EXHIBIT 10.1
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MORTGAGE LOAN PURCHASE AGREEMENT
dated as of July 13, 2006
among
FREMONT INVESTMENT & LOAN,
as Responsible Party
SG MORTGAGE FINANCE CORP.,
as Seller
and
SG MORTGAGE SECURITIES, LLC,
as Purchaser
and
as acknowledged and agreed by
XXXXX FARGO BANK, N.A.,
as Interim Trustee, Master Servicer and Servicer
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TABLE OF CONTENTS
Section 1 Agreement to Purchase...........................................
Section 2 Mortgage Loan Schedule..........................................
Section 3 Consideration...................................................
Section 4 Transfer of the Mortgage Loans..................................
Section 5 Representations, Warranties and Covenants of the
Responsible Party and the Seller..............................
Section 6 Representations and Warranties of the Responsible Party
Relating to the Mortgage Loans................................
Section 7 Repurchase Obligation for Defective Documentation and for
Breach of Representation and Warranty.........................
Section 8 Closing; Payment for the Mortgage Loans.........................
Section 9 Closing Documents...............................................
Section 10 Costs...........................................................
Section 11 Indemnification.................................................
Section 12 Notices.........................................................
Section 13 Severability of Provisions......................................
Section 14 Agreement of Parties............................................
Section 15 Survival........................................................
Section 16 Governing Law...................................................
Section 17 Miscellaneous...................................................
Schedule I Seller's Representations and Warranties
Exhibit 1 Contents of Each Mortgage File
Exhibit 2 Mortgage Loan Documents
Exhibit 3 Mortgage Loan Schedule
Exhibit 4 List of Certain Exceptions
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of July 13, 2006
(this "Agreement"), is among FREMONT INVESTMENT & LOAN CORPORATION, a California
industrial bank (the "Responsible Party"), SG MORTGAGE FINANCE CORP., a Delaware
corporation (the "Seller"), and SG MORTGAGE SECURITIES, LLC, a Delaware limited
liability company (the "Purchaser").
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement, dated as of July 1, 2006 (the
"Pooling and Servicing Agreement"), among the Purchaser, as depositor, Xxxxx
Fargo Bank, N.A. ("Xxxxx Fargo"), as securities administrator, custodian and
master servicer (in such capacities, the "Master Servicer") and as servicer (in
such capacity, the "Servicer"), and U.S. Bank, National Association, as trustee
(the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of January 26, 2006 (the "MMLPISA"), and two
related Commitment Letters, dated as of May 25, 2006 and June 21, 2006 (each, a
"Commitment Letter"), each between the Responsible Party, as seller, and the
Seller, as initial purchaser, the Seller purchased the Mortgage Loans from the
Responsible Party, on a servicing released basis, and, in connection with any
securitization of the Mortgage Loans, the Responsible Party agreed to cooperate
with the Seller and to take certain actions (including, without limitation, to
make the representations and warranties contained herein regarding the
Responsible Party and the Mortgage Loans);
WHEREAS, pursuant to the Trust Agreement, dated as of May 18, 2005,
between the Seller, as beneficiary, and Xxxxx Fargo, as trustee (in such
capacity, the "Interim Trustee"), the Interim Trustee holds legal title to the
Mortgage Loans in trust for the benefit of the Seller, and, pursuant to the
Custodial Agreement, dated as of August 16, 2005, between the Seller, as owner,
and Xxxxx Fargo, as custodian (the "Custodian"), the Custodian holds the
Mortgage Loan Files in trust for the benefit of the Seller;
WHEREAS, the Servicer purchased, and the Seller sold, the servicing
rights related to the Mortgage Loans pursuant to the Flow Servicing Rights
Purchase and Sale Agreement, dated as of April 21, 2006, between the Seller and
the Servicer, as purchaser;
WHEREAS, the Responsible Party will service the Mortgage Loans
through September 1, 2006, the Servicer will service the Mortgage Loans
thereafter, and the Master Servicer will monitor, oversee and supervise the
Servicer;
WHEREAS, the Seller intends to sell and the Purchaser intends to
purchase the Mortgage Loans (as hereinafter identified) on the terms and subject
to the conditions set forth in this Agreement; and
WHEREAS, the Purchaser intends to deposit the Mortgage Loans into a
mortgage pool comprising the Trust Fund, which will be evidenced by a single
series of asset-backed certificates designated as SG Mortgage Securities Trust
2006-FRE2 Asset-Backed Certificates, Series 2006-FRE2 (the "Certificates"), and
the Certificates will consist of twenty classes of certificates and will be
issued pursuant to the Pooling and Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell and the
Purchaser agrees to purchase, on July 13, 2006 (the "Closing Date"), all the
Seller's right, title and interest in certain first lien and second lien,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, one- to
four-family residential mortgage loans purchased by the Seller from the
Responsible Party (as more fully defined in the Pooling and Servicing Agreement,
the "Mortgage Loans"), having an aggregate principal balance as of the close of
business on July 1, 2006, (the "Cut-off Date") of approximately $1,809,943,374
(the "Closing Balance"), after giving effect to all payments due on the Mortgage
Loans on or before the Cut-off Date, whether or not received including the right
to any Prepayment Charges payable by the related Mortgagors in connection with
any Principal Prepayments on the Mortgage Loans. The Seller, on behalf of the
Securities Administrator, agrees to pay the Swap Provider the Additional Amount
(as defined in the Interest Rate Swap Agreement) on the Closing Date.
Section 2. Mortgage Loan Schedule. The Purchaser and the Seller have
agreed upon which of the Mortgage Loans are to be purchased by the Purchaser
pursuant to this Agreement and the Seller will prepare or cause to be prepared
on or prior to the Closing Date a Mortgage Loan Schedule, attached hereto as
Exhibit 3 (the "Mortgage Loan Schedule"), that shall describe such Mortgage
Loans and set forth all of the Mortgage Loans to be purchased under this
Agreement, including the Prepayment Charges; provided, however, that "Mortgage
Loan Schedule," solely with respect to the representations and warranties of the
Responsible Party hereunder, shall mean the mortgage loan schedule delivered by
the Responsible Party in connection with its sale of the Mortgage Loans to the
Seller on the Whole Loan Sale Date (as defined herein). The Mortgage Loan
Schedule will conform to the requirements set forth in this Agreement and to the
definition of "Mortgage Loan Schedule" under the Pooling and Servicing
Agreement.
Section 3. Consideration. (a) In consideration for the Mortgage
Loans to be purchased hereunder the Purchaser shall, as described in Section 8,
pay to or upon the order of the Seller in immediately available funds an amount
(the "Total Purchase Price") equal to (i) the net sale proceeds of the Class
X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-2C, Class A-2D, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class
M-10 and Class M-11 Certificates, and (ii) the Class CE, Class P and Class R
Certificates.
(b) The Purchaser or any assignee, transferee or designee of the
Purchaser shall be entitled to all scheduled payments of principal due after the
Cut-off Date, all other payments of principal due and collected after the
Cut-off Date, and all payments of interest on the Mortgage Loans allocable to
the period after the Cut-off Date. All scheduled payments of principal and
interest due on or before the Cut-off Date and collected after the Cut-off Date
shall belong to the Seller.
(c) Pursuant to the Pooling and Servicing Agreement and the
Assignment and Recognition Agreement, dated as of July 13, 2006, between the
Purchaser, as assignor, the Trustee, as assignee, and the Seller, the Purchaser
will assign all of its right, title and interest in and to the Mortgage Loans,
together with its rights under this Agreement, to the Trustee for the benefit of
the Certificateholders.
Section 4. Transfer of the Mortgage Loans.
(a) Possession of Mortgage Files. Each of the Seller and the Interim
Trustee does hereby sell, and in connection therewith hereby assigns, to the
Purchaser, effective as of the Closing Date, without recourse but subject to the
terms of this Agreement, all of its right, title and interest in, to and under
the Mortgage Loans, including the related Prepayment Charges. The contents of
each Mortgage File not delivered to the Purchaser or to any assignee, transferee
or designee of the Purchaser on or prior to the Closing Date are and shall be
held in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser. Upon the sale of the Mortgage Loans,
the ownership of each Mortgage Note, the related Mortgage and the other contents
of the related 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
that come into the possession of the Seller on or after the Closing Date shall
immediately vest in the Purchaser and shall be delivered immediately to the
Purchaser or as otherwise directed by the Purchaser.
(b) Delivery of Mortgage Loan Documents. The Seller will, on or
prior to the Closing Date, deliver or cause to be delivered to the Purchaser or
any assignee, transferee or designee of the Purchaser the complete Mortgage File
(as defined in Exhibit 1) for each Mortgage Loan included on the Mortgage Loan
Schedule, which Mortgage File shall contain the Mortgage Loan Documents (as
defined in Exhibit 2).
The Seller shall forward to the Purchaser original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan within two (2) weeks of their execution, provided, however, that
the Seller shall provide the Purchaser with a certified true copy of any such
document submitted for recordation within two (2) weeks of its execution, and
shall provide the original of any document submitted for recordation or a copy
of such document certified by the appropriate public recording office to be a
true and complete copy of the original within ninety (90) days of its submission
for recordation, subject to extension for reasonable cause.
In the event any document required to be delivered to the Purchaser
pursuant to this Section 4(b), including an original or copy of any document
submitted for recordation to the appropriate public recording office, is not so
delivered to the Purchaser, or to such other Person as the Purchaser shall
designate in writing, within ninety (90) days following the Closing Date (other
than with respect to the Assignments of Mortgage which shall be delivered to the
Purchaser in blank and recorded subsequently by the Purchaser or its designee),
and in the event that the Seller does not cure such failure within thirty (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 Section
7. The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver an original document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate, 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. In addition to its
repurchase obligations set forth above in this paragraph, the Seller shall exert
customary and diligent efforts to cause the delivery to the Purchaser of the
documents required to be delivered under the preceding paragraphs. Each document
required to be delivered under this Section 4(b) shall be delivered by the
Seller within three hundred and sixty (360) days of the Closing Date.
(c) Acceptance of Mortgage Loans. The documents delivered pursuant
to Section 4(b) hereof shall be reviewed by the Purchaser or any assignee,
transferee or designee of the Purchaser at any time before or after the Closing
Date (and with respect to each document permitted to be delivered after the
Closing Date, within seven days of its delivery) to ascertain that all required
documents have been executed and received and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule.
