EXHIBIT 10.2
EXECUTION COPY
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Purchaser
and
FIFTH THIRD MORTGAGE COMPANY
FIFTH THIRD BANK, CENTRAL OHIO
FIFTH THIRD BANK, FLORIDA
FIFTH THIRD BANK, INDIANA
FIFTH THIRD BANK, KENTUCKY, INC.
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC.
FIFTH THIRD BANK, NORTHWESTERN, OHIO, N.A.
FIFTH THIRD BANK, OHIO VALLEY
FIFTH THIRD BANK, SOUTHWEST, F.S.B.
as Sellers
and
FIFTH THIRD BANK
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 1999
Fixed-Rate Mortgage Loans
Fifth Third Mortgage Loan Trust 1999-1
Table of Contents
Page
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ARTICLE I.
DEFINITIONS AND SCHEDULES
Section 1.01. Definitions........................................................................1
Section 1.02. Schedules..........................................................................2
ARTICLE II.
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of Mortgage Loans.............................................................2
Section 2.02. Obligations of the Sellers Upon Sale...............................................2
Section 2.03. Payment of Purchase Price for the Mortgage Loans...................................5
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Sellers' and Fifth Third Bank's Representations and Warranties Relating
to the Mortgage Loans..............................................................5
Section 3.02. Additional Sellers' Representations and Warranties.................................6
Section 3.03. Remedies for Breach of Representations and Warranties..............................7
ARTICLE IV.
SELLERS' COVENANTS
Section 4.01. Covenants of the Sellers...........................................................9
ARTICLE V.
INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS
Section 5.01. Indemnification....................................................................9
ARTICLE VI.
TERMINATION
Section 6.01. Termination.......................................................................12
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.........................................................................12
Section 7.02. Governing Law.....................................................................12
Section 7.03. Notices...........................................................................12
Section 7.04. Severability of Provisions........................................................13
Section 7.05. Counterparts......................................................................13
Section 7.06. Further Agreements................................................................13
Section 7.07. Intention of the Parties..........................................................14
Section 7.08. Successors and Assigns: Assignment of Purchase Agreement..........................14
Section 7.09. Survival..........................................................................14
Exhibit A: Representations and Warranties Relating to the Mortgage Loans
Schedule A: Mortgage Loan Schedule of Fifth Third Mortgage Company........................................A-1
Schedule B: Mortgage Loan Schedule of Fifth Third Bank, Central Ohio......................................B-1
Schedule C: Mortgage Loan Schedule of Fifth Third Bank, Florida...........................................C-1
Schedule D: Mortgage Loan Schedule of Fifth Third Bank, Indiana...........................................D-1
Schedule E: Mortgage Loan Schedule of Fifth Third Bank, Kentucky, Inc.....................................E-1
Schedule F: Mortgage Loan Schedule of Fifth Third Bank, Northern Kentucky, Inc............................F-1
Schedule G: Mortgage Loan Schedule of Fifth Third Bank, Northwestern, Ohio, N.A...........................G-1
Schedule H: Mortgage Loan Schedule of Fifth Third Bank, Ohio Valley.......................................H-1
Schedule I: Mortgage Loan Schedule of Fifth Third Bank, Southwest, F.S.B..................................I-1
THIS MORTGAGE LOAN PURCHASE AGREEMENT, dated as of December 1, 1999
(the "Agreement"), is made and entered into among each of the Sellers named
below, Fifth Third Bank and Greenwich Capital Acceptance, Inc. (the
"Purchaser").
W I T N E S S E T H
WHEREAS, each of the Sellers is the owner of the notes or other
evidence of indebtedness (collectively, the "Mortgage Notes") so indicated on
the related Schedule referred to below and the other documents or instruments
constituting the Mortgage File (collectively, the "Mortgage Loans"); and
WHEREAS, each of the Sellers, as of the date hereof, owns the
mortgages (collectively, the "Mortgages") on the properties (collectively, the
"Mortgaged Properties") securing the Related Mortgage Loans, including rights
to (a) any property acquired by foreclosure or deed in lieu of foreclosure or
otherwise and (b) the proceeds of any insurance policies covering such
Mortgage Loans or the related Mortgaged Properties or the obligors on such
Mortgage Loans; and
WHEREAS, the parties hereto desire that each of the Sellers sell the
Related Mortgage Loans to the Purchaser pursuant to the terms of this
Agreement; and
WHEREAS, pursuant to the terms of that certain Pooling and Servicing
Agreement dated as of December 1, 1999 (the "Pooling and Servicing Agreement")
among the Purchaser, as depositor, the Sellers, Fifth Third Bank, as master
servicer, and Bank One, National Association, as trustee (the "Trustee"), the
Purchaser will convey the Mortgage Loans to Fifth Third Mortgage Loan Trust
1999-1 (the "Trust").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND SCHEDULES
Section 1.01. Definitions. Any capitalized term used but not defined
herein and below shall have the meaning assigned thereto in the Pooling and
Servicing Agreement.
"Purchaser Information": The information in the Prospectus
Supplement contained under the headings "SUMMARY OF TERMS--Tax
Status," "--ERISA Considerations," "CERTAIN MATERIAL FEDERAL INCOME
TAX CONSEQUENCES," and "ERISA CONSIDERATIONS" and in the Prospectus
contained under the headings "CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS," and "ERISA CONSIDERATIONS".
"Related Mortgage Loans": With respect to each Seller, the Mortgage
Loans being sold by such Seller hereunder, as specified on the
Schedule relating to such Seller.
"Schedule": With respect to each Seller, the schedule attached to
this Agreement setting forth the Related Mortgage Loans.
"Seller", and in the aggregate "Sellers": Each of Fifth Third
Mortgage Company; Fifth Third Bank, Central Ohio; Fifth Third Bank,
Florida; Fifth Third Bank, Indiana; Fifth Third Bank, Kentucky,
Inc.; Fifth Third Bank, Northern Kentucky, Inc.; Fifth Third Bank,
Northwestern, Ohio, N.A.; Fifth Third Bank, Ohio Valley; and Fifth
Third Bank, Southwest, F.S.B.
"Sellers Information": The information in the Prospectus Supplement
contained under the headings "RISK FACTORS--Interest Payments May Be
Insufficient" (first sentence) and "THE SELLERS".
Section 1.02. Schedules.
Schedule A: Mortgage Loan Schedule of Fifth Third Mortgage Company
Schedule B: Mortgage Loan Schedule of Fifth Third Bank, Central Ohio
Schedule C: Mortgage Loan Schedule of Fifth Third Bank, Florida
Schedule D: Mortgage Loan Schedule of Fifth Third Bank, Indiana
Schedule E: Mortgage Loan Schedule of Fifth Third Bank, Kentucky, Inc.
Schedule F: Mortgage Loan Schedule of Fifth Third Bank, Northern Kentucky,
Inc.
Schedule G: Mortgage Loan Schedule of Fifth Third Bank, Northwestern, Ohio,
N.A.
Schedule H: Mortgage Loan Schedule of Fifth Third Bank, Ohio Valley
Schedule I: Mortgage Loan Schedule of Fifth Third Bank, Southwest, F.S.B.
