SECOND AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
Exhibit
99.15a
SECOND
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
QUICKEN
LOANS, INC.
Seller
Dated
as
of June 1, 2006
Conventional,
Fixed
and
Adjustable Rate
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
DEFINITIONS.
|
1
|
|
SECTION
2.
|
AGREEMENT
TO PURCHASE.
|
14
|
|
SECTION
3.
|
MORTGAGE
SCHEDULES.
|
14
|
|
SECTION
4.
|
PURCHASE
PRICE.
|
14
|
|
SECTION
5.
|
EXAMINATION
OF MORTGAGE FILES.
|
15
|
|
SECTION
6.
|
CONVEYANCE
FROM SELLER TO PURCHASER.
|
16
|
|
SECTION
7.
|
SERVICING
OF THE MORTGAGE LOANS.
|
19
|
|
SECTION
8.
|
REPRESENTATIONS
AND WARRANTIES REGARDING THE PURCHASER.
|
19
|
|
SECTION
9.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SELLER; REMEDIES FOR
BREACH.
|
20
|
|
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.
|
44
|
|
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.
|
00
|
-x-
|
XXXXXXX
00.
|
SUCCESSORS
AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.
|
49
|
|
SECTION
23.
|
WAIVERS.
|
49
|
|
SECTION
24.
|
EXHIBITS.
|
49
|
|
SECTION
25.
|
GENERAL
INTERPRETIVE PRINCIPLES.
|
49
|
|
SECTION
26.
|
REPRODUCTION
OF DOCUMENTS.
|
50
|
|
SECTION
27.
|
FURTHER
AGREEMENTS.
|
50
|
|
SECTION
28.
|
RECORDATION
OF ASSIGNMENTS OF MORTGAGE.
|
50
|
|
SECTION
29.
|
NO
SOLICITATION.
|
50
|
|
SECTION
30.
|
WAIVER
OF TRIAL BY JURY.
|
51
|
|
SECTION
31.
|
JURISDICTION;
CONSENT TO SERVICE OF PROCESS
|
51
|
|
SECTION
32.
|
CONFIDENTIALITY.
|
51
|
|
SECTION
33.
|
ENTIRE
AGREEMENT.
|
52
|
|
SECTION
34.
|
COMPLIANCE
WITH REGULATION AB.
|
52
|
EXHIBITS
|
EXHIBIT
A-1
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
A-2
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION
AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
|
EXHIBIT
D
|
[RESERVED]
|
|
EXHIBIT
E
|
FORM
OF ASSIGNMENT AND RECOGNITION
AGREEMENT
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
-ii-
SECOND
AMENDED AND RESTATED
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This
SECOND AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
(“Agreement”),
dated as of June 1, 2006, by and between Xxxxxx Xxxxxxx Mortgage Capital
Inc., a
New York corporation (the “Purchaser”), and
Quicken Loans, Inc., a Michigan corporation (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Purchaser and the Seller are parties to that certain Mortgage Loan Purchase
and Warranties Agreement, dated as of June 1, 2004, as amended and restated
by
that certain Amendment No. 1 dated October 1, 2004 as amended and restated
by
that certain First Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2005 (the “Original Purchase
Agreement”) and the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from
the
Seller, certain conventional adjustable and fixed rate residential first-lien
mortgage loans (the “Mortgage Loans”) on a
servicing released basis as described herein, and which shall be delivered
in
pools of whole loans (each, a “Mortgage Loan
Package”) on various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
the Purchaser and the Seller desire to enter into this Agreement to amend
and
restate the Original Purchase Agreement to make certain modifications as
set
forth herein with respect to all Mortgage Loans subject to this Agreement
or the
Original Purchase Agreement.
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 each Mortgage Loan and the Seller
shall mean the servicing procedures which (i) conform to customary and usual
standards of practice of prudent mortgage lenders and mortgage loan servicers,
for mortgage loans similar to the Mortgage Loans, (ii) follow the policies
and
procedures that the Seller applies to similar mortgage loans serviced for
third
parties and for its own account, (iii) meet the requirements of Xxxxxx Mae
and
Xxxxxxx Mac and (iv) comply with all applicable laws and follow collection
practices with respect to the related Mortgage Loans that are in all material
respects legal and customary.
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
Third 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: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator
of
the Mortgage Loan at the time of origination of the Mortgage Loan by a Qualified
Appraiser and (ii) the purchase price paid for the related Mortgaged Property
by
the Mortgagor with the proceeds of the Mortgage Loan; provided, however,
that in
the case of a refinanced Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such refinanced Mortgage Loan at the time of origination of such refinanced
Mortgage Loan by a Qualified Appraiser.
Assignment
and Conveyance
Agreement: As defined in Subsection 6.01.
Assignment
of
Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect
the
sale of the Mortgage to the Purchaser.
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 Interim Servicer’s servicing operations
are located or (iii) the state in which the Custodian’s operations are
located, are authorized or obligated by law or executive order to be
closed.
Cash-Out
Refinance: A refinanced Mortgage Loan in which the proceeds
received were in excess of the amount of funds required to repay the principal
balance of any existing first mortgage on the related Mortgaged Property,
pay
related closing costs and satisfy any outstanding subordinate mortgages on
the
related Mortgaged Property as determined in accordance with Seller’s
Underwriting Guidelines.
-2-
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.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission: The
United States Securities and Exchange Commission.
Condemnation
Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise
of the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and
common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor’s Glossary.
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
Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at any given time, all of the individual Custodial Agreements shall
collectively be referred to as the “Custodial Agreement.”
Custodian:
Deutsche
Bank Trust Company Americas, a New York banking corporation, 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
Purchase Price and Terms Agreement with respect to the related Mortgage Loan
Package.
-3-
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.
Determination
Date: The date specified in the Interim Servicing Agreement
(with respect to each Mortgage Loan, for an interim period, as specified
therein).
Due
Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Exchange
Act. The Securities Exchange Act of 1934, as
amended.
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.
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
-4-
accordance
with the terms of the related Mortgage Note to determine on each Interest
Rate
Adjustment Date the Mortgage Interest Rate for such Mortgage Loan.
High
Cost
Loan: A Mortgage Loan (a) covered by the Home Ownership and
Equity Protection Act of 1994 (“HOEPA”), (b)
with an
“annual percentage rate” or total “points and fees” payable by the related
Mortgagor (as each such term is calculated under HOEPA) that exceed the
thresholds set forth by HOEPA and its implementing regulations, including
12 C.F.R. § 226.32(a)(1)(i) and (ii), (c) classified as a “high
cost home,” “threshold,” “covered,” (excluding New Jersey “Covered Home Loans”
as that term was defined in clause (1) of the definition of that term in
the New
Jersey Home Ownership Security Act of 2002 that were originated between November
26, 2003 and July 7, 2004), “high risk home,” “predatory” or similar loan under
any other applicable state, federal or local law (or a similarly classified
loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (d) a Mortgage Loan categorized as
High
Cost pursuant to Appendix E of Standard & Poor’s Glossary. For
avoidance of doubt, the parties agree that this definition shall apply to
any
law regardless of whether such law is presently, or in the future becomes,
the
subject of judicial review or litigation.
Home
Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of the Standard & Poor’s Glossary.
HUD: The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with
regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes
of this Agreement, is also deemed to include subdivisions thereof such as
the
FHA and Government National Mortgage Association.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest
Rate Adjustment
Date: With respect to each Adjustable Rate Mortgage Loan, the
date, specified in the related Mortgage Note and the related Mortgage Loan
Schedule, on which the Mortgage Interest Rate is adjusted.
Interim
Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the interim funder pursuant to the
MERS
Procedures Manual.
Interim
Servicer: The servicer under the Interim Servicing Agreement,
or its successor in interest, or any successor to the Interim Servicer under
the
Interim Servicing Agreement, as therein provided.
-5-
Interim
Servicing
Agreement: The agreement to be entered into by the Purchaser
and the Interim Servicer, providing for the Interim Servicer to service the
Mortgage Loans as specified by the Interim Servicing Agreement.
Investor: With
respect to each MERS Designated Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate
Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms
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: Cash 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.
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 date of origination (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 June 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 Procedure Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS
System.
-6-
MERS
Procedure
Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly
Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on the Mortgaged Property. With respect to a
Co-op Loan, the Security Agreement.
Mortgage
File: With respect to any Mortgage Loan, the Mortgage Loan
Documents and the items listed in Exhibit A-2 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 Mortgagor
is
self-employed; (5) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (6) 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); (7) the original
-7-
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; (8) the Loan-to-Value Ratio at origination; (9) the Mortgage Interest
Rate as of the related Cut-off Date; (10) 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; (11) the stated maturity
date;
(12) the amount of the Monthly Payment as of the related Cut-off Date; (13)
the
last payment date on which a payment was actually applied to the outstanding
principal balance; (14) the original principal amount of the Mortgage Loan;
(15)
the principal balance of the Mortgage Loan as of the close of business on
the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (16) with respect to each First Lien
Loan
with a second lien behind it, the combined principal balance of the Mortgage
Loan as of the close of business on the related origination date, after
deduction of payments of principal due and collected on or before the related
Cut-off Date; (17) [reserved]; (18) with respect to Adjustable Rate Mortgage
Loans, the Interest Rate Adjustment Date; (19) with respect to Adjustable
Rate
Mortgage Loans, the Gross Margin; (20) with respect to Adjustable Rate Mortgage
Loans, the Lifetime Rate Cap under the terms of the Mortgage Note; (21) with
respect to Adjustable Rate Mortgage Loans, a code indicating the type of
Index;
(22) the type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate); (23)
a code
indicating the purpose of the loan (i.e., purchase, Rate/Term Refinance or
Cash-Out Refinance); (24) a code indicating the documentation style (i.e.