(d) Transfer of Interest in Agreements. The Purchaser has the right
to assign its interest under this Agreement, in whole or in part, to the
Trustee, as may be required to effect the purposes of the Pooling and Servicing
Agreement, without the consent of the Seller or the Responsible Party, and the
assignee shall succeed to the rights hereunder of the Purchaser. Any out of
pocket expense reasonably incurred by or on behalf of the Purchaser or the
Trustee in connection with enforcing any obligations of the Seller or the
Responsible Party under this Agreement will be promptly reimbursed by the Seller
or the Responsible Party, as applicable.
(e) Examination of Mortgage Files. Prior to the Closing Date, the
Seller shall either (i) deliver in escrow to the Purchaser, or to any assignee,
transferee or designee of the Purchaser for examination, the Mortgage File
pertaining to each Mortgage Loan or (ii) make such Mortgage Files available to
the Purchaser or to any assignee, transferee or designee of the Purchaser for
examination. Such examination may be made by the Purchaser or the Trustee, and
their respective designees, upon reasonable notice to the Seller during normal
business hours before the Closing Date and within sixty (60) days after the
Closing Date. If any such person makes such examination prior to the Closing
Date and identifies any Mortgage Loans that do not conform to the requirements
of the Purchaser as described in this Agreement, such Mortgage Loans shall be
deleted from the Mortgage Loan Schedule. The Purchaser may, at its option and
without notice to the Seller, purchase all or part of the Mortgage Loans without
conducting any partial or complete examination. The fact that the Purchaser or
any person has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the rights of the Purchaser
or any assignee, transferee or designee of the Purchaser to demand repurchase or
other relief as provided herein or under the Pooling and Servicing Agreement.
Section 5. Representations, Warranties and Covenants of the
Responsible Party and the Seller. (a) The Responsible Party hereby represents
and warrants to the Seller and the Purchaser, as of the date hereof and as of
the Closing Date, and covenants, that:
(i) The Responsible Party is duly organized, validly existing and in
good standing under the laws of the State of California, and has all
licenses necessary to carry on its business as now being conducted. It is
licensed in (or otherwise exempt from licensing), qualified to transact
business in and is in good standing under the laws of the state in which
any Mortgaged Property is located and is and will remain in compliance
with the laws of each state in which any Mortgaged Property is located to
the extent necessary to ensure the enforceability of each Mortgage Loan.
No licenses or approvals obtained by the Responsible Party have been
suspended or revoked by any court, administrative agency, arbitrator or
governmental body and no proceedings are pending which might result in
such suspension or revocation;
(ii) The Responsible Party has the full power and authority and
legal right to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The
Responsible Party has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid and
binding obligation of the Responsible Party, enforceable against it in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency or reorganization;
(iii) The execution and delivery of this Agreement by the
Responsible Party and the performance of and compliance with the terms of
this Agreement which are applicable to the Responsible Party will not
violate the Responsible Party's articles of incorporation and by-laws or
constitute a default under or result in a breach or acceleration of, any
material contract, agreement or other instrument to which the Responsible
Party is a party or which may be applicable to the Responsible Party or
its assets;
(iv) The Responsible Party is not in violation of this Agreement,
and the execution and delivery of this Agreement by the Responsible Party
and its performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Responsible Party or its
assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation
of the Responsible Party or its assets or might have consequences that
would materially and adversely affect the performance of its obligations
and duties hereunder 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 benefits
accruing pursuant to this Agreement;
(v) The Responsible Party is a HUD approved mortgagee pursuant to
Section 203 of the National Housing Act. No event has occurred, including
but not limited to a change in insurance coverage, which would make the
Responsible Party unable to comply with HUD eligibility requirements or
which would require notification to HUD;
(vi) The Responsible Party does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
of the Responsible Party contained in this Agreement;
(vii) The Mortgage Loan Documents and any other documents required
to be delivered by the Seller with respect to each Mortgage Loan pursuant
to this Agreement have been delivered by the Responsible Party to the
Custodian;
(viii) Immediately prior to the sale of each Mortgage Loan to the
Seller, the Responsible Party was the owner of record of the related
Mortgage and the indebtedness evidenced by the related Mortgage Note and,
in the event that the Responsible Party retains record title, the
Responsible Party shall retain such record title to each Mortgage, each
related Mortgage Note and the related Mortgage Files with respect thereto
in trust for the Purchaser as the owner thereof;
(ix) There are no actions, suits or proceedings against, or
investigations of, pending or, to the best of the Responsible Party's
knowledge, threatened, the Responsible Party before any court,
administrative or other tribunal (A) that might prohibit its entering into
this Agreement, (B) seeking to prevent the sale of the Mortgage Loans or
the consummation of the transactions contemplated by this Agreement or (C)
that would be likely to prohibit or materially and adversely affect the
performance by the Responsible Party of its obligations under, or the
validity or enforceability of, this Agreement;
(x) 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 Responsible
Party of, or compliance by the Responsible Party with, this Agreement or
the consummation of the transactions contemplated by this Agreement,
except for such consents, approvals, authorizations or orders, if any,
that have been obtained prior to the Closing Date;
(xi) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Responsible Party,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Responsible Party to the Seller were not and are not
subject to the bulk transfer or any similar statutory provisions;
(xii) Neither this Agreement nor any written statement, report,
tape, diskette, form or other document furnished or to be furnished by the
Responsible Party (including the information delivered by the Responsible
Party to the Seller with respect to the Responsible Party's loan loss,
foreclosure and delinquency experience on mortgage loans underwritten to
the same standards as the Mortgage Loans and covering mortgaged properties
similar to the Mortgaged Properties) in connection with the sale of the
Mortgage Loans to the Seller or the transactions contemplated hereby
contains any untrue statement of material fact;
(xiii) The transfer of the Mortgage Loans to the Seller has been and
shall be treated as a sale on the books and records of the Responsible
Party, and the Responsible Party has determined that, and will treat, the
disposition of the Mortgage Loans for tax and accounting purposes as a
sale. The Responsible Party has maintained a complete set of books and
records for each Mortgage Loan which are clearly marked to reflect the
ownership of each Mortgage Loan by the Seller;
(xiv) The consideration received by the Responsible Party upon the
sale of the Mortgage Loans to the Seller constitutes fair consideration
and reasonably equivalent value for such Mortgage Loans;
(xv) The Responsible Party is solvent and will not be rendered
insolvent by the consummation of the transactions contemplated hereby. The
Responsible Party has not transferred any Mortgage Loan with any intent to
hinder, delay or defraud any of its creditors;
(xvi) The Mortgage Loans were selected from among the outstanding
one- to four-family mortgage loans in the Responsible Party's portfolio as
to which the related representations and warranties set forth in
Subsection 7.2 could be made and such selection was not made in a manner
so as to affect adversely the interests of the Seller;
(xvii) The characteristics of the related Mortgage Loans are as set
forth on the description of the pool characteristics provided to the
Seller on the date on which the Responsible Party sold such Mortgage Loans
to the Seller;
(xviii) The Responsible Party 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 to the Seller;
(xix) The Responsible Party is duly qualified, licensed, registered
and otherwise authorized under all applicable federal, state and local
laws, and regulations, if applicable, meets the minimum capital
requirements set forth by the FDIC and is in good standing to enforce,
originate, sell mortgage loans to, and service mortgage loans in each
jurisdiction wherein the Mortgaged Properties are located;
(xx) The Responsible Party's decision to originate any mortgage loan
or to deny any mortgage loan application was an independent decision based
upon Responsible Party's underwriting guidelines, and was in no way made
as a result of Seller's decision to purchase, or not to purchase, or the
price Seller may have offered to pay for, any such mortgage loan, if
originated;
(xxi) The Responsible Party has complied with all applicable
anti-money laundering laws and regulations, including, without limitation,
the USA Patriot Act of 2001 (collectively, the "Anti-Money Laundering
Laws"), and the Responsible Party 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 the purposes of the Anti-Money Laundering Laws,
including with respect to the legitimacy of the applicable Mortgagor and
the origin of the assets used by the said Mortgagor to purchase the
property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the
Anti-Money Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to Executive Order 13224 (the "Executive Order") or the
regulations promulgated by the Office of Foreign Assets Control of the
United States Department of the Treasury (the "OFAC Regulations") or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is subject to the provisions of such Executive Order or the OFAC
Regulations nor listed as a "Specifically Designated National and Blocked
Person" for purposes of the OFAC Regulations;
(xxii) The underwriting guidelines delivered by the Responsible
Party to the Seller are true, correct and complete; and
(xxiii) The Responsible Party is in good standing, and has complied
in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans, as applicable.
(b) The Seller hereby represents and warrants to the Purchaser, as
of the date hereof and as of the Closing Date, and covenants, that:
(i) The Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the State of Delaware with
full corporate power and authority to conduct its business as presently
conducted by it to the extent material to the consummation of the
transactions contemplated herein. The Seller has the full corporate power
and authority to own the Mortgage Loans and to transfer and convey the
Mortgage Loans to the Purchaser and has the full corporate power and
authority to execute and deliver, engage in the transactions contemplated
by, and perform and observe the terms and conditions of this Agreement.
(ii) The Seller has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution and
delivery by the Responsible Party, the Interim Trustee and the Purchaser,
constitutes a legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization.
(iii) The execution, delivery and performance of this Agreement by
the Seller (x) does not conflict and will not conflict with, does not
breach and will not result in a breach of and does not constitute and will
not constitute a default (or an event, which with notice or lapse of time
or both, would constitute a default) under (A) any terms or provisions of
the certificate of incorporation or bylaws of the Seller, (B) any term or
provision of any material agreement, contract, instrument or indenture, to
which the Seller is a party or by which the Seller or any of its property
is bound or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or any of its property and (y) does not
create or impose and will not result in the creation or imposition of any
lien, charge or encumbrance which would have a material adverse effect
upon the Mortgage Loans or any documents or instruments evidencing or
securing the Mortgage Loans.