ARTICLE II.
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of Mortgage Loans. (i) Each of the Sellers,
concurrently with the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without
recourse, (i) all of its right, title and interest in and to each of the
Related Mortgage Loans, including the related Cut-off Date Principal Balance,
all interest due thereon after the Cut-off Date and all collections in respect
of interest and principal due on or after the Cut-off Date; (ii) property
which secured such Mortgage Loan and which has been acquired by foreclosure or
deed in lieu of foreclosure; (iii) its interest in any insurance policies in
respect of the Related Mortgage Loans; and (iv) all proceeds of any of the
foregoing.
Section 2.02. Obligations of the Sellers Upon Sale. In connection with
any transfer pursuant to Section 2.01 hereof, each of the Sellers further
agrees, at its own expense, on or prior to the Closing Date or as otherwise
indicated in this Section 2.02, (a) to indicate in its books, records and
computer systems that the Related Mortgage Loans have been sold to the
Purchaser pursuant to this Agreement and (b) to deliver to the Purchaser and
the Trustee a computer file containing a true and complete list of all such
Mortgage Loans specifying for each such Mortgage Loan, as of the Cut-off Date,
(i) its account number and (ii) the Cut-off Date Principal Balance and such
file, which forms a part of Exhibit F to the Pooling and Servicing Agreement,
shall also be marked as the related Schedule to this Agreement and is hereby
incorporated into and made a part of this Agreement.
In connection with any such conveyance by any Seller, such Seller
shall on behalf of the Purchaser deliver to, and deposit with the Trustee, or
the Custodian on behalf of the Trustee, as assignee of the Purchaser, on or
before the Closing Date (or, with respect to (i) and (iii) below, within 30
days of the Closing Date), the following documents or instruments with respect
to each of the Related Mortgage Loans:
(i) the original Mortgage Note, endorsed on its face or by allonge
attached thereto in the following form: "Pay to the order of Bank One,
National Association, as Trustee", or endorsed in blank to provide for a
future insertion of the payee's name, with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to
the Person so endorsing to the Trustee;
(ii) the original Mortgage with evidence of recording thereon, and
the original recorded power of attorney, if such Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage executed in the
following form: "Bank One, National Association, as Trustee for Fifth Third
Mortgage Loan Trust 1999-1" or endorsed in blank to provide for a future
insertion of a designee trustee;
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii);
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or attorney's
opinion of title or a copy thereof certified as true and correct by the
applicable insurer, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the priority of
the Mortgage as a first lien on the Mortgaged Property represented therein as
a fee interest vested in the Mortgagor, or in the event such original title
policy is unavailable, a written commitment or uniform binder or preliminary
report of title issued by the title insurance or escrow company or a copy
thereof certified by the title company, with the original policy of title
insurance to be delivered within one year following the Closing Date.
Each of the Sellers hereby confirms to the Purchaser and the Trustee
that it has made the appropriate entries in its general accounting records, to
indicate that the Related Mortgage Loans have been transferred to the Trustee,
or the Custodian on behalf of the Trustee, and constitute part of the Trust in
accordance with the terms of the Pooling and Servicing Agreement.
If any original Mortgage Note referred to in Section 2.02(i) cannot
be located, the obligations of the related Seller to deliver such documents
shall be deemed to be satisfied upon delivery to the Trustee, or the Custodian
on behalf of the Trustee, as assignee of the Purchaser, of a photocopy of the
original of such Mortgage Note, with an original Lost Note Affidavit in the
form of Exhibit I to the Pooling and Servicing Agreement, provided, however,
that such substitutions of Lost Note Affidavits for original Mortgage Notes
may occur only with respect to Mortgage Loans the aggregate Cut-off Date
Principal Balance of which is less than or equal to 2.00% of the Pool Balance
as of the Cut-off Date. If any of the documents referred to in Sections
2.02(ii), (iii) or (iv) above has as of the Closing Date been submitted for
recording but either (x) has not been returned from the applicable public
recording office or (y) has been lost or such public recording office has
retained the original of such document, the obligations of the related Seller
to deliver such documents shall be deemed to be satisfied upon (1) delivery to
the Trustee, or the Custodian on behalf of the Trustee, as assignee of the
Purchaser, of a copy of each such document certified by such Seller in the
case of (x) above or the applicable public recording office in the case of (y)
above to be a true and complete copy of the original that was submitted for
recording and (2) if such copy is certified by such Seller, delivery to the
Trustee, or the Custodian on behalf of the Trustee, promptly upon receipt
thereof of either the original or a copy of such document certified by the
applicable public recording office to be a true and complete copy of the
original. Notice shall be provided to the Purchaser and the Trustee, or the
Custodian on behalf of the Trustee, by such Seller if delivery pursuant to the
immediately foregoing clause (2) will be made more than 180 days after the
Closing Date. If the original lender's title insurance policy was not
delivered pursuant to Section 2.02(vi) above, the related Seller shall deliver
or cause to be delivered to the Trustee, or the Custodian on behalf of the
Trustee, within a reasonable time period after receipt thereof, the original
lender's title insurance policy. The related Seller shall deliver or cause to
be delivered to the Trustee, or the Custodian on behalf of the Trustee, within
a reasonable time period upon receipt thereof any other original documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest to the Mortgage Loans and other property, now existing or
hereafter created, conveyed to it pursuant to Section 2.01.
The parties hereto intend that the transaction set forth herein be a
non-recourse sale by each of the Sellers to the Purchaser of all of such
Seller's right, title and interest in and to the Related Mortgage Loans and
other property described above. Nonetheless, in the event the transaction set
forth herein is deemed not to be a sale, each of the Sellers hereby grants to
the Purchaser a security interest in all of such Seller's right, title and
interest in, to and under the Related Mortgage Loans and other property
described above, whether now existing or hereafter created, to secure all of
such Seller's obligations hereunder; and this Agreement shall constitute a
security agreement under applicable law. The Sellers and the Purchaser shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Pooling and Servicing Agreement.
Section 2.03. Payment of Purchase Price for the Mortgage Loans.
(a) In consideration of the sale of the Mortgage Loans from the
Sellers to the Purchaser on the Closing Date, the Purchaser agrees to deliver
to the Sellers or their designee the Certificates. The Sellers or their
designee shall pay to the Purchaser, or its designee (i) the amount set forth
in the Fifth Third Securitization Engagement Letter dated December 3, 1999
(the "Structuring Fee") and (ii) a reimbursement amount of $181,972.17
(representing S.E.C. filing fees associated with the Offered Certificates),
and (iii) an amount to cover all additional reasonable expenses incurred by
the Purchaser in connection with the issuance of the Certificates, including,
without limitation, printing fees incurred in connection with the prospectus
relating to the Certificates, blue sky registration fees and expenses, fees
and expenses of Purchaser's due diligence and counsel, fees of the rating
agencies requested to rate the Certificates, accountant's fees and expenses
and the fees and expenses of the Trustee, as set forth in the Trustee
Engagement Letter December 22, 1999 between Bank One N.A. and Fifth Third
Bank, and other out-of-pocket costs, if any.
