SECOND AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT MORGAN STANLEY MORTGAGE CAPITAL INC., Purchaser QUICKEN LOANS, INC. Seller Dated as of June 1, 2006 Conventional, Fixed and Adjustable Rate Residential Mortgage Loans
Exhibit
99.11b
Execution
Copy
SECOND
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND
WARRANTIES AGREEMENT
WARRANTIES AGREEMENT
___________________
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
QUICKEN
LOANS, INC.
Seller
___________________
Dated
as of June 1, 2006
Conventional,
Fixed
and Adjustable Rate
Residential
Mortgage Loans
TABLE
OF CONTENTS
Page
|
SECTION
1.
|
Definitions.
|
1
|
|
SECTION
2.
|
Agreement
to Purchase.
|
14
|
|
SECTION
3.
|
Mortgage
Schedules.
|
14
|
|
SECTION
4.
|
Purchase
Price.
|
14
|
|
SECTION
5.
|
Examination
of Mortgage Files.
|
15
|
|
SECTION
6.
|
Conveyance
from Seller to Purchaser.
|
16
|
|
SECTION
7.
|
Servicing
of the Mortgage Loans.
|
19
|
|
|
||
|
SECTION
8.
|
Representations
and Warranties Regarding the Purchaser.
|
19
|
|
|
||
|
SECTION
9.
|
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
20
|
|
|
||
|
SECTION
10.
|
Closing
|
40
|
|
|
||
|
SECTION
11.
|
Closing
Documents.
|
41
|
|
|
||
|
SECTION
12.
|
Costs.
|
43
|
|
|
||
|
SECTION
13.
|
Cooperation
of Seller with a Reconstitution.
|
43
|
|
|
||
|
SECTION
14.
|
The
Seller.
|
44
|
|
|
||
|
SECTION
15.
|
Financial
Statements.
|
46
|
|
|
||
|
SECTION
16.
|
Mandatory
Delivery; Grant of Security Interest.
|
46
|
|
|
||
|
SECTION
17.
|
Notices.
|
47
|
|
|
||
|
SECTION
18.
|
Severability
Clause.
|
48
|
|
|
||
|
SECTION
19.
|
Counterparts.
|
48
|
|
|
||
|
SECTION
20.
|
Governing
Law.
|
48
|
|
|
||
|
SECTION
21.
|
Intention
of the Parties.
|
00
|
-x-
|
XXXXXXX
00.
|
Successors
and Assigns; Assignment of Purchase Agreement.
|
49
|
|
SECTION
23.
|
Waivers.
|
49
|
|
|
||
|
SECTION
24.
|
Exhibits.
|
49
|
|
|
||
|
SECTION
25.
|
General
Interpretive Principles.
|
49
|
|
|
||
|
SECTION
26.
|
Reproduction
of Documents.
|
50
|
|
|
||
|
SECTION
27.
|
Further
Agreements.
|
50
|
|
|
||
|
SECTION
28.
|
Recordation
of Assignments of Mortgage.
|
50
|
|
|
||
|
SECTION
29.
|
No
Solicitation.
|
50
|
|
|
||
|
SECTION
30.
|
Waiver
of Trial by Jury.
|
51
|
|
|
||
|
SECTION
31.
|
Jurisdiction;
Consent to Service of Process
|
51
|
|
|
||
|
SECTION
32.
|
Confidentiality.
|
51
|
|
|
||
|
SECTION
33.
|
Entire
Agreement.
|
52
|
|
|
||
|
SECTION
34.
|
Compliance
With Regulation AB.
|
52
|
|
|
|
EXHIBITS
|
|
|
EXHIBIT
A-1
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
A-2
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
|
EXHIBIT
D
|
[RESERVED]
|
|
EXHIBIT
E
|
FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
-ii-
SECOND
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT
This
SECOND AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
(“Agreement”),
dated as of June 1, 2006, by and between Xxxxxx Xxxxxxx Mortgage Capital Inc.,
a
New York corporation (the “Purchaser”),
and Quicken Loans, Inc., a Michigan corporation (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Purchaser and the Seller are parties to that certain Mortgage Loan Purchase
and Warranties Agreement, dated as of June 1, 2004, as amended and restated
by
that certain Amendment No. 1 dated October 1, 2004 as amended and restated
by
that certain First Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2005 (the “Original
Purchase Agreement”)
and the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional adjustable and fixed rate residential first-lien mortgage loans
(the “Mortgage
Loans”)
on a servicing released basis as described herein, and which shall be delivered
in pools of whole loans (each, a “Mortgage
Loan Package”)
on various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
the Purchaser and the Seller desire to enter into this Agreement to amend and
restate the Original Purchase Agreement to make certain modifications as set
forth herein with respect to all Mortgage Loans subject to this Agreement or
the
Original Purchase Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices:
With respect to each Mortgage Loan and the Seller shall mean the servicing
procedures which (i) conform to customary and usual standards of practice of
prudent mortgage lenders and mortgage loan servicers, for mortgage loans similar
to the Mortgage Loans, (ii) follow the policies and procedures that the Seller
applies to similar mortgage loans serviced for third parties and for its own
account, (iii) meet the requirements of Xxxxxx Mae and Xxxxxxx Mac and (iv)
comply with all applicable laws and follow collection practices with respect
to
the related Mortgage Loans that are in all material respects legal and
customary.
Act:
The National Housing Act, as amended from time to time.
Adjustable
Rate Mortgage Loan:
An adjustable rate Mortgage Loan purchased pursuant to this
Agreement.
Affiliate:
With respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement:
This Third Amended and Restated Mortgage Loan Purchase and Warranties Agreement
and all amendments and supplements hereto.
ALTA:
The American Land Title Association or any successor thereto.
Appraised
Value:
With respect to any Mortgaged Property, the lesser of (i) the value thereof
as
determined by an appraisal made for the originator of the Mortgage Loan at
the
time of origination of the Mortgage Loan by a Qualified Appraiser and (ii)
the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan; provided, however, that in the case of a
refinanced Mortgage Loan, such value of the Mortgaged Property is based solely
upon the value determined by an appraisal made for the originator of such
refinanced Mortgage Loan at the time of origination of such refinanced Mortgage
Loan by a Qualified Appraiser.
Assignment
and Conveyance Agreement:
As defined in Subsection 6.01.
Assignment
of Mortgage:
An assignment of the Mortgage, notice of transfer or equivalent instrument
in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan:
Any Mortgage Loan which by its original terms or any modifications thereof
provides for amortization beyond its scheduled maturity date.
Business
Day:
Any day other than (i) a Saturday or Sunday, (ii) a day on which
banking and savings and loan institutions, in the State of New York or the
State
in which the Interim Servicer’s servicing operations are located or
(iii) the state in which the Custodian’s operations are located, are
authorized or obligated by law or executive order to be closed.