no
documents, full, alternative, reduced, no income/no asset, stated income,
no
ratio, reduced or NIV); (25) asset verification (Y/N); (26) the loan credit
classification (as described in the Underwriting Guidelines); (27) whether
such
Mortgage Loan provides for a Prepayment Penalty; (28) the Prepayment Penalty
period of such Mortgage Loan, if applicable; (29) a description of the
Prepayment Penalty, if applicable; (30) the Mortgage Interest Rate as of
origination; (31) the credit risk score (FICO score); (32) the date of
origination; (33) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest Rate adjustment period with respect to (i) initial adjustment and
(ii)
periodic adjustments following the initial adjustment; (34) with respect
to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment percentage
with respect to (i) initial adjustment and (ii) periodic adjustments following
the initial adjustment; (35) with respect to Adjustable Rate Mortgage Loans,
the
Mortgage Interest Rate floor; (36) the Mortgage Interest Rate calculation
method
(i.e., 30/360, simple interest, other); (37) with respect to Adjustable Rate
Mortgage Loans, the Periodic Rate Cap as of the first Interest Rate Adjustment
Date; (38) with respect to each Adjustable Rate Mortgage Loan, a code indicating
whether the Mortgage Loan provides for negative amortization; (39) with respect
to each Adjustable Rate Mortgage Loan with negative amortization, the negative
amortization limit; (40) a code indicating whether the Mortgage Loan is a
High
Cost Loan; (41) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan; (42) a code indicating whether the Mortgage Loan by its original
terms or any modifications thereof provides for amortization beyond its
scheduled maturity date; (43) the original Monthly Payment due; (44) the
Appraised Value; (45) appraisal type; (46) appraisal date; (47) a code
indicating whether the Mortgage Loan is covered by a PMI Policy and, if so,
identifying the PMI Policy provider; (48) in connection with a condominium
unit,
a code indicating whether the condominium project where such unit is located
is
low-rise or high-rise; (49) a code indicating whether the Mortgaged Property
is
a leasehold estate; (50) with respect to the related Mortgagor, the
debt-to-income ratio; (51) sales price; (52) automated valuation model (AVM);
and (53) the MERS Identification Number, if applicable. With
respect
-8-
to
the
Mortgage Loans in the aggregate, the related Mortgage Loan Schedule shall
set
forth the following information, as of the related Cut-off Date: (1)
the number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest
Rate
of the Mortgage Loans; (4) the weighted average maturity of the Mortgage
Loans;
(5) the average principal balance of the Mortgage Loans; (6) the applicable
Cut-off Date; and (7) the applicable Closing Date.
Mortgage
Note: The 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. 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 Interim
Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable from related Insurance Proceeds, Liquidation Proceeds
or
otherwise. The determination by the Interim Servicer that it has made
a Nonrecoverable Advance or that any proposed advance of principal and interest,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by
an
Officers’ Certificate delivered to the Purchaser.
Officer’s
Certificate: A certificate signed by the Chairman of the Board
or the Vice Chairman of the Board or a President or a Vice President and
by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Seller, and delivered to the Purchaser as required by
this
Agreement.
Periodic
Rate
Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously
in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan
is the rate set forth as such on the related Mortgage Loan
Schedule.
Periodic
Rate
Floor: With respect to each Adjustable Rate Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount
by
which the Mortgage Interest Rate therein may decrease on an Interest Rate
Adjustment Date below the Mortgage Interest Rate previously in
effect.
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Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified
to do
business in the jurisdiction where the Mortgaged Property is
located.
Preliminary
Mortgage
Schedule: As defined in Section
3.
Prepayment
Penalty: With respect to each Mortgage Loan, the amount of any
premium or penalty required to be paid by the Mortgagor if the Mortgagor
prepays
such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any Prepayment Penalty thereon, and which is not accompanied by an amount
of
interest representing scheduled interest due on any date or dates in any
month
or months subsequent to the month of prepayment.
Purchase
Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this
Agreement.
Purchase
Price and Terms
Agreement: Those certain agreements setting forth the general
terms and conditions of the transactions consummated herein and identifying
the
Mortgage Loans to be purchased from time to time hereunder, by and between
the
Seller and the Purchaser.
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 Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an
agreement between the Seller and such Person that contemplated that such
Person
would underwrite mortgage loans from time to time, for sale to the Seller,
in
accordance with underwriting guidelines designated by the Seller (“Designated
Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as
described in clause (i) above and were acquired by the Seller within 180
days
after origination; (iii) either (x) the Designated Guidelines were, at the
time
such
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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, be approved by the Purchaser and (i) have an unpaid principal
balance, after deduction of all scheduled payments due in the month of
substitution (or in the case of a substitution of more than one mortgage
loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the unpaid principal balance of the Deleted Mortgage Loan (the amount of
any
shortfall will be deposited in the Custodial Account by the Seller in the
month
of substitution); (ii) have a Mortgage Interest Rate not less than and not
more than one percent (1%) greater than the Mortgage Interest Rate of the
Deleted Mortgage Loan; (iii) have a remaining term to maturity not greater
than and not more than one (1) year less than that of the Deleted Mortgage
Loan;
(iv) be of the same type as the Deleted Mortgage Loan (i.e., fixed rate or
adjustable rate with same Mortgage Interest Rate Cap and Index); (v) comply
as of the date of substitution with each representation and warranty set
forth
in Section 9 of
this Agreement; (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.
Rate/Term
Refinance: A refinanced Mortgage Loan, in which the proceeds
received were not in excess of the amount of funds required to repay the
principal balance of any existing first mortgage loan on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property, as determined in accordance
with
Seller’s Underwriting Guidelines.
Reconstitution: Any
Securitization Transaction or a Whole Loan Transfer.
Reconstitution
Agreements: As defined in Section
13
hereof.
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, 1,531 (January 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
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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: As defined in the related Purchase Price and Terms
Agreement.
Residential
Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling,
(iii) a one-family dwelling unit in a condominium project or (iv) a
one-family dwelling in a planned unit development, none of which is a
co-operative, mobile or manufactured home.
RESPA: Real
Estate Settlement Procedures Act, as amended from time to time.
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
34.04(a).
Servicing
Fee: With respect to each Mortgage Loan, a fee payable monthly
equal to one-twelfth of the product of (a) the Servicing Fee Rate and
(b) the outstanding principal balance of such Mortgage
Loan. Such fee shall be payable monthly and shall be pro-rated for
any portion of a month during which the Mortgage Loan is serviced by the
Seller
under this Agreement. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, to the extent permitted by this Agreement) of such Monthly Payment
collected by the Seller, or as otherwise provided under this
Agreement.
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Servicing
Fee
Rate: An amount per annum as set forth in the related Purchase
Price and Terms Agreement.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Interim Servicer consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies
of the
Mortgage Loan Documents set forth in Section 2 of the
Custodial Agreement.
Servicing
Rights: Any and all of the following: (a) any and
all rights to service the Mortgage Loans; (b) any payments to or monies received
by the Seller for servicing the Mortgage Loans; (c) any late fees, penalties
or
similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to
the Mortgage Loans and any amounts actually collected by the Seller with
respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage
Loans.
Sponsor: The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard
&
Poor’s: Standard & Poor’s Ratings Services, a division of
The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard
&
Poor’s
Glossary: The Standard & Poor’s LEVELS® Glossary, as may
be in effect from time to time.
Stated
Principal
Balance: As to each Mortgage Loan on any date of
determination, (i) the principal balance of such Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on
or
before such date, to the extent actually received, minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal on such Mortgage
Loan.
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.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Transfer
Date: The date on which the Purchaser, or its designee, shall
receive the transfer of servicing responsibilities and begin to perform the
servicing of the Mortgage Loans with respect to the related Mortgage Loan
Package, and the Interim Servicer shall cease all servicing
responsibilities.
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Underwriting
Guidelines: The underwriting guidelines of the Seller, a copy
of which is attached as an exhibit to the related Assignment and
Conveyance.
Whole
Loan
Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
SECTION
2. Agreement
to
Purchase.
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate principal balance on
the
related Cut-off Date in an amount as set forth in the related Purchase Price
and
Terms Agreement, or in such other amount as agreed by the Purchaser and the
Seller as evidenced by the actual aggregate principal balance of the Mortgage
Loans accepted by the Purchaser on each Closing Date, together with the related
Mortgage Files and all rights and obligations arising under the documents
contained therein.
SECTION
3. Mortgage
Schedules.
The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased
on each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary Mortgage
Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage
Loans
to be purchased on a particular Closing Date to the Purchaser at least five
(5)
Business Days prior to the related Closing Date. The related Mortgage
Loan Schedule shall be the related Preliminary Mortgage Schedule with those
Mortgage Loans which have not been funded prior to the related Closing Date
deleted.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment
as
provided therein), multiplied by the aggregate 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, whether or not received by the Seller. The
initial principal amount of the related Mortgage Loans shall be the aggregate
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, on the related Closing Date, accrued interest on the current
principal amount of the related Mortgage Loans as of the related Cut-off
Date at
the weighted average Mortgage Interest Rate of those Mortgage
Loans. The Purchase Price plus accrued interest as set forth in
the
-14-
preceding
paragraph shall be paid to the Seller by wire transfer of immediately available
funds to an account designated by the Seller in writing.
Upon
Seller’s receipt of the related Purchase Price, 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
outstanding principal balance of each Mortgage Loan as of the related Cut-off
Date is determined after application of payments of principal due on or before
the related Cut-off Date, to the extent actually collected, together with
any
unscheduled principal prepayments collected prior to such Cut-off Date;
provided, however, that payments of scheduled principal and interest paid
prior
to such Cut-off date, but to be applied on a Due Date beyond the related
Cut-off
Date shall not be applied to the principal balance as of the related Cut-off
Date. Such prepaid amounts shall be the property of the
Purchaser. The Seller shall deposit any such prepaid amounts into the
Custodial Account, which account is established for the benefit of the Purchaser
for subsequent remittance by the Seller to the Purchaser..
SECTION
5. Examination
of Mortgage
Files.
At
least
ten (10) Business Days prior to the related Closing Date, the Seller shall
(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 reasonable discretion, that any
Mortgage Loans do not conform to the requirements of this Agreement and/or
the
related Purchase Price and Terms Agreement, the Purchaser shall provide notice
to the Seller describing such defect. The Seller, at its option, may
cure the defect or the applicable 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.
Each
of
the Purchaser and the Seller agree that all mortgage loan application documents
requiring the Mortgagor’s signature and other related documents and disclosures
may be provided by the Seller and executed by the Mortgagor, as applicable,
electronically in compliance with the federal Electronic Signatures in Global
and National Commerce Act and the state Uniform Electronic Transactions Acts,
as
applicable.
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SECTION
6. Conveyance
from Seller to
Purchaser.
Subsection
6.01 Conveyance
of Mortgage
Loans.
