxx or Xxxxxxx Mac and HUD. The Seller is duly
qualified, licensed, registered and otherwise authorized under all applicable
federal, state and local laws and regulations, meets the minimum capital
requirements, if applicable, set forth by the Office of the Comptroller of
the
Currency, and is in good standing to sell mortgage loans to Xxxxxx Mae or
Xxxxxxx Mac and no event has occurred which would make the Seller unable to
comply with eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac;
(q) Reasonable
Purchase Price. The consideration received by the Seller upon the
sale of the Mortgage Loans under this Agreement constitutes fair consideration
and reasonably equivalent value for the Mortgage Loans; and
(r) Insured
Depository Institution Representations. The Seller is an “insured
depository institution” as that term is defined in Section 1813(c)(2) of Title
12 of the United States Code, as amended, and accordingly, the Seller makes
the
following additional representations and warranties:
(A) This
Agreement between the Purchaser and the Seller conforms to all applicable
statutory and regulatory requirements; and
(B) This
Agreement is (1) executed contemporaneously with the agreement reached by
the Purchaser and the Seller, (2) approved by a specific or general
corporate or banking association resolution by the Seller’s board of directors,
which approval shall be reflected in the minutes of said board, and (3) an
official record of the Seller. A copy of such resolution, certified by a vice
president or higher officer of the Seller has been provided to the
Purchaser;
22
(ii) The
Purchaser represents, warrants and covenants to the Seller that as of the date
hereof and as of each Closing Date:
(1) Due
Organization. The Purchaser is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now being
conducted and is licensed, qualified and in good standing under the laws of
each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such qualification
has been made upon the Purchaser by any state having jurisdiction and in any
event the Purchaser is or will be in compliance with the laws of any such state
to the extent necessary to enforce each Mortgage Loan.
(2) Due
Authority. The Purchaser had the full power and authority and
legal right to acquire the Mortgage Loans to be purchased
hereunder. The Purchaser 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 Purchaser 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 Seller, constitutes a legal, valid and binding obligation of
the
Purchaser, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium and other laws relating to or affecting creditors’ rights
generally or the rights of creditors of banks and to the general principles
of
equity (whether such enforceability is considered in a proceeding in equity
or
at law);
(3) No
Conflict. None of the execution and delivery of this Agreement,
the acquisition of the Mortgage Loans by the Purchaser, the purchase of the
Mortgage Loans, the consummation of the transactions contemplated hereby, or
the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Purchaser’s organizational documents and bylaws or any legal
restriction or any agreement or instrument to which the Purchaser is now a
party
or by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Purchaser or its property
is
subject;
(4) No
Material Default. The Purchaser is not in material default under
any agreement, contract, instrument or indenture of any nature whatsoever to
which the Purchaser is a party or by which it (or any of its assets) is bound,
which default would have a material adverse effect on the ability of the
Purchaser to perform under this Agreement, nor, to the best of the Purchaser’s
knowledge, has any event occurred which, with notice, lapse of time or both
would constitute a material default under any such agreement, contract,
instrument or indenture and have a material adverse effect on the ability of
the
Purchaser to perform its obligations under this Agreement; and
(5) No
Consent Required. No consent, approval, authorization or order of
any court or governmental agency or body is required for the execution, delivery
and performance by
23
the
Purchaser of or compliance by the Purchaser with this Agreement, the purchase
of
the Mortgage Loans from the Seller or the consummation of the transactions
contemplated by this Agreement or, if required, such approval has been obtained
prior to the Funding Date.
Subsection
9.02 Representations
and Warranties Regarding Individual Mortgage Loans. The Seller
hereby represents and warrants to the Purchaser that, as to each Mortgage Loan,
as of the related Closing Date for such Mortgage Loan:
(a) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
(b) Payments
Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the Mortgage Loan been
30 days or more delinquent at any time since the origination of the Mortgage
Loan;
(c) No
Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground
rents
which previously became due and owing have been paid, or an escrow of funds
has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and
payable. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to
the day which precedes by one month the related Due Date of the first
installment of principal and interest;
(d) Original
Terms Unmodified. The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, from the date of
origination except by a written instrument which has been recorded, if necessary
to protect the interests of the Purchaser, and which has been delivered to
the
Custodian or to such other Person as the Purchaser shall designate in writing,
and the terms of which are reflected in the related Mortgage Loan
Schedule. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and
the
title insurer, if any, to the extent required by the policy, and its terms
are
reflected on the related Mortgage Loan Schedule, if applicable. No
Mortgagor has been released, in whole or in part, except in connection with
an
assumption agreement, approved by the issuer of any related PMI Policy and
the
title insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage Loan File delivered to the Custodian or to
such other Person as the Purchaser shall designate in writing and the terms
of
which are reflected in the related Mortgage Loan Schedule;
(e) No
Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either
the
Mortgage Note or the Mortgage unenforceable, in whole or in part
24
and
no
such right of rescission, set-off, counterclaim or defense has been asserted
with respect thereto;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Underwriting Guidelines. If
required by the National Flood Insurance Act of 1968, as amended, or if upon
origination of the Mortgage Loan, the improvements on the Mortgaged Property
were in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Mortgage Loan is covered
by a flood insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration which policy conforms to Xxxxxx Mae
and
Xxxxxxx Mac requirements. The amount of such insurance shall be no
less than the least of (A) the actual unpaid principal balance of the Mortgage
Loan, (B) the full insurable value and (C) the maximum amount of insurance
which
was available under the Flood Disaster Protection Act of 1983, as
amended. Such policy was issued by an insurer acceptable under Xxxxxx
Mae or Xxxxxxx Mac guidelines. All individual insurance policies
contain a standard mortgagee clause naming the Seller and its successors and
assigns as mortgagee, and all premiums thereon have been paid. The
Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Mortgagor’s cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the
Mortgagor has been given an opportunity to choose the carrier of the required
hazard insurance, provided the policy is not a “master” or
“blanket” hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the consummation
of the transactions contemplated by this Agreement. The Seller has
not engaged in, and has no knowledge of the Mortgagor’s having engaged in, any
act or omission which would impair the coverage of any such policy, the benefits
of the endorsement provided for herein, or the validity and binding effect
of
either including, without limitation, no unlawful fee, commission, kickback
or
other unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the
Seller;
(g) Compliance
with Applicable Laws. Any and all requirements of any federal,
state or local law including, without limitation, usury, truth-in-lending,
real
estate settlement procedures, consumer credit protection, predatory, abusive
and
fair lending, equal credit opportunity and disclosure laws applicable to the
Mortgage Loan have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Seller shall maintain in its possession, available for
the
Purchaser’s inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements. This representation and
warranty is a Deemed Material and Adverse Representation;
(h) No
Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not
25
been
released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor’s failure to
perform such action would cause the Mortgage Loan to be in default, nor has
the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type
of Mortgaged Property. With respect to a Mortgage Loan that is
not a Co-op Loan and is not secured by an interest in a leasehold estate, the
Mortgaged Property is a fee simple estate that consists of a single or
contiguous parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development (or, with respect to each Co-Op Loan, an individual unit in
a
residential cooperative housing corporation); provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform with the Underwriting Guidelines and applicable HUD
or
VA requirements. No portion of the Mortgaged Property (or Underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used
for
commercial purposes as long as the Mortgaged Property has not been altered
for
commercial purposes and is not storing any chemicals or raw materials other
than
those commonly used for homeowner repair, maintenance and/or household
purposes. None of the Mortgaged Properties are Manufactured Homes,
log homes, mobile homes, geodesic domes or other unique property
types. This representation and warranty is a Deemed Material and
Adverse Representation;
(j) Valid
First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
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(i)
|
with
respect to a Second Lien Loan only, the lien of the first mortgage
on the
Mortgaged Property;
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|
(ii)
|
the
lien of current real property taxes and assessments not yet due and
payable;
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(iii)
|
covenants,
conditions and restrictions, rights of way, easements and other matters
of
the public record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically referred
to in
the lender’s title insurance policy delivered to the originator of the
Mortgage Loan and (a) specifically referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan
or (b) which do not adversely affect the Appraised Value of the
Mortgaged Property set forth in such appraisal;
and
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26
|
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(iv)
|
other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to
be
provided by the Mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Loan) or second lien (with respect to a Second Lien Loan) and first priority
(with respect to a First Lien Loan) or second priority (with respect to a Second
Lien Loan) security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related
residential cooperative housing corporation for unpaid assessments representing
the Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity
of Mortgage Documents. The Mortgage Note and the Mortgage and any
other agreement executed and delivered by a Mortgagor in connection with a
Mortgage Loan are genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms. All
parties to the Mortgage Note, the Mortgage and any other such related agreement
had legal capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage Note, the Mortgage and any such agreement, and the Mortgage Note,