(b) Within thirty days of the Closing Date, each of the Sellers, at
its own expense, shall submit for recording each related Assignment of
Mortgage in favor of the Trustee, or the Custodian (or provided with the
assignee in blank) as transferee of the Purchaser pursuant to the Pooling and
Servicing Agreement in the appropriate real property or other records in the
appropriate jurisdiction for the recordation of such documents. With respect
to any Assignment of Mortgage as to which the related recording information is
unavailable within the applicable time period set forth above, such Assignment
of Mortgage shall be submitted for recording within thirty Business Days after
receipt of such information but in no event later than six months from the
date such Assignment of Mortgage is otherwise required to be recorded pursuant
to this Section 2.04(b). The Trustee, or the Custodian on behalf of the
Trustee, shall be required to retain a copy of each Assignment of Mortgage
submitted for recording. In the event that any such Assignment of Mortgage is
lost or returned unrecorded because of a defect therein, the related Seller
shall within a reasonable time prepare a substitute Assignment of Mortgage or
cure such defect, as the case may be, and shall be required to submit each
such Assignment of Mortgage for recording. Any failure of a Seller to comply
with this Section shall result in the obligation of such Seller to repurchase
or substitute a Qualified Substitute Mortgage Loan for the Related Mortgage
Loan pursuant to the provisions of the Pooling and Servicing Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Sellers' and Fifth Third Bank's Representations and
Warranties Relating to the Mortgage Loans. Each Seller represents and warrants
to the Purchaser the representations and warranties set forth in Section A of
Exhibit A attached hereto with respect to each Related Mortgage Loan as of the
Closing Date (or as of such date specifically provided therein). Fifth Third
Bank represents and warrants to the Purchaser the representations and
warranties set forth in Section B of Exhibit A attached with respect to the
Mortgage Loans as of the Closing Date (or as of such date specifically
provided therein).
Section 3.02. Additional Sellers' Representations and Warranties. Each
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date (or as of such other date specifically provided herein) that:
(i) It is duly organized, validly existing and in good standing
under the laws of the related jurisdiction and is and will remain in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Related
Mortgage Loan in accordance with the terms of this Agreement;
(ii) It has the power and authority to hold each Related Mortgage
Loan, to sell such Mortgage Loan, to execute, deliver and perform, and to
enter into and consummate, all transactions contemplated by this Agreement. It
has duly authorized the execution, delivery and performance of this Agreement,
has duly executed and delivered this Agreement, and assuming due
authorization, execution and delivery by the Purchaser, constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency or reorganization or laws in relation to the rights of creditors of
federally insured financial institutions;
(iii) The execution and delivery of this Agreement by it and the
performance of and compliance with the terms of this Agreement will not
violate any of its articles of association or articles of incorporation, as
applicable, or by-laws or constitute a default under or result in a material
breach or acceleration of, any material contract, agreement or other
instrument to which it is a party or which may be applicable to it or its
assets;
(iv) It is not in violation of, and the execution and
delivery of this Agreement by it and its performance and compliance with the
terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over it or its assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of it or its
assets or might have consequences that would materially and adversely affect
the performance of its obligations and duties hereunder;
(v) [Reserved.]
(vi) It does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement;
(vii) Immediately prior to the delivery of the allocable portion of
the Purchase Consideration for each Related Mortgage Loan, it was the owner of
the related Mortgage and the indebtedness evidenced by the related Mortgage
Note and upon the payment of the allocable portion of the Purchase
Consideration by the Purchaser, in the event that it retains record title, it
shall retain such record title to each Mortgage, each related Mortgage Note
and the related Mortgage Files with respect thereto in trust for the Purchaser
or its assignee as the owner thereof and only for the purpose of servicing and
supervising the servicing of each such Mortgage Loan;
(viii) There are no actions or proceedings against it, or
investigations known to it, before any court, administrative or other tribunal
(A) that might prohibit its entering into this Agreement, (B) seeking to
prevent the sale of the Related Mortgage Loans or the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by it of its obligations
under, or validity or enforceability of, this Agreement;
(ix) To the best of its knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is required
for the execution, delivery and performance by it of, or compliance by it
with, this Agreement or the consummation of the transactions contemplated by
this Agreement, except for such consents, approvals, authorizations or orders,
if any, that have been obtained;
(x) The consummation of the transactions contemplated by this
Agreement are in its ordinary course of business, and the transfer, assignment
and conveyance of the Mortgage Notes and the Mortgages by it pursuant to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(xi) Except with respect to any statement regarding the intentions
of the Purchaser, or any other statement contained herein the truth or falsity
of which is dependant solely upon the actions of the Purchaser, this Agreement
does not contain any untrue statement of material fact or omit to state a
material fact necessary to make the statements contained herein not
misleading. The written statements, reports and other documents prepared and
furnished or to be prepared and furnished by it pursuant to this Agreement or
in connection with the transactions contemplated hereby taken in the aggregate
do not contain any untrue statement of material fact or omit to state a
material fact necessary to make the statements contained therein not
misleading.
Section 3.03. Remedies for Breach of Representations and Warranties. It is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser and the Trustee,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or Assignment or the examination or lack of examination of any Mortgage File.
With respect to the representations and warranties contained herein that are
made to the knowledge or the best knowledge of the applicable Sellers or as to
which such Sellers have no knowledge, if it is discovered that the substance
of any such representation and warranty is inaccurate and the inaccuracy
materially and adversely affects the value of the Related Mortgage Loan or
Loans, or the interest therein of the Purchaser or the Purchaser's assignee,
designee or transferee, then notwithstanding such lack of knowledge with
respect to the substance of such representation and warranty being inaccurate
at the time the representation and warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation and warranty and the related
Seller shall take such action described in the following paragraphs of this
Section 3.03 in respect of each such Mortgage Loan. Upon discovery by the
related Seller, the Master Servicer or the Purchaser of a breach of any of the
foregoing representations and warranties that materially and adversely affects
the value of any Mortgage Loan or the interest of the Purchaser or the Trustee
(or which materially and adversely affects the value of a Mortgage Loan or the
interests of the Purchaser or the Trustee in such Mortgage Loan in the case of
a representation and warranty relating to a particular Mortgage Loan), the
party discovering such breach shall give prompt written notice to the other
parties.
Within 60 days of the earlier of either discovery by or notice to
the related Seller of any breach of a representation or warranty that
materially and adversely affects the value of a Mortgage Loan or the interest
of the Purchaser or the Trustee in such Mortgage Loan, such Seller shall use
its best efforts promptly to cure such breach in all material respects and, if
such breach cannot be cured, such Seller shall repurchase such Mortgage Loan
at the Purchase Price. The related Seller may, at the request of the Purchaser
and assuming such Seller has a Qualified Substitute Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan and
substitute in its place a Qualified Substitute Mortgage Loan or Loans. If the
related Seller does not provide a Qualified Substitute Mortgage Loan or Loans,
it shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage
Loan(s) pursuant to the foregoing provisions of this Section 3.03 shall occur
on a date designated by the Purchaser and shall be accomplished by deposit in
accordance with Section 2.03 of the Pooling and Servicing Agreement. Any
repurchase or substitution required by this Section shall be made in a manner
consistent with Section 2.03 of the Pooling and Servicing Agreement.