The
Seller shall, simultaneously with the delivery of the Mortgage Loan Schedule
with respect to the related Mortgage Loan Package to be purchased on each
Closing Date, execute and deliver an Assignment and Conveyance Agreement
in the
form attached hereto as Exhibit H (the
“Assignment
and
Conveyance Agreement”) and, upon Seller’s receipt of the Purchase Price,
ownership of the related Mortgage Loan shall vest in the
Purchaser. The Seller shall ensure that the contents of each
Servicing File, which is required to be retained by or delivered to the Interim
Servicer to service the Mortgage Loans pursuant to the Interim Servicing
Agreement and thus not delivered to the Purchaser, or its designee, are and
shall be held in trust by the Interim Servicer for the benefit of the Purchaser
as the owner thereof. The Seller agrees that the Interim Servicer’s
possession of any portion of each such Mortgage File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the Mortgage
Loans
pursuant to this Agreement, and such retention and possession by the Interim
Servicer shall be in a custodial capacity only. The ownership of each
Mortgage Note, each Mortgage and the contents of each Mortgage File is vested
in
the Purchaser and the ownership of all records and documents with respect
to the
related Mortgage Loan prepared by or which come into the possession of the
Interim Servicer shall immediately vest in the Purchaser and shall be retained
and maintained, in trust, by the Interim Servicer at the will of the Purchaser
in such custodial capacity only. The Seller shall cause the Servicing
File retained by the Interim Servicer pursuant to this Agreement to be
appropriately identified in the Seller’s computer system and/or books and
records, as appropriate, to clearly reflect the sale of the related Mortgage
Loan to the Purchaser. The Seller shall cause the Interim Servicer to
release from its custody the contents of any Servicing File retained by it
only
in accordance with this Agreement or the Interim Servicing Agreement, except
when such release is required in connection with a repurchase of any such
Mortgage Loan pursuant to Subsection 9.03 or if
required under applicable law or court order
Subsection
6.02 Books
and
Records.
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, an Affiliate of the Seller, the
Purchaser or one or more designees of the Purchaser, as the Purchaser shall
select; provided,
however, that if a Mortgage has been recorded in the name of MERS or its
designee, the Seller is shown as the owner of the related Mortgage Loan on
the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS. Notwithstanding the
foregoing, ownership of each Mortgage and related Mortgage Note shall be
vested
solely in the Purchaser or the appropriate designee of the Purchaser, as
the
case may be. All rights arising out of the Mortgage Loans including,
but not limited to, all funds received by the Seller or the Interim Servicer
after the related Cut-off Date on or in connection with a Mortgage Loan shall
be
vested in the Purchaser or one or more designees of the Purchaser; provided, however, that all
funds received on or in connection with a Mortgage Loan shall be received
and
held by the Seller or the Interim Servicer in trust for the benefit of the
Purchaser or the appropriate designee of the Purchaser, as the case may be,
as
the owner of the Mortgage Loans pursuant to the terms of this
Agreement.
-16-
The
Seller shall 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 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 Mae 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
may be in the form of microfilm or microfiche so long as the Seller complies
with the requirements of the Xxxxxx Xxx Guides.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the related Mortgage Loans by
the
Seller and not a pledge of such Mortgage Loans by the Seller to the Purchaser
to
secure a debt or other obligation of the Seller. Consequently, the
sale of each Mortgage Loan shall be reflected as a purchase on the Purchaser’s
business records, tax returns and financial statements, and as a sale of
assets
on the Seller’s business records, tax returns and financial
statements.
Subsection
6.03 Delivery
of Mortgage Loan
Documents.
The
Seller shall deliver and release to the Custodian no later than two (2) Business
Days prior to the related Closing Date those Mortgage Loan Documents set
forth
on Exhibit A-2
hereto with respect to each Mortgage Loan set forth on the related Mortgage
Loan
Schedule.
The
Purchaser acknowledges that the Seller may deliver the Mortgage Loan Documents
to the Custodian and the Purchaser in the form of copies reproduced from
electronic images of original documents (“Original Documents”) stored on CD ROM
or magnetic tape (“Imaged Documents”), not to include any documents the
originals of which are required to be delivered pursuant to this
Agreement.
The
Seller shall promptly, upon the reasonable request of the Purchaser and at
the
Seller’s expense, produce true, correct, complete, clear and legible copies of
the Original Documents or a certified true copy of the Original Documents
regarding any Original Document for which the Imaged Document is unclear,
illegible, incorrect, incomplete, unable to be transmitted or electronically
read or downloaded by Purchaser, or an untrue copy. Seller shall,
upon Purchaser’s reasonable request and at Seller’s expense, fully cooperate
with Purchaser and take any reasonable and customary actions in connection
with
the introduction into evidence of any Imaged Document in any judicial or
administrative proceeding, including, but not limited to, an arbitration
or
mediation, including producing appropriate qualified and knowledgeable personnel
to testify as necessary to qualify the Imaged Documents as
evidence.
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
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evidenced
by the Initial Certification of the Custodian in the form annexed to the
Custodial Agreement. The Purchaser shall pay all fees and expenses of
the Custodian.
The
Seller shall 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 one hundred twenty days of its submission
for recordation.
In
the
event any document required to be delivered to the Custodian in accordance
with
this Agreement, including an original or imaged copy of any document submitted
for recordation to the appropriate public recording office, is not delivered
to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, within 120 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, provided
that the foregoing proviso does not apply to the MERS Designated Loans, 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 the Mortgage Loan Documents as set
forth on Exhibit
A hereto, 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, or an imaged copy thereof, as applicable, 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 Mortgage Loan 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 (with respect
to
the Mortgage Loans other than the MERS Designated Loans) and shall be reimbursed
by the Seller for the costs associated therewith pursuant to the preceding
sentence.
Subsection
6.04 Quality
Control
Procedures.
The
Seller shall 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
-18-
quality
of the Seller’s loan production and the servicing activities of the Seller as
Interim Servicer. The program is to ensure that the Mortgage Loans
are originated in accordance with the Underwriting Guidelines; guard against
dishonest, fraudulent, or negligent acts; and guard against errors and omissions
by officers, employees, or other authorized persons.
Subsection
6.05 MERS
Designated
Loans.
With
respect to each MERS Designated Mortgage Loan, the Seller shall, on the first
Business Day 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
Mortgage Loans have been sold by the Seller to the Purchaser on a servicing
released basis. Subject to and upon the terms and conditions of this
Agreement and the Interim Servicing Agreement (with respect to each Mortgage
Loan, for an interim period, as specified therein), the Seller hereby sells,
transfers, assigns, conveys and delivers to the Purchaser the Servicing
Rights.
The
Purchaser shall retain the Seller as Interim Servicer as contract servicer
of
the Mortgage Loans for an interim period pursuant to and in accordance with
the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified
therein). The Seller shall execute the Interim Servicing Agreement on
the initial Closing Date.
The
Seller shall transfer the servicing of the Mortgage Loans on each
Transfer Date in accordance with the terms of the Interim Servicing
Agreement.
SECTION
8. Representations
and
Warranties Regarding the Purchaser.
The
Purchaser represents, warrants and covenants to the Seller that as of each
Closing Date:
(a) Due
Organization and
Authority. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the state of New
York
and has all licenses necessary to carry on its business as now being
conducted. The execution, delivery and performance of this Agreement
by the Purchaser and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized; this Agreement and all
agreements contemplated hereby have been duly executed and delivered and
constitute the valid, legal, binding and enforceable obligations of the
Purchaser, regardless of whether such enforcement is sought in a proceeding
in
equity or at law; and all requisite corporate action has been taken by the
Purchaser to make this Agreement and all agreements contemplated hereby valid
and binding upon the Purchaser in accordance with their terms;
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(b) No
Conflicts. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and thereby,
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 Purchaser’s charter or by-laws or any legal
restriction or any agreement or instrument to which the Purchaser is now
a party
or by which it is bound;
(c) No
Litigation
Pending. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending or to
the
knowledge of the Purchaser threatened, against the Purchaser or with respect
to
this Agreement, which if adversely determined would have a material adverse
effect on the transactions contemplated by this Agreement;
(d) No
Consent
Required. No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental agency
or
body is required for the execution, delivery and performance by the Purchaser
of
or compliance by the Purchaser with this Agreement or the consummation of
the
transactions contemplated by this Agreement, or if required, such approval
has
been obtained prior to the related Closing Date;
(e) 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;
(f) Ordinary
Course of
Business. The consummation of the transactions contemplated by
this Agreement is in the ordinary course of business of the Purchaser;
and
(g) Privacy. Purchaser
agrees and acknowledges that as to all nonpublic personal information received
or obtained by it with respect to any related Mortgagor: (i) such information
is
and shall be held by Purchaser in accordance with all applicable law, including
but not limited to the privacy provisions of the Xxxxx-Xxxxx-Xxxxxx Act;
(ii)
such information is received in connection with a proposed or actual secondary
market sale related to a transaction of the Mortgagor for purposes of 16
C.F.R.§313.14(a)(3); and (iii) Purchaser is hereby prohibited from disclosing or
using any such information other than to carry out the express provisions
of
this Agreement, or as otherwise permitted by applicable law;
SECTION
9. Representations,
Warranties
and Covenants of the Seller; Remedies for Breach.