the Mortgage and any other such related agreement have been duly and properly
executed by other such related parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of the Seller in connection with the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application for
any
insurance in relation to such Mortgage Loan. The Seller has reviewed
all of the documents constituting the Servicing File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein;
(l) Full
Disbursement of Proceeds. The Mortgage Loan has been closed and
the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as
to
completion of any on-site or off site improvement and as to disbursements of
any
escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording
of
the Mortgage were paid, and the Mortgagor is not entitled to any refund of
any
amounts paid or due under the Mortgage Note or Mortgage;
27
(m) Ownership. The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is
not assigned or pledged, and the Seller has good, indefeasible and marketable
title thereto, and has full right to transfer and sell the Mortgage Loan to
the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Seller intends
to relinquish all rights to possess, control and monitor the Mortgage Loan,
except as may be required of the Seller in its capacity as Interim Servicer
of
such Mortgage Loan. After the related Closing Date, the Seller will
have no right to modify or alter the terms of the sale of the Mortgage Loan
and
the Seller will have no obligation or right to repurchase the Mortgage Loan,
except as provided in this Agreement;
(n) Doing
Business. All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the
period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of
the
state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do
business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or
(3) not doing business in such state;
(o) CLTV,
LTV and PMI Policy. No Mortgage Loan that is a Second Lien Loan
has a CLTV greater than 100%. No Mortgage Loan has an LTV greater
than 100%. Any Mortgage Loan that had at the time of origination an
LTV in excess of 80% is insured as to payment defaults by a PMI Policy, which
will remain in effect until such time as it is cancelled in accordance with
its
terms or under applicable law. Any PMI Policy in effect covers the
related Mortgage Loan for the life of such Mortgage Loan. All
provisions of such PMI Policy have been and are being complied with, such policy
is in full force and effect, and all premiums due thereunder have been
paid. No action, inaction, or event has occurred and no state of
facts exists that has, or will result in the exclusion from, denial of, or
defense to coverage. Any Mortgage Loan subject to a PMI Policy
obligates the Mortgagor thereunder to maintain the PMI Policy and to pay all
premiums and charges in connection therewith. The Mortgage Interest
Rate for the Mortgage Loan as set forth on the related Mortgage Loan Schedule
is
net of any such insurance premium if the related PMI Policy is
lender-paid;
(p) Title
Insurance. With respect to a Mortgage Loan which is not a Co-op
Loan, the Mortgage Loan is covered by an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable under the
Underwriting Guidelines or to Xxxxxx Xxx or Xxxxxxx Mac, as
applicable, and each such title insurance policy is issued by a title insurer
acceptable under the Underwriting Guidelines, or under Xxxxxx Mae or Xxxxxxx
Mac
guidelines, as applicable, and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Seller, its successors
and
assigns, as to the first (with
28
respect
to a First Lien Loan) or second (with respect to a Second Lien Loan) priority
lien of the Mortgage in the original principal amount of the Mortgage Loan
(or
to the extent a Mortgage Note provides for negative amortization, the maximum
amount of negative amortization in accordance with the Mortgage), subject only
to the exceptions contained in clauses (i), (ii), (iii) and (iv) of
paragraph (j) of this Subsection 9.02, and in the case of
Adjustable Rate Mortgage Loans, against any loss by reason of the invalidity
or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has
been given the opportunity to choose the carrier of the required mortgage title
insurance. Additionally, such lender’s title insurance policy
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller, its
successor and assigns, are the sole insured of such lender’s title insurance
policy, and such lender’s title insurance policy is valid and remains in full
force and effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made
under such lender’s title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(q) No
Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates
nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration;
(r) No
Mechanics’ Liens. There are no mechanics’ or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location
of Improvements; No Encroachments. All improvements which were
considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms. At the time the Mortgage Loan was originated,
either (a) the originator was a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Act or a savings and loan association, a savings bank, a commercial bank or
similar banking institution which is supervised and examined by a Federal or
State authority or (b) the following requirements have been met with respect
to
the Mortgage Loan: Seller meets the requirements set forth in clause
29
(a),
and
(i) such Mortgage Loan was underwritten in accordance with standards established
by Seller, using application forms and related credit documents approved by
Seller, (ii) Seller approved each application and the related credit documents
before a commitment by the correspondent was issued, and no such commitment
was
issued until Seller agreed to fund such Mortgage Loan, (iii) the closing
documents for such Mortgage Loan were prepared on forms approved by Seller,
and
(iv) such Mortgage Loan was purchased by Seller at closing or soon
thereafter. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are
as
set forth on the related Mortgage Loan Schedule. Unless specified on
the related Mortgage Loan Schedule as an interest-only loan or a Balloon
Mortgage Loan, the Mortgage Note is payable in equal monthly installments of
principal (except for Mortgage Loans that provide for a fixed period of
interest-only payments at the beginning of their term) and interest, which
installments of interest, with respect to Adjustable Rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than thirty years from commencement of
amortization. With respect to any Mortgage Loan that provides for a
fixed period of interest-only payments at the beginning of its term, at the
end
of such interest-only period, the Monthly Payment will be recalculated so as
to
require Monthly Payments sufficient to amortize the Mortgage Loan fully by
its
stated maturity date. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan does not require a balloon payment on its
stated maturity date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or similar
law;
(v) Conformance
with Agency and Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines (a copy of which
is
attached to each related Assignment and Conveyance Agreement). The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae
(and FHA or VA, if applicable) and no representations have been made to a
Mortgagor that are inconsistent with the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property. The Mortgaged Property is lawfully
occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities.
30
Unless
otherwise specified on the related Mortgage Loan Schedule, the Mortgagor
represented at the time of origination of the Mortgage Loan that the Mortgagor
would occupy the Mortgaged Property as the Mortgagor’s primary
residence;
(x) No
Additional Collateral. The Mortgage Note is not and has not been
secured by any collateral except the lien of the corresponding Mortgage and
the
security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds
of Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser
to
the trustee under the deed of trust, except in connection with a trustee’s sale
after default by the Mortgagor;
(z) Acceptable
Investment. There are no circumstances or conditions with respect
to the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage File or
the
Mortgagor’s credit standing that can reasonably be expected to cause private
institutional investors who invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable
investment;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered under
the Custodial Agreement for each Mortgage Loan have been delivered to the
Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit A hereto, except for
such documents the originals of which have been delivered to the
Custodian;
(bb) Georgia
Fair Lending Act. There is no Mortgage Loan that was originated
(or modified) on or after October 1, 2002 and on or prior to March 7, 2003,
which is secured by property located in the State of Georgia. There
is no Mortgage Loan that was originated on or after March 7, 2003 that is a
“high cost home loan” as defined under the Georgia Fair Lending
Act. This representation and warranty is a Deemed Material and
Adverse Representation;
(cc) Transfer
of Mortgage Loans. The Assignment of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(dd) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder,
and
to the best of the Seller’s knowledge, such provision is
enforceable;
(ee) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
31
(ff) No
Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant
to which Monthly Payments are paid or partially paid with funds deposited in
any
separate account established by the Seller, the Mortgagor, or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions which may constitute a “buydown”
provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(gg) Consolidation
of Future Advances. Any future advances made to the Mortgagor
prior to the applicable Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount,
as
consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx and
Xxxxxxx Mac. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
(hh) Mortgaged
Property Undamaged; No Condemnation Proceedings. There is no
proceeding pending or threatened for the total or partial condemnation of the
Mortgaged Property. The Mortgaged Property is undamaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado or other casualty
so as to affect adversely the value of the Mortgaged Property as security for
the Mortgage Loan or the use for which the premises were intended and each
Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
(ii) Collection
Practices; Escrow Deposits; Interest Rate Adjustments. The
origination, servicing and collection practices used by the Seller and the
Servicer with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to
escrow deposits and Escrow Payments, all such payments are in the possession
of,
or under the control of, the Seller or the Servicer and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been
collected in full compliance with state and federal law and the provisions
of
the related Mortgage Note and Mortgage. An escrow of funds is not
prohibited by applicable law and has been established in an amount sufficient
to
pay for every item that remains unpaid and has been assessed but is not yet
due
and payable. No escrow deposits or Escrow Payments or other charges
or payments due the Seller have been capitalized under the Mortgage or the
Mortgage Note. All Mortgage Interest Rate adjustments have been made
in strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment
Date. If, pursuant to the terms of the Mortgage Note, another index
was selected for determining the Mortgage Interest Rate, the same index was
used
with respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage
Note. The Seller or the Servicer executed and delivered any and all
notices required under applicable law and the terms of the related Mortgage
Note
and Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments.