Cash-Out
Refinance:
A refinanced Mortgage Loan in which the proceeds received were in excess of
the
amount of funds required to repay the principal balance of any existing first
mortgage on the related Mortgaged Property, pay related closing costs and
satisfy any outstanding subordinate mortgages on the related Mortgaged Property
as determined in accordance with Seller’s Underwriting Guidelines.
-2-
Closing
Date:
The date or dates on which the Purchaser from time to time shall purchase,
and
the Seller from time to time shall sell, the Mortgage Loans listed on the
related Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Closing
Documents:
The documents required to be delivered on each Closing Date pursuant to
Section
11.
Code:
The Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Commission:
The United States Securities and Exchange Commission.
Condemnation
Proceeds:
All awards or settlements in respect of a Mortgaged Property, whether permanent
or temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Co-op:
A private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease:
With respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A Mortgage Loan secured by the pledge of stock allocated to a dwelling unit
in a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Covered
Loan:
A Mortgage Loan categorized as Covered pursuant to Appendix E of Standard &
Poor’s Glossary.
Custodial
Account:
The separate trust account created and maintained pursuant to Subsection
2.04
of the Interim Servicing Agreement (with respect to each Mortgage Loan, as
specified therein).
Custodial
Agreement:
The agreement(s) governing the retention of the Mortgage Loan Documents. If
more
than one Custodial Agreement is in effect at any given time, all of the
individual Custodial Agreements shall collectively be referred to as the
“Custodial Agreement.”
Custodian:
Deutsche Bank Trust Company Americas, a New York banking corporation, and its
successors in interest, or any successor to the Custodian under the Custodial
Agreement as therein provided.
Cut-off
Date:
The date or dates designated as such on the related Purchase Price and Terms
Agreement with respect to the related Mortgage Loan Package.
-3-
Deemed
Material and Adverse Representation:
Each representation and warranty identified as such in Section
9.02
of this Agreement.
Deleted
Mortgage Loan:
A Mortgage Loan that is repurchased or replaced or to be replaced with a
Qualified Substitute Mortgage Loan by the Seller in accordance with the terms
of
this Agreement.
Depositor:
The depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The date specified in the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Due
Date:
The day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Escrow
Payments:
With respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Exchange
Act.
The Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The Federal National Mortgage Association, or any successor
thereto.
Xxxxxx
Mae Guides:
The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide, as amended or
restated from time to time.
Xxxxxx
Xxx Transfer:
As defined in Section
13.
FHA:
The Federal Housing Administration, an agency within the United States
Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
Fixed
Rate Mortgage Loan:
A fixed rate mortgage loan purchased pursuant to this Agreement.
Xxxxxxx
Mac:
The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Xxxxxxx
Mac Transfer:
As defined in Section
13.
Gross
Margin:
With respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
-4-
High
Cost Loan:
A Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act
of
1994 (“HOEPA”),
(b) with an “annual percentage rate” or total “points and fees” payable by the
related Mortgagor (as each such term is calculated under HOEPA) that exceed
the
thresholds set forth by HOEPA and its implementing regulations, including
12 C.F.R. § 226.32(a)(1)(i) and (ii), (c) classified as a “high
cost home,” “threshold,” “covered,” (excluding New Jersey “Covered Home Loans”
as that term was defined in clause (1) of the definition of that term in the
New
Jersey Home Ownership Security Act of 2002 that were originated between November
26, 2003 and July 7, 2004), “high risk home,” “predatory” or similar loan under
any other applicable state, federal or local law (or a similarly classified
loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (d) a Mortgage Loan categorized as High
Cost pursuant to Appendix E of Standard & Poor’s Glossary. For avoidance of
doubt, the parties agree that this definition shall apply to any law regardless
of whether such law is presently, or in the future becomes, the subject of
judicial review or litigation.
Home
Loan:
A Mortgage Loan categorized as a Home Loan pursuant to Appendix E of the
Standard & Poor’s Glossary.
HUD:
The Department of Housing and Urban Development, or any federal agency or
official thereof which may from time to time succeed to the functions thereof
with regard to Mortgage Insurance issued by the FHA. The term “HUD,” for
purposes of this Agreement, is also deemed to include subdivisions thereof
such
as the FHA and Government National Mortgage Association.
Index:
The index indicated in the related Mortgage Note for each Adjustable Rate
Mortgage Loan.
Insurance
Proceeds:
With respect to each Mortgage Loan, proceeds of insurance policies insuring
the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date:
With respect to each Adjustable Rate Mortgage Loan, the date, specified in
the
related Mortgage Note and the related Mortgage Loan Schedule, on which the
Mortgage Interest Rate is adjusted.
Interim
Funder:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the interim funder pursuant to the MERS Procedures
Manual.
Interim
Servicer:
The servicer under the Interim Servicing Agreement, or its successor in
interest, or any successor to the Interim Servicer under the Interim Servicing
Agreement, as therein provided.
-5-
Interim
Servicing Agreement:
The agreement to be entered into by the Purchaser and the Interim Servicer,
providing for the Interim Servicer to service the Mortgage Loans as specified
by
the Interim Servicing Agreement.
Investor:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap:
The provision of each Mortgage Note related to an Adjustable Rate Mortgage
Loan
which provides for an absolute maximum Mortgage Interest Rate thereunder. The
Mortgage Interest Rate during the terms of each Adjustable Rate Mortgage Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the amount per
annum set forth on the related Mortgage Loan Schedule.
Liquidation
Proceeds:
Cash received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With respect to any Mortgage Loan, the ratio (expressed as a percentage) of
the
outstanding principal amount of the Mortgage Loan as of the date of origination
(unless otherwise indicated), to the lesser of (a) the Appraised Value of the
Mortgaged Property at origination and (b) if the Mortgage Loan was made to
finance the acquisition of the related Mortgaged Property, the purchase price
of
the Mortgaged Property.
Manufactured
Home:
A single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on June 15, 1976, by the Department of Housing and Urban Development
(“HUD
Code”),
as amended in 2000, which preempts state and local building codes. Each unit
is
identified by the presence of a HUD Plate/Compliance Certificate label. The
sections are then transported to the site and joined together and affixed to
a
pre-built permanent foundation (which satisfies the manufacturer’s requirements
and all state, county, and local building codes and regulations). The
manufactured home is built on a non-removable, permanent frame chassis that
supports the complete unit of walls, floors, and roof. The underneath part
of
the home may have running gear (wheels, axles, and brakes) that enable it to
be
transported to the permanent site. The wheels and hitch are removed prior to
anchoring the unit to the permanent foundation. The manufactured home must
be
classified as real estate and taxed accordingly. The permanent foundation may
be
on land owned by the mortgager or may be on leased land.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, and
its
successors in interest.
MERS
Designated Mortgage Loan:
Mortgage Loans for which (a) the Seller has designated or will designate
MERS as, and has taken or will take such action as is necessary to cause MERS
to
be, the mortgagee of record, as nominee for the Seller, in accordance with
MERS
Procedure Manual and (b) the Seller has designated or will designate the
Purchaser as the Investor on the MERS System.