At the time of substitution or repurchase of any deficient Mortgage
Loan, the Purchaser and related Seller shall arrange for the reassignment of
the deficient or repurchased Mortgage Loan to that Seller and the delivery to
that Seller of any documents held by the Trustee relating to the deficient or
repurchased Mortgage Loan. In the event the Purchase Price is deposited in the
Collection Account, the related Seller shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken
place. Upon such repurchase, the Related Mortgage Loan Schedule shall be
amended to reflect the withdrawal of the repurchased Mortgage Loan from this
Agreement.
As to any Deleted Mortgage Loan for which a Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, such Seller shall effect such
substitution by delivering to the Purchaser or its designee for such Qualified
Substitute Mortgage Loan or Loans the Mortgage Note, the Mortgage, the
Assignment and such other documents and agreements as are required by the
Custodial Agreement, with the Mortgage Note endorsed as required therein. The
related Seller shall deposit in the Collection Account the Monthly Payment due
on such Qualified Substitute Mortgage Loan or Loans in the month following the
date of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution will be retained by the
related Seller. For the month of substitution, distributions to the Purchaser
will include the Monthly Payment due on such Deleted Mortgage Loan in the
month of substitution, and the related Seller shall thereafter be entitled to
retain all amounts subsequently received by it in respect of such Deleted
Mortgage Loan. Upon such substitution, the Qualified Substitute Mortgage Loans
shall be subject to the terms of this Agreement in all respects, and that
Seller shall be deemed to have made with respect to such Qualified Substitute
Mortgage Loan or Loans, as of the date of substitution, the covenants,
representations and warranties set forth in Subsections 3.01 and 3.02 hereof.
It is understood and agreed that the representations and warranties
set forth in Section 3.01 shall survive delivery of the respective Mortgage
Files to the Trustee on behalf of the Purchaser.
It is understood and agreed that the obligations of each Seller set
forth in this Section 3.03 to cure, repurchase and substitute for a defective
Mortgage Loan and to indemnify the Purchaser as provided in Section 5.01
constitute the sole remedies of the Purchaser respecting a missing or
defective document or a breach of the representations and warranties contained
in Section 3.01.
ARTICLE IV.
SELLERS' COVENANTS
Section 4.01. Covenants of the Sellers. Each Seller hereby covenants that
except for the transfer hereunder, it will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur, assume or suffer to exist any
Lien on any Mortgage Loan, or any interest therein; it will notify the Trustee,
as assignee of the Purchaser, of the existence of any Lien on any Mortgage Loan
immediately upon discovery thereof; and it will defend the right, title and
interest of the Trust, as assignee of the Purchaser, in, to and under the
Related Mortgage Loans, against all claims of third parties claiming through or
under the related Seller; provided, however, that nothing in this Section 4.01
shall prevent or be deemed to prohibit such Seller from suffering to exist upon
any of the Mortgage Loans any Liens for municipal or other local taxes and
other governmental charges if such taxes or governmental charges shall not at
the time be due and payable or if such Seller shall currently be contesting the
validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto.
ARTICLE V.
INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS
Section 5.01. Indemnification.
(a) The Sellers, severally and not jointly, agree to indemnify and
hold harmless the Purchaser, each of its directors, each of its officers and
each person or entity who controls the Purchaser or any such person, within
the meaning of Section 15 of the Securities Act, against any and all losses,
claims, damages or liabilities, joint and several, as incurred, to which the
Purchaser, or any such person or entity may become subject, under the
Securities Act or otherwise, and will reimburse the Purchaser, each such
director and officer and each such controlling person for any legal or other
expenses incurred by the Purchaser or such controlling person in connection
with investigating or defending any such losses, claims, damages or
liabilities, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or any amendment or supplement to the Prospectus
Supplement approved in writing by the Sellers or the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements in the Prospectus Supplement or any amendment or supplement to the
Prospectus Supplement approved in writing by the Sellers, in the light of the
circumstances under which they were made, not misleading, but only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission relates to the Sellers Information contained in the
Prospectus Supplement, (ii) any untrue statement or alleged untrue statement
of any material fact contained in the information on any computer tape
furnished to the Purchaser or any affiliate thereof by or on behalf of the
Seller containing information regarding the assets of the Trust or (iii) any
untrue statement or alleged untrue statement of any material fact contained in
any information provided by the Sellers to the Purchaser or any affiliate
thereof, or any material omission from the information purported to be
provided thereby, and disseminated to Deloitte & Touche LLP or prospective
investors (directly or indirectly through available information systems) in
connection with the issuance, marketing or offering of the Certificates. This
indemnity agreement will be in addition to any liability which the Sellers may
otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless each Seller,
each of its officers, directors and each person or entity who controls such
Seller or any such person, against any and all losses, claims, damages or
liabilities, joint and several, to which such Seller, or any such person or
entity may become subject, under the Securities Act or otherwise, and will
reimburse that Seller for any legal or other expenses incurred by such Seller,
each such officer and director and such controlling person in connection with
investigating or defending any such losses, claims, damages or liabilities
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement or any
amendment or supplement to the Prospectus Supplement or the omission or the
alleged omission to state therein a material fact necessary in order to make
the statements in the Prospectus Supplement or any amendment or supplement to
the Prospectus Supplement, in the light of the circumstances under which they
were made, not misleading, but only to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission relates to the
Purchaser Information contained in the Prospectus. This indemnity agreement
will be in addition to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by any indemnified party under this
Article V 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 Article V, 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 Article V except to the extent it has
been materially prejudiced by such failure and, provided further, 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
Article V.
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, the
indemnifying party shall not be liable to the indemnified party under this
Article V 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 in writing by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party, in
which case, if such indemnified party notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party, it being
understood, however, the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties, which firm shall be designated in writing by the
Purchaser, if the indemnified parties under this Article V consist of the
Purchaser, or by the Sellers, if the indemnified parties under this Article V
consist of any Seller.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 5.01(a) and (b) hereof, shall use its best efforts to
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 consent to a settlement of any
action, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and the indemnifying party has not
previously provided the indemnified party with written notice of its objection
to such settlement. No indemnifying party shall effect any settlement of any
pending or threatened proceeding in respect of which an indemnified party is
or could have been a party and indemnity is or could have been sought
hereunder, without the written consent of such indemnified party, unless
settlement includes an unconditional release of such indemnified party from
all liability and claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Article is
for any reason held to be unenforceable although applicable in accordance with
its terms, the Sellers, on the one hand, and the Purchaser, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
them and the Purchaser in such proportions as shall be appropriate to reflect
the relative benefits received by the Sellers on the one hand and the
Purchaser on the other from the sale of the Mortgage Loans such that the
Purchaser is responsible for the lesser of (i) 50% thereof and (ii) the
Structuring Fee and the Sellers shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each officer and director of
the Purchaser and each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Purchaser and each director of a Seller, each officer of a
Seller, and each person, if any, who controls that Seller within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as the related Seller.