32
Any
interest required to be paid pursuant to state, federal and local law has been
properly paid and credited;
(jj) Other
Insurance Policies; No Defense to Coverage. No action, inaction
or event has occurred and no state of facts exists or has existed on or prior
to
the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability
of
the timely payment of the full amount of the loss otherwise due thereunder
to
the insured), irrespective of the cause of such failure of
coverage. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be received by the
Seller or by any officer, director, or employee of the Seller or any designee
of
the Seller or any corporation in which the Seller or any officer, director,
or
employee had a financial interest at the time of placement of such
insurance;
(kk) No
Violation of Environmental Laws. To the best of the Seller’s
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or
regulation with respect to the Mortgage Property; and nothing further remains
to
be done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers
Civil Relief Act. The Mortgagor has not notified the Seller, and
the Seller has no knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers Civil Relief Act, as the same may be amended from
time
to time, or other similar state statute;
(mm) Appraisal. The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the origination of the Mortgage Loan application by a Qualified
Appraiser, duly appointed by the Seller, who had no interest, direct or indirect
in the Mortgaged Property or in any loan made on the security thereof, and
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac (and FHA or VA, if applicable), as applicable, or Title
XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(nn) Disclosure
Materials. To the extent required by applicable law, the
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by, and the Seller has complied with, all
applicable law with respect to the making of the Mortgage Loans. The
Seller shall maintain such statement in the Mortgage File;
(oo) Construction
or Rehabilitation of Mortgaged Property. No Mortgage Loan was
made in connection with the construction (other than a “construct-to-perm” loan)
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
33
(pp) Escrow
Analysis. If applicable, with respect to each Mortgage Loan, the
Seller has within the last twelve months (unless such Mortgage was originated
within such twelve month period) analyzed the required Escrow Payments for
each
Mortgage and adjusted the amount of such payments so that, assuming all required
payments are timely made, any deficiency will be eliminated on or before the
first anniversary of such analysis, or any overage will be refunded to the
Mortgagor, in accordance with RESPA and any other applicable law;
(qq) Credit
Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information furnished
by the Seller to the Purchaser, that Seller has full right and authority and
is
not precluded by law or contract from furnishing such information to the
Purchaser and the Purchaser is not precluded from furnishing the same to any
subsequent or prospective purchaser of such Mortgage. The Seller has
in its capacity as servicer, for each Mortgage Loan, fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis. This
representation and warranty is a Deemed Material and Adverse
Representation;
(rr) Leaseholds. If
the Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than five years after the maturity date of the Mortgage Loan; (3) the
ground lease does not provide for termination of the lease in the event of
lessee’s default without the mortgagee being entitled to receive written notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground
lease protects the mortgagee’s interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the jurisdiction
in
which the Mortgaged Property is located;
(ss) Prepayment
Penalty. Each Mortgage Loan that is subject to a Prepayment
Penalty as provided in the related Mortgage Note is identified on the related
Mortgage Loan Schedule. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and
will
be enforced by the Seller during the period the Seller is acting as Interim
Servicer for the benefit of the Purchaser, and each Prepayment Penalty is
permitted pursuant to federal, state and local law. Each such
Prepayment Penalty is in an amount not more than the maximum amount permitted
under applicable law and no such Prepayment Penalty may provide for a term
in
excess of five (5) years with respect to Mortgage Loans originated prior to
October, 1, 2002. With respect to Mortgage Loans originated on or
after October 1, 2002, the duration of the Prepayment Penalty period shall
not
exceed three (3) years from the date of the Mortgage Note unless the Mortgage
Loan was modified to reduce the Prepayment Penalty period to no more than three
(3) years from the date of the related Mortgage Note and the Mortgagor was
notified in writing of such reduction in Prepayment Penalty
period. With respect to any Mortgage Loan that contains a provision
permitting imposition of a Prepayment Penalty upon a prepayment prior to
maturity: (i) the Mortgage Loan provides some benefit to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such
Prepayment Penalty, (ii) prior to the Mortgage Loan’s origination, the Mortgagor
was offered the option of obtaining a mortgage loan that did not require payment
of such a penalty and (iii) the
34
Prepayment
Penalty was adequately disclosed to the Mortgagor in the mortgage loan documents
pursuant to applicable state, local and federal law. This
representation and warranty is a Deemed Material and Adverse
Representation;
(tt) Predatory
Lending Regulations. No Mortgage Loan is (a) a High Cost Loan or
Covered Loan, (b) a “high cost” loan under Section 32 of the Home Ownership and
Equity Protection Act of 1994, as amended, or (c) a “high cost home,”
“threshold,” “covered,” “high risk home” or “predatory” or similar loan under
any other applicable state, federal or local law (or a similarly classified
loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees); provided that any Mortgage Loan secured
by
a Mortgaged Property in Illinois characterized as a “threshold” loan shall not
be a “high cost” loan unless it is characterized as “predatory” under applicable
local law. This representation and warranty is a Deemed Material and Adverse
Representation;
(uu) Single-premium
credit life insurance policy. No Mortgagor was required to
purchase any single premium credit insurance policy (e.g., life, mortgage,
disability, property, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment, mortgage or health insurance) in connection with the origination
of the Mortgage Loan. No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan. This representation and warranty is a Deemed Material
and Adverse Representation;
(vv) Insurance
Policy in Connection With Origination. In connection with the
origination of the mortgage loan, the borrower did not obtain a prepaid
single-premium credit life, credit disability, credit unemployment or credit
property insurance policy;
(ww) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under Section
860G(a)(3) of the Code (which relates to REMICs);
(xx) Tax
Service Contract. Each Mortgage Loan is covered by a paid in
full, life of loan, tax service contract issued by First American, and such
contract is transferable. If such a transferable tax service contract
is not in place, then a placement fee of seventy two dollars ($72.00) will
apply
for each such Mortgage Loan;
(yy) Origination. No
predatory or deceptive lending practices, including, without limitation, the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
(zz) Recordation. Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of being
recorded;
35
(aaa) Co-op
Loans. With respect to a Mortgage Loan that is a Co-op Loan, the
stock that is pledged as security for the Mortgage Loan is held by a person
as a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
(bbb) Mortgagor
Bankruptcy. As of the related Closing Date, the Mortgagor has not
filed a bankruptcy petition or has not become the subject of involuntary
bankruptcy proceedings or has not consented to the filing of a bankruptcy
proceeding against it or to having a receiver being appointed in respect of
the
related Mortgaged Property;
(ccc) No
Prior Offer. If the Mortgage Loan has previously been offered for
sale, such Mortgage Loan was not rejected from being purchased by such offeree
as a result of the offeree’s due diligence, unless such deficiency has since
been cured;
(ddd) No
Arbitration. No Mortgagor with respect to any Mortgage Loans originated on
or after August 1, 2004 agreed to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction. This
representation and warranty is a Deemed Material and Adverse
Representation;
(eee) Flood
Service Contract. Each Mortgage Loan is covered by a paid in full,
life of loan, flood service contract issued by either First American Flood
Data
Services or Fidelity, and such contract is transferable. If no such
flood service contract is in place, or if such flood service contract is issued
by an insurer other than First American Flood Data Services or Fidelity, then
on
the related Closing Date, the Seller shall remit to the Purchaser a placement
fee of seven dollars and fifty cents ($7.50) for each such Mortgage
Loan;
(fff) Negative
Amortization. Unless otherwise disclosed in the Mortgage Loan
Schedule, no Mortgage Loan is subject to negative amortization;
(ggg) Origination
Practices/No Steering. The Mortgagor was not encouraged or required to
select a mortgage loan product offered by the Mortgage Loan’s originator which
is a higher cost product designed for less creditworthy borrowers, unless at
the
time of the Mortgage Loan’s origination, such Mortgagor did not qualify taking
into account such facts as, without limitation, the Mortgage Loan’s requirements
and the Mortgagor’s credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s
originator. If, at the time of loan application, the Mortgagor may
have qualified for a lower-cost credit product then offered by any mortgage
lending affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s
originator referred the Mortgagor’s application to such affiliate for
underwriting consideration. For a Mortgagor who seeks financing
through a Mortgage Loan originator’s higher-priced subprime lending channel, the
Mortgagor was directed towards or offered the Mortgage Loan originator’s
standard mortgage line if the Mortgagor was able to qualify for one of the
standard products. This representation and warranty is a Deemed
Material and Adverse Representation;
(hhh) Underwriting
Methodology. The methodology used in underwriting the extension
of credit for each Mortgage Loan does not rely solely on the extent of the
Mortgagor’s equity in the collateral as the principal determining factor in
approving such extension of credit.
36
The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make timely payments
on the Mortgage Loan. Such underwriting methodology confirmed that at
the time of origination (application/approval) the Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse
Representation;
(iii) Points
and Fees. No Mortgagor was charged “points and fees” (whether or
not financed) in an amount greater than (i) $1,000, or (ii) 5% of the
principal amount of such Mortgage Loan, whichever is greater. For
purposes of this representation, such 5% limitation is calculated in accordance
with Xxxxxx Mae’s anti-predatory lending requirements as set forth in the Xxxxxx
Mae Guides and “points and fees” (x) include origination, underwriting,
broker and finder fees and charges that the mortgagee imposed as a condition
of
making the Mortgage Loan, whether they are paid to the mortgagee or a third
party; and (y) exclude bona fide discount points, fees paid for
actual services rendered in connection with the origination of the Mortgage
Loan
(such as attorneys’ fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections), the cost of mortgage insurance or
credit-risk price adjustments, the costs of title, hazard, and flood insurance
policies, state and local transfer taxes or fees, escrow deposits for the future
payment of taxes and insurance premiums, and other miscellaneous fees and
charges which miscellaneous fees and charges, in total, do not exceed 0.25%
of
the principal amount of such Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(jjj) Fees
Charges. All points, fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan have been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation. This representation and warranty is a
Deemed Material and Adverse Representation;
(kkk) Balloon
Mortgage Loans. No Balloon Mortgage Loan has an original stated
maturity of less than seven (7) years; and
(lll) Second
Lien Loans. With respect to each Second Lien Loan:
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(i)
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No
Negative Amortization of Related First Lien Loan. The
related first lien loan does not permit negative
amortization;
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(ii)
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Request
for Notice; No Consent Required. Where required or
customary in the jurisdiction in which the Mortgaged Property is
located,
the original lender has filed for record a request for notice of
any
action by the related senior lienholder, and the Seller has notified
such
senior lienholder in writing of the existence of the Second Lien
Loan and
requested notification of any action to be taken against the Mortgagor
by
such senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien loan
or (b)
such consent has been obtained and is contained in the related Mortgage
File;
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37
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(iii)
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No
Default Under First Lien. To the best of Seller’s
knowledge, the related first lien loan is in full force and effect,
and
there is no default lien, breach, violation or event which would
permit
acceleration existing under such first lien mortgage or mortgage
note, and
no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation
or event which would permit acceleration under such first lien
loan;
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(iv)
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Right
to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default
or breach
to the mortgagee under the Mortgage Loan and allows such mortgagee
to cure
any default under the related first lien mortgage;
and
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(v)
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Principal
Residence. The related Mortgaged Property is the
Mortgagor’s principal residence. This representation and
warranty is a Deemed Material and Adverse
Representation.
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Subsection
9.03 Remedies
for Breach of Representations and Warranties.
It
is
understood and agreed that the representations and warranties set forth in
Subsections 9.01 and 9.02 shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other relevant
parties.