-6-
MERS
Procedure Manual:
The MERS Procedures Manual, as it may be amended, supplemented or otherwise
modified from time to time.
MERS
Report:
The report from the MERS System listing MERS Designated Mortgage Loans and
other
information.
MERS
System:
MERS mortgage electronic registry system, as more particularly described in
the
MERS Procedures Manual.
Monthly
Payment: The scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
The mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on the Mortgaged Property. With respect to a Co-op Loan,
the Security Agreement.
Mortgage
File:
With respect to any Mortgage Loan, the Mortgage Loan Documents and the items
listed in Exhibit
A-2
annexed hereto and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
Mortgage
Interest Rate:
The annual rate of interest borne on a Mortgage Note with respect to each
Mortgage Loan.
Mortgage
Interest Rate Cap:
With respect to an Adjustable Rate Mortgage Loan, the limit on each Mortgage
Interest Rate adjustment as set forth in the related Mortgage Note.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this Agreement,
each Mortgage Loan originally sold and subject to this Agreement being
identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
Servicing Rights and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased mortgage loans.
Mortgage
Loan Documents: The documents required to be delivered to the Custodian
pursuant to Subsection 6.03 with respect to any Mortgage Loan.
Mortgage
Loan Package:
Each pool of Mortgage Loans, which shall be purchased by the Purchaser from
the
Seller from time to time on each Closing Date.
-7-
Mortgage
Loan Schedule:
The schedule of Mortgage Loans setting forth the following information with
respect to each Mortgage Loan in the related Mortgage Loan Package: (1) the
Seller’s Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the
street address of the Mortgaged Property including the city, state and zip
code;
(4) a code indicating whether the Mortgagor is self-employed; (5) a code
indicating whether the Mortgaged Property is owner-occupied, investment property
or a second home; (6) the number and type of residential units constituting
the
Mortgaged Property (e.g. single family residence, a two- to four-family
dwelling, condominium, planned unit development or cooperative); (7) the
original months to maturity or the remaining months to maturity from the related
Cut-off Date, in any case based on the original amortization schedule and,
if
different, the maturity expressed in the same manner but based on the actual
amortization schedule; (8) the Loan-to-Value Ratio at origination; (9) the
Mortgage Interest Rate as of the related Cut-off Date; (10) the date on which
the first Monthly Payment was due on the Mortgage Loan and, if such date is
not
consistent with the Due Date currently in effect, the Due Date; (11) the stated
maturity date; (12) the amount of the Monthly Payment as of the related Cut-off
Date; (13) the last payment date on which a payment was actually applied to
the
outstanding principal balance; (14) the original principal amount of the
Mortgage Loan; (15) the principal balance of the Mortgage Loan as of the close
of business on the related Cut-off Date, after deduction of payments of
principal due and collected on or before the related Cut-off Date; (16) with
respect to each First Lien Loan with a second lien behind it, the combined
principal balance of the Mortgage Loan as of the close of business on the
related origination date, after deduction of payments of principal due and
collected on or before the related Cut-off Date; (17) [reserved]; (18) with
respect to Adjustable Rate Mortgage Loans, the Interest Rate Adjustment Date;
(19) with respect to Adjustable Rate Mortgage Loans, the Gross Margin; (20)
with
respect to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the
terms
of the Mortgage Note; (21) with respect to Adjustable Rate Mortgage Loans,
a
code indicating the type of Index; (22) the type of Mortgage Loan (i.e., Fixed
Rate, Adjustable Rate); (23) a code indicating the purpose of the loan (i.e.,
purchase, Rate/Term Refinance or Cash-Out Refinance); (24) a code indicating
the
documentation style (i.e. no documents, full, alternative, reduced, no income/no
asset, stated income, no ratio, reduced or NIV); (25) asset verification (Y/N);
(26) the loan credit classification (as described in the Underwriting
Guidelines); (27) whether such Mortgage Loan provides for a Prepayment Penalty;
(28) the Prepayment Penalty period of such Mortgage Loan, if applicable; (29)
a
description of the Prepayment Penalty, if applicable; (30) the Mortgage Interest
Rate as of origination; (31) the credit risk score (FICO score); (32) the date
of origination; (33) with respect to Adjustable Rate Mortgage Loans, the
Mortgage Interest Rate adjustment period with respect to (i) initial adjustment
and (ii) periodic adjustments following the initial adjustment; (34) with
respect to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment
percentage with respect to (i) initial adjustment and (ii) periodic adjustments
following the initial adjustment; (35) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate floor; (36) the Mortgage Interest Rate
calculation method (i.e., 30/360, simple interest, other); (37) with respect
to
Adjustable Rate Mortgage Loans, the Periodic Rate Cap as of the first Interest
Rate Adjustment Date; (38) with respect to each Adjustable Rate Mortgage Loan,
a
code indicating whether the Mortgage Loan provides for negative amortization;
(39) with respect to each Adjustable Rate Mortgage Loan with negative
amortization, the negative amortization limit; (40) a code indicating whether
the Mortgage Loan is a High Cost Loan; (41) a code indicating whether the
Mortgage Loan is a Balloon Mortgage Loan; (42) a code indicating whether the
Mortgage Loan by
its original terms or any modifications thereof provides for amortization beyond
its scheduled maturity date;
(43) the original Monthly Payment due; (44) the Appraised Value; (45) appraisal
type; (46) appraisal date; (47) a code indicating whether the Mortgage Loan
is
covered by a PMI Policy and, if so, identifying the PMI Policy provider; (48)
in
connection with a condominium unit, a code indicating whether the condominium
project where such unit is located is low-rise or high-rise; (49) a code
indicating whether the Mortgaged Property is a leasehold estate; (50) with
respect to the related Mortgagor, the debt-to-income ratio; (51) sales price;
(52) automated valuation model (AVM); and (53) the MERS Identification Number,
if applicable. With respect to the Mortgage Loans in the aggregate, the related
Mortgage Loan Schedule shall set forth the following information, as of the
related Cut-off Date: (1) the number of Mortgage Loans; (2) the current
aggregate outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; (4) the weighted average
maturity of the Mortgage Loans; (5) the average principal balance of the
Mortgage Loans; (6) the applicable Cut-off Date; and (7) the applicable Closing
Date.
-8-
Mortgage
Note:
The note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With respect to a Mortgage Loan that is not a Co-op Loan, the Mortgagor’s real
property securing repayment of a related Mortgage Note, consisting of an
unsubordinated estate in fee simple or, with respect to real property located
in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate, in a single parcel or
multiple parcels of real property improved by a Residential Dwelling. With
respect to a Co-op Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
Mortgagor:
The obligor on the related Mortgage Note.