(e) The Sellers, severally and not jointly, agree to indemnify and
to hold each of the Purchaser and the Trustee, each of the officers and
directors of each such entity and each person or entity who controls each such
entity or person and each Certificateholder harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser, the
Trustee, or any such person or entity and any Certificateholder may sustain in
any way (i) related to the failure of a Seller to perform its duties in
compliance with the terms of this Agreement, (ii) arising from a breach by a
Seller of its representations and warranties in Section 3.01 or (iii) related
to the origination or prior servicing of the Mortgage Loans by reason of any
acts, omissions, or alleged acts or omissions of any Seller, the originator or
any servicer. Each Seller shall promptly notify the Purchaser, the Trustee and
each Certificateholder if a claim is made by a third party with respect to
this Agreement. The Sellers shall assume the defense of any such claim and pay
all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against the Purchaser and the Trustee or any such person or entity
and/or any Certificateholder in respect of such claim.
ARTICLE VI.
TERMINATION
Section 6.01. Termination. The respective obligations and responsibilities
of each Seller and the Purchaser created hereby shall terminate, except for the
Sellers' and Purchaser's indemnity obligations as provided herein, upon the
termination of the Trust as provided in Article X of the Pooling and Servicing
Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. This Agreement may be amended from time to time
by the Sellers and the Purchaser by written agreement signed by the parties
hereto.
Section 7.02. Governing Law. This Agreement shall be governed by and
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 such laws (without regard to its material conflict of laws
rules).
Section 7.03. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
if to the Sellers:
[Name of Seller]
c/o Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished to the Purchaser in writing
by the Sellers.
if to the Purchaser:
Greenwich Capital Acceptance, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished to Fifth Third Bank in
writing by the Purchaser.
Section 7.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions of terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
of enforceability of the other provisions of this Agreement.
Section 7.05. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts,
which may be transmitted by telecopier each of which, when so executed, shall
be deemed to be an original and such counterparts, together, shall constitute
one and the same agreement.
Section 7.06. Further Agreements. The parties hereto each agree to execute
and deliver to the other such additional documents, instruments or agreements
as may be necessary or reasonable and appropriate to effectuate the purposes of
this Agreement or in connection with the issuance of any Series of Certificates
representing interests in the Mortgage Loans.
Without limiting the generality of the foregoing, as a further
inducement for the Purchaser to purchase the Mortgage Loans from the Sellers,
each Seller will cooperate with the Purchaser in connection with the sale of
any of the securities representing interests in the Mortgage Loans. In that
connection, each Seller will provide to the Purchaser any and all information
and appropriate verification of information, whether through letters of its
auditors and counsel or otherwise, as the Purchaser shall reasonably request
and will provide to the Purchaser such additional representations and
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the related Seller as are
reasonably required in connection with such transactions and the offering of
investment grade securities rated by the Rating Agencies.
Section 7.07. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and each Seller is selling, the
Related Mortgage Loans rather than pledging such Mortgage Loans to secure a
loan by the Purchaser to the applicable Sellers. Accordingly, the parties
hereto each intend to treat the transaction as a sale by each Seller, and a
purchase by the Purchaser, of the Mortgage Loans. The Purchaser will have the
right to review the Mortgage Loans and the related Mortgage Files to determine
the characteristics of the Mortgage Loans which will affect the Federal income
tax consequences of owning the Mortgage Loans and each Seller will cooperate
with all reasonable requests made by the Purchaser in the course of such
review.
Section 7.08. Successors and Assigns: Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by
the Sellers, the Purchaser and the Trustee. The obligations of each Seller
under this Agreement cannot be assigned or delegated to a third party without
the consent of the Purchaser which consent shall be at the Purchaser's sole
discretion, except that the Purchaser acknowledges and agrees that each Seller
may assign its obligations hereunder to any Person into which such Seller is
merged or any corporation resulting from any merger, conversion or
consolidation to which such Seller is a party or any Person succeeding to the
business of such Seller. The parties hereto acknowledge that the Purchaser is
acquiring the Mortgage Loans for the purpose of contributing them to a trust
that will issue a Series of Certificates representing undivided interests in
such Mortgage Loans. As an inducement to the Purchaser to purchase the
Mortgage Loans, each Seller acknowledges and consents to the assignment by the
Purchaser to the Trustee of all of the Purchaser's rights against the related
Seller pursuant to this Agreement insofar as such rights relate to Mortgage
Loans transferred to the Trustee and to the enforcement or exercise of any
right or remedy against the applicable Seller pursuant to this Agreement by
the Trustee. Such enforcement of a right or remedy by the Trustee shall have
the same force and effect as if the right or remedy had been enforced or
exercised by the Purchaser directly.
Section 7.09. Survival. The representations and warranties set forth in
Sections 3.01 and 3.02 and the provisions of Article V hereof shall survive
the purchase of the Mortgage Loans hereunder.
IN WITNESS WHEREOF, the Sellers, Fifth Third Bank and the Purchaser have
caused their names to be signed to this Mortgage Loan Purchase Agreement by
their respective officers thereunto duly authorized as of the day and year
first above written.