Within
60
days of the earlier of either discovery by or notice to the Seller of any such
breach of a representation or warranty, which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser therein (or
which materially and adversely affects the value of the applicable Mortgage
Loan
or the interest of the Purchaser therein in the case of a representation and
warranty relating to a particular Mortgage Loan), the Seller shall use its
best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase
such Mortgage Loan at the Repurchase Price. Notwithstanding the above
sentence, (i) within 60 days of the earlier of either discovery by, or notice
to, the Seller of any breach of the representation or warranty set forth in
clause (ww) of Subsection 9.02, the Seller shall repurchase such
Mortgage Loan at the Repurchase Price and (ii) any breach of a Deemed Material
and Adverse Representation shall automatically be deemed to materially and
adversely affect the value of the Mortgage Loans or the interest of the
Purchaser therein. In the event that a breach shall involve any
representation or warranty set forth in Subsection 9.01, and such
breach cannot be cured within 60 days of the earlier of either discovery by
or
notice to the Seller of such breach, all of the Mortgage Loans affected by
such
breach shall, at the Purchaser’s option, be repurchased by the Seller at the
Repurchase Price. However, if the breach shall involve a
representation or warranty set forth in Subsection 9.02 (except as
provided in the second sentence of this paragraph with respect to certain
breaches for which no substitution is permitted) and the Seller discovers or
receives notice of any such breach within 120 days of the related Closing Date,
the Seller shall, at the
38
Purchaser’s
option and provided that the Seller has a Qualified Substitute Mortgage Loan,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a “Deleted Mortgage Loan”) and substitute in its place a Qualified
Substitute Mortgage Loan or Qualified Substitute Mortgage Loans, provided that
any such substitution shall be effected not later than 120 days after the
related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the Repurchase
Price. Any repurchase of a Mortgage Loan or Mortgage Loans pursuant
to the foregoing provisions of this Subsection 9.03 shall be
accomplished by either (a) if the Interim Servicing Agreement is in effect,
deposit in the Custodial Account of the amount of the Repurchase Price for
distribution to the Purchaser on the next scheduled Remittance Date, after
deducting therefrom any amount received in respect of such repurchased Mortgage
Loan or Mortgage Loans and being held in the Custodial Account for future
distribution or (b) if the Interim Servicing Agreement is no longer in
effect, by direct remittance of the Repurchase Price to the Purchaser or its
designee in accordance with the Purchaser’s instructions.
At
the
time of repurchase or substitution, the Purchaser and the Seller shall arrange
for the reassignment of the Deleted Mortgage Loan to the Seller and the delivery
to the Seller of any documents held by the Custodian relating to the Deleted
Mortgage Loan. In the event of a repurchase or substitution, the
Seller shall, simultaneously with such reassignment, give written notice to
the
Purchaser that such repurchase or substitution has taken place, amend the
Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan
from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to this
Agreement. In connection with any such substitution, the Seller shall
be deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all
such
representations and warranties set forth in this Agreement shall be deemed
made
as of the date of such substitution. The Seller shall effect such
substitution by delivering to the Custodian or to such other party as the
Purchaser may designate in writing for such Qualified Substitute Mortgage Loan
the documents required by Subsection 6.03 and the Custodial
Agreement, with the Mortgage Note endorsed as required by
Subsection 6.03 and the Custodial Agreement. No
substitution will be made in any calendar month after the Determination Date
for
such month. The Seller shall cause the Servicer to remit directly to
the Purchaser, or its designee in accordance with the Purchaser’s instructions
the Monthly Payment less the Servicing Fee due, if any, on such Qualified
Substitute Mortgage Loan or Mortgage Loans in the month following the date
of
such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by
the
Seller. For the month of substitution, distributions to the Purchaser
shall include the Monthly Payment due on any Deleted Mortgage Loan in the month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received by the Seller in respect of such Deleted Mortgage
Loan.
For
any
month in which the Seller substitutes a Qualified Substitute Mortgage Loan
for a
Deleted Mortgage Loan, the Seller shall determine the amount (if any) by which
the aggregate actual unpaid principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of
such shortfall shall be distributed by the Seller directly to the Purchaser
or
its designee
39
in
accordance with the Purchaser’s instructions within two (2) Business Days of
such substitution. Accordingly, on the date of such substitution, the
Seller will remit to the Purchaser from its own funds an amount equal to the
amount of such shortfall plus one month’s interest thereon at the applicable
Mortgage Interest Rate minus the related Servicing Fee.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller representations and warranties contained in this Agreement or any
Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection 9.03 to cure,
substitute for or repurchase a defective Mortgage Loan and to indemnify the
Purchaser as provided in this Subsection 9.03 and in Subsection
14.01 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 9.01 and 9.02
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 this Agreement.
Subsection
9.04 Repurchase
of Mortgage Loans with First Payment Defaults.
If
the
related Mortgagor is delinquent with respect to any Mortgage Loan’s first
Monthly Payment either (i) after origination of such Mortgage Loan, or (ii)
after the related Closing Date, the Seller, at the Purchaser’s option, shall
repurchase such Mortgage Loan from the Purchaser at a price equal to the
Repurchase Price plus the amount of any outstanding escrow or similar advances
owed to the Interim Servicer. The Seller shall repurchase such
delinquent Mortgage Loan within thirty (30) days of such request.
Subsection
9.05 Premium
Recapture.
With
respect to any Mortgage Loan without prepayment penalties that prepays in full
during the first three months following the related Closing Date, the Seller
shall pay the Purchaser, within three (3) Business Days after such prepayment
in
full, an amount equal to the excess of the Purchase Price Percentage for such
Mortgage Loan over par, multiplied by the outstanding actual principal balance
of such Mortgage Loan as of the related Cut-off Date.
SECTION
10. Closing.
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each Closing
shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties shall
agree.
40
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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(i)
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at
least two Business Days prior to the related Closing Date, the Seller
shall deliver to the Purchaser a magnetic diskette, or transmit by
modem,
a listing on a loan-level basis of the necessary information to compute
the Purchase Price of the Mortgage Loans delivered on such Closing
Date
(including accrued interest), and prepare a Mortgage Loan
Schedule;
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(ii)
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all
of the representations and warranties of the Seller under this Agreement
and of the Servicer under the Interim Servicing Agreement (with
respect to each Mortgage Loan to be serviced for an interim
period, as specified in the Interim Servicing 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 or an Event of
Default;
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(iii)
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the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents as specified in Section
11 of this Agreement, in such forms as are agreed upon and acceptable
to the Purchaser, duly executed by all signatories other than the
Purchaser as required pursuant to the terms
hereof;
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(iv)
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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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(v)
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all
other terms and conditions of this Agreement and the related Purchase
Price and Terms Agreement shall have been complied
with.
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Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 4 of this Agreement, by wire transfer of immediately available
funds to the account designated by the Seller.
SECTION
11. Closing
Documents.
The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
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(A)
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this
Agreement (to be executed and delivered only for the initial Closing
Date);
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(B)
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with
respect to the initial Closing Date, the Custodial Agreement, dated
as of
the initial Cut-off Date;
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(C)
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the
related Mortgage Loan Schedule (one copy to be attached to the Custodian’s
counterpart of the Custodial Agreement in connection with
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41
the
initial Closing Date, and one copy to be attached
to the related Assignment and Conveyance as the Mortgage Loan Schedule
thereto);
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(D)
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a
Custodian’s Certification, as required under the Custodial Agreement, in
the form of Exhibit 2 to the Custodial
Agreement;
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(E)
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with
respect to the initial Closing Date, an Officer’s Certificate, in the form
of Exhibit C hereto with respect to each of the Seller, including
all attachments thereto; with respect to subsequent Closing Dates,
an
Officer’s Certificate upon request of the
Purchaser;
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(F)
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with
respect to the initial Closing Date, an Opinion of Counsel of the
Seller
(who may be an employee of the Seller), in the form of Exhibit D
hereto (“Opinion of Counsel of the Seller”); with respect to
subsequent Closing Dates, an Opinion of Counsel of the Seller upon
request
of the Purchaser;
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(G)
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with
respect to the initial Closing Date, an Opinion of Counsel of the
Custodian (who may be an employee of the Custodian), in the form
of an
exhibit to the Custodial Agreement(s) if
required;
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(H)
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a
Security Release Certification, in the form of Exhibit E or
F, as applicable, hereto executed by any person, as requested
by
the Purchaser, if any of the Mortgage Loans have at any time been
subject
to any security interest, pledge or hypothecation for the benefit
of such
person;
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(I)
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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;
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(J)
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with
respect to the initial Closing Date, the Underwriting Guidelines
to be
attached hereto as Exhibit G and with respect to each subsequent
Closing Date, the Underwriting Guidelines to be attached to the related
Assignment and Conveyance;
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(K)
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Assignment
and Conveyance Agreement in the form of Exhibit H hereto, and all
exhibits thereto; and
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(L)
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no
later than two (2) Business Days following the related Closing Date,
a MERS Report reflecting the Purchaser as Investor, the Custodian
as
custodian and no Person as Interim Funder for each MERS Designated
Mortgage Loan.
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The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
42
SECTION
12. Costs.
The
Purchaser shall pay its due diligence fees and the fees and expenses of its
counsel and custodial fees. All servicing fees incurred prior to the
related Closing Date, and all costs and expenses incurred in connection with
the
transfer of the Mortgage Loans, including without limitation, fees to transfer
files and prepare assignments/endorsements, including the costs associated
with
clearing exceptions and the fees and expenses of Seller’s counsel, shall be
payable by the Seller. Seller shall be responsible for all recording
costs, including the costs to record intervening assignments and one-time final
assignments to Purchaser or its designee, powers of attorney and assumption
and
modification agreements.
Neither
the Seller nor the Purchaser has employed a broker in connection with the
transaction contemplated herein, and neither the Seller nor the Purchaser shall
be responsible for brokerage fees incurred or payable by the other party
hereto.
SECTION
13. Cooperation
of Seller with a Reconstitution.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each, a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may
effect a sale (each, a “Reconstitution”) of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
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(i)
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Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each, a “Xxxxxx Mae Transfer”);
or
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(ii)
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Xxxxxxx
Mac (the “Xxxxxxx Mac Transfer”);
or
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(iii)
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one
or more third party purchasers in one or more Whole Loan Transfers;
or
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(iv)
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one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
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The
Seller agrees to execute in connection with any Agency Transfer, any and all
pool purchase contracts, and/or agreements reasonably acceptable to the Seller
among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may
be)
and any servicer in connection with a Whole Loan Transfer, a seller’s warranties
and servicing agreement or a participation and servicing agreement in form
and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties (collectively, the agreements
referred to herein are designated the “Reconstitution Agreements”),
together with an opinion of counsel with respect thereto.