Subsection
9.01 Representations
and
Warranties Regarding the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of the
date
hereof and as of each Closing Date:
(a) Due
Organization and
Authority. The Seller is a Michigan corporation, 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
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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 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
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Mortgage
Loans or of any action taken or to be taken in connection with the obligations
of the Seller contemplated herein, or which would be likely to impair materially
the ability of the Seller to perform under the terms of this
Agreement;
(f) Ability
to Perform;
Solvency. The Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. The Seller is solvent and the sale of
the Mortgage Loans will not cause the Seller to become insolvent. The
sale of the Mortgage Loans is not undertaken with the intent to hinder, delay
or
defraud any of Seller’s creditors;
(g) Seller’s
Origination. The Seller’s decision to originate any mortgage
loan or to deny any mortgage loan application is an independent decision
based
upon the Underwriting Guidelines, and is in no way made as a result of
Purchaser’s decision to purchase, or not to purchase, or the price Purchaser may
offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money
Laundering
Laws. The Seller has complied with all applicable anti-money
laundering laws, executive orders and regulations, including without limitation
the USA Patriot Act of 2001 (collectively, the “Anti-Money Laundering
Laws”); the Seller has established an anti-money laundering compliance
program as required by the Anti-Money Laundering Laws, has conducted the
requisite due diligence in connection with the origination of each Mortgage
Loan
for purposes of the Anti-Money Laundering Laws, including with respect to
the
legitimacy of the applicable Mortgagor and the origin of the assets used
by the
said Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws;
(i) Financial
Statements. The Seller has delivered to the Purchaser
financial statements as to its last two 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 material 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. 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 9.02
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
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Mortgage
Loan shall be delivered to the Custodian all in compliance with the specific
requirements of this 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;
(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. To the Seller’s knowledge, neither this Agreement
nor any information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this 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) Owner
of
Record. The Seller is the owner of record of each Mortgage and
the indebtedness evidenced by each Mortgage Note, except for the Assignments
of
Mortgage which have been sent for recording, and upon recordation the Seller
will be the owner of record of each Mortgage and the indebtedness evidenced
by
each Mortgage Note, and upon the sale of the Mortgage Loans to the Purchaser,
the Seller will retain the Mortgage Files with respect thereto in trust only
for
the purpose of servicing and supervising the servicing of each Mortgage
Loan;
(q) Reasonable
Purchase
Price. The consideration received by the Seller upon the sale
of the Mortgage Loans under this Agreement constitutes fair consideration
and
reasonably equivalent value for the Mortgage Loans;
(r) Ability
to Service.
The Seller is an approved servicer of conventional residential mortgage loans
for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same
type
as the Mortgage Loans. The Seller is in good standing to enforce and
sell mortgage loans to and service mortgage loans in the jurisdictions wherein
the Mortgaged Properties are located and for Xxxxxx Mae or Xxxxxxx Mac, and
no
event has occurred, including but not limited to a change in insurance coverage,
which would make the Seller unable to comply with Xxxxxx Mae or
Xxxxxxx
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Mac
eligibility requirements or which would require notification to either Xxxxxx
Mae or Xxxxxxx Mac;
(s) Reasonable
Servicing
Fee. The Seller acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Seller, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement; and
(t) Fair
Credit Reporting
Act. The Seller has fully furnished (or caused to be
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, or any their successors and assigns (three of
the
credit repositories), on a monthly basis.
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
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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, or subject
to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(f) Hazard
Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by
a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the Underwriting
Guidelines. If required by the National Flood Insurance Act of 1968,
as amended, each Mortgage Loan is covered by a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration as in effect which policy conforms with the Underwriting
Guidelines. All individual insurance policies contain a provision
that names the Purchaser and its successors and assigns as mortgagee upon
the
transfer of the Mortgage File to the Custodian, 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, including, without limitation, any provisions relating to a Prepayment
Penalty have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such
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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 been released from the lien of the Mortgage, in whole or in part, nor
has
any instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor’s failure to
perform such action would cause the Mortgage Loan to be in default, nor has
the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type
of Mortgaged
Property. With respect to a Mortgage Loan that is not a Co-op
Loan and is not secured by an interest in a leasehold estate, the Mortgaged
Property is a fee simple estate that consists of a single parcel of real
property with a detached single family residence erected thereon, or a two-
to
four-family dwelling, or an individual residential condominium unit in a
condominium project, or an individual unit in a planned unit development,
or an
individual unit in a residential cooperative housing corporation; provided,
however, that any condominium unit, planned unit development or residential
cooperative housing corporation shall conform with the Underwriting
Guidelines. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the 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
Lien. The Mortgage is a valid, subsisting, enforceable and
perfected, first lien 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:
|
(i)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
|
|
(ii)
|
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
|
-26-
| 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 |
|
(iii)
|
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 and first priority security
interest on the property described therein and the Seller has full right
to sell
and assign the same to the Purchaser.
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, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors’ rights generally,
and to general principles of equity (regardless of whether enforcement is
sought
in a proceeding at law or in equity). 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. To Seller’s knowledge, the documents, instruments and
agreements submitted for loan underwriting were not falsified and contain
no
untrue statement of material fact or omit to state a material fact required
to
be stated therein or necessary to make the information and statements therein
not misleading. To Seller’s knowledge, no fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application for
any
insurance in relation to such
-27-
Mortgage
Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make
and
confirm the accuracy of the representations set forth herein;
(l) Full
Disbursement of
Proceeds. The Mortgage Loan has been closed and the proceeds
of the Mortgage Loan have been fully disbursed and there is no requirement
for
future advances thereunder, and any and all requirements as to completion
of any
on-site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The
Seller is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the payment of the
Purchase Price, as defined in the related Purchase Price and Terms Agreement,
by
the Purchaser, and with respect to the applicable Mortgage Loans, 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 upon the payment of the Purchase
Price, as defined in the related Purchase Price and Terms Agreement, by the
Purchaser, and with respect to the applicable Mortgage Loans, 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. Upon the payment of the
Purchase Price, as defined in the related Purchase Price and Terms Agreement,
by
the Purchaser, and with respect to the applicable Mortgage Loans, the Seller
will have no right to modify or alter the terms of the sale of the Mortgage
Loan
and the Seller will have no obligation or right to repurchase the Mortgage
Loan
or substitute another Mortgage Loan, except as provided in this
Agreement;
(n) Doing
Business. All parties which have had any 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) LTV,
PMI
Policy. No Mortgage Loan has an LTV greater than
100%. Unless otherwise referenced in the related Purchase Price and
Terms Agreement, any Mortgage Loan that had at the time of origination an
LTV in
excess of 80% is insured as to payment defaults by a PMI Policy. Any
PMI Policy in effect covers the related Mortgage Loan for the
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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;
(p) Title
Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender’s title insurance
policy or other generally acceptable form of policy or insurance acceptable
under the Underwriting Guidelines and each such title insurance policy is
issued
by a title insurer acceptable under the Underwriting Guidelines and qualified
to
do business in the jurisdiction where the Mortgaged Property is located,
insuring the Seller, its successors and assigns, as to the first 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) and (ii) of clause (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 insureds 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. To Seller’s knowledge,
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. To Seller’s knowledge, there are no mechanics’ or
similar liens or claims which have been filed for work, labor or material
(and
no rights are outstanding that under law could give rise to such 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;
-29-
(s) Location
of Improvements; No
Encroachments. To Seller’s knowledge, all improvements which
were considered in determining the Appraised Value of the Mortgaged Property
lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment
Terms. The Mortgage Loan was originated by a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act, a savings and loan association,
a
savings bank, a commercial bank, credit union, insurance company or other
similar institution which is supervised and examined by a federal or state
authority. Principal payments on the Mortgage Loan commenced no more
than seventy days after funds were disbursed in connection with the Mortgage
Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate
Cap
and the Periodic Rate Floor are as set forth on the related Mortgage Loan
Schedule. The Mortgage Interest Rate is adjusted with respect to the
Adjustable Rate Mortgage Loans, on each Interest Rate Adjustment Date to
equal
the Index plus the Gross Margin (rounded up or down to the nearest 0.125%),
subject to the Periodic Rate Cap. The Mortgage Note is payable in
equal monthly installments of principal 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. 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; and by its original terms or any modification thereof,
does not provide for amortization beyond its scheduled maturity
date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good
and merchantable title to the Mortgaged Property. There is no
homestead or other exemption available to a Mortgagor which would interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or
similar
law;
(v) Conformance
with Agency and
Underwriting Guidelines. The Mortgage Loan was underwritten in
accordance with the Underwriting Guidelines (a copy of which is attached
to each
related Assignment and Conveyance Agreement). The Mortgage Note and
Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae and no
representations have been made to a Mortgagor that are inconsistent with
the
mortgage instruments used;
-30-
(w) Occupancy
of the Mortgaged
Property. To Seller’s knowledge, as of the related Closing
Date, the Mortgaged Property is lawfully occupied under applicable
law. All inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property
and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been made
or
obtained from the appropriate authorities. Unless otherwise specified
on the related Mortgage Loan Schedule, the Mortgagor represented at the time
of
origination of the Mortgage Loan that the Mortgagor would occupy the Mortgaged
Property as the Mortgagor’s primary residence;
(x) No
Additional
Collateral. The Mortgage Note is not and has not been secured
by any collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred
to in
clause (j) above;
(y) Deeds
of
Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as
such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser
to
the trustee under the deed of trust, except in connection with a trustee’s sale
after default by the Mortgagor;
(z) Acceptable
Investment. There are no circumstances or conditions with
respect to the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage
File or the Mortgagor’s credit standing that can reasonably be expected to cause
private institutional investors who invest in prime mortgage loans similar
to
the Mortgage Loan to regard the Mortgage Loan as an unacceptable investment
cause the Mortgage Loan to become delinquent, or adversely affect the value
or
marketability of the Mortgage Loan, or cause the Mortgage Loan to prepay
during
any period materially faster or slower than the mortgage loans originated
by the
Seller generally. No Mortgaged Property is located in a state, city,
county or other local jurisdiction which the Purchaser has determined in
its
sole good faith discretion would cause the related Mortgage Loan to be
ineligible for whole loan sale or securitization in a transaction consistent
with the prevailing sale and securitization industry (including, without
limitation, the practice of the rating agencies) with respect to substantially
similar mortgage loans;
(aa) [Reserved];
(bb) Transfer
of Mortgage
Loans. The Assignment of Mortgage (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee) with
respect to each Mortgage Loan is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property
is
located;
(cc) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder,
and
to the best of the Seller’s knowledge, such provision is
enforceable;
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(dd) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No
Graduated Payments or Contingent Interests. The Mortgage Loan