GREENWICH CAPITAL ACCEPTANCE, INC.,
as Purchaser
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK
By: /s/ Xxxxx X. Xxxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD MORTGAGE COMPANY,
as Seller
By: /s/ Xxxxxxx X. Bondle
______________________________________________
Name:
Title:
FIFTH THIRD BANK, CENTRAL OHIO,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, FLORIDA,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, INDIANA,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, KENTUCKY, INC.,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, NORTHWESTERN, OHIO, N.A.,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, OHIO VALLEY,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
FIFTH THIRD BANK, SOUTHWEST, F.S.B.,
as Seller
By: /s/ Xxxx Xxxxxx
______________________________________________
Name:
Title:
STATE OF )
)ss.:
COUNTY OF )
On the __ day of December, 1999 before me, a Notary Public in and for
said State, personally appeared _____________________, known to me to be a
____________ of GREENWICH CAPITAL ACCEPTANCE, INC., the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
STATE OF )
)ss.:
COUNTY OF )
On the __ day of December, 1999 before me, a Notary Public in and for
said State, personally appeared ______________________, known to me to be a
_______________ Fifth Third Bank, the company that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
STATE OF )
)ss.:
COUNTY OF )
On the __ day of December, 1999 before me, a Notary Public in and for
said State, personally appeared ______________________, known to me to be a
_______________ of , the company that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
EXHIBIT A
Representations and Warranties Relating to the Mortgage Loans
-------------------------------------------------------------
A. Each Seller hereby represents and warrants to the Depositor, the
Trustee, the Certificateholders and the Master Servicer, with respect to each
Mortgage Loan that is a Related Mortgage Loan as of the Closing Date (or in
the case of certain specified representations and warranties, as of the
applicable Cut-off Date) or as of such other date specifically provided herein
(except that with respect to any Qualified Substitute Mortgage Loan such
representations and warranties shall be as of the date of substitution and
made by the related Seller or Fifth Third Bank, whichever is making the
substitution), that:
(a) The information set forth in the Mortgage Loan Schedule relating
to the Mortgage Loan is complete, true and correct in all material respects as
of the applicable Cut-off Date;
(b) The Mortgage Note and the Mortgage are not assigned or pledged
by the Seller to a Person other than the Trust, and immediately prior to the
transfer of the Mortgage Loan from the Seller to the Depositor, the Seller had
good and marketable title thereto, and was the sole owner and holder of the
Mortgage Loan free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges or security interests of
any nature (collectively, a "Lien"), other than any such Lien released
simultaneously with the sale contemplated herein, and had full right and
authority, subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to this Agreement, and
immediately upon the transfer and assignment of the Mortgage Loan as herein
contemplated, the Trustee shall have good title to, and will be the sole legal
owner of, the Mortgage Loan free and clear of any Lien;
(c) The Mortgage is a valid and existing lien on the property
therein described, and the Mortgaged Property is free and clear of all
encumbrances and liens having priority over the lien of the Mortgage, except
(i) liens for real estate taxes and special assessments not yet due and
payable and (ii) in the case of a Mortgaged Property that is a condominium or
an individual unit in a planned unit development, liens for common charges
permitted by statute. Any security agreement, chattel mortgage or equivalent
document related to the Mortgage and delivered to the Trustee establishes in
the Seller a valid and subsisting lien on the property described therein, and
the Seller has full right to sell and assign the same to the Trustee;
(d) The terms of the Mortgage Note and the Mortgage have not been
impaired, altered or modified in any respect which would have any adverse
effect on the Certificateholders, except by a written instrument which has
been recorded, if necessary to protect the interests of the
Certificateholders, and which has been delivered to the Trustee. The substance
of any such alteration or modification is reflected in the Mortgage Loan
Schedule;
(e) No instrument of release or waiver has been executed in
connection with the Mortgage Loan, and the Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement which has
been approved by the primary mortgage guaranty insurer, if any, and which has
been delivered to the Trustee;
(f) As of the Cut-off Date, the Mortgagor is not in default in
complying with the terms of the Mortgage Note or the Mortgage and there exists
no event which, with the passage of time or notice or both, would constitute a
default thereunder, and the Seller has not waived any default, breach,
violation or event of acceleration except that the Seller may have accepted
late payments. At origination all taxes, governmental assessments, insurance
premiums, or water, sewer and municipal charges and rents under all ground
leases which previously became due and owing have been paid, and the Mortgage
Note and/or the related Mortgage obligate the Mortgagor to pay all similar
amounts as they become due. 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 by
the Mortgage, except for interest accruing from the date of the Mortgage Note
or date of disbursement of the Mortgage proceeds, whichever is more recent, to
the day which precedes by one day the Due Date of the first installment of
principal and interest;
(g) There is no proceeding pending or, to the best of the Seller's
knowledge, threatened for the total or partial condemnation of the Mortgaged
Property, nor is such a proceeding currently occurring, and such property is
undamaged by waste, fire, water, earthquake or earth movement, windstorm,
flood, tornado, or otherwise, 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;
(h) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the Mortgaged Property which
are, or may be, liens prior or equal to, or coordinate with, the lien of the
Mortgage except those that are stated in the title insurance policy and for
which related losses are affirmatively insured against by such policy;
(i) All of the improvements that were included for the purpose of
determining the value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged Property
except those that are stated in the title insurance policy and for which
related losses are affirmatively insured against by such policy;
(j) [Reserved]
(k) To the Seller's knowledge, no improvement located on or being
part of the Mortgaged Property is in violation of any applicable zoning law or
regulation. To the Seller's knowledge, 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 and the Mortgaged Property is lawfully occupied under applicable
law;
(l) All parties that 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 licensing requirements of the United States and of
the laws of the state wherein the Mortgaged Property is located that are
applicable to such parties, and (2)(A) organized under the laws of such state,
or (B) qualified to do business in such state or exempt from such
qualification in a manner so as not to affect adversely the enforceability of
such Mortgage Loan, or (C) federal savings associations or national banks
having principal offices in such state, or (D) not doing business in such
state;
(m) As of the Cut-off Date, no Mortgage Loan was delinquent;
(n) The Mortgage File contains each of the documents and instruments
specified to be included therein duly executed and in due and proper form and
each such document or instrument is in a form generally acceptable to prudent
institutional mortgage lenders that regularly originate or purchase mortgage
loans comparable to the Mortgage Loans for sale to prudent investors in the
secondary market that invest in mortgage loans such as the Mortgage Loans;
(o) The Mortgage Note and the related Mortgage are genuine, and each
is the legal, valid and binding obligation of the maker thereof, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law). All parties to the Mortgage
Note and the Mortgage had legal capacity to execute the Mortgage Note and the
Mortgage, and the Mortgage Note and Mortgage have been duly and properly
executed by such parties. The Mortgagor is a natural person who is a party to
the Mortgage Note and the Mortgage in an individual capacity, and not in the
capacity of a trustee or otherwise;
(p) 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, equal credit opportunity or disclosure
laws, applicable to the Mortgage Loan have been complied with, and the Seller
has and shall maintain in its possession, available for the Trustee's
inspection, and shall deliver to the Trustee upon demand, evidence of
compliance with all such requirements;
(q) The proceeds of the Mortgage Loan have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making, closing or recording the Mortgage
Loan were paid;
(r) [Reserved];
(s) The Mortgage Loan is covered by an ALTA mortgage title insurance
policy or such other form of policy acceptable to Xxxxxx Xxx or Xxxxxxx Mac,
issued by and constituting the valid and binding obligation of a title insurer
generally acceptable to prudent mortgage lenders, which regularly originate or
purchase mortgage loans comparable to the Mortgage Loans for sale to prudent
investors in the secondary market that invest in mortgage loans such as the
Mortgage Loans, and qualified to do business in the jurisdiction wherein 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. The Seller is the sole payee of such
mortgage title insurance policy, the assignment to the Trustee of the Seller's
interest in such mortgage title insurance policy does not require the consent
of or notification to the insurer or the same has been obtained, and such
mortgage title insurance policy is in full force and effect and will be in
full force and effect and inure to the benefit of the Trustee upon the
consummation of the transactions contemplated by this Agreement. No claims
have been made under such mortgage title insurance policy and no prior holder
of the related Mortgage, including the Seller, has done, by act or omission,
anything that would impair the coverage of such mortgage title insurance
policy;
(t) All improvements upon the Mortgaged Property are insured by an
insurer who meets Xxxxxx Mae and/or Xxxxxxx Mac guidelines against loss by
fire, hazards of extended coverage and such other hazards as are customary in
the area where the Mortgaged Property is located pursuant to insurance
policies conforming to the requirements of Section 3.14 of the Pooling and
Servicing Agreement. If the Mortgaged Property was, at the time of origination
of the Related Mortgage Loan, in an area identified on a Flood Hazard Boundary
Map or Flood Hazard Rate Map issued by the Federal Emergency Management Agency
as having special flood hazards (and if the flood insurance policy referenced
herein has been made available), a flood insurance policy is in effect with
respect to such Mortgaged Property with a generally acceptable carrier in an
amount representing coverage described in Section 3.14 of the Pooling and
Servicing Agreement. All individual insurance policies (collectively, the
"hazard insurance policy") are the valid and binding obligation of the insurer
and contain a standard mortgagee clause naming the Seller, its successors and
assigns, as mortgagee. All premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor's cost and expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor;
(u) The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will the
operation of any of the terms of the Mortgage Note 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 the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(v) The Mortgage Loan was originated by the Seller in accordance
with the Seller's underwriting guidelines. The Mortgage Loan has not been
modified except as such modification may be reflected in the related Mortgage
File;
(w) The Mortgage Loan is a closed-end Mortgage Loan having an
original term of not more than 15 years to maturity (if a Group I Mortgage
Loan) or not more than 30 years to maturity (if a Group II Mortgage Loan). The
Mortgage Loan is payable in equal monthly installments of principal and
interest which would be sufficient, in the absence of late payments, to fully
amortize such loan within the term thereof, beginning no later than 60 days
after disbursement of the proceeds of the Mortgage Loan and bears a fixed
interest rate for the term of the Mortgage Loan;
(x) The Mortgage contains a customary provision for the acceleration
of the payment of the unpaid principal balance of the Mortgage Loan in the
event the related Mortgaged Property is sold without the prior consent of the
holder of the Mortgage;
(y) If the related Mortgagor represented that such Mortgagor would
occupy the related Mortgaged Property as such Mortgagor's primary residence,
the Seller has not received notice that such representation of the Mortgagor
is no longer true. The Mortgage Loan is not a construction loan. Each
Mortgaged Property is lawfully occupied under applicable law;
(z) The Mortgage Note is not and has not been secured by any
collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(aa) The Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial or non-judicial foreclosure.