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; and (3) to
43
restate
the representations and warranties set forth in Subsections 9.01 and
9.02 as of the settlement or closing date in connection with such
Reconstitution (each, a “Reconstitution Date”), or make the
representations and warranties set forth in the related selling/servicing guide
of the servicer or issuer, as the case may be, or such representations or
warranties as may be required by any rating agency or prospective purchaser
of
the related securities or such Mortgage Loans in connection with such
Reconstitution, provided, however, that the Seller will not be
required to make additional representations and warranties other than customary
servicing representations and warranties. The Seller shall provide to
such servicer or issuer, as the case may be, and any other participants or
purchasers in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Seller or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; (ii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, and certificates of public officials
or officers of the Seller or the Servicer as are reasonably believed necessary
by the Purchaser or any such other participant; and (iii) to execute,
deliver and satisfy all conditions set forth in any indemnity agreement required
by the Purchaser or any such participant, including, without limitation, an
Indemnification and Contribution Agreement in substantially the form attached
hereto as Exhibit B. Moreover, the Seller agrees to cooperate
with all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each affiliate
of the Purchaser participating in the Reconstitution and each Person who
controls the Purchaser or such affiliate and their respective present and former
directors, officers, employees and agents, and hold each of them harmless from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that each of them may sustain arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the information
provided by or on behalf of the Seller regarding the Seller, the Mortgage Loans
or the Underwriting Guidelines set forth in any offering document prepared
in
connection with any Reconstitution. For purposes of the previous
sentence, “Purchaser” shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were “Purchasers” under
this Agreement.
In
the
event the Purchaser has elected to have the Seller or the Servicer hold record
title to the Mortgages, prior to the Reconstitution Date, the Seller shall
prepare an assignment of mortgage in blank or to the prospective purchaser
or
trustee, as applicable, from the Seller or the Servicer, as applicable,
acceptable to the prospective purchaser or trustee, as applicable, for each
Mortgage Loan that is part of the Reconstitution and shall pay all preparation
and recording costs associated therewith. In connection with the
Reconstitution, the Seller shall execute or shall cause the Servicer to execute
each assignment of mortgage, track such Assignments of Mortgage to ensure they
have been recorded and deliver them as required by the prospective purchaser
or
trustee, as applicable, upon the Seller’s receipt
thereof. Additionally, the Seller shall prepare and execute or shall
cause the Servicer to execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer
agreements.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if the Interim Servicing Agreement shall remain
in effect with respect to the related Mortgage Loan Package, shall continue
to
be serviced in accordance
44
with
the
terms of this Agreement and the Agreement and with respect thereto this
Agreement shall remain in full force and effect.
SECTION
14. The
Seller.
Subsection
14.01 Additional
Indemnification by the Seller; Third Party Claims.
(a) The
Seller shall indemnify the Purchaser and its present and former directors,
officers, employees and agents and the Successor Servicer and its present and
former directors, officers, employees and agents, and hold such parties harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and expenses (including legal fees and expenses incurred in
connection with the enforcement of the Seller’s indemnification obligation under
this Subsection 14.01) and related costs, judgments, and any other costs,
fees and expenses that such parties may sustain in any way related to the
failure of the Seller to perform its duties in strict compliance with the terms
of this Agreement or any Reconstitution Agreement entered into pursuant to
Section 13 or any breach of any of Seller’s representations, warranties
and covenants set forth in this Agreement, provided, however, that the Seller
shall not be required to indemnify the Purchaser for claims caused by the
negligence or willful misconduct of the Purchaser. For purposes of
this paragraph “Purchaser” shall mean the Person then acting as the Purchaser
under this Agreement and any and all Persons who previously were “Purchasers”
under this Agreement and “Successor Servicer” shall mean any Person designated
as the Successor Servicer pursuant to this Agreement and any and all Persons
who
previously were “Successor Servicers” pursuant to this Agreement.
(b) Promptly
after receipt by an indemnified party under this Subsection 14.01 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this
Subsection 14.01, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will
not relieve the indemnifying party from any liability which it may have to
any
indemnified party under this Subsection 14.01, except to the extent that
it has been prejudiced in any material respect, or from any liability which
it
may have, otherwise than under this Subsection 14.01. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, the indemnified party or parties shall have the right
to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be
liable to such indemnified party for expenses incurred by the indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall
45
have
employed separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with one local counsel, if
applicable)), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and
except that, if clause (i) or (iii) is applicable, such liability shall be
only
in respect of the counsel referred to in such clause (i) or (iii).
Subsection
14.02 Merger
or Consolidation of the Seller.
The
Seller will keep in full effect its existence, rights and franchises as a
national banking association except as permitted herein, and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of this Agreement, or any of the Mortgage Loans
and
to perform its duties under this Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall have a net worth of at least $25,000,000.
SECTION
15. Financial
Statements.
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
audited financial statements of the Seller for the most recently completed
three
fiscal years respecting which such statements are available, as well as a
Consolidated Statement of Condition of the Seller at the end of the last two
fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable
interim statements to the extent any such statements have been prepared by
the
Seller (and are available upon request to members or stockholders of the Seller
or the public at large). The Seller, if it has not already done so,
agrees to furnish promptly to the Purchaser copies of the statements specified
above. The Seller shall also make available information on its
servicing performance with respect to loans serviced for others, including
delinquency ratios.
The
Seller also agrees to allow reasonable access to a knowledgeable financial
or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller or
the
financial statements of the Seller.
SECTION
16. Mandatory
Delivery; Grant of Security Interest.
The
sale
and delivery on the related Closing Date of the Mortgage Loans described on
the
related Mortgage Loan Schedule is mandatory from and after the date of the
execution of the related Purchase Price and Terms Agreement, it being
specifically understood
46
and
agreed that each Mortgage Loan is unique and identifiable on the date hereof
and
that an award of money damages would be insufficient to compensate the Purchaser
for the losses and damages incurred by the Purchaser (including damages to
prospective purchasers of the Mortgage Loans) in the event of the Seller’s
failure to deliver (i) each of the related Mortgage Loans or (ii) one
or more Qualified Substitute Mortgage Loans or (iii) one or more Mortgage
Loans otherwise acceptable to the Purchaser on or before the related Closing
Date. With respect to each Mortgage Loan purchased hereunder, the
Seller hereby grants to the Purchaser a lien on and a continuing security
interest in each Mortgage Loan and each document and instrument evidencing
each
such Mortgage Loan to secure the performance by the Seller of its obligations
under the related Purchase Price and Terms Agreement, and the Seller agrees
that
it shall hold such Mortgage Loans in custody for the Purchaser subject to the
Purchaser’s (a) right to reject any Mortgage Loan (or Qualified Substitute
Mortgage Loan) under the terms of this Agreement and to require another
Mortgage Loan (or Qualified Substitute Mortgage Loan) to be substituted
therefor, and (b) obligation to pay the Purchase Price for the Mortgage
Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
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 Seller:
|
|
US
Bank, N.A.
|
|
|
1500
Xxxx 00xx Xxxxxx
|
|
|
Xxxxxxxxxxx,
XX 00000
|
(ii) if
to the Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Amxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
47
with
copies to:
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx – Servicing Oversight
5000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
1500
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
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
18. Severability
Clause.
Any
part,
provision representation or warranty of this Agreement which is prohibited
or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof. If the invalidity of any part,
provision, representation or warranty of this Agreement shall deprive any party
of the economic benefit intended to be conferred by this Agreement, the parties
shall negotiate, in good-faith, to develop a structure the economic effect
of
which is nearly as possible the same as the economic effect of this Agreement
without regard to such invalidity.
SECTION
19. 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
20. Governing
Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Purchaser in the State of New York and shall be deemed to have
been
48
made
in
the State of New York. The Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with the substantive
laws of the State of New York (without regard to conflicts of laws principles),
except to the extent preempted by Federal law.
SECTION
21. Intention
of the Parties.
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller is
selling the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Mortgage Loan Files to determine the characteristics of the Mortgage Loans
which
shall affect the Federal income tax consequences of owning the Mortgage Loans
and the Seller shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
SECTION
22. Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
third party without the prior written consent of the Purchaser, which consent
may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole
or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. With respect to any pool of Mortgage Loans
purchased hereunder, the Purchaser may assign or transfer the related Mortgage
Loans and the related rights pursuant to this Agreement no more than four
times. In the event the Purchaser assigns this Agreement, and the
assignee assumes any of the Purchaser’s obligations hereunder, the Seller
acknowledges and agrees to look solely to such assignee, and not to the
Purchaser, for performance of the obligations so assumed and the Purchaser
shall
be relieved from any liability to the Seller with respect thereto.
SECTION
23. 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
24. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
49
SECTION
25. 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
26. 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
27. 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.
50
SECTION
28. Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or their comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
SECTION
29. No
Solicitation.
From
and
after the related Closing Date, the Seller agrees that it will not take any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone or mail (via electronic means or otherwise), solicit
a
Mortgagor under any Mortgage Loan for the purpose of refinancing a Mortgage
Loan, in whole or in part, without the prior written consent of the
Purchaser. Notwithstanding the foregoing, it is understood and agreed
that the Seller, or any of its respective affiliates:
|
(i)
|
may
advertise its availability for handling refinancings of mortgages
in its
portfolio, including the promotion of terms it has available for
such
refinancings, through the sending of letters or promotional material,
so
long as it does not specifically target Mortgagors and so long as
such
promotional material either is sent to the mortgagors for all of
the
mortgages in the servicing portfolio of the Seller and any of its
affiliates (those it owns as well as those serviced for others);
and
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(ii)
|
may
provide pay-off information and otherwise cooperate with individual
mortgagors who contact it about prepaying their mortgages by advising
them
of refinancing terms and streamlined origination arrangements that
are
available.
|
Promotions
undertaken by the Seller or by any affiliate of the Seller which are directed
to
the general public at large (including, without limitation, mass mailing based
on commercially acquired mailing lists, newspaper, radio and television
advertisements), shall not constitute solicitation under this Section
29.