does not contain provisions pursuant to which Monthly Payments are paid or
partially paid with funds deposited in any separate account established by
the
Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or paid by any
source other than the Mortgagor nor does it contain any other similar provisions
which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(ff) Consolidation
of Future
Advances. Any future advances made to the Mortgagor prior to
the applicable Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount,
as
consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first 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;
(gg) Mortgaged
Property
Undamaged; No Condemnation Proceedings. To Seller’s knowledge:
(i) there is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property; (ii) 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; and (iii) there have not been
any
condemnation proceedings with respect to the Mortgaged Property and the Seller
has no knowledge of any such proceedings in the future;
(hh) Collection
Practices; Escrow
Deposits; Interest Rate Adjustments. The origination,
servicing and collection practices used by the Seller and the Interim Servicer
with respect to the Mortgage Loan have been in all respects in compliance
with
Accepted Servicing Practices, applicable laws and regulations, and have been
in
all respects legal and proper. With respect to escrow deposits and
Escrow Payments, all such payments are in the possession of, or under the
control of, the Seller or the Interim Servicer and there exist no deficiencies
in connection therewith for which customary arrangements for repayment thereof
have not been made. All Escrow Payments have been collected in full
compliance with state and federal law and the provisions of the related Mortgage
Note and Mortgage. An escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item
that
remains unpaid and has been assessed but is not yet due and
payable. No escrow deposits or Escrow Payments or other charges or
payments due the Seller have been capitalized under the Mortgage or the Mortgage
Note. All Mortgage Interest Rate adjustments have been made in strict
compliance with state and federal law and the terms of the related Mortgage
and
Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same
-32-
index
was
used with respect to each Mortgage Note which required a new index to be
selected, and such selection did not conflict with the terms of the related
Mortgage Note. The Seller or the Interim Servicer executed and
delivered any and all notices required under applicable law and the terms
of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
the
Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and
credited;
(ii) Conversion
to Fixed Interest
Rate. The Mortgage Loan does not contain a provision whereby
the Mortgagor is permitted to convert the Mortgage Interest Rate from an
adjustable rate to a fixed rate;
(jj) Other
Insurance Policies; No
Defense to Coverage. To Seller’s knowledge, no action,
inaction or event has occurred and no state of facts exists or has existed
on or
prior to the Closing Date that has resulted or will result in the
exclusion from, denial of, or defense to coverage under any applicable hazard
insurance policy, PMI Policy or bankruptcy bond (including, without limitation,
any exclusions, denials or defenses which would limit or reduce the availability
of the timely payment of the full amount of the loss otherwise due thereunder
to
the insured), irrespective of the cause of such failure of
coverage. The Seller has caused or will cause to be performed any and
all acts required to preserve the rights and remedies of the Purchaser in
any
insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies
or
interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser. In connection with the
placement of any such insurance, no commission, fee, or other compensation
has
been or will 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 Relief Act or other similar state statute;
(mm) Appraisal. The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a Qualified Appraiser,
duly appointed by the Seller, who had no interest, direct or indirect in
the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all
as
in effect on the date the Mortgage Loan was originated;
-33-
(nn) Disclosure
Materials. The Mortgagor has executed a statement to the
effect that the Mortgagor has received all disclosure materials required
by, and
the Seller has complied with, all applicable law with respect to the making
of
the Mortgage Loans. The Seller shall maintain such statement in the
Mortgage File;
(oo) Construction
or
Rehabilitation of Mortgaged Property. No Mortgage Loan was
made in connection with the construction (other than a “construct-to-perm” loan)
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
(pp) Escrow
Analysis. If applicable, with respect to each Mortgage Loan,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit
Information. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such
Mortgage. The Seller has and shall 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 unless the Mortgage Loan was
-34-
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) the Mortgage
Loan’s originator had a written policy of offering the Mortgagor, or requiring
third-party brokers to offer the Mortgagor, the option of obtaining a mortgage
loan that did not require payment of such a penalty and (iii) the Prepayment
Penalty was adequately disclosed to the Mortgagor in the mortgage loan documents
pursuant to applicable state, local and federal law. This
representation and warranty is a Deemed Material and Adverse
Representation;
(tt) Predatory
Lending
Regulations. No Mortgage Loan is a High Cost Loan or Covered
Loan, as applicable. No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in violation
of any comparable state or local law. The Mortgaged Property is not
located in a jurisdiction where a breach of this representation with respect
to
the related Mortgage Loan may result in additional assignee liability to
the
Purchaser, as determined by Purchaser in its reasonable
discretion. 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) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3)
of the
Code;
(ww) Tax
Service
Contract. Each Mortgage Loan is covered by a paid in full,
life of loan, tax service contract issued by First American Real Estate Tax
Service, and such contract is transferable. On the related Closing
Date, the Seller shall remit to the Purchaser a transfer fee of two dollars
($2.00) for each Mortgage Loan covered by such a tax service
contract. If such a tax service contract with First American Real
Estate Tax Service is not in place then a placement fee of seventy two dollars
($72.00) will apply for each such Mortgage Loan;
(xx) Origination. No
predatory or deceptive lending practices, including, without limitation,
the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
-35-
(yy) Recordation. Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded
in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of
being
recorded;
(zz) Co-op
Loans. With respect to a Mortgage Loan that is a Co-op Loan,
the stock that is pledged as security for the Mortgage Loan is held by a
person
as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the
Code);
(aaa) Mortgagor
Bankruptcy. To the Seller’s knowledge, on or prior to the date
60 days after the related Closing Date, the Mortgagor has not filed and will
not
file a bankruptcy petition or has not become the subject and will not become
the
subject of involuntary bankruptcy proceedings or has not consented to or
will
not consent to the filing of a bankruptcy proceeding against it or to a receiver
being appointed in respect of the related Mortgaged Property;
(bbb) No
Prior
Offer. The Mortgage Loan has not previously been offered for
sale;
(ccc) Georgia
Fair Lending
Act. There is no Mortgage Loan that was originated (or
modified) on or after October 1, 2002 and before March 7, 2003 which is secured
by property located in the State of Georgia. There is no Mortgage
Loan that was originated on or after March 7, 2003 that is a “high cost home
loan” as defined under the Georgia Fair Lending Act. This
representation and warranty is a Deemed Material and Adverse
Representation;
(ddd) No
Arbitration. To Seller’s knowledge no Mortgagor with respect
to any Mortgage Loan originated on or after August 1, 2004 agreed to submit
to
arbitration to resolve any dispute arising out of or relating in any way
to the
mortgage loan transaction. This representation and warranty is a
Deemed Material and Adverse Representation;
(eee) Flood
Service
Contract. Each Mortgage Loan is covered by a paid in full,
life of loan, flood service contract issued by either First American Flood
Data
Services or Fidelity, and such contract is transferable. If no such
flood service contract is in place, or if such flood service contract is
issued
by an insurer other than First American Flood Data Services or Fidelity,
then on
the related Closing Date, the Seller shall remit to the Purchaser a placement
fee of ten dollars ($10.00) for each such Mortgage Loan;
(fff) 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.
-36-
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;
(ggg) Underwriting
Methodology. The methodology used in underwriting the
extension of credit for each Mortgage Loan does not rely on the extent of
the
Mortgagor’s equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed
objective criteria that related such facts as, without limitation, the
Mortgagor’s credit history, income, assets or 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;
(hhh) 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 Xxx 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 that, 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;
and
(iii) 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.
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. With respect to any
representation or warranty contained in Sections 9.01 or
9.02
hereof
that is made to the Seller’s knowledge, if it is discovered by the Purchaser
that the
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substance
of such representation and warranty was inaccurate as of the related Closing
Date and such inaccuracy materially and adversely affect the value of the
related Mortgage Loan, then notwithstanding the Seller’s lack of knowledge with
respect to the inaccuracy at the time the representation or warranty was
made,
such inaccuracy shall be deemed a breach of the applicable representation
or
warranty. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties (notwithstanding
that such representation and warranty was made to the Seller’s knowledge) that
materially and adversely affects the value of one or more of the related
Mortgage Loans, 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
commercially reasonable 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 and warranty set forth in clause (vv) of Subsection 9.02,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price and
(ii)
any breach of a Deemed Material and Adverse Representation shall automatically
be deemed to materially and adversely affect the value of the Mortgage Loans
or
the interest of the Purchaser therein. In the event that a breach
shall involve any representation or warranty set forth in Subsection 9.01,
and such breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Seller of such breach, all of the Mortgage
Loans
affected by such breach shall, at the Purchaser’s option, be repurchased by the
Seller at the Repurchase Price. However, if the breach shall involve
a representation or warranty set forth in Subsection 9.02
(except as provided in the second sentence of this paragraph with respect
to
certain breaches for which no substitution is permitted) and the Seller
discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller shall, at the Purchaser’s option and provided
that the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan (a “Deleted Mortgage
Loan”) and substitute in its place a Qualified Substitute Mortgage Loan
or Loans, provided that
any such substitution shall be effected not later than ninety (90) days after
the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the Repurchase
Price. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Subsection 9.03
shall occur on a date designated by the Purchaser, and acceptable to the
Seller,
and shall be accomplished by either (a) if the Interim Servicing Agreement
has
been entered into and is in effect, deposit in the Custodial Account of the
amount of the Repurchase Price for distribution to the Purchaser on the next
scheduled Remittance Date, after deducting therefrom any amount received
in
respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution or (b) if the Interim Servicing
Agreement has not been entered into or is no longer in effect, by direct
remittance of the Repurchase Price to the Purchaser or its designee in
accordance with the Purchaser’s instructions.
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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 15th calendar day of such month. The Seller
shall remit directly to the Purchaser, or its designee in accordance with
the
Purchaser’s instructions the Monthly Payment less the Servicing Fee due, if any,
on such Qualified Substitute Mortgage Loan or Loans in the month following
the
date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by the Seller. For the month of substitution, distributions
to the Purchaser shall include the Monthly Payment due on any Deleted Mortgage
Loan in the month of substitution, and the Seller shall thereafter be entitled
to retain all amounts subsequently received by the Seller in respect of such
Deleted Mortgage Loan. The Seller shall give written notice to the
Purchaser that such substitution has taken place and shall amend the related
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan. Upon such substitution, each Qualified Substitute
Mortgage Loan shall be subject to the terms of this Agreement in all respects,
and the Seller shall be deemed to have made with respect to such Qualified
Substitute Mortgage Loan, as of the date of substitution, the covenants,
representations and warranties set forth in Subsections 9.01 and
9.02.
For
any
month in which the Seller substitutes a Qualified Substitute Mortgage Loan
for a
Deleted Mortgage Loan, the Seller shall determine the amount (if any) by
which
the aggregate 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 in
accordance with the Purchaser’s instructions within two (2) Business Days of
such substitution.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents and any Successor Servicer and its present and former
directors, officers, employees and agents and hold such parties harmless
against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and other costs and expenses resulting from any
claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Seller representations and warranties contained in this Agreement
or any Reconstitution
-39-
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 and Successor Servicer as provided in this Subsection 9.03 and
in Subsection
14.01 constitute the sole remedies of the Purchaser and Successor
Servicer respecting a breach of the foregoing representations and
warranties. For purposes of this paragraph “Purchaser” shall mean the
Person then acting as the Purchaser under this Agreement and any and all
Persons
who previously were “Purchasers” under this Agreement and “Successor Servicer”
shall mean any Person designated as the Successor Servicer pursuant to this
Agreement and any and all Persons who previously were “Successor Servicers”
pursuant to this Agreement.