(iv) No consent, approval, authorization or order of, registration
or filing with, or notice on behalf of the Seller to any governmental
authority or court is required, under federal laws or the laws of the
State of Delaware, for the execution, delivery and performance by the
Seller of, or compliance by the Seller with, this Agreement or the
consummation by the Seller of any other transaction contemplated hereby;
provided, however, that the Seller makes no representation or warranty
regarding federal or state securities laws in connection with the sale or
distribution of the Certificates.
(v) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any order
or regulation of any federal, state, municipal or governmental agency
having jurisdiction over the Seller or its assets, which violation might
have consequences that would materially and adversely affect the condition
(financial or otherwise) or the operation of the Seller or its assets or
might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder.
(vi) The Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained
in this Agreement.
(vii) Immediately prior to the sale of the Mortgage Loans to the
Purchaser as herein contemplated, the Seller will be the beneficial owner,
and the Interim Trustee will be the legal owner, of the related Mortgage
and the indebtedness evidenced by the related Mortgage Note, and, upon the
payment to the Seller of the Total Purchase Price, in the event that the
Seller retains or has retained record title, the Seller shall retain such
record title to each Mortgage, each related Mortgage Note and the related
Mortgage Files with respect thereto in trust for the Purchaser as the
owner thereof from and after the date hereof.
(viii) There are no actions or proceedings against, or
investigations known to it of, the Seller before any court, administrative
or other tribunal (A) that might prohibit its entering into this
Agreement, (B) seeking to prevent the sale of the Mortgage Loans by the
Seller or the consummation of the transactions contemplated by this
Agreement or (C) that might prohibit or materially and adversely affect
the performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement.
(ix) 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 are not subject to the bulk transfer or any
similar statutory provisions.
(x) The Seller has not dealt with any broker, investment banker,
agent or other person, except for the Purchaser or any of its affiliates,
that may be entitled to any commission or compensation in connection with
the sale of the Mortgage Loans.
(xi) There is no litigation currently pending or, to the best of the
Seller's knowledge without independent investigation, threatened against
the Seller that would reasonably be expected to adversely affect the
transfer of the Mortgage Loans, the issuance of the Certificates or the
execution, delivery, performance or enforceability of this Agreement, or
that would result in a material adverse change in the financial condition
of the Seller.
(xii) The Seller is solvent and will not be rendered insolvent by
the consummation of the transactions contemplated hereby. The Seller is
not transferring any Mortgage Loan with any intent to hinder, delay or
defraud any of its creditors.
(xiii) The Seller makes each of the additional representations and
warranties set forth on Schedule I hereto.
(c) Provided that the corresponding representations and warranties
made by the Responsible Party in Section 6 are true and correct, the Seller
hereby makes such representations and warranties with the following
modifications and exceptions:
(i) the words "Cut-Off Date" and "Whole Loan Sale Date" where they
appear in Section 6 are deemed to be replaced with the words "Closing
Date"; provided, however, that the words "Whole Loan Sale Date" where they
appear in Section 6(c) and (yy) are replaced with the words "Cut-Off
Date";
(ii) to the extent that the representations and warranties made by
Responsible Party as of the Cut-Off Date in Section 6(d), (s), (jjjj) and
(ssss) specifically exclude the Mortgage Loans listed on Exhibit 4, the
Seller makes such representations and warranties as of the Closing Date
with respect to such excluded Mortgage Loans; and
(iii) the Seller does not make the representations and warranties
set forth in Section 6(b) or (p).
(d) As of the Closing Date and immediately prior to the sale of the
Mortgage Loans hereunder, the Seller is the sole beneficial and equitable owner
of the related Mortgage Notes and the related Mortgages and has full right to
transfer and sell the Mortgage Loans to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest.
Section 6. Representations and Warranties of the Responsible Party
Relating to the Mortgage Loans. The Responsible Party hereby represents and
warrants to the Seller and the Purchaser that, as to each Mortgage Loan, as of
the Cut-Off Date or such other date specified below:
(a) The information set forth in the related Mortgage Loan Schedule
and the Mortgage Loan Data Tape, in each case, as delivered to the Seller or the
Seller's designee is complete, true and correct as of the Cut-Off Date or as of
such other date set forth in the Mortgage Loan Schedule;
(b) As of the date on which the Seller purchased such Mortgage Loan
from the Responsible Party (the "Whole Loan Sale Date"), such Mortgage Loan was
in compliance with all requirements set forth in the Commitment Letter;
(c) Unless otherwise set forth in the Mortgage Loan Schedule, all
payments required to be made up to the close of business on the Whole Loan Sale
Date under the terms of the Mortgage Note have been made; the Responsible Party
has not advanced funds, or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by the Mortgage
Note or Mortgage; and no monthly payment under the Mortgage Loan has been more
than one (1) calendar month delinquent more than one time since origination;
(d) For each Mortgage Loan, as of the Whole Loan Sale Date, and,
except for the Mortgage Loans specified on Exhibit 4, as of the Cut-Off Date,
there are no delinquent taxes, ground rents, water and municipal charges, sewer
rents, assessments, fire and hazard insurance premiums, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(e) The Mortgaged Property is located in the state identified in the
related Mortgage Loan Schedule and is improved by a Residential Dwelling;
(f) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if necessary to
maintain the lien priority of the Mortgage, and which have been delivered to the
Interim Trustee; the substance of any such waiver, alteration or modification
has been approved by the title insurer, to the extent required by the related
policy, and is reflected on the related Mortgage Loan Schedule. No instrument of
waiver, alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
approved by the title insurer, to the extent required by the policy, and which
assumption agreement has been delivered to the Custodian and the terms of which
are reflected in the related Mortgage Loan Schedule;
(g) With respect to each Mortgage Loan, the Mortgage Note and the
Mortgage are not subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, nor will the operation of any of the
terms of the Mortgage Note and/or the Mortgage, or the exercise of any right
thereunder, render the Mortgage or the Mortgage Note 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 and,
immediately after giving effect to the closing of the Mortgage Loan, no
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding;
(h) With respect to each Mortgage Loan, all buildings upon the
Mortgaged Property are insured by an insurer generally acceptable to prudent
lenders in the secondary mortgage market 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 prudent lenders in the secondary mortgage market. All such
insurance policies contain a standard mortgagee clause naming the Responsible
Party, its successors and assigns as mortgagee and all premiums thereon have
been paid. If the Mortgaged Property is in an area identified on a Flood Hazard
Map or Flood Insurance Rate Map issued by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect which policy is
generally accepted in the secondary mortgage market. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense and to
seek reimbursement therefor from the Mortgagor. 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
Responsible Party 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;
(i) 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, fair housing
or disclosure laws and all predatory and abusive lending laws applicable to the
origination and servicing of the Mortgage Loans have been complied with and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws, and the Responsible Party shall maintain in its
possession, available for the inspection of the Purchaser or its designee, and
shall deliver to the Purchaser or its designee, as soon as practicable, but no
more than five days after request, evidence of compliance with such
requirements;
(j) The Mortgage has not been satisfied, cancelled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release. Except as otherwise disclosed in the Mortgage Loan
Schedule, the Responsible Party 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 Responsible Party waived any default
resulting from any action or inaction by the Mortgagor;
(k) With respect to each Mortgage Loan, the related Mortgage is
properly recorded and is a valid, existing and enforceable (A) First Lien and
first priority security interest with respect to each Mortgage Loan which is
indicated by the Responsible Party to be a First Lien (as reflected on the
Mortgage Loan Schedule), or (B) Second Lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the
Responsible Party to be a Second Lien (as reflected on the Mortgage Loan
Schedule), in either case, on the Mortgaged Property, including all improvements
on the Mortgaged Property 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 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 being 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 which do not adversely affect the Appraised Value of the Mortgaged
Property, (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 and (iv) with respect to each Mortgage Loan which is
indicated by the Responsible Party to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule) a First Lien on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
existing and enforceable (A) First Lien and first priority security interest
with respect to each Mortgage Loan which is indicated by the Responsible Party
to be a First Lien (as reflected on the Mortgage Loan Schedule) or (B) Second
Lien and second priority security interest with respect to each Mortgage Loan
which is indicated by the Responsible Party to be a Second Lien Mortgage Loan
(as reflected on the Mortgage Loan Schedule), in either case, on the property
described therein and the Responsible Party has full right to sell and assign
the same to the Seller. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed to
secure debt or other security instrument creating a lien subordinate to the lien
of the Mortgage, other than with respect to any Mortgage Loan for which the CLTV
on the Mortgage Loan Schedule reflects the existence of a subordinate lien;
(l) The Mortgage Note and the related Mortgage are genuine and each
is the legal, valid and binding obligation of the Mortgagor and enforceable by
the Purchaser against such Mortgagor in accordance with its terms, except only
as such enforcement may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally;
(m) All parties to the Mortgage Note, the Mortgage and any other
related agreement had legal capacity to enter into the Mortgage Loan, to execute
and deliver the Mortgage Note, the Mortgage and any other related agreement and
to pledge, grant or convey the interest therein purported to be conveyed, and
the Mortgage Note, the Mortgage and any other related agreement have been duly
and properly executed by such parties;
(n) The Mortgagor is a natural person;
(o) The proceeds of the Mortgage Loan have been fully disbursed to
or for the account of the Mortgagor and there is no obligation for the Mortgagee