SECTION
30. Waiver
of Trial by Jury.
THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
51
SECTION
31. Governing
Law Jurisdiction; Consent to Service of Process.
THIS
AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED COUNTERPART THEREOF
IS
RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND SHALL BE DEEMED TO HAVE
BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE
SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR
PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY
ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING
A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES
HEREUNDER.
SECTION
32. Privacy.
Each
of
the Purchaser and the Seller shall employ proper procedures and standards
designed to maintain the confidential nature of the terms of this letter
agreement, except to the extent: (a) the disclosure of which is
reasonably believed by such party to be required in connection with regulatory
requirements or other legal requirements relating to its affairs;
(b) disclosed to any one or more of such party’s employees, officers,
directors, agents, attorneys or accountants who would have access to the
contents of this letter agreement and such data and information in the normal
course of the performance of such person’s duties for such party, to the extent
such party has procedures in effect to inform such person of the confidential
nature thereof; (c) that is disclosed in a prospectus, prospectus
supplement or private placement memorandum relating to a securitization of
the
Mortgage Loans by the Purchaser (or an affiliate assignee thereof) or to any
person in connection with the resale or proposed resale of all or a portion
of
the Mortgage Loans by such party in accordance with the terms of this letter
agreement; and (d) that is reasonably believed by such party to be
necessary for the enforcement of such party’s rights under this letter
agreement.
Notwithstanding
any other express or implied agreement to the contrary, each of the Purchaser
and the Seller agree and acknowledge that each of them and each of their
employees, representatives, and other agents may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transaction and all materials of any kind (including opinions or other
tax
analyses) that are provided to any of them relating to such tax treatment and
tax structure, except to the extent that confidentiality is reasonably necessary
to comply with U.S. federal or state securities laws. For
purposes of this paragraph, the terms “tax treatment” and “tax structure” have
the meanings specified in Treasury Regulation
section 1.6011-4(c).
52
SECTION
33. Compliance
with Regulation AB
Subsection
33.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of
Section 33 of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed securities that are
registered under the Securities Act, the Seller acknowledges that investors
in
privately offered securities may require that the Purchaser or any Depositor
provide comparable disclosure in unregistered offerings. References
in this Agreement to compliance with Regulation AB include provision of
comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or
any
Depositor to be necessary in order to effect such compliance.
Subsection
33.02 Additional
Representations and Warranties of the Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Subsection 33.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such
date: (i) the Seller is not aware and has not received notice
that any default, early amortization or other performance triggering event
has
occurred as to any other securitization due to any act or failure to act of
the
Seller; (ii) the Interim Servicer has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default
or
to application of a servicing performance test or trigger; (iii) no
material noncompliance with the applicable servicing criteria with respect
to
other securitizations of residential mortgage loans involving the Interim
Servicer as servicer has been disclosed or reported by the Seller; (iv) no
material changes to the Interim Servicer’s policies or procedures with respect
to the servicing function it will perform under the Interim Servicing Agreement
and any Reconstitution Agreement for mortgage loans of a type similar to the
Mortgage Loans have occurred during the
53
three-year
period immediately preceding the related Securitization Transaction;
(v) there are no aspects of the Interim Servicer’s financial condition that
could have a material adverse effect on the performance by the Interim Servicer
of its servicing obligations under the Interim Servicing Agreement or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller, Interim
Servicer, any Subservicer or any Third-Party Originator; and (vii) there
are no affiliations, relationships or transactions relating to the Seller,
Interim Servicer, any Subservicer or any Third-Party Originator with respect
to
any Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
(b) If
so requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Subsection 33.03, the Seller shall, within five Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
Subsection
33.03 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a) and (b) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified
in
paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, as is requested for the purpose of
compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation
AB. Such information shall include, at a minimum:
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(i)
|
the
originator’s form of organization;
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(ii)
|
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as the
Mortgage
Loans; information regarding the size and composition of the originator’s
origination portfolio; and information that may be material, in the
good
faith judgment of the Purchaser or any Depositor, to an analysis
of the
performance of the Mortgage Loans, including the originators’
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans and such other information as the Purchaser
or any
|
54
Depositor
may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
|
|
(iii)
|
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Seller and each Third-Party
Originator; and
|
|
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(iv)
|
a
description of any affiliation or relationship between the Seller,
each
Third-Party Originator and any of the following parties to a
Securitization Transaction, as such parties are identified to the
Seller
by the Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
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(A)
|
the
sponsor;
|
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(B)
|
the
depositor;
|
|
|
(C)
|
the
issuing entity;
|
|
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(D)
|
any
servicer;
|
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|
(E)
|
any
trustee;
|
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(F)
|
any
originator;
|
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(G)
|
any
significant obligor;
|
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(H)
|
any
enhancement or support provider;
and
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|
(I)
|
any
other material transaction party.
|
(b) If
so requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such
Static Pool Information shall be prepared in form and substance reasonably
satisfactory to the Purchaser by the Seller (or Third-Party Originator) on
the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is
reasonably available to the Seller (or Third-Party Originator) Static Pool
Information with respect to more than one mortgage loan type, the Purchaser
or
any Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. Such Static
Pool Information for each vintage origination year or prior securitized pool,
as
applicable, shall be presented in increments no less frequently than quarterly
over the life of the mortgage loans included in the vintage origination year
or
prior securitized pool. The most recent periodic increment must be as
of a date no later than 135 days prior to the date of the prospectus or other
offering document in which the Static Pool Information is to be included or
incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information
55
provided,
such as a portable document format (pdf) file, or other such electronic format
reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of
such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to
a
Securitization Transaction. Any such statement or letter may take the
form of a standard, generally applicable document accompanied by a reliance
letter authorizing reliance by the addressees designated by the Purchaser or
such Depositor.
(c) [Reserved]
(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of
(A) any material litigation or governmental proceedings pending against the
Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, and (ii) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or
relationships.
Subsection
33.04 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, the
Depositor and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such
56
parties
or the Depositor (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing and of the
Depositor, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
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|
(i)
|
(A) any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants’ letter or other
material provided in written or electronic form under this
Section 33 by or on behalf of the Seller, or provided under
this Section 33 by or on behalf of any Third-Party Originator
(collectively, the “Seller Information”), or (B) the omission
or alleged omission to state in the Seller Information a material
fact
required to be stated in the Seller Information or necessary in order
to
make the statements therein, in the light of the circumstances under
which
they were made, not misleading; provided, by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference
to the
Seller Information and not to any other information communicated
in
connection with a sale or purchase of securities, without regard
to
whether the Seller Information or any portion thereof is presented
together with or separately from such other
information;
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|
|
(ii)
|
any
failure by the Seller or any Third-Party Originator to deliver any
information, report, certification, accountants’ letter or other material
when and as required under this Section 33;
or
|
|
|
(iii)
|
any
breach by the Seller of a representation or warranty set forth in
Subsection 33.02(a) or in a writing furnished pursuant to
Subsection 33.02(b) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the Seller
of a
representation or warranty in a writing furnished pursuant to
Subsection 33.02(b) to the extent made as of a date subsequent
to such closing date.
|
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
(b) Any
failure by the Seller or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Section 33, or any breach by the Seller of a
representation or warranty set forth in
57
Subsection 33.02(a)
or in a writing furnished pursuant to Subsection 33.02(b) and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Seller of a representation or warranty in a writing
furnished pursuant to Subsection 33.02(b) to the extent made as of a
date subsequent to such closing date, shall immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Seller under the Interim Servicing Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Interim Servicer as servicer under the Interim Servicing Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to the
contrary) of any compensation to the Interim Servicer; provided that to the
extent that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Interim Servicer as servicer, such provision shall
be given effect.
[Signature
Page Follows]
58
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.
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | |||
|
|
By:
|
/s/ | |
| Name | |||
| Title | |||
| US BANK, N.A. | |||
|
|
By:
|
/s/ | |
| Name | |||
| Title | |||
EXHIBIT
A
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
any prospective Purchaser, and which shall be delivered to the Custodian, or
to
such other Person as the Purchaser shall designate in writing, pursuant to
Section 6 of the Fifth Amended and Restated Mortgage Loan Purchase and
Warranties Agreement to which this Exhibit is attached (the
“Agreement”):
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last Endorsee”) by an authorized officer. To
the extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge, if state law
so
allows and the Custodian is so advised by the Seller that state law so
allows. If the Mortgage Loan was acquired by the Seller in a merger,
the endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the endorsement must
be
by “[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage with
evidence of recording thereon. With respect to any Co-op Loan, an
original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the related Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the Seller shall deliver or cause to be delivered to the Custodian,
a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer’s Certificate of the Seller (or
certified by the title company, escrow agent, or closing attorney) stating
that
such Mortgage has been dispatched to the appropriate public recording office
for
recordation and that the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the
original recorded Mortgage will be promptly delivered to the Custodian upon
receipt thereof by the Seller; or (ii) in the case of a Mortgage where a
public recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, a
copy
of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
A-1
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment
of
Mortgage for each Mortgage Loan, in form and substance acceptable for recording
(except with respect to MERS Designated Loans). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage investors
in the area where the Mortgaged Property is located or on direction of the
Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the
Purchaser. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage
Loan was acquired by the Seller in a merger, the Assignment of Mortgage must
be
made by “[Seller], successor by merger to [name of predecessor]”. If
the Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be by “[Seller], formerly
known as [previous name]”;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, a photocopy of such intervening assignment, together
with (i) in the case of a delay caused by the public recording office, an
Officers Certificate of the Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy
of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or commitment
for title certified to be true and complete by the title insurance
company;
(h) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the
assignment of such Co-op Lease, with all intervening assignments showing a
complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the
interests of the mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financing statement filed by the originator as secured party
A-2
and,
if
applicable, a filed UCC-3 assignment of the subject security interest showing
a
complete chain of title, together with an executed UCC-3 assignment of such
security interest by the Seller in a form sufficient for filing;
and
(j) if
any of the above documents has been executed by a person holding a power of
attorney, an original or photocopy of such power certified by the
holder of the original power of attorney to be a true and correct copy of the
original.