Any
cause
of action against the Seller relating to or arising out of the breach of
any
representations and warranties made in Subsections 9.01 and
9.02
shall
accrue as to any Mortgage Loan upon (i) 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, substitute a Qualified Substitute Mortgage
Loan
or repurchase such Mortgage Loan as specified above and (iii) demand upon
the Seller by the Purchaser for compliance with this Agreement.
Subsection
9.04 Repurchase
of Mortgage Loans
with First Payment Defaults. If the related Mortgagor is 30 or
more days delinquent with respect to the Mortgage Loan’s first Monthly Payment
either (i) after origination of such Mortgage Loan, or (ii) after the related
Closing Date, such delinquency is not attributable to the servicing transfer,
and Purchaser provided written notification to Seller of such delinquency
within
90 days of such delinquency (unless the Seller or its affiliate is interim
servicing the Mortgage Loan at the time of the early payment default, in
which
case Purchaser shall have 90 days from its receipt of notice of such default
to
request such repurchase), the Seller, at the Purchaser’s option, shall
repurchase such Mortgage Loan from the Purchaser at a price equal to the
Repurchase Price. The Seller shall repurchase such delinquent
Mortgage Loan within thirty (30) days of such request.
Subsection
9.05 Premium
Recapture. With respect to any Mortgage Loan that prepays in
full (i) on or prior to the related Closing Date and (ii) 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 sum of (i) the excess of the Purchase Price Percentage for such Mortgage
Loan over par, multiplied by the then outstanding principal balance of such
Mortgage Loan and (ii) the Servicing Rights Purchase Price Percentage (as
defined in the Purchase Price and Terms Agreement) multiplied by the then
outstanding principal balance of such Mortgage Loan. Notwithstanding
anything contained herein to the contrary, Seller shall not be required to
reimburse any applicable premium with respect to any Mortgage Loan that prepays
in full during the time periods specified in this Subsection 9.05
unless Purchaser provides written notification of the prepayment in full
within
90 days of such prepayment in full.
SECTION
10. Closing
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each Closing
shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties
shall
agree.
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The
closing for the Mortgage Loans to be purchased on each Closing Date shall
be
subject to each of the following conditions:
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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 the Interim Servicing Agreement (with respect to each Mortgage
Loan
for an interim period, as specified therein) shall be true and
correct as
of the related Closing Date and no event shall have occurred which,
with
notice or the passage of time, would constitute a default under
this
Agreement or an Event of Default under the Interim Servicing
Agreement;
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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 this 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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(i)
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this
Agreement (to be executed and delivered only for the initial Closing
Date);
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(ii)
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the
related Mortgage Loan Schedule (one copy to be attached to the
related
Assignment and Conveyance as the Mortgage Loan Schedule
thereto);
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(iii)
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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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(iv)
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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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(v)
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a
Security Release Certification, in the form of Exhibit 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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(vi)
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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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(vii)
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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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(viii)
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Assignment
and Conveyance Agreement in the form of Exhibit H hereto, and all
exhibits thereto; and
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(ix)
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no
later than 2 Business Days after the related Closing Date, a MERS
Report
listing 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 any commissions due its salesmen and the legal fees and
expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
Loans and the Servicing Rights including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage,
and
the Seller’s attorney’s fees, shall be paid by the Seller.
SECTION
13. Cooperation
of Seller with a
Reconstitution.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each, a “Reconstitution
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 a Whole Loan Transfer and a
Securitization Transaction, an assignment, assumption and recognition agreement,
substantially in the form attached hereto as Exhibit E
(collectively, the agreements referred to herein are designated the “Reconstitution
Agreements”).
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures and (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser and (3) to restate the
representations and warranties set forth in Subsection 9.01
as of the settlement or closing date in connection with such Reconstitution
and
to restate the representations and warranties set forth in Subsection 9.02 as of
the related Closing Date, or make the representations and warranties as may
be
required by any rating agency in connection with such
Reconstitution. The Seller shall provide to such servicer or issuer,
as the case may be, and any other participants or purchasers in such
Reconstitution: (i) any and all information and appropriate
verification of information which may be reasonably available to the Seller
or
its affiliates, whether through letters of its auditors and counsel or
otherwise, as the Purchaser or any such other participant shall request (at
the
expense of the Purchaser if such information or verification of information
is
not reasonably available to the Seller or its affiliates); and (ii) to
execute, deliver and satisfy all conditions set forth in any indemnity agreement
required by the
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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; 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 such information. 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.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to this Agreement and, if the Interim Servicing Agreement shall remain
in effect with respect to the related Mortgage Loan Package, shall continue
to
be serviced in accordance with the terms of this Agreement and the Interim
Servicing Agreement and with respect thereto this Agreement and the Interim
Servicing 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 any 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 and to service the Mortgage Loans in strict compliance with the
terms
of this Agreement or any Reconstitution Agreement entered into pursuant to
Section 13 or
any breach of any of Seller’s representations, warranties and covenants set
forth in this Agreement. For purposes of this clause “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.
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(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 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
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as
a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
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.
-45-
Notwithstanding
anything contained herein to the contrary it is understood and agreed that
a
transaction in which one hundred percent of Seller’s stock is transferred to a
thrift institution or other lending institution that is wholly owned by Rock
Holdings, Inc, a Michigan Corporation, (which as of the date of this Agreement,
is the Seller’s direct parent) shall not result in a breach of
contract.
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.
Notwithstanding
anything herein to the contrary, the Purchaser shall cause each prospective
purchaser to execute a confidentiality agreement, in a form reasonably
acceptable to the Seller, with respect to the information provided by the
Seller
as contemplated by the two preceding paragraphs and prior to the disclosure
of
such information by the Purchaser.
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 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. 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.
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SECTION
17. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
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if
to the Seller:
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Quicken
Loans, Inc.
00000
Xxxxxx Xxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxx
Xxxxxxx
Fax: 000-000-0000
Email: XxxXxxxxxx@xxxxxxxxxxxx.xxx
|
|
|
if
to the Purchaser:
|
|
|
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
|
| with copies to: |
|
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx – Servicing Oversight
0000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
|
|
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
0000
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).
-47-
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 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.
-48-
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. There shall be no limitation on the number of
assignments or transfers allowable by the Purchaser with respect to the Mortgage
Loans and this Agreement. In the event the Purchaser assigns this
Agreement, and the assignee assumes any of the Purchaser’s obligations
hereunder, the Seller acknowledges and agrees to look solely to such assignee,
and not to the Purchaser, for performance of the obligations so assumed and
the
Purchaser shall be relieved from any liability to the Seller with respect
thereto.
SECTION
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.
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;
-49-
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
terms
“include” 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.
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
|
-50-
| 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 |
|
(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.
SECTION
31. Jurisdiction;
Consent to
Service of Process
. 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. Confidentiality.
All
information furnished by one party (the “Protected Party”) to
the other party in connection with this Agreement and the transactions
contemplated hereby shall be kept confidential by such other party, and shall
be
used by it only in connection with this Agreement
-51-
and
the
transactions contemplated hereby, except to the extent that such information
(i) at the time of disclosure or thereafter, is generally available to and
known by the public (other than as a result of a disclosure directly or
indirectly by such other party), (ii) was available to such other party on
a non-confidential basis from a source other than the Protected Party or
its
advisers, provided that such source, to the best of such other party’s
knowledge, is not and was not bound by a confidentiality agreement with the
Protected Party, (iii) has been independently acquired or developed by such
other party without violating any of such other party’s obligations under this
Agreement, (iv) is required to be disclosed in the financial statements of
such other party or its Affiliates, to the extent required by applicable
accounting principles, or in any filing with the Securities and Exchange
Commission, (v) is required to be publicly disclosed to its Affiliates,
auditors, counsel or bank regulators, provided that such affiliates, auditors
or
counsel agree to be bound by the provisions of this Section 11.10,
or (vi) is required by law, regulation or court order to be disclosed by
such other party, provided that prior notice of such disclosure has been
given
to the Protected Party, when legally permissible, and that such party which
is
required to make the disclosure uses commercially reasonable efforts to provide
sufficient notice to permit the Protected Party to take legal action to prevent
the disclosure. In the event that the transactions contemplated by
this Agreement shall fail to be consummated, each party hereto shall promptly
cause all originals and copies of documents or extracts thereof containing
any
such information and data as to a Protected Party to be returned to such
Protected Party or destroyed and, upon request of the Protected Party, shall
cause an officer to so certify to such Protected Party. This
provision shall survive any termination of this Agreement or transfer of
assets
hereunder.
SECTION
33. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding relating to
the
subject matter hereof between the parties hereto and any prior oral or written
agreements between them shall be deemed to have merged herewith.
SECTION
34. Compliance
With Regulation
AB.
Subsection
34.01 Intent
of the Parties;
Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Section 34 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
-52-
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 negotiate in good faith with Purchaser or any Depositor
upon 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 as provided herein 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
34.02 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 34.03
that, except as disclosed in writing to the Purchaser or such Depositor prior
to
such date: (i) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller or any
Third-Party Originator; and (ii) there are no affiliations, relationships
or transactions relating to the Seller 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
34.03, 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
34.03 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 (which
request
shall be made in writing promptly after such initial notification and include
information identifying the Mortgage Loans, stating that they meet the threshold
percentages of Regulation AB and specifying the Securitization Transaction
and
those threshold percentages), 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) 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.
-53-
(a) Subject
to paragraph (e) of this Subsection, 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), 1110, 1117
and
1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information
as the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a
brief
description in accordance with Regulation AB of any material legal or
governmental proceedings pending (or known to be contemplated) against the
Seller and each Third-Party Originator; and
(D) 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:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) [Reserved].
(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
-54-
proceedings
pending against the Seller or any Third-Party Originator and (B) any
affiliations or relationships that develop following the closing date of
a
Securitization Transaction between the Seller or any Third-Party Originator
and
any of the parties specified in clause (D) of paragraph (a) of this Section
(and
any other parties identified in writing by the requesting party) with respect
to
such Securitization Transaction, and (ii) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or
relationships.