to advance additional funds thereunder and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage have been paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due to the Mortgagee pursuant to the Mortgage Note or Mortgage;
(p) On the Whole Loan Sale Date, the Responsible Party was the sole
legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and
had full right and authority under all governmental and regulatory bodies having
jurisdiction over the Responsible Party, subject to no interest or participation
of, or agreement with, any party, to transfer and sell the Mortgage Loan to the
Seller free and clear of any encumbrance or right of others, equity, lien,
pledge, charge, mortgage, claim, participation interest or security interest of
any nature (collectively, a "Lien"); and immediately upon the sale of the
Mortgage Loans to the Seller, the Seller held good, marketable and indefeasible
title to, and was the owner of, the Mortgage Loans subject to no lien;
(q) At the time of origination of the Mortgage Loan, all parties
which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledged or otherwise, were in compliance with any and all applicable
"doing business" and licensing requirements of the laws of the state wherein the
Mortgaged Property is located or were not required to be licensed in such state;
(r) The Mortgage Loan is covered by an American Land Title
Association ("ALTA") lender's title insurance policy (which, in the case of an
Adjustable Rate Mortgage Loan has an adjustable rate mortgage endorsement in the
form of ALTA 6.0 or 6.1) generally acceptable in the secondary mortgage market,
issued by a title insurer acceptable to prudent lenders in the secondary
mortgage market and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring (subject to the exceptions contained in
(k)(i)-(iii) with respect to each First Lien Mortgage Loan and subject to the
exceptions contained in (k)(i)-(iv) with respect to each Second Lien Mortgage
Loan) the Responsible Party, its successors and assigns as to the first priority
lien or the second priority lien, as applicable, of the Mortgage in the original
principal amount of the Mortgage Loan and, with respect to any Adjustable Rate
Mortgage Loan, against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing for
adjustment in the Mortgage Interest Rate and Monthly Payment. Additionally, such
lender's title insurance policy affirmatively insures ingress and egress to and
from the Mortgaged Property, and against encroachments by or upon the Mortgaged
Property or any interest therein. The Responsible Party is the sole insured of
such lender's title insurance policy, and such lender's title insurance policy
is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. Such lender's
title insurance policy has been duly and validly endorsed to the Purchaser or
the assignment to the Purchaser of the Responsible Party's interest therein does
not require the consent of or notification to the related insurer. No claims
have been made under such lender's title insurance policy which have not been
resolved favorably with respect to the Responsible Party, and no prior holder of
the related Mortgage, including the Responsible Party, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy;
(s) For each Mortgage Loan, as of the Whole Loan Sale Date, and,
except for the Mortgage Loans specified on Exhibit 4, as of the Cut-Off Date,
(i) other than payment delinquencies of one calendar month or less, there is no
default, breach, violation or event of acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration, and the Responsible Party has not
waived any default, breach, violation or event of acceleration, and (ii) with
respect to each Mortgage Loan which is indicated by the Responsible Party to be
a Second Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) (A) the
First Lien is in full force and effect, (B) other than payment delinquencies of
one calendar month or less, there is no default, breach, violation or event of
acceleration existing under such First Lien mortgage or the related mortgage
note, (C) no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (x) the First Lien
mortgage contains a provision which allows or (y) applicable law requires, the
mortgagee under the Second Lien Mortgage Loan to receive notice of, and affords
such mortgagee an opportunity to cure any default by payment in full or
otherwise under the First Lien mortgage;
(t) Except as insured against by the related title insurance policy,
as of the origination of the Mortgage Loan, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no rights
are outstanding that under law could give rise to such lien) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(u) All improvements which were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged Property;
(v) The Mortgage Loan was originated by the Responsible Party, a
broker or correspondent lender of the Responsible Party licensed in accordance
with all applicable laws, rules and regulations of their applicable state
licensing agency or by a savings and loan association, a savings bank, a
commercial bank or similar banking institution which is supervised and examined
by a federal or state authority, or by a mortgagee approved as such by the
Secretary of HUD;
(w) Except with respect to Interest Only Loans, principal payments
on the Mortgage Loan shall commence (with respect to any newly originated
Mortgage Loans) or commenced no more than sixty-two days after the proceeds of
the Mortgage Loan were disbursed. The Mortgage Loan bears interest at the
Mortgage Interest Rate as set forth in the related Mortgage Note. With respect
to each Mortgage Loan, the Mortgage Note is payable on the first day of each
month in Monthly Payments, which, other than a Balloon Loan (A) in the case of a
Fixed Rate Mortgage Loan, are sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at the
related Mortgage Interest Rate and (B) in the case of an Adjustable Rate
Mortgage Loan, are changed on each Adjustment Date, and in any case, are
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate. With
respect to a Balloon Loan, the Monthly Payments are based on the amortization
schedule set forth in the related Mortgage Note, with a final monthly payment
substantially greater than the preceding monthly payment and which is sufficient
to amortize the remaining principal balance of the Balloon Loan and to pay
interest at the related Mortgage Interest Rate. The Index for each Adjustable
Rate Mortgage Loan is as defined in the related Mortgage Loan Schedule. With
respect to each Mortgage Loan identified on the Mortgage Loan Schedule as an
interest-only Mortgage Loan, the interest-only period shall not exceed the
period specified on the Mortgage Loan Schedule and following the expiration of
such interest-only period, the remaining Monthly Payments shall be sufficient to
fully amortize the original principal balance over the remaining term of the
Mortgage Loan, except if such Mortgage Loan is a Balloon Loan. The Mortgage Loan
Schedule shall set forth all Balloon Loans. The Mortgage Note does not permit
negative amortization. No Mortgage Loan is a Convertible Mortgage Loan;
(x) The origination and collection practices used by the Responsible
Party with respect to each 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 Responsible Party in
accordance with the terms of the Mortgage Note. With respect to escrow deposits
and Escrow Payments (other than with respect to each Mortgage Loan which is
indicated by the Responsible Party to be a Second Lien Mortgage Loan and for
which the mortgagee under the First Lien is collecting Escrow Payments (as
reflected on the Mortgage Loan Schedule)), if any, all such payments are in the
possession of, or under the control of, the Responsible Party 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 Responsible Party have been capitalized under
any Mortgage or the related Mortgage Note and no such escrow deposits or Escrow
Payments are being held by the Responsible Party for any work on a Mortgaged
Property which has not been completed;
(y) (i) As of the Whole Loan Sale Date, the Mortgaged Property is
free of material damage and waste, and (ii) as of the Cut-Off Date, to the best
of the Responsible Party's knowledge, the Mortgaged Property is free of material
damage and waste, and there is no proceeding pending or threatened for the total
or partial condemnation thereof nor is such a proceeding currently occurring;
(z) The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (a) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by
judicial foreclosure. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage. The Mortgagor has not
notified the Responsible Party and the Responsible Party has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers' Civil
Relief Act;
(aa) The Mortgage Loan was underwritten in accordance with the
Underwriting Guidelines of the Responsible Party in effect at the time the
Mortgage Loan was originated, and the Mortgage Note and Mortgage are on forms
acceptable to prudent lenders in the secondary mortgage market;
(bb) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (k) above;
(cc) The Mortgage File contains an appraisal of the related
Mortgaged Property which (A) conformed to the standards of prudent lenders in
the secondary mortgage market, (B) was conducted generally in accordance with
the Underwriting Guidelines and included an assessment of the fair market value
of the related Mortgaged Property at the time of such appraisal, and (C) was
made and signed, prior to the approval of the Mortgage Loan application, by a
qualified appraiser who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, whose compensation is not
affected by the approval or disapproval of the Mortgage Loan and who met the
minimum qualifications of prudent lenders in the secondary mortgage market. Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the FIRREA;
(dd) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
Mortgagor;
(ee) No Mortgage Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in any separate
account established by the Responsible Party, the Mortgagor, or anyone on behalf
of the Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains 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) The Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by applicable law with
respect to the making of fixed rate mortgage loans in the case of Fixed Rate
Mortgage Loans, and adjustable rate mortgage loans in the case of Adjustable
Rate Mortgage Loans and rescission materials with respect to Refinanced Mortgage
Loans, and such statement is and will remain in the Mortgage File;
(gg) No Mortgage Loan was made in connection with (a) the
construction or rehabilitation of a Mortgaged Property or (b) facilitating the
trade in or exchange of a Mortgaged Property;
(hh) Taking into account the credit standing of the related
Mortgagor and the Underwriting Guidelines, the Responsible Party has no
knowledge of any circumstances or condition with respect to the Mortgaged
Property, the Mortgagor, or the Mortgage that can reasonably be expected to
cause the Mortgage Loan to become delinquent or adversely affect the value of
the Mortgage Loan as compared to other mortgage loans in the Responsible Party's
portfolio meeting the eligibility requirements for the Mortgage Loans sold by
the Responsible Party to the Seller or to cause any Mortgage Loan to prepay
during any period materially faster or slower than similar mortgage loans held
by the Responsible Party;
(ii) No Mortgage Loan had an LTV or CLTV at origination in excess of
100%;
(jj) As of the date of origination, the Mortgaged Property was
lawfully occupied under applicable law; all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities. No improvement located on or being part of any Mortgaged Property
is in violation of any applicable zoning law or regulation;
(kk) There was no fraud or misrepresentation involved in the
origination of the Mortgage Loan by the Responsible Party, the Mortgagor or any
appraiser involved in the origination of the Mortgage Loan. The documents,
instruments and agreements submitted for loan underwriting were not falsified.