Nonrecoverable
Advance:
Any advance previously made or proposed to be made in respect of a Mortgage
Loan
which, in the good faith judgment of the Interim Servicer, will not or, in
the
case of a proposed advance, would not, be ultimately recoverable from related
Insurance Proceeds, Liquidation Proceeds or otherwise. The determination by
the
Interim Servicer that it has made a Nonrecoverable Advance or that any proposed
advance of principal and interest, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officers’ Certificate delivered to the
Purchaser.
Officer’s
Certificate:
A certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Seller,
and
delivered to the Purchaser as required by this Agreement.
Periodic
Rate Cap:
The provision of each Mortgage Note related to an Adjustable Rate Mortgage
Loan
which provides for an absolute maximum amount by which the Mortgage Interest
Rate therein may increase or decrease on an Interest Rate Adjustment Date above
or below the Mortgage Interest Rate previously in effect. The Periodic Rate
Cap
for each Adjustable Rate Mortgage Loan is the rate set forth as such on the
related Mortgage Loan Schedule.
Periodic
Rate Floor:
With respect to each Adjustable Rate Mortgage Loan, the provision of each
Mortgage Note which provides for an absolute maximum amount by which the
Mortgage Interest Rate therein may decrease on an Interest Rate Adjustment
Date
below the Mortgage Interest Rate previously in effect.
-9-
Person:
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
PMI
Policy:
A policy of primary mortgage guaranty insurance issued by an insurer acceptable
under the Underwriting Guidelines and qualified to do business in the
jurisdiction where the Mortgaged Property is located.
Preliminary
Mortgage Schedule:
As defined in Section
3.
Prepayment
Penalty:
With respect to each Mortgage Loan, the amount of any premium or penalty
required to be paid by the Mortgagor if the Mortgagor prepays such Mortgage
Loan
as provided in the related Mortgage Note or Mortgage.
Principal
Prepayment:
Any payment or other recovery of principal on a Mortgage Loan which is received
in advance of its scheduled Due Date, including any Prepayment Penalty thereon,
and which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
Purchase
Price:
The price paid on the related Closing Date by the Purchaser to the Seller in
exchange for the Mortgage Loans purchased on such Closing Date as calculated
in
Section
4
of this Agreement.
Purchase
Price and Terms Agreement:
Those certain agreements setting forth the general terms and conditions of
the
transactions consummated herein and identifying the Mortgage Loans to be
purchased from time to time hereunder, by and between the Seller and the
Purchaser.
Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation, and its successors
in interest and assigns, or any successor to the Purchaser under this Agreement
as herein provided.
Qualified
Appraiser:
An appraiser, duly appointed by the Seller, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation was not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfied the requirements of Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Correspondent:
Any Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated
Guidelines”)
or guidelines that do not vary materially from such Designated Guidelines;
(ii)
such Mortgage Loans were in fact underwritten as described in clause (i) above
and were acquired by the Seller within 180 days after origination; (iii) either
(x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by the Seller in origination of mortgage loans of the same
type
as the Mortgage Loans for the Seller’s own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed, at the time
such Mortgage Loans were acquired by the Seller, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review
of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller.
-10-
Qualified
Substitute Mortgage Loan:
A mortgage loan eligible to be substituted by the Seller for a Deleted Mortgage
Loan which must, on the date of such substitution, be approved by the Purchaser
and (i) have an unpaid principal balance, after deduction of all scheduled
payments due in the month of substitution (or in the case of a substitution
of
more than one mortgage loan for a Deleted Mortgage Loan, an aggregate principal
balance), not in excess of the unpaid principal balance of the Deleted Mortgage
Loan (the amount of any shortfall will be deposited in the Custodial Account
by
the Seller in the month of substitution); (ii) have a Mortgage Interest
Rate not less than and not more than one percent (1%) greater than the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one (1) year less than that of
the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage
Loan (i.e., fixed rate or adjustable rate with same Mortgage Interest Rate
Cap
and Index); (v) comply as of the date of substitution with each
representation and warranty set forth in Section
9
of this Agreement; (vi) be current in the payment of principal and interest;
(vii) be secured by a Mortgaged Property of the same type and occupancy status
as secured the Deleted Mortgage Loan; and (viii) have payment terms that do
not
vary in any material respect from those of the Deleted Mortgage
Loan.
Rate/Term
Refinance:
A refinanced Mortgage Loan, in which the proceeds received were not in excess
of
the amount of funds required to repay the principal balance of any existing
first mortgage loan on the related Mortgaged Property, pay related closing
costs
and satisfy any outstanding subordinate mortgages on the related Mortgaged
Property, as determined in accordance with Seller’s Underwriting
Guidelines.
Reconstitution:
Any Securitization Transaction or a Whole Loan Transfer.
Reconstitution
Agreements:
As defined in Section
13
hereof.
Reconstitution
Date:
As defined in Section
13.
Regulation
AB: Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of
the Commission, or as may be provided by the Commission or its staff from
time
to time.
-11-
REMIC:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The date specified in the Interim Servicing Agreement (with respect to each
Mortgage Loan, as specified therein).
Repurchase
Price:
As defined in the related Purchase Price and Terms Agreement.
Residential
Dwelling:
Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a condominium project or (iv) a one-family dwelling in a planned unit
development, none of which is a co-operative, mobile or manufactured
home.
RESPA:
Real Estate Settlement Procedures Act, as amended from time to
time.
Securities
Act:
The Securities Act of 1933, as amended.
Securitization
Transaction:
Any transaction involving either (1) a sale or other transfer of some or
all of the Mortgage Loans directly or indirectly to an issuing entity in
connection with an issuance of publicly offered or privately placed, rated
or
unrated mortgage-backed securities or (2) an issuance of publicly offered
or privately placed, rated or unrated securities, the payments on which are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Security
Agreement:
The agreement creating a security interest in the stock allocated to a dwelling
unit in the residential cooperative housing corporation that was pledged to
secure such Co-op Loan and the related Co-op Lease.
Seller:
As defined in the initial paragraph of the Agreement, together with its
successors in interest.
Seller
Information:
As defined in Subsection
34.04(a).
Servicing
Fee:
With respect to each Mortgage Loan, a fee payable monthly equal to one-twelfth
of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly
and
shall be pro-rated for any portion of a month during which the Mortgage Loan
is
serviced by the Seller under this Agreement. The obligation of the Purchaser
to
pay the Servicing Fee is limited to, and the Servicing Fee is payable solely
from, the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by this Agreement) of such Monthly
Payment collected by the Seller, or as otherwise provided under this
Agreement.
-12-
Servicing
Fee Rate:
An amount per annum as set forth in the related Purchase Price and Terms
Agreement.
Servicing
File:
With respect to each Mortgage Loan, the file retained by the Interim Servicer
consisting of originals of all documents in the Mortgage File which are not
delivered to the Purchaser or the Custodian and copies of the Mortgage Loan
Documents set forth in Section 2
of the Custodial Agreement.