Other than applicable homestead provisions which may delay the realization
against the Mortgaged Property, or exemptions that may arise in the event a
petition under the Bankruptcy Code is filed with respect to the Mortgagor,
there is no homestead or other exemption available to the Mortgagor that would
interfere with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage;
(bb) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in such Mortgage, and no fees or expenses
are or will become payable by the Trustee or the Certificateholders to the
trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor, which fees and expenses shall constitute
Servicing Advances;
(cc) The Mortgaged Property is located in the state identified in
the Mortgage Loan Schedule and consists of at least one parcel of real
property with a one-family residence erected thereon, a two- to four-family
dwelling or an individual condominium unit. The Mortgaged Property does not
consist of a residence or unit or a mobile home that is not permanently
affixed; provided, however, that it may be a pre-fabricated or manufactured
unit affixed to a permanent foundation. The Mortgaged Property is not a
multifamily Mortgaged Property. If the Mortgaged Property is subject to a
ground lease: (i) the current ground lessor has been identified and all ground
rents which have previously become due and owing have been paid, (ii) the
ground lease term extends, or is automatically renewable, for at least five
years beyond the maturity date of the Related Mortgage Loan, (iii) the ground
lease has been duly executed and recorded, (iv) the amount of the ground rent
and any increases therein are clearly identified in the lease and are for
predetermined amounts at predetermined times, (v) the ground rent payment is
included in the Mortgagor's monthly payment as an expense item, (vi) the Trust
has the right to cure defaults on the ground lease and (vii) the terms and
conditions of the leasehold do not prevent the free and absolute marketability
of such Mortgaged Property;
(dd) The Loan-to-Value Ratio of the Mortgage Loan at origination was
not more than 95.00%;
(ee) [Reserved];
(ff) There exist no deficiencies with respect to escrow deposits and
payments, if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under the Mortgage or
the related Mortgage Note;
(gg) The Mortgage Loan was not originated under a buydown plan;
(hh) Other than as provided by this Agreement, there is no
obligation with respect to the Mortgage Loan on the part of the Seller or any
other party to make payments in addition to those made by the Mortgagor;
(ii) Subject to the provisions of Section 2.01 of the Pooling and
Servicing Agreement, the Mortgage Note, the Mortgage, the Assignment of the
Mortgage and any other documents required to be delivered have been delivered
to the Trustee, or the Custodian on behalf of the Trustee. The Seller is in
possession of a complete Mortgage File, except those documents delivered to
the Trustee, or the Custodian on behalf of Trustee, and there are no custodial
agreements in effect adversely affecting the right or ability of the Seller to
make the document deliveries required hereby. The original Mortgage was
recorded, and all subsequent Assignments of the original Mortgage have been
recorded in the appropriate jurisdictions wherein such recordation is
necessary to perfect the lien thereof as against creditors of the Seller
(subject to the provisions of Section 2.01 of the Pooling and Servicing
Agreement with respect to Mortgages and Assignments which are in the process
of being recorded);
(jj) The Mortgage Loan was not selected for inclusion under this
Agreement on any basis which was intended to have a material adverse effect on
the Certificateholders;
(kk) The Mortgage Loan has no shared appreciation or other
contingent interest feature;
(ll) [Reserved];
(mm) The Mortgage Rate for the Mortgage Loan was not greater than
8.125% or less than 5.750% if included in Loan Group I and not greater than
9.500% or less than 6.000% if included in Loan Group II;
(nn) [Reserved]
(oo) The Seller has caused or will cause to be performed any and all
acts required to be performed to preserve the rights and remedies of the
Trustee in any insurance policies applicable to the Mortgage Loan, including,
without limitation, any necessary notifications of insurers, assignments of
policies or interests therein, and establishments of co-insured, joint loss
payee and mortgagee rights in favor of the Trustee;
(pp) All amounts due and received after the Cut-off Date (and all
amounts received on or before the Cut-off Date that are due after the Cut-off
Date) with respect to the Mortgage Loan to which the Seller is not entitled
are, as of the Closing Date, in the Collection Account;
(qq) Each Mortgage Loan conforms to the descriptions thereof to be
set forth in the Prospectus Supplement (subject to the variances specified
therein);
(rr) A full appraisal on forms approved by Xxxxxx Xxx or Xxxxxxx Mac
was performed in connection with the origination of the Related Mortgage Loan;
(ss) There is no indication in the Mortgage File that the Mortgaged
Property was, as of the Cut-off Date, located within a one-mile radius of any
site listed in the National Priorities List as defined under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, or
on any similar state list of hazardous waste sites which are known to contain
any hazardous substance or hazardous waste;
(tt) The Mortgage Loan is not subject to a bankruptcy plan;
(uu) [Reserved];
(vv) To the best of the Seller's knowledge, no statement, report or
other document constituting a part of the Mortgage File contains any material
untrue statement of fact or omits to state a fact necessary to make the
statements contained therein not misleading which would, either individually
or in the aggregate, have a material adverse effect on the Certificateholders;
no error or omission, misrepresentations, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of any
person, including, without limitation, the Mortgagor, any appraiser, any
builder or developer, or any other party involved in the origination of the
Mortgage Loan or in the application for any insurance in relation to the
Mortgage Loan;
(ww) [Reserved];
(xx) The Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
(yy) The Seller has the full authority to sell and transfer the
Mortgage Note and Mortgage and such transfer and sale will not impair the
enforceability of any Mortgage;
(zz) [Reserved];
(aaa) [Reserved];
(bbb) If the related Mortgaged Property is subject to a land trust
(a "Land Trust Mortgage"), (i) a trustee, duly qualified under applicable law
to serve as such, has been properly designated and currently so serves and is
named as such in the land trust agreement and such trustee is named in the
Land Trust Mortgage as Mortgagor; (ii) all fees and expenses of the land
trustee which have previously become due and owing have been paid and no fees
or expenses are or will become payable by the Certificateholders or the Trust
to the land trustee under the land trust agreement; (iii) the beneficiary is
solely obligated to pay any fees and expenses of the land trustee and the
priority of the lien of the Land Trust Mortgage is not and will not be primed
by the land trustee; (iv) the beneficiary is obligated to make payments under
the related promissory note and will have personal liability for deficiency
judgments; (v) the related Land Trust Mortgage together with each assignment
of beneficial interest relating thereto was made in compliance with the
related land trust agreement, was validly entered into by the related land
trustee or beneficiary and did not, does not currently, and will not in the