The Responsible Party 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 and neither the
Responsible Party nor any Affiliate has made any representations to a Mortgagor
that are inconsistent with the mortgage instruments used;
(ll) With respect to any Mortgage Loan that is not a MERS Mortgage
Loan, each original Mortgage was recorded and all subsequent assignments of the
original Mortgage (other than the assignment to the Seller) have been recorded,
or are in the process of being recorded, in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof as against
creditors of the Responsible Party. As to any Mortgage Loan which is not a MERS
Mortgage Loan, the Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(mm) Any principal advances made to the Mortgagor prior to the
Cut-Off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on the Mortgage
Loan Schedule. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having (A) First Lien priority with respect to
each Mortgage Loan which is indicated by the Responsible Party to be a First
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule), or (B) Second
Lien priority with respect to each Mortgage Loan which is indicated by the
Responsible Party to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan Schedule), in either case, by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to prudent lenders in the secondary mortgage
market. The consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan;
(nn) If the Residential Dwelling on the Mortgaged Property is a
condominium unit or a unit in a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project meets the eligibility requirements of the Underwriting Guidelines;
(oo) Each Mortgage Loan originated in the state of Texas pursuant to
Article XVI, Section 50(a)(6) of the Texas Constitution (a "Texas Refinance
Loan") has been originated in compliance with the provisions of Article XVI,
Section 50(a)(6) of the Texas Constitution, Texas Civil Statutes and the Texas
Finance Code. With respect to each Texas Refinance Loan that is a Cash-Out
Refinancing, the related Mortgage Loan Documents state that the Mortgagor may
prepay such Texas Refinance Loan in whole or in part without incurring a
Prepayment Charge. The Responsible Party does not collect any such Prepayment
Charges in connection with any such Texas Refinance Loan;
(pp) The source of the down payment with respect to each Mortgage
Loan has been verified by the Responsible Party pursuant to the Underwriting
Guidelines;
(qq) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(rr) As of the Whole Loan Sale Date, the Mortgaged Property was, and
as of the Cut-Off Date, to the best of the Responsible Party's knowledge, was,
in material compliance with all applicable environmental laws pertaining to
environmental hazards including, without limitation, asbestos, and neither the
Responsible Party nor, to the Responsible Party's knowledge, the related
Mortgagor, has received any notice of any violation or potential violation of
such law;
(ss) The Responsible Party shall, at its own expense, cause each
First Lien Mortgage Loan to be covered by a "life of loan" Tax Service Contract
which is assignable to the Purchaser or its designee at no cost to the Purchaser
or its designee; provided, however, that if the Responsible Party fails to
purchase such Tax Service Contract, the Responsible Party shall be required to
reimburse the Purchaser for all costs and expenses incurred by the Purchaser in
connection with the purchase of any such Tax Service Contract;
(tt) The Responsible Party has fully furnished, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three of
the credit repositories) on a monthly basis;
(uu) No Mortgage Loan is (a) subject to the provisions of the
Homeownership and Equity Protection Act of 1994 as amended ("HOEPA"), (b) a
"high cost home," "covered" (excluding home loans defined as "covered home
loans" pursuant to clause (1) of the definition of that term in the New Jersey
Home Ownership Security Act), "high risk home," "threshold" or "predatory" loan
under any other applicable state, federal, or local law, including any predatory
or abusive lending laws, 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 (c) a High Cost Loan or Covered Home Loan, as applicable
(as such terms are defined in the Standard and Poor's LEVELS(R) Glossary
Revised, Appendix E);
(vv) No predatory, abusive, or deceptive lending practices,
including but not limited to, the extension of credit to a mortgagor without
regard for the mortgagor's ability to repay the Mortgage Loan and the extension
of credit to a mortgagor which has no apparent benefit to the mortgagor, were
employed in connection with the origination of the Mortgage Loan;
(ww) The debt-to-income ratio of the related Mortgagor was not
greater than 60% at the origination of the related Mortgage Loan, unless
otherwise set forth in the Mortgage Loan Schedule;
(xx) No Mortgagor was required to purchase any credit life,
disability, accident or health insurance product or debt cancellation agreement
as a condition of obtaining the extension of credit. No Mortgagor obtained a
prepaid single premium credit life, disability, unemployment, property, accident
or health insurance policy in connection with the origination of the Mortgage
Loan. No proceeds from any Mortgage Loan were used to finance or 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;
(yy) The Mortgage Loan was not selected from the Responsible Party's
portfolio of mortgage loans that, as of the related Whole Loan Sale Date, met
the eligibility requirements for the Mortgage Loans sold by the Responsible
Party to the Seller in a manner so as to adversely affect the interests of the
Seller or the Purchaser;
(zz) Unless otherwise disclosed to the Seller, 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;
(aaa) The Mortgage Loan complies with all applicable consumer credit
statutes and regulations, including, without limitation, the respective Uniform
Consumer Credit Code laws in effect in Colorado, Idaho, Indiana, Iowa, Kansas,
Maine, Oklahoma, South Carolina, Utah and Wyoming, has been originated by a
properly licensed entity, and in all other respects, complies with all of the
material requirements of any such applicable laws;
(bbb) The information set forth in the Mortgage Loan Schedule with
respect to Prepayment Charges is complete, true and correct in all material
respects, and each Prepayment Charge is permissible and enforceable in
accordance with its terms upon the Mortgagor's full and voluntary principal
prepayment under applicable law, except to the extent that: (1) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights; (2) the
collectability thereof may be limited due to acceleration in connection with a
foreclosure or other involuntary prepayment; or (3) subsequent changes in
applicable law may limit or prohibit enforceability thereof under applicable
law;
(ccc) Each Mortgage Loan and Prepayment Charge associated with the
Mortgage Loan at origination complied in all material respects with applicable
local, state and federal laws, including, without limitation, usury, equal
credit opportunity, real estate settlement procedures, truth-in-lending and
disclosure laws, and the consummation of the transactions contemplated hereby
will not involve the violation of any such laws;
(ddd) The Mortgage Loan was not prepaid in full prior to the Closing
Date and the Responsible Party has not received notification from a Mortgagor
that a prepayment in full shall be made after the Closing Date;
(eee) No Mortgage Loan is secured by commercial property or mixed
use property unless such mixed use property is subject to de minimis commercial
use and such commercial use was not taken into account in valuing the related
Mortgaged Property;
(fff) As of the Whole Loan Sale Date, each Mortgage Loan was
eligible for sale in the secondary mortgage market or for inclusion in a
Securitization Transaction without unreasonable credit enhancement;
(ggg) With respect to any Mortgage Loan that contains a provision
permitting imposition of a Prepayment Charge: (i) prior to the Mortgage Loan's
origination, the Mortgagor agreed to such Prepayment Charge in exchange for a
monetary benefit, including but not limited to a rate or fee reduction, (ii)
prior to the Mortgage Loan's origination, the Mortgagor was offered the option
of obtaining a mortgage loan that did not require payment of such a premium,
(iii) the Prepayment Charge is disclosed to the Mortgagor in the Mortgage Loan
documents pursuant to applicable state and federal law, (iv) for Mortgage Loans
originated on or after October 1, 2002, the duration of the prepayment penalty
period shall not exceed three (3) years from the date of the Mortgage Note,
unless the Mortgage Loan was modified to reduce the prepayment period to no more
than three years from the date of the Mortgage Note and the Mortgagor was
notified in writing of such reduction in prepayment period, (v) for Mortgage
Loans originated prior to October 1, 2002, the duration of the prepayment
penalty period did not exceed five (5) years from the date of the Mortgage Note,
and (vi) notwithstanding any state or federal law to the contrary, the
Responsible Party has not imposed any such Prepayment Charge in any instance
when the Mortgage debt was accelerated as the result of the Mortgagor's default
in making the Mortgage Loan payments;
(hhh) The Responsible Party has complied with all applicable
anti-money laundering laws and regulations, including without limitation the USA
Patriot Act of 2001 (collectively, the "Anti-Money Laundering Laws"); the
Responsible Party has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of the
Anti-Money Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to Executive Order 13224 (the "Executive Order") or the regulations
promulgated by the Office of Foreign Assets Control of the United States
Department of the Treasury (the "OFAC Regulations") or in violation of the
Executive Order or the OFAC Regulations, and no Mortgagor is subject to the
provisions of such Executive Order or the OFAC Regulations nor listed as a
"blocked person" for purposes of the OFAC Regulations;
(iii) With respect to each Mortgage Loan that is secured in whole or
in part by the interest of the Mortgagor as a lessee under a ground lease of the
related Mortgaged Property and not by a fee interest in such Mortgaged Property,
as of the Whole Loan Sale Date each of the following are true and correct, and,
as of the Cut-Off Date, to the best of the Responsible Party's knowledge, the
following are true and correct:
(i) The Mortgagor is the owner of a valid and subsisting interest as
tenant under the ground lease;
(ii) The ground lease is in full force and effect, unmodified and
not supplemented by any writing or otherwise;
(iii) The Mortgagor is not in default under any of the terms thereof
and there are no circumstances which, with the passage of time or the
giving of notice or both, would constitute an event of default thereunder;
(iv) The lessor under the ground lease is not in default under any
of the terms or provisions thereof on the part of the lessor to be
observed or performed;
(v) The term of the ground lease exceeds the maturity date of the
related Mortgage Loan by at least ten years;
(vi) The ground lease or a memorandum thereof has been recorded and
by its terms permits the leasehold estate to be mortgaged. The ground
lease grants any leasehold mortgagee standard protection necessary to
protect the security of a leasehold mortgagee;
(vii) The ground lease does not contain any default provisions that
could give rise to forfeiture or termination of the ground lease except
for the non-payment of the ground lease rents;
(viii) The execution, delivery and performance of the Mortgage do
not require the consent (other than those consents which have been
obtained and are in full force and effect) under, and will not contravene
any provision of or cause a default under, the ground lease ground lease;
and
(ix) The ground lease provides that the leasehold can be
transferred, mortgaged and sublet an unlimited number of times either
without restriction or on payment of a reasonable fee and delivery of
reasonable documentation to the lessor.
(jjj) No Mortgage Loan is secured by real property located in the
state of Georgia unless (x) such Mortgage Loan was originated (or modified)
prior to October 1, 2002 or after March 6, 2003, or, (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor's principal dwelling. No Mortgage Loan is a "High Cost Home Loan" as
defined in the Georgia Fair Lending Act, as amended (the "Georgia Act"). Each
Mortgage Loan that is a "Home Loan" under the Georgia Act complies with all
applicable provisions of the Georgia Act.
(kkk) Each Mortgagor was assigned the highest credit grade available
with respect to a Mortgage Loan product offered by the originator of such
Mortgage Loan taking into account the credit history, debt-to-income ratio and
loan requirements for such Mortgagor;
(lll) The methodology used in underwriting the extension of credit
for each Mortgage Loan employs objective mathematical principles which relate
the Mortgagor's income, assets and liabilities to the proposed payment and such
underwriting methodology does not rely on the extent of the Mortgagor's equity
in the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan;
(mmm) All points and fees related to each Mortgage Loan were
disclosed in writing to the related Mortgagor in accordance with applicable
state and federal law and regulation. All points and fees related to each
Mortgage Loan are listed on the Mortgage Loan Schedule and are complete, true
and correct;
(nnn) With respect to each MERS Mortgage Loan, a MIN has been
assigned by MERS and such MIN is accurately provided on the related Mortgage
Loan Schedule. The related assignment of Mortgage to MERS has been duly and
properly recorded;
(ooo) With respect to each MERS Mortgage Loan, the Responsible Party
has not received any notice of liens or legal actions with respect to such
Mortgage Loan and no such notices have been electronically posted by MERS;
(ppp) No Mortgage Loan is a "High-Cost" loan as defined under the
New York Banking Law Section 6-1, as amended effective as of April 1, 2003;
(qqq) No Mortgage Loan is a "High Cost Home Loan" as defined in the
Arkansas Home Loan Protection Act effective July 16, 2003, as amended (Act 1340
or 2003);
(rrr) No Mortgage Loan is a "High Cost Home Loan" as defined in the
Kentucky high-cost loan statute effective June 24, 2003, as amended (Ky. Rev.