Servicing
Rights:
Any and all of the following: (a) any and all rights to service the Mortgage
Loans; (b) any payments to or monies received by the Seller for servicing the
Mortgage Loans; (c) any late fees, penalties or similar payments with respect
to
the Mortgage Loans; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Seller thereunder; (e) Escrow Payments or
other similar payments with respect to the Mortgage Loans and any amounts
actually collected by the Seller with respect thereto; (f) all accounts and
other rights to payment related to any of the property described in this
paragraph; and (g) any and all documents, files, records, servicing files,
servicing documents, servicing records, data tapes, computer records, or other
information pertaining to the Mortgage Loans or pertaining to the past, present
or prospective servicing of the Mortgage Loans.
Sponsor:
The sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies Inc., and any successor thereto.
Standard
& Poor’s Glossary:
The Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Stated
Principal Balance:
As to each Mortgage Loan on any date of determination, (i) the principal
balance of such Mortgage Loan at the related Cut-off Date after giving effect
to
payments of principal due on or before such date, to the extent actually
received, minus (ii) all amounts previously distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries
of
principal on such Mortgage Loan.
Successor
Servicer:
Any servicer of one or more Mortgage Loans designated by the Purchaser as being
entitled to the benefits of the indemnifications set forth in Subsections
9.03
and 14.01.
Third-Party
Originator:
Each Person, other than a Qualified Correspondent, that originated Mortgage
Loans acquired by the Seller.
Transfer
Date:
The date on which the Purchaser, or its designee, shall receive the transfer
of
servicing responsibilities and begin to perform the servicing of the Mortgage
Loans with respect to the related Mortgage Loan Package, and the Interim
Servicer shall cease all servicing responsibilities.
-13-
Underwriting
Guidelines:
The underwriting guidelines of the Seller, a copy of which is attached as an
exhibit to the related Assignment and Conveyance.
Whole
Loan Transfer:
Any sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate principal balance on
the
related Cut-off Date in an amount as set forth in the related Purchase Price
and
Terms Agreement, or in such other amount as agreed by the Purchaser and the
Seller as evidenced by the actual aggregate principal balance of the Mortgage
Loans accepted by the Purchaser on each Closing Date, together with the related
Mortgage Files and all rights and obligations arising under the documents
contained therein.
SECTION
3. Mortgage
Schedules.
The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on
each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary
Mortgage Schedule”).
The
Seller shall deliver the related Mortgage Loan Schedule for the Mortgage Loans
to be purchased on a particular Closing Date to the Purchaser at least five
(5)
Business Days prior to the related Closing Date. The related Mortgage Loan
Schedule shall be the related Preliminary Mortgage Schedule with those Mortgage
Loans which have not been funded prior to the related Closing Date
deleted.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment as
provided therein), multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans listed on the related Mortgage
Loan
Schedule, after application of scheduled payments of principal due on or before
the related Cut-off Date, whether or not received by the Seller. The initial
principal amount of the related Mortgage Loans shall be the aggregate principal
balance of the Mortgage Loans, so computed as of the related Cut-off Date.
If so
provided in the related Purchase Price and Terms Agreement, portions of the
Mortgage Loans shall be priced separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, on the related Closing Date, accrued interest on the current
principal amount of the related Mortgage Loans as of the related Cut-off Date
at
the weighted average Mortgage Interest Rate of those Mortgage Loans. The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid to the Seller by wire transfer of immediately available funds
to
an account designated by the Seller in writing.
-14-
Upon
Seller’s receipt of the related Purchase Price, the Purchaser shall be entitled
to (1) all scheduled principal due after the related Cut-off Date,
(2) all other recoveries of principal collected on or after the related
Cut-off Date, and (3) all payments of interest on the Mortgage Loans net of
applicable Servicing Fees (minus that portion of any such payment which is
allocable to the period prior to the related Cut-off Date). The outstanding
principal balance of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal due on or before the
related Cut-off Date, to the extent actually collected, together with any
unscheduled principal prepayments collected prior to such Cut-off Date;
provided, however, that payments of scheduled principal and interest paid prior
to such Cut-off date, but to be applied on a Due Date beyond the related Cut-off
Date shall not be applied to the principal balance as of the related Cut-off
Date. Such prepaid amounts shall be the property of the Purchaser. The Seller
shall deposit any such prepaid amounts into the Custodial Account, which account
is established for the benefit of the Purchaser for subsequent remittance by
the
Seller to the Purchaser..
SECTION
5. Examination
of Mortgage Files.
At
least ten (10) Business Days prior to the related Closing Date, the Seller
shall
(a) deliver to the Purchaser or its designee in escrow, for examination
with respect to each Mortgage Loan to be purchased, the related Mortgage File,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination may be made by the Purchaser or its designee at
any
reasonable time before or after the related Closing Date. If the Purchaser
makes
such examination prior to the related Closing Date and determines, in its sole
reasonable discretion, that any Mortgage Loans do not conform to the
requirements of this Agreement and/or the related Purchase Price and Terms
Agreement, the Purchaser shall provide notice to the Seller describing such
defect. The Seller, at its option, may cure the defect or the applicable
Mortgage Loans shall be deleted from the related Mortgage Loan Schedule, and
may
be replaced by a Qualified Substitute Mortgage Loan (or Loans) acceptable to
the
Purchaser. The Purchaser may, at its option and without notice to the Seller,
purchase some or all of the Mortgage Loans without conducting any partial or
complete examination. The fact that the Purchaser or its designee has conducted
or has failed to conduct any partial or complete examination of the Mortgage
Files shall not affect the Purchaser’s (or any of its successor’s) rights to
demand repurchase, substitution or other relief as provided herein.
Each
of the Purchaser and the Seller agree that all mortgage loan application
documents requiring the Mortgagor’s signature and other related documents and
disclosures may be provided by the Seller and executed by the Mortgagor, as
applicable, electronically in compliance with the federal Electronic Signatures
in Global and National Commerce Act and the state Uniform Electronic
Transactions Acts, as applicable.
-15-
SECTION
6. Conveyance
from Seller to Purchaser.
Subsection
6.01 Conveyance
of Mortgage Loans.