(e) The
Purchaser hereby acknowledges and agrees that as of the date hereof, the
Seller
is unable and will not be obligated to provide any Static Pool Information
contemplated under Item 1105 of Regulation AB.
Subsection
34.04 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker
dealer
acting as underwriter, placement agent or initial purchaser, each Person
who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall hold each of them harmless from
and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
|
(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 34
by or on behalf of the Seller, or provided under this Section 34
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;
|
-55-
|
(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 34;
or
|
|
(iii)
|
any
breach by the Seller of a representation or warranty set forth
in Subsection
34.02(a) or in a writing furnished pursuant to Subsection
34.02(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
34.02(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.
[Signature
Page Follows]
-56-
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.
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XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
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By:
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| Name | |||
| Title | |||
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QUICKEN
LOANS, INC.
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By:
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| Name | |||
| Title | |||
EXHIBIT
A-1
MORTGAGE
LOAN
DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall include
each of
the following items, which shall be available for inspection by the Purchaser
and any prospective Purchaser, and which shall be delivered to the Custodian,
or
to such other Person as the Purchaser shall designate in writing, pursuant
to
Section 6 of
the Third Amended and Restated Mortgage Loan Purchase and Warranties Agreement
to which this Exhibit is attached (the “Agreement”):
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last
Endorsee”) by an authorized officer. To the extent that there
is no room on the face of the Mortgage Notes for endorsements, the endorsement
may be contained on an allonge, if state law so allows and the Custodian
is so
advised by the Seller that state law so allows. If the Mortgage Loan
was acquired by the Seller in a merger, the endorsement must be by “[Last
Endorsee], successor by merger to [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the Last Endorsee while doing
business under another name, the endorsement must be by “[Last Endorsee],
formerly known as [previous name]”;
(b) an
imaged
copy of the original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, an imaged copy of the
original Mortgage with evidence of recording thereon. With respect to
any Co-op Loan, an imaged copy of the Security Agreement. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to
be
delivered the imaged copy of the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public
recording office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public recording office
retains the original recorded Mortgage, the Seller shall deliver or cause
to be
delivered to the Custodian, an imaged copy 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 an imaged
copy
of the original recorded Mortgage with evidence of recording 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, an imaged 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-1-1
(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, an imaged copy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording
office, an Officer’s Certificate of the Seller (or certified by the title
company, escrow agent, or closing attorney) stating that such intervening
assignment of mortgage has been dispatched to the appropriate public recording
office for recordation and that an imaged copy of such original recorded
intervening assignment of mortgage with evidence of recording 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, an imaged
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, an imaged copy of the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true imaged copy of the related
policy
binder or commitment for title certified to be true and complete by the title
insurance company;
(h) an
imaged
copy of the original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: imaged copies of (i) 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) the financing statement filed
by the
originator as secured party and, if applicable, a filed UCC-3 assignment
of the
subject security interest showing a complete chain
A-1-2
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 Seller 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.
X-0-0
XXXXXXX
X-0
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, unless otherwise disclosed to the Purchaser on the data
tape,
which shall be available for inspection by the Purchaser and which shall
be
retained by the Interim Servicer or delivered to the Purchaser:
(a) Copies
of
the Mortgage Loan Documents.
(b) Residential
loan application.
(c) Mortgage
Loan closing statement.
(d) Verification
of employment and income, if required.
(e) Verification
of acceptable evidence of source and amount of downpayment.
(f) Credit
report on Mortgagor, in a form acceptable to either Xxxxxx Mae or Xxxxxxx
Mac.
(g) Residential
appraisal report.
(h) Photograph
of the Mortgaged Property and photographs of comparable properties.
(i) Survey
of
the Mortgaged Property, unless a survey is not required by the title
insurer.
(j) To
the
extent provided to the Seller, a copy of each instrument necessary to complete
identification of any exception set forth in the exception schedule in the
title
policy, i.e., map or plat, restrictions, easements, home owner association
declarations, etc.
(k) Copies
of
all required disclosure statements.
(l) If
applicable, termite report, structural engineer’s report, water potability and
septic certification.
(m) Sales
Contract, if applicable.
(n) Copy
of
the owner’s title insurance policy or attorney’s opinion of title and abstract
of title, as applicable.
Evidence
of electronic notation of the hazard insurance policy, and, if required by
law,
evidence of the flood insurance policy.
A-2-1
EXHIBIT
B
FORM
OF INDEMNIFICATION AND
CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”), dated
as
of [_______], 200_, among [________________] (the “Depositor”), a
[______________] corporation (the “Depositor”), Xxxxxx
Xxxxxxx Mortgage Capital Inc., a New York corporation (“Xxxxxx”) and Quicken
Loans, Inc., a Michigan corporation (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus
Supplement”), relating to [________________] Certificates (the “Certificates”)
to be
issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the “P&S”), among
the
Depositor, as depositor, [________________], as servicer (the “Servicer”), and
[________________], as trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”) to
enter into the Underwriting Agreement, dated [____________________] (the
“Underwriting
Agreement”) between the Depositor and the Underwriter[s], and
[_______________] (the “Initial
Purchaser[s]”) to enter into the Certificate Purchase Agreement, dated
[_________] (the “Certificate Purchase
Agreement”) between the Depositor and the Initial Purchaser[s], Seller
has agreed to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”)
pursuant to a Third Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2006 (the “Purchase Agreement”),
by and between Xxxxxx and Seller; and
WHEREAS,
pursuant to Section 13 of the Purchase Agreement, the Seller has agreed to
indemnify the Depositor, Xxxxxx, the Underwriter[s] and their respective
affiliates, present and former directors, officers, employees and
agents.
B-1
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], the Initial Purchaser[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]
, the Initial Purchaser[s] or such affiliate within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the “1933 Act”), or
Section 20 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), against
any and all losses, claims, damages or liabilities, joint or several, to
which
they or any of them may become subject under the 1933 Act, the 1934 Act or
other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement, the Offering Circular, the ABS Informational and Computational
Materials or in the Free Writing Prospectus or any omission or alleged omission
to state in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or in the Free Writing Prospectus
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any such untrue statement or omission or alleged untrue statement or alleged
omission made in any amendment of or supplement to the Prospectus Supplement,
the Offering Circular, the ABS Informational and Computational Materials
or the
Free Writing Prospectus and agrees to reimburse the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] or such affiliates and each such
officer, director, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided, however,
that Seller shall be
liable in any such case only to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon (i) any breach of the
representation and warranty set forth in Section 2(vii) below or (ii) any
untrue
statement or alleged untrue statement or omission or alleged omission made
in
reliance upon and in conformity with the Seller Information. The
foregoing indemnity agreement is in addition to any liability which Seller
may
otherwise have to the Depositor, Xxxxxx, the Underwriter[s], the Initial
Purchaser[s] their affiliates or any such director, officer, employee, agent
or
controlling person of the Depositor, Xxxxxx, the Underwriter[s], the Initial
Purchaser[s] or their respective affiliates.
As
used
herein:
“Seller
Information”
means any information relating to Seller, the Mortgage Loans and/or
the
underwriting guidelines relating to the Mortgage Loans set forth in the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus.
B-2
“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 (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of
the
Commission, or as may be provided by the Commission or its staff from time
to
time.
(b) Promptly
after receipt by any indemnified party under this Section 1 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1,
notify the indemnifying party in writing of the claim or the commencement
of
that action; provided, however,
that the
failure to notify an indemnifying party shall not relieve it from any liability
which it may have under this Section 1 except
to the extent it has been materially prejudiced by such failure; and provided,further,
however,
that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 1.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, except as provided in the following
paragraph, the indemnifying party shall not be liable to the indemnified
party
under this Section 1 for
any legal or other expenses subsequently incurred by the indemnified party
in
connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any
such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically
authorized by the indemnifying party in writing; (ii) such indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to
those
available to the indemnifying party and in the 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
B-3
counsel
at the expense of the indemnifying party, the indemnifying party shall not
have
the right to assume the defense of such action on behalf of such indemnified
party, it being understood, however, the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of
more than one separate firm of attorneys (in addition to local counsel) at
any
time for all such indemnified parties.
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1,
shall cooperate with the indemnifying party in the defense of any such action
or
claim. No indemnifying party shall be liable for any settlement of
any such action effected without its written consent (which consent shall
not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss or liability by reason of such settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 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], the Initial Purchaser[s] their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, Xxxxxx, the Underwriter[s] the Initial Purchaser[s] or any
such
affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates or the Private Certificates.
B-4
2. Representations
and
Warranties. Seller represents and warrants that:
(i) Seller
is
validly existing and in good standing under the laws of its jurisdiction
of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently
engaged. Seller is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business transacted
by it or any properties owned or leased by it requires such qualification
and in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of
Seller;
(ii) Seller
is
not required to obtain the consent of any other person or any consent, license,
approval or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller will not
violate
any provision of any existing law or regulation or any order decree of any
court
applicable to Seller or any provision of the charter or bylaws of Seller,
or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or the Offered
Certificates, in either case, which would have a material adverse effect
on the
business, properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated hereunder, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of each of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution
thereunder;
(vi) this
Agreement has been duly executed and delivered by Seller; and
(vii) the
Seller represents that the information provided by or on behalf of Seller
for
inclusion in the Seller Information satisfies the requirements of the applicable
provisions of Regulation AB that Seller is obligated to comply with under
the
Purchase Agreement.
3. Notices. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to Seller, will be mailed, delivered or faxed or emailed and confirmed
by mail [______________________]; if sent to Xxxxxx, xxxx be mailed, delivered
or faxed or emailed and confirmed by mail to Xxxxxx Xxxxxxx Mortgage Capital
Inc., 1221 Xxxxxx
X-0
of
the
Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx -
Whole Loans Operations Manager, Fax: [_______],
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with copies to
(i) Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx – Legal Counsel, Securities, Xxxxxx
Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax [_____],
Email: xxxxxxxx.xxxxx@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 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 | |||
|
QUICKEN
LOANS, INC.
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
B-7
EXHIBIT
C
SELLER’S
OFFICER’S
CERTIFICATE
I,
____________________, hereby certify that I am the duly elected
[Vice] President of Quicken Loans, Inc., a state chartered institution
organized under the laws of the state of Michigan (the “Company”) and further
as follows:
1. Attached
hereto as Exhibit
1 is a true, correct and complete copy of the charter of the Company
which is in full force and effect on the date hereof and which has been in
effect without amendment, waiver, rescission or modification since
___________.
2. Attached
hereto as Exhibit
2 is a true, correct and complete copy of the bylaws of the Company
which
are in effect on the date hereof and which have been in effect without
amendment, waiver, rescission or modification since ___________.