Stat. Section 360.100);
(sss) No Mortgage Loan secured by property located in the State of
Nevada is a "home loan" as defined in the Nevada Assembly Xxxx No. 284, as
amended;
(ttt) No Mortgage Loan is a "high cost home," "covered" (excluding
home loans defined as "covered home loans" in the New Jersey Home Ownership
Security Act of 2002 that were originated between November 26, 2003 and July 7,
2004), "high risk home" or "predatory" 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);
(uuu) Each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(vvv) No Mortgage Loan is a subsection 10 mortgage under the
Oklahoma Home Ownership and Equity protection Act, as amended;
(www) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004, as amended (N.M.
Stat. Xxx. xx.xx. 58-21A-1 et seq.);
(xxx) No Mortgage Loan is a "High-Risk Home Loan" as defined in the
Illinois High-Risk Home Loan Act effective January 1, 2004, as amended (815 Ill.
Comp. Stat. 137/1 et seq.);
(yyy) No Mortgage Loan that is secured by property located within
the State of Maine meets the definition of a (i) "high-rate, high-fee" mortgage
loan under Article VIII, Title 9-A of the Maine Consumer Credit Code or (ii)
"High-Cost Home Loan" as defined under the Maine House Xxxx 383 X.X. 494, as
amended effective as of September 13, 2003;
(zzz) With respect to any Mortgage Loan originated on or after July
1, 2004, (i) the Mortgage Loan is not subject to mandatory arbitration and (ii)
neither the related Mortgage nor the related Mortgage Note requires the borrower
to submit to arbitration to resolve any dispute arising out of or relating in
any way to the Mortgage Loan transaction;
(aaaa) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
November 7, 2004 (Mass. Xxx. Laws Ch. 183C);
(bbbb) No Mortgage Loan secured by a Mortgage Property located in
the State of Illinois is in violation of the provisions of the Illinois Interest
Act, including Section 4.1a which provides that no such Mortgage Loan with a
Mortgage Interest Rate in excess of 8.0% per annum has lender-imposed fees (or
other charges) in excess of 3.0% of the original principal balance of the
Mortgage Loan;
(cccc) No Mortgage Loan is a "High Cost Home Loan" as defined in the
Indiana Home Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx.
Sections 24-9-1 through 24-9-9);
(dddd) No Mortgage Loan secured by a Mortgaged Property located in
Summit County, Ohio is in violation of the Summit County Anti-Predatory Lending
Ordinance;
(eeee) No Mortgage Loan secured by a Mortgaged Property located in
the Commonwealth of Massachusetts for which the application was taken on or
after November 7, 2004, was made to pay off or refinance an existing loan or
other debt of the related borrower (as the term "borrower" is defined in the
regulations promulgated by the Massachusetts Secretary of State in connection
with Massachusetts House Xxxx 4880 (2004)) unless either (1) (a) for a
closed-end first-lien Mortgage Loan, the related Mortgage Interest Rate (based
on the interest rate that would be effective once any introductory rate expires,
with respect to Adjustable Rate Mortgage Loans for which applications were taken
on or after November 7, 2004, but before January 14, 2005) did or would not
exceed by more than 2.25% (or 2.50% with respect to any Mortgage Loan for which
an application was taken on or after January 14, 2005) the yield on United
States Treasury securities having comparable periods of maturity to the maturity
of the related Mortgage Loan as of the fifteenth day of the month immediately
preceding the month in which the application for the extension of credit was
received by the related lender; (b) for a closed-end subordinate-lien Mortgage
Loan, the related Mortgage Interest Rate (based on the interest rate that would
be effective once any introductory rate expires, with respect to Adjustable Rate
Mortgage Loans for which applications were taken on or after November 7, 2004,
but before January 14, 2005) did or would not exceed by more than 3.25% (or
3.50% with respect to any Mortgage Loan for which an application was taken on or
after January 14, 2005) the yield on United States Treasury securities having
comparable periods of maturity to the maturity of the related Mortgage Loan as
of the fifteenth day of the month immediately preceding the month in which the
application for the extension of credit was received by the related lender; (c)
the Mortgage Loan is an "open-end home loan" (as such term is used in
Massachusetts House Xxxx 4880 (2004)) and the related Mortgage Note provides
that the related Mortgage Interest Rate may not exceed at any time the prime
rate index as published in The Wall Street Journal plus a margin of one percent;
or (d) the existing loan or other debt was consummated more than 60 months prior
to the Mortgage Loan; or (2) such Mortgage Loan is in the "borrower's interest,"
as documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects with the
laws of the Commonwealth of Massachusetts;
(ffff) No Mortgage Loan has a balloon payment feature unless
otherwise set forth in the Mortgage Loan Data Tape;
(gggg) Each First Lien Mortgage Loan is covered by a "life of loan"
Flood Zone Service Contract which is assignable to the Purchaser or its designee
at no cost to the Purchaser or its designee or, for each Mortgage Loan not
covered by such Flood Zone Service Contract, the Responsible Party agrees to
purchase such Flood Zone Service Contract;
(hhhh) With respect to each Mortgage Loan which is a Second Lien,
(i) the related first lien does not provide for negative amortization and (ii)
either no consent for the Mortgage Loan is required by the holder of the first
lien or such consent has been obtained and is contained in the Mortgage File;
(iiii) With respect to each Second Lien Mortgage Loan, the related
first lien mortgage contains a provision which provides for giving notice of
default or breach to the mortgagee under such Second Lien Mortgage Loan and
allows such mortgagee to cure any default under the related first lien mortgage;
(jjjj) With respect to each Second Lien Mortgage Loan, as of the
Whole Loan Sale Date, and, except for the Mortgage Loans specified on Exhibit 4,
as of the Cut-Off Date, neither the Responsible Party, nor the Servicer have
received a written notice of default of any senior mortgage loan related to the
Mortgaged Property;
(kkkk) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B et
seq.);
(llll) Each Mortgage Loan has a Credit Score of not less than 500;
(mmmm) Each Group II Mortgage Loan is in compliance with the
antipredatory lending eligibility for purchase requirements of Xxxxxx Mae's
Selling Guide;
(nnnn) With respect to each Group II Mortgage Loan, except in the
case of a Mortgage Loan in an original principal amount of less than $60,000
which would have resulted in an unprofitable origination, no related Mortgagor
was charged "points and fees" (whether or not financed) in an amount greater
than 5% of the principal amount of such loan, such 5% limitation is calculated
in accordance with Xxxxxx Mae's anti-predatory lending requirements as set forth
in the Xxxxxx Xxx Selling Guide;
(oooo) No Mortgage Loan shall be manufactured housing sale contracts
or shall be secured by liens on manufactured housing;
(pppp) With respect to each Second Lien Mortgage Loan that is a
Group I Mortgage Loan, the related Mortgaged Property is the Mortgagor's
principal residence;
(qqqq) No Second Lien Mortgage Loan that is a Group I Mortgage Loan
has an original principal balance that exceeds one-half of Xxxxxxx Mac's
one-unit limitation for first lien mortgage loans, or $208,500 (or, with respect
to Alaska, Guam, Hawaii or Virgin Islands, $312,750), without regard to the
number of units;
(rrrr) With respect to each Second Lien Mortgage Loan that is a
Group I Mortgage Loan, the original principal balance of the related First Lien
Mortgage Loan plus the original principal balance of any subordinate lien
mortgage loans relating to the same Mortgaged Property does not exceed the
applicable Xxxxxxx Mac loan limit for first lien mortgage loans for such
property type; and
(ssss) With respect to Group I Mortgage Loans not listed on Exhibit
4 hereto, 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.
Section 7. Repurchase Obligation for Defective Documentation and for
Breach of Representation and Warranty. (a) The representations and warranties
contained in Sections 5(c) and 6 shall not be impaired by any review and
examination of Mortgage Files or any failure on the part of the Seller or the
Purchaser to review or examine such documents and shall inure to the benefit of
any assignee, transferee or designee of the Purchaser, including the Trustee for
the benefit of holders of the Certificates.
(b) Upon discovery by the Seller, the Purchaser or any assignee,
transferee or designee of the Purchaser of any materially defective document in,
or that any material document was not transferred as required hereunder by or at
the direction of the Seller pursuant to Section 4 or 7(e), or by or at the
direction of the Responsible Party pursuant to Section 7(e), as part of any
Mortgage File, the party discovering such defective or missing document shall
give prompt written notice to the Seller or the Responsible Party, as
applicable, and, upon discovery by the Seller, the Purchaser or any assignee,
transferee or designee of the Purchaser of a breach of any of the
representations and warranties contained in Sections 5(c) or 6 that materially
and adversely affects the value of any Mortgage Loan or the interest therein of
the Purchaser or the Purchaser's assignee, transferee or designee, the party
discovering such breach shall give prompt written notice to the Responsible
Party and the Seller.