The
Seller shall, simultaneously with the delivery of the Mortgage Loan Schedule
with respect to the related Mortgage Loan Package to be purchased on each
Closing Date, execute and deliver an Assignment and Conveyance Agreement in
the
form attached hereto as Exhibit H
(the “Assignment
and Conveyance Agreement”)
and, upon Seller’s receipt of the Purchase Price, ownership of the related
Mortgage Loan shall vest in the Purchaser. The Seller shall ensure that the
contents of each Servicing File, which is required to be retained by or
delivered to the Interim Servicer to service the Mortgage Loans pursuant to
the
Interim Servicing Agreement and thus not delivered to the Purchaser, or its
designee, are and shall be held in trust by the Interim Servicer for the benefit
of the Purchaser as the owner thereof. The Seller agrees that the Interim
Servicer’s possession of any portion of each such Mortgage File is at the will
of the Purchaser for the sole purpose of facilitating servicing of the Mortgage
Loans pursuant to this Agreement, and such retention and possession by the
Interim Servicer shall be in a custodial capacity only. The ownership of each
Mortgage Note, each Mortgage and the contents of each Mortgage File is vested
in
the Purchaser and the ownership of all records and documents with respect to
the
related Mortgage Loan prepared by or which come into the possession of the
Interim Servicer shall immediately vest in the Purchaser and shall be retained
and maintained, in trust, by the Interim Servicer at the will of the Purchaser
in such custodial capacity only. The Seller shall cause the Servicing File
retained by the Interim Servicer pursuant to this Agreement to be appropriately
identified in the Seller’s computer system and/or books and records, as
appropriate, to clearly reflect the sale of the related Mortgage Loan to the
Purchaser. The Seller shall cause the Interim Servicer to release from its
custody the contents of any Servicing File retained by it only in accordance
with this Agreement or the Interim Servicing Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Subsection
9.03
or if required under applicable law or court order
Subsection
6.02 Books
and Records.
Record
title to each Mortgage and the related Mortgage Note as of the related Closing
Date shall be in the name of the Seller, an Affiliate of the Seller, the
Purchaser or one or more designees of the Purchaser, as the Purchaser shall
select; provided,
however,
that if a Mortgage has been recorded in the name of MERS or its designee, the
Seller is shown as the owner of the related Mortgage Loan on the records of
MERS
for purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. Notwithstanding the foregoing, ownership of each
Mortgage and related Mortgage Note shall be vested solely in the Purchaser
or
the appropriate designee of the Purchaser, as the case may be. All rights
arising out of the Mortgage Loans including, but not limited to, all funds
received by the Seller or the Interim Servicer after the related Cut-off Date
on
or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or
more designees of the Purchaser; provided,
however,
that all funds received on or in connection with a Mortgage Loan shall be
received and held by the Seller or the Interim Servicer in trust for the benefit
of the Purchaser or the appropriate designee of the Purchaser, as the case
may
be, as the owner of the Mortgage Loans pursuant to the terms of this
Agreement.
-16-
The
Seller shall be responsible for maintaining, and shall maintain, a complete
set
of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
the
Seller shall maintain in its possession, available for inspection by the
Purchaser, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Mae or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the Xxxxxx Mae Guides. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Seller may be in
the
form of microfilm or microfiche so long as the Seller complies with the
requirements of the Xxxxxx Xxx Guides.
It
is the express intention of the parties that the transactions contemplated
by
this Agreement be, and be construed as, a sale of the related Mortgage Loans
by
the Seller and not a pledge of such Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. Consequently,
the
sale of each Mortgage Loan shall be reflected as a purchase on the Purchaser’s
business records, tax returns and financial statements, and as a sale of assets
on the Seller’s business records, tax returns and financial
statements.
Subsection
6.03 Delivery
of Mortgage Loan Documents.
The
Seller shall deliver and release to the Custodian no later than two (2) Business
Days prior to the related Closing Date those Mortgage Loan Documents set forth
on Exhibit A-2
hereto with respect to each Mortgage Loan set forth on the related Mortgage
Loan
Schedule.
The
Purchaser acknowledges that the Seller may deliver the Mortgage Loan Documents
to the Custodian and the Purchaser in the form of copies reproduced from
electronic images of original documents (“Original Documents”) stored on CD ROM
or magnetic tape (“Imaged Documents”), not to include any documents the
originals of which are required to be delivered pursuant to this Agreement.
The
Seller shall promptly, upon the reasonable request of the Purchaser and at
the
Seller’s expense, produce true, correct, complete, clear and legible copies of
the Original Documents or a certified true copy of the Original Documents
regarding any Original Document for which the Imaged Document is unclear,
illegible, incorrect, incomplete, unable to be transmitted or electronically
read or downloaded by Purchaser, or an untrue copy. Seller shall, upon
Purchaser’s reasonable request and at Seller’s expense, fully cooperate with
Purchaser and take any reasonable and customary actions in connection with
the
introduction into evidence of any Imaged Document in any judicial or
administrative proceeding, including, but not limited to, an arbitration or
mediation, including producing appropriate qualified and knowledgeable personnel
to testify as necessary to qualify the Imaged Documents as
evidence.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Initial Certification of the Custodian in the form
annexed to the Custodial Agreement. The Purchaser shall pay all fees and
expenses of the Custodian.
-17-
The
Seller shall forward to the Custodian, or to such other Person as the Purchaser
shall designate in writing, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into
in
accordance with this Agreement within two weeks of their execution, provided,
however,
that the Seller shall provide the Custodian, or to such other Person as the
Purchaser shall designate in writing, with a certified true copy of any such
document submitted for recordation within two weeks of its execution, and shall
promptly provide the original of any document submitted for recordation or
a
copy of such document certified by the appropriate public recording office
to be
a true and complete copy of the original within one hundred twenty days of
its
submission for recordation.
In
the event any document required to be delivered to the Custodian in accordance
with this Agreement, including an original or imaged copy of any document
submitted for recordation to the appropriate public recording office, is not
delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, within 120 days following the related Closing Date (other
than with respect to the Assignments of Mortgage which shall be delivered to
the
Custodian in blank and recorded subsequently by the Purchaser or its designee,
provided that the foregoing proviso does not apply to the MERS Designated Loans,
and in the event that the Seller does not cure such failure within 30 days
of
discovery or receipt of written notification of such failure from the Purchaser,
the related Mortgage Loan shall, upon the request of the Purchaser, be
repurchased by the Seller at the price and in the manner specified in
Subsection
9.03.
The foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver the Mortgage Loan Documents as set forth on Exhibit
A
hereto, submitted for recordation to the appropriate public recording office
within the specified period due to a delay caused by the recording office in
the
applicable jurisdiction; provided that the Seller shall instead deliver a
recording receipt, or an imaged copy thereof, as applicable, of such recording
office or, if such recording receipt is not available, an officer’s certificate
of a servicing officer of the Seller, confirming that such documents have been
accepted for recording; provided that, upon request of the Purchaser and
delivery by the Purchaser to the Seller of a schedule of the related Mortgage
Loans, the Seller shall reissue and deliver to the Purchaser or its designee
said officer’s certificate.
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage and any other fees or costs in transferring all Mortgage Loan Documents
to the Custodian or, upon written request of the Purchaser, to the Purchaser
or
the Purchaser’s designee. The Purchaser or the Purchaser’s designee shall be
responsible for recording the Assignments of Mortgage (with respect to the
Mortgage Loans other than the MERS Designated Loans) and shall be reimbursed
by
the Seller for the costs associated therewith pursuant to the preceding
sentence.
Subsection
6.04 Quality
Control Procedures.
The
Seller shall have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program shall
include evaluating and monitoring the overall quality of the Seller’s loan
production and the servicing activities of the Seller as Interim Servicer.
The
program is to ensure that the Mortgage Loans are originated in accordance with
the Underwriting Guidelines; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
-18-
Subsection
6.05 MERS
Designated Loans.