In
the
event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within 90 days
of
the related Closing Date, an Officer’s Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered to
the Custodian; provided, however, that any recorded document shall in no event
be delivered later than one year following the related Closing
Date. An extension of the date specified in clause (iv) above
may be requested from the Purchaser, which consent shall not be unreasonably
withheld.
A-3
EXHIBIT
B
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”), dated as of
[_______], 200_, among [________________] (the “Depositor”), a
[______________] corporation (the “Depositor”), Xxxxxx Xxxxxxx Mortgage
Capital Inc., a New York corporation (“Xxxxxx”) and [_____________], a
[_______________] (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus Supplement”), relating to
[________________] Certificates (the “Certificates”) to be issued
pursuant to a Pooling and Servicing Agreement, dated as of [________________]
(the “P&S”), among the Depositor, as depositor, [________________],
as servicer (the “Servicer”), and [________________], as trustee (the
“Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”) to enter into the
Underwriting Agreement, dated [____________________] (the “Underwriting
Agreement”) between the Depositor and the Underwriter[s], Seller has agreed
to provide for indemnification and contribution on the terms and conditions
hereinafter set forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”) pursuant to a Fifth Amended and
Restated Mortgage Loan Purchase and Warranties Servicing Agreement, dated as
of
April 1, 2007 (the “Purchase Agreement”), by and between Xxxxxx and
Seller; and
WHEREAS,
pursuant to Section 13 of the Purchase Agreement, the Seller has agreed
to provide indemnification for certain information.
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) the
Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx, the
Underwriter[s] and their respective affiliates and their respective present
and
former directors, officers, employees and agents and each person, if any, who
controls the Depositor, Xxxxxx, the Underwriter[s] or such affiliates within
the
meaning of either Section 15 of the Securities Act of 1933, as amended
(the “1933 Act”), or Section 20 of the Securities Exchange Act of
1934, as amended (the “1934 Act”), against any and all losses, claims,
damages or
B-1
liabilities,
joint or several, to which they or any of them may become subject under the
1933
Act, the 1934 Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based in whole or in part
upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or the Free Writing Prospectus or
any
omission or alleged omission to state in the Prospectus Supplement, the Offering
Circular, the ABS Informational and Computational Materials or the Free Writing
Prospectus a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any such untrue statement or omission or alleged untrue
statement or alleged omission made in any amendment of or supplement to the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus and agrees to reimburse
the Depositor, Xxxxxx, the Underwriter[s] or such affiliates and each such
officer, director, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that Seller shall be liable in any such case
only to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement
or
omission or alleged omission made in reliance upon and in conformity with the
Seller Information. The foregoing indemnity agreement is in addition
to any liability which Seller may otherwise have to the Depositor, Xxxxxx,
the
Underwriter[s], their affiliates or any such director, officer, employee, agent
or controlling person of the Depositor, Xxxxxx, the Underwriter[s] or their
respective affiliates.
As
used
herein:
“Seller
Information” means any information relating to Seller, the Mortgage Loans
and/or the underwriting guidelines relating to the Mortgage Loans set forth
in
the Prospectus Supplement or the Offering Circular or the ABS Informational
and
Computational Materials or the Free Writing Prospectus [and static pool
information regarding mortgage loans originated or acquired by the Seller]
[and
included in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or the Free Writing Prospectus]
[incorporated by reference from the website located at
______________].
“Free
Writing Prospectus” means any written communication that constitutes a “free
writing prospectus,” as defined in Rule 405 under the 1933 Act.
“ABS
Informational and Computational Material” means any written communication as
defined in Item 1101(a) of Regulation AB under the 1933 Act and the 1934 Act,
as
may be amended from time to time.
“Offering
Circular” means the offering circular, dated [__________] relating to the
private offering of the [_______________] Certificates.
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release
B-2
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506–1,631
(January 7, 2005)) or by the staff of the Commission, or as may be provided
by
the Commission or its staff from time to time.
(b) Promptly
after receipt by any indemnified party under this Section 1 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1, notify the indemnifying party in writing of
the claim or the commencement of that action; provided, however, that the
failure to notify an indemnifying party shall not relieve it from any liability
which it may have under this Section 1 except to the extent it has been
materially prejudiced by such failure; and provided, further, however, that
the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section
1.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, except as provided in the following
paragraph, the indemnifying party shall not be liable to the indemnified party
under this Section 1 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party,
in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of
such action on behalf of such indemnified party, it being understood, however,
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified
parties.
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1, shall cooperate with the indemnifying party in the defense of
any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the
B-3
indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(c) If
the indemnification provided for in this Section 1 is unavailable to
an indemnified party, then the indemnifying party, in lieu of indemnifying
such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party, respectively, in connection with
the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and
indemnifying party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties and their relative knowledge, access to information
and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(d) The
indemnity and contribution agreements contained in this Section 1
and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the
Depositor, Xxxxxx, the Underwriter[s], their respective affiliates, directors,
officers, employees or agents or any person controlling the Depositor, Xxxxxx,
the Underwriter[s] or any such affiliate, and (iii) acceptance of and
payment for any of the Offered Certificates.
2. Representations
and Warranties. Seller represents and warrants that:
(i) Seller
is validly existing and in good standing under the laws of its jurisdiction
of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently
engaged. Seller is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business transacted
by it or any properties owned or leased by it requires such qualification and
in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of
Seller;
(ii) Seller
is not required to obtain the consent of any other person or any consent,
license, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
B-4
(iii) the
execution, delivery and performance of this Agreement by Seller will not violate
any provision of any existing law or regulation or any order decree of any
court
applicable to Seller or any provision of the charter or bylaws of Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or the Offered
Certificates, in either case, which would have a material adverse effect on
the
business, properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated hereunder, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of each of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution
thereunder;
(vi) this
Agreement has been duly executed and delivered by Seller; and
(vii) the
Seller represents that the Seller Information satisfies the requirements of
the
applicable provisions of Regulation AB.
3. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or telegraphed and confirmed
[______________________]; if sent to Xxxxxx, xxxx be mailed, delivered or
telegraphed and confirmed to Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxxxxx - Whole Loans Operations Manager, Fax: [_______],
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with copies to
(i) Xxxxx X. Xxx, Xxxxxx Xxxxxxx – Legal Counsel, Securities, Xxxxxx
Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax [_____],
Email: xxxxx.x.xxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx – SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Fax [_____],
Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if to the Depositor, will be
mailed, delivered or telegraphed and confirmed to [____________________]; or
if
to the Underwriter[s], will be mailed, delivered or telegraphed and confirmed
to
[_____________________]; or if to the Initial Purchaser[s], will be mailed,
delivered or telegraphed and confirmed to [_____________________].
4. Miscellaneous. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without giving effect to the conflict of laws provisions
thereof. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns and the controlling
persons referred to herein, and no other person shall have any right or
obligation hereunder. Neither this Agreement nor any term
B-5
hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. This Agreement
may be executed in counterparts, each of which when so executed and delivered
shall be considered an original, and all such counterparts shall constitute
one
and the same instrument. Capitalized terms used but not defined
herein shall have the meanings provided in the P&S.
[SIGNATURE
PAGE FOLLOWS]
B-6
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this __th day
of
[_____________].
| [DEPOSITOR] | |||
|
|
By:
|
||
| Name | |||
| Title | |||
|
XXXXXX
XXXXXXX MORTGAGE
CAPITAL
INC.
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
| [SELLER] | |||
|
|
By:
|
||
| Name | |||
| Title | |||
B-7
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of ________________[COMPANY], a [state] [federally] chartered institution
organized under the laws of the [state of ____________] [United States] (the
“Company”) and further as follows:
1. Attached
hereto as Exhibit 1 is a true, correct and complete copy of the charter
of the Company which is in full force and effect on the date hereof and which
has been in effect without amendment, waiver, rescission or modification since
___________.
2. Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws of
the Company which are in effect on the date hereof and which have been in effect
without amendment, waiver, rescission or modification since
___________.
3. Attached
hereto as Exhibit 3 is an original certificate of good standing of the
Company, and no event has occurred since the date thereof which would impair
such standing.
4. Attached
hereto as Exhibit 4 is a true, correct and complete copy of the
resolutions duly adopted by the board of directors of the Company on
____________, 200[ ] (the “Resolutions”) with respect to the
authorization and approval of the sale and servicing of the Mortgage Loans,
and
such resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification since
____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, [the sale of the mortgage loans] or the consummation of the
transactions contemplated by the agreements; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Purchase Agreement conflicts or will conflict with or results
or
will result in a breach of or constitutes or will constitute a default under
the
charter or by-laws of the Company or, to the best of my knowledge, the terms
of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound or to which it is subject, or any statute or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which it
is
bound.
7. To
the best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either
C-1
in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Purchase Agreement, or the mortgage loans or of any action
taken
or to be taken in connection with the transactions contemplated hereby, or
which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Purchase Agreement.
8. Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Company, signed (a) the Purchase Agreement, and
(b) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the respective
times of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Company, who holds the
office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement.
C-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
|
Dated:
[Seal]
|
By:
Name:
Title: [Vice]
President
|
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is [her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
________________________________
|
By:
Name:
Title: [Assistant]
Secretary
|
C-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
||
C-4
EXHIBIT
D
FORM
OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to
___________________ (the “Company”), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans pursuant to that
certain Fifth Amended and Restated Mortgage Loan Purchase and Warranties
Agreement by and between the Company and Xxxxxx Xxxxxxx Mortgage Capital Inc.