(c) Within ninety (90) days of the earlier of either discovery by or
notice to the Seller and the Responsible Party of any breach of a representation
or warranty under Section 5(c) or 6 which materially and adversely affects the
value of a Mortgage Loan or the interest therein of the Purchaser or the
Purchaser's assignee, transferee or designee, the Responsible Party or Seller,
as applicable, (the "Applicable Party") shall use its best efforts promptly to
cure such breach in all material respects and, if such breach cannot be cured,
the Applicable Party shall, at the option of the Purchaser (or the Purchaser's
assignee, transferee or designee), repurchase such Mortgage Loan at the
Repurchase Price within five (5) Business Days following the expiration of the
related cure period. In the event that a breach shall involve any representation
or warranty set forth in Section 5(c) or 6 and such breach cannot be cured
within ninety (90) days of the earlier of either discovery by or notice to the
Applicable Party of such breach, such Mortgage Loan shall, at the option of the
Purchaser (or the Purchaser's assignee, transferee or designee), be repurchased
by the Applicable Party at the Repurchase Price. The Applicable Party shall, at
the request of the Purchaser (or the Purchaser's assignee, transferee or
designee) and assuming that the Applicable Party has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan and substitute in its place a Qualified Substitute
Mortgage Loan or Loans; provided that such substitution shall be effected not
later than 120 days after notice to the Applicable Party of such breach; and
provided, further, that any substitutions of a Qualified Substitute Mortgage
Loan for a Deleted Mortgage Loan must be effected prior to the date which is two
years after the Closing Date and may not be made unless an opinion of counsel is
provided to the effect that such substitution will not cause (a) any federal tax
to be imposed on any Trust Fund, including without limitation, any federal tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code, or
(b) any REMIC to fail to qualify as a REMIC at any time that any Certificate is
outstanding. If the Applicable Party has no Qualified Substitute Mortgage Loan,
the Applicable Party shall repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan(s) pursuant to the foregoing provisions of this
Section 7(c) shall occur on a date designated by the Purchaser (or the
Purchaser's assignee, transferee or designee) and shall be accomplished by wire
transfer of immediately available funds on the repurchase date to the Servicer
for deposit in the Collection Account. Notwithstanding anything to the contrary
contained herein, it is understood by the parties hereto that a breach of the
representations and warranties set forth in Section 6(tt), (uu), (xx), (ccc),
(ggg), (jjj), (lll), (sss), (ttt), (yyy), (zzz), (nnnn), (oooo), (pppp), (qqqq),
(rrrr) or (ssss) will be deemed to materially and adversely affect the value of
the related Mortgage Loan or the interest of the Purchaser or the Purchaser's
assignee, transferee or designee therein.
At the time of repurchase of any deficient Mortgage Loan or
substitution of any Deleted Mortgage Loan, the Applicable Party and the
Purchaser (or the Purchaser's assignee, transferee or designee) shall arrange
for the reassignment of the repurchased Mortgage Loan or Deleted Mortgage Loan
to the Applicable Party and the delivery to the Applicable Party of any
documents held by the Custodian relating to such Mortgage Loan. Upon such
repurchase or substitution, the related Mortgage Loan Schedule shall be amended
to reflect the withdrawal of the repurchased Mortgage Loan or the Deleted
Mortgage Loan from this Agreement.
Upon any substitution hereunder, such Qualified Substitute Mortgage
Loan or Loans shall be subject to the terms of this Agreement in all respects,
and the Applicable Party shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Sections 5(c) and 6, as
applicable.
For any month in which the Applicable Party substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Servicer, pursuant to the Pooling and Servicing Agreement, will determine the
amount (the "Substitution Shortfall Amount"), if any, by which the aggregate
Repurchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as
to each such Qualified Substitute Mortgage Loan, the Scheduled Principal Balance
thereof as of the date of substitution, together with one month's interest on
such Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all
outstanding P&I Advances and Servicing Advances (including Nonrecoverable P&I
Advances and Nonrecoverable Servicing Advances) related thereto. On the date of
such substitution, the Applicable Party will deliver or cause to be delivered to
the Servicer for deposit in the Collection Account an amount equal to the
Substitution Shortfall Amount, if any, and the Purchaser (or the Purchaser's
assignee, transferee or designee), upon receipt of the related Qualified
Substitute Mortgage Loan or Loans, upon receipt of a request for release and
certification by the Servicer of such deposit, shall release to the Applicable
Party the related Mortgage File or Files and the Trustee shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as the Applicable Party shall deliver to
it and as shall be necessary to vest therein any Deleted Mortgage Loan released
pursuant hereto.
(d) Notwithstanding the foregoing, within 90 days of the earlier of
discovery, or receipt of notice, by the Responsible Party or the Seller of the
breach of the representation of the Responsible Party or the Seller set forth in
Section 6(ggg) (or, in the case of the Seller, Section 5(c) as it relates to
Section 6(ggg)) which materially and adversely affects the interests of the
Holders of the Class P Certificates in any Prepayment Charge, the Responsible
Party or the Seller, as applicable, shall pay the amount of the scheduled
Prepayment Charge, for the benefit of the Holders of the Class P Certificates by
remitting such amount to the Servicer for deposit into the Collection Account,
net of any amount previously collected by the Servicer or paid by the Servicer,
for the benefit of the Holders of the Class P Certificates in respect of such
Prepayment Charge.
(e) In the event that any Mortgage Loan is substituted pursuant to
this Section 7, the Applicable Party shall deliver, with respect to such
Qualified Substitute Mortgage Loan, at such party's expense, such documents as
are required by, and subject to the terms of, Section 4 within five (5) days of
any such substitution or repurchase. In the event that any such material
document is not so delivered, the Applicable Party shall repurchase such
Qualified Substitute Mortgage Loan in the manner set forth in Section 7(c).
(f) Notwithstanding the foregoing, with respect to an alleged breach
of a representation and warranty which breach is covered by a title insurance
policy, the Purchaser shall use reasonable efforts to enforce the provisions of
any related title insurance policy prior to seeking a remedy against the
Responsible Party or the Seller hereunder.
(g) It is understood and agreed that the obligations of the
Responsible Party or the Seller set forth in this Section 7 to cure or
repurchase a defective Mortgage Loan constitute the sole remedies of the
Purchaser against the Responsible Party or the Seller respecting a missing
document or a breach of the representations and warranties contained in Sections
5(c) and 6.
Section 8. Closing; Payment for the Mortgage Loans. The closing
shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Responsible Party under this Agreement shall be true and correct in all material
respects as of the date as of which they are made and no event shall have
occurred which, with notice or the passage of time, would constitute a default
under this Agreement;
(b) The Purchaser shall have received, or the attorneys of the
Purchaser shall have received in escrow (to be released from escrow at the time
of closing), all Closing Documents as specified in Section 9 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
respective terms thereof;
(c) The Seller shall have delivered or caused to be delivered and
released to the Purchaser or to its designee, all documents (including without
limitation, the Mortgage Loans) required to be so delivered by the Purchaser
pursuant to Section 2.01 of the Pooling and Servicing Agreement; and
(d) All other terms and conditions of this Agreement and the Pooling
and Servicing Agreement shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall deliver or
cause to be delivered to the Seller on the Closing Date, against delivery and
release by the Seller to the Trustee of all documents required pursuant to the
Pooling and Servicing Agreement, the consideration for the Mortgage Loans as
specified in Section 3 of this Agreement, by delivery to the Seller of the Total
Purchase Price.
Section 9. Closing Documents. Without limiting the generality of
Section 8 hereof, the closing shall be subject to delivery of each of the
following documents:
(a) An Officer's Certificate of the Seller, dated the Closing Date,
in form satisfactory to and upon which the Purchaser may rely, and attached
thereto copies of the certificate of incorporation, bylaws and certificate of
good standing of the Seller;
(b) An Opinion of Counsel of the Seller, dated the Closing Date, in
form satisfactory to and addressed to the Purchaser and the Representative;
(c) An Officer's Certificate of the Responsible Party, dated the
Closing Date, in form satisfactory to and upon which the Purchaser and the
Representative may rely, and attached thereto copies of the certificate of
incorporation, bylaws and certificate of good standing of the Responsible Party;
(d) An Opinion of Counsel of the Responsible Party, dated the
Closing Date, in form satisfactory to and addressed to the Purchaser and the
Representative;
(e) Such opinions of counsel as the Rating Agencies or the Trustee
may request in connection with the sale of the Mortgage Loans by the Seller to
the Purchaser or the Seller's execution and delivery of, or performance under,
this Agreement;
(f) A letter from Deloitte and Touche LLP, certified public
accountants, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Purchaser's prospectus
supplement for the Certificates dated July 7, 2006 (the "Prospectus Supplement")
relating to the Certificates contained under the captions "Summary of
Terms--Mortgage Loans," "Risk Factors" (to the extent of information concerning
the Mortgage Loans contained therein) and "The Mortgage Pool" agrees with the
records of the Responsible Party; and
(g) Such further information, certificates, opinions and documents
as the Purchaser or the Representative may reasonably request.
Section 10. Costs. The Seller shall pay (or shall reimburse the
Purchaser or any other Person to the extent that the Purchaser or such other
Person shall pay) all costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans, including without limitation,
recording fees, fees for title policy endorsements and continuations and, except
as set forth in Section 4(b), the fees for recording Assignments.
The Seller shall pay (or shall reimburse the Purchaser or any other
Person to the extent that the Purchaser or such other Person shall pay) the fees
and expenses of the Seller's accountants and attorneys, the costs and expenses
incurred in connection with producing the Servicer's or any Subservicer's loan
loss, foreclosure and delinquency experience, the costs and expenses incurred in
connection with obtaining the documents referred to in Section 9, the costs and
expenses of printing (or otherwise reproducing) and delivering this Agreement,
the Pooling and Servicing Agreement, the Certificates, the prospectus and
Prospectus Supplement, and any private placement memorandum relating to the
Certificates and other related documents, the initial fees, costs and expenses
of the Trustee, the Master Servicer, the Securities Administrator and the
Custodian, the fees and expenses of the Purchaser's counsel in connection with
the preparation of all documents relating to the securitization of the Mortgage
Loans, the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates and the fees charged by any rating agency to
rate the Certificates. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
Section 11. Indemnification. The Responsible Party shall indemnify
and hold harmless each of (i) the Purchaser, (ii) the Underwriters, (iii) the
Person, if any, to which the Purchaser assigns its rights in and to a Mortgage
Loan and each of their respective successors and assigns and (iv) each person,
if any, who controls the Purchaser within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "1933 Act") ((i) through (iv)
collectively, the "Indemnified Party"), against any and all losses, claims,
expenses, damages or liabilities to which the Indemnified Party may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
expenses, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (a) any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement or any private placement
memorandum relating to the offering by the Purchaser or an affiliate thereof of
the Class CE Certificates, the Class P Certificates or the Class R Certificates,
or the omission or the alleged omission to state therein the material fact
necessary in order to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with (i) information furnished in writing to the Purchaser or any
of its affiliates by the Responsible Party or any of its affiliates specifically
for use therein, which shall include, with respect to the Prospectus Supplement,
the information set forth under the caption "The Originator" and, with respect
to any private placement memorandum, any information of a comparable nature, or
(ii) the data files containing information with respect to the Mortgage Loans as
transmitted (electronically or otherwise) to the Purchaser by the Responsible
Party or any of its affiliates (as such transmitted information may have been
amended in writing by the Responsible Party or any of its affiliates subsequent
to such transmission), (b) any representation, warranty or covenant made by the
Responsible Party or any affiliate of the Responsible Party herein (other than
in Section 6) or in the MMLPISA (other than in Section 7.02 thereof), on which
the Purchaser has relied, being, or alleged to be, untrue or incorrect or (c)
any collateral information provided by any Underwriter to a purchaser of the
Certificates derived from the data contained in clause (ii) and the Remittance
Report or a current collateral tape obtained from the Responsible Party or an
affiliate of the Responsible Party, including the current Stated Principal
Balances of the Mortgage Loans (only to the extent that any such errors or
omissions were due to errors or omissions in the data or information delivered
by the Responsible Party); provided, however, that to the extent that any such
losses, claims, expenses, damages or liabilities to which the Indemnified Party
may become subject arise out of or are based upon both (1) statements,
omissions, representations, warranties or covenants of the Seller described in
clause (a), (b) or (c) above and (2) any other factual basis, the Seller shall
indemnify and hold harmless the Indemnified Party only to the extent that the
losses, claims, expenses, damages, or liabilities of the person or persons
asserting the claim are determined to rise from or be based upon matters set
forth in clause (a) above and do not result from the gross negligence or willful
misconduct of such Indemnified Party. This indemnity shall be in addition to any
liability that the Seller may otherwise have.