With
respect to each MERS Designated Mortgage Loan, the Seller shall, on the first
Business Day following the related Closing Date, designate the Purchaser as
the
Investor and the Custodian as custodian, and no Person shall be listed as
Interim Funder on the MERS System. In addition, on or prior to the related
Closing Date, Seller shall provide the Custodian and the Purchaser with a MERS
Report listing the Purchaser as the Investor, the Custodian as custodian and
no
Person as Interim Funder with respect to each MERS Designated Mortgage
Loan.
SECTION
7. Servicing
of the Mortgage Loans.
The
Mortgage Loans have been sold by the Seller to the Purchaser on a servicing
released basis. Subject to and upon the terms and conditions of this Agreement
and the Interim Servicing Agreement (with respect to each Mortgage Loan, for
an
interim period, as specified therein), the Seller hereby sells, transfers,
assigns, conveys and delivers to the Purchaser the Servicing
Rights.
The
Purchaser shall retain the Seller as Interim Servicer as contract servicer
of
the Mortgage Loans for an interim period pursuant to and in accordance with
the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified therein). The Seller
shall execute the Interim Servicing Agreement on the initial Closing
Date.
The
Seller shall transfer the servicing of the Mortgage Loans on each Transfer
Date
in accordance with the terms of the Interim Servicing Agreement.
SECTION
8. Representations
and Warranties Regarding the Purchaser.
The
Purchaser represents, warrants and covenants to the Seller that as of each
Closing Date:
(a) Due
Organization and Authority.
The Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the state of New York and has all licenses necessary
to carry on its business as now being conducted. The execution, delivery and
performance of this Agreement by the Purchaser and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized; this Agreement and all agreements contemplated hereby have been
duly
executed and delivered and constitute the valid, legal, binding and enforceable
obligations of the Purchaser, regardless of whether such enforcement is sought
in a proceeding in equity or at law; and all requisite corporate action has
been
taken by the Purchaser to make this Agreement and all agreements contemplated
hereby valid and binding upon the Purchaser in accordance with their
terms;
-19-
(b) No
Conflicts.
Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and thereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Purchaser’s charter or by-laws or any legal restriction or any agreement or
instrument to which the Purchaser is now a party or by which it is
bound;
(c) No
Litigation Pending.
No litigation or administrative proceeding of or before any court, tribunal
or
governmental body is currently pending or to the knowledge of the Purchaser
threatened, against the Purchaser or with respect to this Agreement, which
if
adversely determined would have a material adverse effect on the transactions
contemplated by this Agreement;
(d) No
Consent Required.
No consent, approval, authorization or order of, or registration or filing
with,
or notice to any court or governmental agency or body is required for the
execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement or the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been obtained
prior to the related Closing Date;
(e) No
Brokers.
The Seller has not dealt with any broker, investment banker, agent or other
person that may be entitled to any commission or compensation in connection
with
the sale of the Mortgage Loans;
(f) Ordinary
Course of Business.
The consummation of the transactions contemplated by this Agreement is in the
ordinary course of business of the Purchaser; and
(g) Privacy.
Purchaser agrees and acknowledges that as to all nonpublic personal information
received or obtained by it with respect to any related Mortgagor: (i) such
information is and shall be held by Purchaser in accordance with all applicable
law, including but not limited to the privacy provisions of the
Xxxxx-Xxxxx-Xxxxxx Act; (ii) such information is received in connection with
a
proposed or actual secondary market sale related to a transaction of the
Mortgagor for purposes of 16 C.F.R.§313.14(a)(3); and (iii) Purchaser is hereby
prohibited from disclosing or using any such information other than to carry
out
the express provisions of this Agreement, or as otherwise permitted by
applicable law;
SECTION
9. Representations,
Warranties and Covenants of the Seller; Remedies for Breach.
Subsection
9.01 Representations
and Warranties Regarding the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of the date
hereof and as of each Closing Date:
(a) Due
Organization and Authority.
The Seller is a Michigan corporation, validly existing, and in good standing
under the laws of its jurisdiction of incorporation or formation and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in the states where the Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Seller. The Seller
has
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; the execution, delivery and performance
of
this Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement has
been duly executed and delivered and constitutes the valid, legal, binding
and
enforceable obligation of the Seller, except as enforceability may be limited
by
(i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights
of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. All requisite corporate action has been
taken by the Seller to make this Agreement valid and binding upon the Seller
in
accordance with its terms;
-20-
(b) No
Consent Required.
No consent, approval, authorization or order is required for the transactions
contemplated by this Agreement from any court, governmental agency or body,
or
federal or state regulatory authority having jurisdiction over the Seller is
required or, if required, such consent, approval, authorization or order has
been or will, prior to the related Closing Date, be obtained;
(c) Ordinary
Course of Business.
The consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(d) No
Conflicts.
Neither the execution and delivery of this Agreement, the acquisition or
origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans
to the Purchaser, the consummation of the transactions contemplated hereby,
nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Seller’s charter or by-laws or any legal
restriction or any agreement or instrument to which the Seller is now a party
or
by which it is bound, or constitute a default or result in an acceleration
under
any of the foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Seller or its property is subject, or
result in the creation or imposition of any lien, charge or encumbrance that
would have an adverse effect upon any of its properties pursuant to the terms
of
any mortgage, contract, deed of trust or other instrument, or impair the ability
of the Purchaser to realize on the Mortgage Loans, impair the value of the
Mortgage Loans, or impair the ability of the Purchaser to realize the full
amount of any insurance benefits accruing pursuant to this
Agreement;
(e) No
Litigation Pending.
There is no action, suit, proceeding or investigation pending or threatened
against the Seller, before any court, administrative agency or other tribunal
asserting the invalidity of this Agreement, seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or which, either
in
any one instance or in the aggregate, may result in any material adverse change
in the business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the Seller
to
carry on its business substantially as now conducted, or in any material
liability on the part of the Seller, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
to be
taken in connection with the obligations of the Seller contemplated herein,
or
which would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
-21-
(f) Ability
to Perform; Solvency.
The Seller does not believe, nor does it have any reason or cause to believe,
that it cannot perform each and every covenant contained in this Agreement.
The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) Seller’s
Origination.
The Seller’s decision to originate any mortgage loan or to deny any mortgage
loan application is an independent decision based upon the Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated;
(h) Anti-Money
Laundering Laws.
The Seller has complied with all applicable anti-money laundering laws,
executive orders and regulations, including without limitation the USA Patriot
Act of 2001 (collectively, the “Anti-Money
Laundering Laws”);
the Seller has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of
the
Anti-Money Laundering Laws;
(i) Financial
Statements.