future, violate any provision of such land trust agreement or any agreement
between or among the beneficiaries of such land trust; (vi) the assignment of
the beneficial interest relating to such Land Trust Mortgage was accepted by,
and noted in the records of the respective land trust trustee, subsequent
assignments of such beneficial interest in whole or in part have not been
made, and such subsequent assignments of such beneficial interest or any part
thereof are not permitted pursuant to a written agreement between the
respective beneficiary and the related mortgagee, until the expiration of the
promissory note in such land trust; (vii) the Land Trust Mortgage is either
the first or second lien on the related Mortgaged Property; no liens are in
place against the beneficial interests, or any part thereof, of such Land
Trust Mortgage or collateral assignment of beneficial interest, which liens
are superior to the interest held by the Seller, and the beneficial interest,
or any part thereof, of any Land Trust Mortgage; (viii) the terms and
conditions of the land trust agreement do not prevent the free and absolute
marketability of the Mortgaged Property; and (ix) each Land Trust Mortgage
contains, and will contain, a "due-on-sale" provision permitting the mortgagee
under the Mortgage Note and Land Trust Mortgage to foreclose or otherwise
exercise remedies thereunder upon a transfer of the beneficial interest in the
related Mortgaged Property;
(ccc) The Mortgage Loan provides for the calculation of interest on
the basis of a 360-day year consisting of twelve 30-day months;
(ddd) The Mortgage Note does not provide for negative amortization;
(eee) [Reserved];
(fff) There are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(ggg) The origination and collection practices used by the Seller
with respect to the Mortgage Note and Mortgage have been in all respects
legal, proper prudent and customary in the mortgage origination and servicing
industry. The Mortgage Loan has been serviced by the Master Servicer (directly
or through a subservicer) and any predecessor servicer in accordance with the
terms of the Mortgage Note. With respect to escrow deposits and Escrow
Payments, if any, all such payments are in the possession of, or under the
control of, the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. No
escrow deposits or Escrow Payments or other charges or payments due the Seller
have been capitalized under any Mortgage or the related Mortgage Note;
(hhh) The Mortgaged Property is free of damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(iii) If the Mortgage Loan is subject to the provisions of the
Homeownership and Equity Protection Act of 1994, P.L. 103-325, 108 Stat 2160,
it was originated in compliance therewith; and
(jjj) The Seller has not dealt with any broker or agent or other
Person who might be entitled to a fee, commission or compensation in
connection with the transaction contemplated by this Agreement other than the
Purchaser.
B. Fifth Third Bank represents to the Depositor, the Trustee, the
Certificateholders and the Master Servicer with respect to the Mortgage Loans
as of the Cut-off Date (or such other date as may be specified below) that:
(a) With respect to approximately 100.00% of the Mortgage Loans in
Loan Group I and with respect to approximately 99.77% of the Mortgage Loans in
Loan Group II (measured by Cut-off Date Principal Balances), at the time that
each such Mortgage Loan was originated the related Mortgagor represented that
such Mortgagor would occupy the related Mortgaged Property as such Mortgagor's
primary residence;
(b) With respect to the aggregate Cut-off Date Principal Balance of
all the Mortgage Loans in each Loan Group, (i) not more than 0.00% are secured
by real property improved by two-to four-family dwellings; (ii) not more than
2.65% with respect to Loan Group I and 1.64% with respect to Loan Group II are
secured by real property improved by individual condominium units; and (iii)
at least 97.35% with respect to Loan Group I and 98.36% with respect to Loan
Group II are secured by real property with a detached or attached
single-family residence erected thereon;
(c) The weighted average Loan-to-Value Ratio of the Mortgage Loans
in each Loan Group was approximately 68.14% with respect to Loan Group I and
73.25% with respect to Loan Group II;
(d) No more than 7.30% with respect to Loan Group I and 4.43% with
respect to Loan Group II of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans in each Loan Group are secured by Mortgaged Properties
located within any single five-digit ZIP code area;
(e) The weighted average Mortgage Rate of the Mortgage Loans in each
Loan Group was approximately 6.885% with respect to Loan Group I and 7.228%
with respect to Loan Group II;
(f) As of the Closing Date, all the Mortgage Loans in the aggregate
conform to the descriptions thereof to be set forth in the Prospectus
Supplement (subject to the variances specified therein); and
(g) No Mortgage Loan is a "high cost mortgage" pursuant to Section
226.32 of the Truth-in-Lending Act, as amended.
C. It is understood and agreed that the representations and
warranties set forth in Section 2.04 of the Pooling and Servicing Agreement
shall survive delivery of the respective Mortgage Files to the Trustee (or the
Custodian on behalf of the Trustee) and shall inure to the benefit of the
Depositor, the Master Servicer, the Certificateholders and the Trustee,
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Sellers, Fifth Third Bank, the Depositor, the Master
Servicer or the Trustee of a breach of any of the foregoing representations
and warranties that materially and adversely affects the value of any Mortgage
Loan or the interests of the Certificateholders therein (without giving effect
to any qualification contained in such representation or warranty relating to
any Seller's knowledge), the party discovering such breach shall give prompt
written notice to the other parties, and in no event later than two Business
Days after the date of such discovery. It is understood and agreed that the
obligations of each Seller or of Fifth Third Bank, as the case may be, set
forth in Section 2.03(a) of the Pooling and Servicing Agreement to cure any
breach or to substitute for or repurchase a defective Mortgage Loan constitute
the sole remedies available to the Certificateholders, the Master Servicer and
the Trustee respecting a breach of the representations and warranties
contained in Section 2.04 of the Pooling and Servicing Agreement.
SCHEDULE A
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD MORTGAGE COMPANY
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SCHEDULE B
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, CENTRAL OHIO
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SCHEDULE C
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, FLORIDA
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SCHEDULE D
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, INDIANA
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SCHEDULE E
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, KENTUCKY, INC.
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SCHEDULE F
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, NORTHERN KENTUCKY, INC.
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SCHEDULE G
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, NORTHWESTERN, OHIO, N.A.
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SCHEDULE H
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, OHIO VALLEY
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SCHEDULE I
MORTGAGE LOAN SCHEDULE OF FIFTH THIRD BANK, SOUTHWEST, F.S.B.