(the “Purchaser”), dated as of April 1, 2007 (the “Purchase
Agreement”) which sale is in the form of whole loans, delivered pursuant to
a Custodial Agreement dated as of ___________ __, ____ among the Purchaser,
the
Company, ______________________ (the “Servicer”) and
______________________[CUSTODIAN] (the “Custodial Agreement”, and
collectively with the Purchase Agreement, the
“Agreements”). Capitalized terms not otherwise defined herein
have the meanings set forth in the Purchase Agreement.
[We]
[I]
have examined the following documents:
1. the
Purchase Agreement;
2. the
Custodial Agreement;
3. the
form of Assignment of Mortgage;
4. the
form of endorsement of the Mortgage Notes; and
5. such
other documents, records and papers as we have deemed necessary and relevant
as
a basis for this opinion.
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Purchase
Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based
upon the foregoing, it is [our] [my] opinion that:
D-1
|
|
1.
|
The
Company is a [type of entity] duly organized, validly existing and
in good
standing under the laws of the [United States] and is qualified to
transact business in, and is in good standing under, the laws of
[the
state of incorporation].
|
|
|
2.
|
The
Company has the power to engage in the transactions contemplated
by the
Agreements and all requisite power, authority and legal right to
execute
and deliver the Agreements and to perform and observe the terms and
conditions of the Agreements.
|
|
|
3.
|
The
Agreements have been duly authorized, executed and delivered by the
Company, and are the legal, valid and binding agreement enforceable
in
accordance with its terms against the Company, subject to bankruptcy
laws
and other similar laws of general application affecting rights of
creditors and subject to the application of the rules of equity,
including
those respecting the availability of specific performance, none of
which
will materially interfere with the realization of the benefits provided
thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
|
|
4.
|
The
Company has been duly authorized to allow any of its officers to
execute
any and all documents by original signature in order to complete
the
transactions contemplated by the
Agreements.
|
|
|
5.
|
The
Company has been duly authorized to allow any of its officers to
execute
by original [or facsimile] signature the endorsements to the Mortgage
Notes and the Assignments of Mortgages, and the original [or facsimile]
signature of the officer at the Company executing the endorsements
to the
Mortgage Notes and the Assignments of Mortgages represents the legal
and
valid signature of said officer of the
Company.
|
|
|
6.
|
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Agreements and the sale of the Mortgage Loans by the Company or the
consummation of the transactions contemplated by the Agreements or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
|
|
|
7.
|
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of, the Agreements conflict or will conflict with or
results
or will result in a breach of or constitute or will constitute a
default
under the charter or by-laws of the Company or, to the best of my
knowledge, the material terms of any indenture or other agreement
or
instrument to which the Company is a party or by which it is bound
or to
which it is subject, or violates any statute or order, rule, regulations,
writ, injunction or decree of any court, governmental authority or
regulatory body to which the Company is subject or by which it is
bound.
|
D-2
|
|
8.
|
There
is no action, suit, proceeding or investigation pending or, to the
best of
[our] [my] knowledge, threatened against the Company which, in [our]
[my]
judgment, either in any one instance or in the aggregate, may result
in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its
business
substantially as now conducted or in any material liability on the
part of
the Company or which would draw into question the validity of the
Agreements or the Mortgage Loans or of any action taken or to be
taken in
connection with the transactions contemplated thereby, or which would
be
likely to impair materially the ability of the Company to perform
under
the terms of the Agreements.
|
|
|
9.
|
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Agreements is sufficient to fully transfer to the Purchaser
all
right, title and interest of the Company thereto as noteholder and
mortgagee.
|
|
|
10.
|
The
Mortgages have been duly assigned and the Mortgage Notes have been
duly
endorsed as provided in the Custodial Agreement. The
Assignments of Mortgage are in recordable form, except for the insertion
of the name of the assignee, and upon the name of the assignee being
inserted, are acceptable for recording under the laws of the state
where
each related Mortgaged Property is located. The endorsement of
the Mortgage Notes, the delivery to the Purchaser, or its designee,
of the
Assignments of Mortgage, and the delivery of the original endorsed
Mortgage Notes to the Purchaser, or its designee, are sufficient
to permit
the Purchaser to avail itself of all protection available under applicable
law against the claims of any present or future creditors of the
Company,
and are sufficient to prevent any other sale, transfer, assignment,
pledge
or hypothecation of the Mortgages and the Mortgage Notes by the Company
from being enforceable.
|
Except
as
otherwise set forth in the Agreements, I assume no obligation to revise this
opinion or alter its conclusions to update or support this letter to reflect
any
facts or circumstances that may hereafter develop.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of the date of this opinion.
| Very truly yours, | |||
|
|
|
||
| [Name] | |||
| [Assistant] General Counsel | |||
|
|
|
D-3
EXHIBIT
E
FORM
OF SECURITY RELEASE CERTIFICATION
___________________,
200__
[Federal
Home Loan Bank of
______(the
“Association”)]
________________________
________________________
________________________
|
Attention:
|
___________________________
|
|
|
___________________________
|
|
|
Re:
|
Notice
of Sale and Release of
Collateral
|
Dear
Sirs:
This
letter serves as notice that ________________________ [COMPANY] a [type of
entity], organized pursuant to the laws of [the State of incorporation] (the
“Company”) has committed to sell to Xxxxxx Xxxxxxx Mortgage Capital Inc.
under a Fifth Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of April 1, 2007, certain mortgage loans originated by
the Association. The Company warrants that the mortgage loans to be
sold to Xxxxxx Xxxxxxx Mortgage Capital Inc. are in addition to and beyond
any
collateral required to secure advances made by the Association to the
Company.
The
Company acknowledges that the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc. shall not be used as additional or substitute collateral
for advances made by the Association. Xxxxxx Xxxxxxx Mortgage Capital
Inc. understands that the balance of the Company’s mortgage loan portfolio may
be used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution
of this letter by the Association shall constitute a full and complete release
of any security interest, claim, or lien which the Association may have against
the mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital
Inc.
E-1
|
Very
truly yours,
|
|
| _________________________________ | |
| By: ______________________________ | |
| Name: ____________________________ | |
| Title: _____________________________ | |
| Date: _____________________________ |
Acknowledged
and approved:
[FEDERAL
HOME LOAN BANK OF]
_____________________________
By:
Name:
Title:
Date:
E-2
EXHIBIT
F
FORM
OF SECURITY RELEASE CERTIFICATION
I. Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule A (the “Mortgage Loans”), to be purchased
by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the company named on the next
page
(the “Company”) pursuant to that certain Fifth Amended and Restated
Mortgage Loan Purchase and Warranties Agreement, dated as of April 1, 2007,
and certifies that all notes, mortgages, assignments and other documents in
its
possession relating to such Mortgage Loans have been delivered and released
to
the Company or its designees, as of the date and time of the sale of such
Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc. Such release
shall be effective automatically without any further action by any party upon
payment in one or more installments, in immediately available funds, of
$_____________, in accordance with the wire instructions set forth
below.
Name,
Address and Wire Instructions of Financial Institution
______________________________
(Name)
_______________________________
(Address)
_______________________________
_______________________________
_______________________________
By:
______________________________________
F-1
II. Certification
of Release
The
Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage Capital Inc.
that, as of the date and time of the sale of the above-mentioned Mortgage Loans
to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in the Mortgage
Loans released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage
Loans. The Company warrants that, as of such time, there are and will
be no other security interests affecting any or all of such Mortgage
Loans.
| ____________________________________ | |
| By: _________________________________ | |
| Title: ________________________________ | |
| Date: ________________________________ |
F-2
EXHIBIT
G
UNDERWRITING
GUIDELINES
G-1
EXHIBIT
H
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this
___ day of _______, 200_, [____________] (“Seller”), as the Seller under
(i) that certain Purchase Price and Terms Agreement, dated as of _________,
200__ (the “PPTA”), and (ii) that certain Fifth Amended and Restated
Mortgage Loan Purchase and Warrants Agreement, dated as of April 1, 2007
(the “Purchase Agreement”), does hereby sell, transfer, assign, set over
and convey to Xxxxxx Xxxxxxx Mortgage Capital, Inc. (“Purchaser”) as the
Purchaser under the Agreements (as defined below) without recourse, but subject
to the terms of the Agreements, all right, title and interest of, in and to
the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as
Exhibit A (the “Mortgage Loans”), together with the Mortgage Files
and the related Servicing Rights and all rights and obligations arising under
the documents contained therein. Each Mortgage Loan subject to the
Agreements was underwritten in accordance with, and conforms to, the
Underwriting Guidelines attached hereto as Exhibit C. Pursuant
to Section 6 of the Purchase Agreement, the Seller has delivered to
the Custodian the documents for each Mortgage Loan to be purchased as set forth
in the Purchase Agreement. The ownership of each Mortgage Note,
Mortgage and the contents of the Mortgage File and Servicing File is vested
in
the Purchaser and the ownership of all records and documents with respect to
the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in a custodial
capacity only. The PPTA and the Purchase Agreement shall collectively
be referred to as the “Agreements” herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser
accepts the Mortgage Loans listed on Exhibit A attached
hereto. Notwithstanding the foregoing the Purchaser does not waive
any rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
H-1
| [SELLER] | |
| By: ______________________________ | |
| Name: ____________________________ | |
| Title: _____________________________ | |
Accepted
and Agreed:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By:_______________________________
Name:
Title:
H-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
H-3
EXHIBIT
B
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF EACH MORTGAGE LOAN
PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less
than $_____; (2) an origination date earlier than __ months prior to the
related Cut-off Date; (3) a CLTV of greater than ____%; (4) a FICO
Score of less than ___; or (5) a debt-to-income ratio of more than
___%. Each Mortgage Loan has a Mortgage Interest Rate of at least
___% per annum and an outstanding principal balance of less than
$______. Each Adjustable Rate Mortgage Loan has an Index of
[______].
H-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
H-5