3. Attached
hereto as Exhibit
3 is an original certificate of good standing of the Company issued
within ten days of the date hereof, and no event has occurred since the date
thereof which would impair such standing.
4. Attached
hereto as Exhibit
4 is a true, correct and complete copy of the corporate resolutions
of
the Board of Directors of the Company authorizing the Company to execute
and
deliver (a) the Mortgage Loan Purchase and Warranties Agreement, dated as
of
_____ __, 200_ (the “Purchase Agreement”),
by and between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”) and the
Company [and to endorse the Mortgage Notes and execute the Assignments of
Mortgages by original [or facsimile] signature], and such resolutions are
in
effect on the date hereof and have been in effect without amendment, waiver,
rescission or modification since ____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, [the sale of the mortgage loans] or the consummation of the
transactions contemplated by the agreements; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the
terms of the Purchase Agreement conflicts or will conflict with or results
or
will result in a breach of or constitutes or will constitute a default under
the
charter or by-laws of the Company or, to the best of my knowledge, the terms
of
any indenture or other agreement or instrument to which the Company is a
party
or by which it is bound or to which it is subject, or any statute or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which
it is
bound.
C-1
7. To
the
best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Purchase Agreement, or the mortgage loans or of any action
taken
or to be taken in connection with the transactions contemplated hereby, or
which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Purchase Agreement.
8. Each
person listed on Exhibit 5 attached
hereto who, as an officer or representative of the Company, signed (a) the
Purchase Agreement, and (b) any other document delivered or on the date
hereof in connection with any purchase described in the agreements set forth
above was, at the respective times of such signing and delivery, and is now,
a
duly elected or appointed, qualified and acting officer or representative
of the
Company, who holds the office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
|
Dated:____________________
|
By: ______________________
|
|||
|
|
Name: ____________________
|
|||
|
[Seal]
|
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: ____________________
|
|||
|
[Seal]
|
Title:
[Assistant]
Secretary
|
C-2
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
|
C-3
EXHIBIT
D
[RESERVED]
D-1
EXHIBIT
E
FORM
OF
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __, 20__] (“Agreement”), among
Xxxxxx Xxxxxxx Mortgage Capital Inc. (“Assignor”),
[____________________] (“Assignee”) and
Quicken Loans, Inc. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and
Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the “Mortgage Loan
Schedule”) attached hereto as Exhibit
A (the “Mortgage
Loans”) and
(b) except as described below, that certain Third Amended and Restated Mortgage
Loan Purchase and Warranties Agreement (the “Purchase and Warranties
Agreement”), dated as of June 1, 2006, between the Assignor, as purchaser
(the “Purchaser”), and
the
Company, as seller, solely insofar as the Purchase and Warranties Agreement
relates to the Mortgage Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of
the
Assignor with respect to (a) Subsection 9.05 of
the Purchase and Warranties Agreement or (b) any mortgage loans subject to
the
Purchase and Warranties Agreement which are not the Mortgage Loans set forth
on
the Mortgage Loan Schedule and are not the subject of this
Agreement.
Recognition
of the
Company
2. From
and after the date hereof (the “Securitization
Closing
Date”), the Company shall and does hereby recognize that the Assignee
will transfer the Mortgage Loans and assign its rights under the Purchase
and
Warranties Agreement (solely to the extent set forth herein) and this Agreement
to [__________________] (the “Trust”) created
pursuant to a Pooling and Servicing Agreement, dated as of [__________, 200_]
(the “Pooling
Agreement”), among the Assignee, the Assignor, [___________________], as
trustee (including its successors in interest and any successor trustees
under
the Pooling Agreement, the “Trustee”),
[____________________], as servicer (including its successors in interest
and
any successor servicer under the Pooling Agreement, the “Servicer”). The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate
to
the Mortgage Loans, under the Purchase and Warranties Agreement, including,
without limitation, the enforcement of the document delivery
E-1
requirements
set forth in Section 6 of the Purchase and Warranties Agreement, and shall
be entitled to enforce all of the obligations of the Company thereunder insofar
as they relate to the Mortgage Loans, and (iv) all references to the
Purchaser or the Custodian under the Purchase and Warranties Agreement insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the Trust
(including the Trustee and the Servicer acting on the Trust’s
behalf). Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions
of the
Purchase and Warranties Agreement which amendment, modification, waiver or
other
alteration would in any way affect the Mortgage Loans or the Company’s
performance under the Purchase and Warranties Agreement with respect to the
Mortgage Loans without the prior written consent of the Trustee.
Representations
and
Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase and Warranties Agreement. The
execution by the Company of this Agreement is in the ordinary course of the
Company’s business and will not conflict with, or result in a breach of, any of
the terms, conditions or provisions of the Company’s charter or bylaws or any
legal restriction, or any material agreement or instrument to which the Company
is now a party or by which it is bound, or result in the violation of any
law,
rule, regulation, order, judgment or decree to which the Company or its property
is subject. The execution, delivery and performance by the Company of
this Agreement have been duly authorized by all necessary corporate action
on
part of the Company. This Agreement has been duly executed and
delivered by the Company, and, upon the due authorization, execution and
delivery by the Assignor and the Assignee, will constitute the valid and
legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding
in
equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(d) There
is no action, suit, proceeding or investigation pending or threatened against
the Company, before any court, administrative agency or other tribunal, which
would draw into question the validity of this Agreement or the Purchase and
Warranties Agreement, or which, either in any one instance or in the aggregate,
would result in any
E-2
material
adverse change in the ability of the Company to perform its obligations under
this Agreement or the Purchase and Warranties Agreement, and the Company
is
solvent.
4. Subject
to such events or circumstances which may have occurred or arisen since the
related Closing Date, the Company hereby represents and warrants, for the
benefit of the Assignor, the Assignee and the Trust, that the representations
and warranties set forth in (i) Section 9.01 of the Purchase and Warranties
Agreement are true and correct as of the date hereof as if such representations
and warranties were made on the date hereof and (ii) Section 9.02 of the
Purchase and Warranties Agreement are true and correct as of the related
Closing
Date.
Remedies
for Breach of
Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as
set forth in Subsection 9.03 of the Purchase and Warranties Agreement as
if they
were set forth herein (including without limitation the repurchase and indemnity
obligations set forth therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. No
term or provision of this Agreement may be waived or modified unless such
waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced, with the prior written consent
of the
Trustee.
8. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for
any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of this Agreement and the Purchase and Warranties Agreement shall survive
the
conveyance of the Mortgage Loans and the assignment of the Purchase and
Warranties Agreement (to the extent assigned hereunder) by Assignor to Assignee
and by Assignee to the Trust and nothing contained herein shall supersede
or
amend the terms of the Purchase and Warranties Agreement.
10. This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
X-0
00. In
the event that any provision of this Agreement conflicts with any provision
of
the Purchase and Warranties Agreement with respect to the Mortgage Loans,
the
terms of this Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
and
Warranties Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their
duly authorized officers as of the date first above written.
|
QUICKEN
LOANS, INC.
|
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|
|
By:
|
||
| Name: ________________________ | |||
| Title: _________________________ | |||
|
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
|
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|
By:
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||
| Name: ________________________ | |||
| Title: _________________________ | |||
E-4
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 Third Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2006, and certifies that all notes,
mortgages, assignments and other documents in its possession relating to
such
Mortgage Loans have been delivered and released to the Company or its designees,
as of the date and time of the sale of such Mortgage Loans to 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.
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_________________________________
|
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|
|
By:
|
____________________________ | |
| Name: | ____________________________ | ||
| Title: | ____________________________ | ||
F-2
EXHIBIT
G
UNDERWRITING
GUIDELINES
G-1
EXHIBIT
H
FORM
OF ASSIGNMENT AND
CONVEYANCE AGREEMENT
On
this
___ day of _______, 200_, Quicken Loans, Inc. (“Seller”), as the
Seller under (i) that certain Purchase Price and Terms Agreement, dated as
of _________, 200__ (the “PPTA”), and
(ii) that certain Third Amended and Restated Mortgage Loan Purchase and
Warranties Agreement, dated as of June 1, 2006 (the “Purchase Agreement”),
simultaneously with the payment of the related Purchaser Price by Xxxxxx
Xxxxxxx
Mortgage Capital Inc. (“Purchaser”), does
hereby sell, transfer, assign, set over and convey to Purchaser as the Purchaser
under the Agreements (as defined below) without recourse, but subject to
the
terms of the Agreements, all right, title and interest of, in and to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as Exhibit A (the
“Mortgage
Loans”), together with the Mortgage Files and the related Servicing
Rights and all rights and obligations arising under the documents contained
therein. Each Mortgage Loan subject to the Agreements was
underwritten in accordance with, and conforms to, the Underwriting Guidelines
attached hereto as Exhibit C. Pursuant
to Section 6 of the Purchase Agreement, the Seller has delivered to the
Custodian the documents for each Mortgage Loan to be purchased as set forth
in
the Purchase Agreement. The contents of each Servicing File required
to be retained by the Interim Servicer to service the Mortgage Loans pursuant
to
the Interim Servicing Agreement and thus not delivered to the Purchaser are
and
shall be held in trust by the Interim Servicer in its capacity as Interim
Servicer for the benefit of the Purchaser as the owner thereof. The
Interim Servicer’s possession of any portion of the Servicing File is at the
will of the Purchaser for the sole purpose of facilitating servicing of the
related Mortgage Loan pursuant to the Interim Servicing Agreement, and such
retention and possession by the Interim Servicer shall be in a custodial
capacity only. The ownership of each Mortgage Note, Mortgage and the
contents of the Mortgage File and Servicing File is vested in the Purchaser
and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Seller at the will of the Purchaser in a custodial capacity
only. The PPTA and the Purchase Agreement shall collectively be
referred to as the “Agreements”
herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B
hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser accepts
the Mortgage Loans listed on Exhibit A
attached hereto. Notwithstanding the foregoing the Purchaser does not
waive any rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
H-1
|
QUICKEN
LOANS, INC.
|
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|
|
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) an LTV 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