Section 12. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by fax and, receipt of which is confirmed by telephone, if to the
Purchaser, addressed to SG Mortgage Securities, LLC, at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Facsimile: (000) 000-0000, Attention: Xxxxxx
Xxxxx, or such other address as may hereafter be furnished to the Responsible
Party and the Seller in writing by the Purchaser; if to the Responsible Party,
addressed to Fremont Investment & Loan at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxx, XX
00000, Facsimile: (000) 000-0000, Attention: Xxxxx Xxxxx, or such other address
as may hereafter be furnished to the Seller and the Purchaser in writing by the
Responsible Party; if to the Seller, addressed to SG Mortgage Finance Corp. at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Facsimile: (000) 000-0000,
Attention: Xxxxxx Xxxxxxxxx, or to such other address as the Seller may
designate in writing to the Purchaser and the Responsible Party.
Section 13. Severability of Provisions. Any part, provision,
representation or warranty of this Agreement that is prohibited or that is held
to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement that
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective 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.
Section 14. Agreement of Parties. The Seller, the Responsible Party
and the Purchaser each agree to execute and deliver such instruments and take
such actions as either of the others may, from time to time, reasonably request
in order to effectuate the purpose and to carry out the terms of this Agreement
and the Pooling and Servicing Agreement.
Section 15. Survival. (a) The Seller agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the Purchaser, notwithstanding any investigation heretofore or
hereafter made by the Purchaser or on its behalf, and that the representations,
warranties and agreements made by the Seller herein or in any such certificate
or other instrument shall survive the delivery of and payment for the Mortgage
Loans and shall continue in full force and effect, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes and notwithstanding
subsequent termination of this Agreement, the Pooling and Servicing Agreement or
the Trust Fund.
(b) The Responsible Party agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
Seller and the Purchaser, notwithstanding any investigation heretofore or
hereafter made by the Seller or the Purchaser or on the behalf of either of
them, and that the representations, warranties and agreements made by the
Responsible Party herein or in any such certificate or other instrument shall
continue in full force and effect, notwithstanding subsequent termination of
this Agreement, the Pooling and Servicing Agreement or the Trust Fund.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
Section 17. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. 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. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Seller to the Purchaser as provided in Section 4
hereof be, and be construed as, a sale of the Mortgage Loans by the Seller to
the Purchaser and not as a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Seller, then it is the express
intent of the parties that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller.
[Signatures follow]
IN WITNESS WHEREOF, the Purchaser, the Seller and the Responsible
Party have caused their names to be signed by their respective officers
thereunto duly authorized as of the date first above written.
SG MORTGAGE SECURITIES, LLC,
as Purchaser
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: President
SG MORTGAGE FINANCE CORP., as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
FREMONT INVESTMENT & LOAN,
as Responsible Party
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
Acknowledged and Accepted by:
XXXXX FARGO BANK, N.A.,
as Interim Trustee and Master Servicer
By: /s/ Xxxxx X. Grobell
---------------------------------------
Name: Xxxxx X. Grobell
Title: Vice President
Acknowledged and Accepted by:
XXXXX FARGO BANK, N.A., as Servicer
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
SCHEDULE I
The Seller hereby represents, warrants, and covenants to the
Purchaser on the Closing Date and on each Distribution Date thereafter that the
Seller owns and has equitable title to the Mortgage Loans free and clear of any
lien, claim or encumbrance of any Person, excepting only liens for taxes,
assessments or similar governmental charges or levies incurred in the ordinary
course of business that are not yet due and payable or as to which any
applicable grace period shall not have expired, or that are being contested in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is not
imminent and the use and value of the property to which the lien attaches is not
impaired during the pendency of such proceeding.
EXHIBIT 1
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items:
1. Mortgage Loan Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income.
5. Verification of acceptable evidence of source and amount of down
payment.
6. Credit report on Mortgagor.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property.
10. Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
11. All required disclosure statements and statement of Mortgagor
confirming receipt thereof.
12. If available, termite report, structural engineer's report,
water potability and septic certification.
13. Sales Contract, if applicable.
14. Hazard insurance policy.
15. Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
16. Amortization schedule, if available.
17. Payment history for Mortgage Loans that have been closed for
more than 90 days.
EXHIBIT 2
MORTGAGE LOAN DOCUMENTS
With respect to each Mortgage Loan, the Mortgage Loan Documents
include each of the following items:
1. the original Mortgage Note, endorsed, "Pay to the order of
[blank], without recourse" and signed in the name of the last named endorsee by
an authorized officer. The Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator to the last
named endorsee. To the extent that there is no room on the face of the Mortgage
Note for endorsements, the endorsement may be contained on an allonge. Such
allonge shall be firmly affixed to the Mortgage Note so as to become a part
thereof;
2. the original of any loan agreement and guarantee(s) executed in
connection with the Mortgage Note;
3. in the case of a Mortgage Loan that is not a MERS Mortgage Loan,
the original Mortgage, with evidence of recording thereon, or, if the original
Mortgage has not yet been returned from the recording office, a copy of the
original Mortgage without evidence of recording thereon together with a
certificate of either the closing attorney or an officer of the title insurer
which issued the related title insurance policy, certifying that the copy is a
true copy of the original of the Mortgage which has been delivered by such
attorney or officer for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located;
4. in the case of a Mortgage Loan that is not a MERS Mortgage Loan,
the original Assignment of Mortgage for each Mortgage Loan to [blank], in form
and substance acceptable for recording and signed in the name of the last
endorsee by an authorized officer;
5. the originals of all intervening assignments of mortgage (if any)
with evidence of recording thereon evidencing a complete chain of ownership from
the originator of the Mortgage Loan to the last assignee, or if any such
intervening assignment of mortgage has not been returned from the applicable
public recording office or has been lost or if such public recording office
retains the original recorded intervening assignments of mortgage, a photocopy
of such intervening assignment of mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
title insurer insuring the Mortgage or the Responsible Party stating that such
intervening assignment of mortgage has been delivered to the appropriate public
recording office for recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office to be a true and complete
copy of the original recorded intervening assignment of mortgage will be
promptly delivered to the Custodian upon receipt thereof by the party delivering
the Officer's Certificate or by the Responsible Party; or (ii) in the case of an
intervening assignment of mortgage where a public recording office retains the
original recorded intervening assignment of mortgage or in the case where an
intervening assignment of mortgage is lost after recordation in a public
recording office, a copy of such intervening assignment of mortgage with
recording information thereon certified by such public recording office or the
Responsible Party to be a true and complete copy of the original recorded
intervening assignment of mortgage;
6. the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
7. as to each Mortgage Loan, (i) the original mortgagee title
insurance policy or (ii) if such policy has not been issued, an irrevocable
written commitment or binder for such policy issued by a title insurer;
8. if the Mortgage Note, the Mortgage, any Assignment of Mortgage,
or any other related document has been signed by a Person on behalf of the
Mortgagor, the original power of attorney or other instrument that authorized
and empowered such Person to sign or a copy of such power of attorney together
with an Officer's Certificate certifying that such copy represents a true and
correct copy and that such original has been duly recorded in the appropriate
records depository for the jurisdiction in which the Mortgaged Property is
located; and
9. if the Mortgage Note, the Mortgage, any Assignment of Mortgage,
or any other related document has been signed by a Person on behalf of the
Mortgagor, the original power of attorney or other instrument that authorized
and empowered such Person to sign or a copy of such power of attorney together
with an Officer's Certificate certifying that such copy represents a true and
correct copy and that such original has been duly recorded in the appropriate
records depository for the jurisdiction in which the Mortgaged Property is
located.
If any original recorded document required to be delivered the
Purchaser has been lost or if such public recording office retains the original
recorded document, then in lieu of delivering such original, the Seller shall
deliver, or cause to be delivered, a photocopy of such original document
certified by such public recording office to be a true, correct and complete
copy of the original recorded document.
If any original Mortgage required to be delivered to the Purchaser
has been delivered for recording to the appropriate public recording office of
the jurisdiction in which the Mortgaged Property is located but has not yet been
returned by such recording office, in lieu of delivering such original, the
Seller shall deliver, or cause to be delivered, a certified true, correct and
complete copy of such original Mortgage that has been delivered to the
appropriate public recording office for recordation.
If any such other original document required to be delivered to the
Purchaser but which has been delivered for recording to the appropriate public
recording office of the jurisdiction in which the Mortgaged Property is located
but has not yet been returned by such recording office, in lieu of delivering
such original, the Seller shall deliver, or cause to be delivered, a certified
true, correct and complete copy of such document that has been delivered to the
appropriate public recording office for recordation.
EXHIBIT 3
MORTGAGE LOAN SCHEDULE
(See Exhibit D to Exhibit 4)
EXHIBIT 4
LIST OF CERTAIN EXCEPTIONS