The Seller has delivered to the Purchaser financial statements as to its last
two complete fiscal years and any later quarter ended more than 60 days prior
to
the execution of this Agreement. All such financial statements fairly present
the pertinent results of operations and material changes in financial position
for each of such periods and the financial position at the end of each such
period of the Seller and its subsidiaries and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as set forth in the notes thereto. There has been
no change in the business, operations, financial condition, properties or assets
of the Seller since the date of the Seller’s financial statements that would
have a material adverse effect on its ability to perform its obligations under
this Agreement. The Seller has completed any forms requested by the Purchaser
in
a timely manner and in accordance with the provided instructions;
(j) Selection
Process.
The Mortgage Loans were selected from among the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date as to which
the representations and warranties set forth in Subsection
9.02
could be made and such selection was not made in a manner so as to affect
adversely the interests of the Purchaser;
(k) Delivery
to the Custodian.
The Mortgage Note, the Mortgage, the Assignment of Mortgage and any other
documents required to be delivered with respect to each Mortgage Loan shall
be
delivered to the Custodian all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit
A
hereto, except for such documents as will be delivered to the
Custodian;
-22-
(l) Mortgage
Loan Characteristics.
The characteristics of the related Mortgage Loan Package are as set forth on
the
description of the pool characteristics for the applicable Mortgage Loan Package
delivered pursuant to Section
11
on the related Closing Date in the form attached as Exhibit
B
to each related Assignment and Conveyance Agreement;
(m)
No Untrue Information.
To the Seller’s knowledge, neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby (including any Securitization Transaction or Whole Loan
Transfer) contains or will contain any untrue statement of fact or omits or
will
omit to state a fact necessary to make the statements contained herein or
therein not misleading;
(n) No
Brokers.
The Seller has not dealt with any broker, investment banker, agent or other
person that may be entitled to any commission or compensation in connection
with
the sale of the Mortgage Loans;
(o) Sale
Treatment.
The Seller expects to be advised by its independent certified public accountants
that under generally accepted accounting principles the transfer of the Mortgage
Loans will be treated as a sale on the books and records of the Seller and
the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting
purposes;
(p) Owner
of Record.
The Seller is the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, except for the Assignments of Mortgage which
have been sent for recording, and upon recordation the Seller will be the owner
of record of each Mortgage and the indebtedness evidenced by each Mortgage
Note,
and upon the sale of the Mortgage Loans to the Purchaser, the Seller will retain
the Mortgage Files with respect thereto in trust only for the purpose of
servicing and supervising the servicing of each Mortgage Loan;
(q) Reasonable
Purchase Price.
The consideration received by the Seller upon the sale of the Mortgage Loans
under this Agreement constitutes fair consideration and reasonably equivalent
value for the Mortgage Loans;
(r) Ability
to Service.
The Seller is an approved servicer of conventional residential mortgage loans
for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans. The Seller is in good standing to enforce and sell
mortgage loans to and service mortgage loans in the jurisdictions wherein the
Mortgaged Properties are located and for Xxxxxx Mae or Xxxxxxx Mac, and no
event
has occurred, including but not limited to a change in insurance coverage,
which
would make the Seller unable to comply with Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements or which would require notification to either Xxxxxx
Mae or Xxxxxxx Mac;
-23-
(s) Reasonable
Servicing Fee.
The Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement; and
(t) Fair
Credit Reporting Act.
The Seller has fully furnished (or caused to be furnished), in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company, or any
their successors and assigns (three of the credit repositories), on a monthly
basis.
Subsection
9.02 Representations
and Warranties Regarding Individual Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as to each
Mortgage Loan, as of the related Closing Date for such Mortgage
Loan:
(a) Mortgage
Loans as Described.
The information set forth in the related Mortgage Loan Schedule is complete,
true and correct;
(b) Payments
Current.
All payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor
has any payment under the Mortgage Loan been 30 days or more delinquent at
any time since the origination of the Mortgage Loan;
(c) No
Outstanding Charges.
There are no defaults in complying with the terms of the Mortgage, and all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date
of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the related Due
Date of the first installment of principal and interest;
(d) Original
Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified in any respect, from the date of origination except by
a
written instrument which has been recorded, if necessary to protect the
interests of the Purchaser, and which has been delivered to the Custodian or
to
such other Person as the Purchaser shall designate in writing, and the terms
of
which are reflected in the related Mortgage Loan Schedule. The substance of
any
such waiver, alteration or modification has been approved by the issuer of
any
related PMI Policy and the title insurer, if any, to the extent required by
the
policy, and its terms are reflected on the related Mortgage Loan Schedule,
if
applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
-24-
(e) No
Defenses.
The Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the Underwriting Guidelines. If required by the National Flood
Insurance Act of 1968, as amended, each Mortgage Loan is covered by a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration as in effect which policy conforms with the
Underwriting Guidelines. All individual insurance policies contain a provision
that names the Purchaser and its successors and assigns as mortgagee upon the
transfer of the Mortgage File to the Custodian, and all premiums thereon have
been paid. The Mortgage obligates the Mortgagor thereunder to maintain the
hazard insurance policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor’s cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master”
or “blanket”
hazard insurance policy covering a condominium, or any hazard insurance policy
covering the common facilities of a planned unit development. The hazard
insurance policy is the valid and binding obligation of the insurer, is in
full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by
this
Agreement. The Seller has not engaged in, and has no knowledge of the
Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
(g) Compliance
with Applicable Laws.
Any and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, predatory, abusive and fair lending, equal credit opportunity
and disclosure laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to a Prepayment Penalty have been complied
with, the consummation of the transactions contemplated hereby will not involve
the violation of any such laws or regulations, and the Seller shall maintain
in
its possession, available for the Purchaser’s inspection, and shall deliver to
the Purchaser upon demand, evidence of compliance with all such requirements.
This representation and warranty is a Deemed Material and Adverse
Representation;
-25-
(h) No
Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole or in part, and the Mortgaged Property has not been released from the
lien
of the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Type
of Mortgaged Property.
With respect to a Mortgage Loan that is not a Co-op Loan and is not secured
by
an interest in a leasehold estate, the Mortgaged Property is a fee simple estate
that consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a condominium project, or an individual unit
in
a planned unit development, or an individual unit in a residential cooperative
housing corporation; provided, however, that any condominium unit, planned
unit
development or residential cooperative housing corporation shall conform with
the Underwriting Guidelines. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used
for
commercial purposes as long as the Mortgaged Property has not been altered
for
commercial purposes and is not storing any chemicals or raw materials other
than
those commonly used for homeowner repair, maintenance and/or household purposes.
None of the Mortgaged Properties are Manufactured Homes, log homes, mobile
homes, geodesic domes or other unique property types. This representation and
warranty is a Deemed Material and Adverse Representation;
(j) Valid
First Lien.
The Mortgage is a valid, subsisting, enforceable and perfected, first lien
on
the Mortgaged Property, including all buildings and improvements on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect
to
the foregoing. The lien of the Mortgage is subject only to:
| (i) |
the
lien of current real property taxes and assessments not yet due and
payable;
|
| (ii) |
covenants,
conditions and restrictions, rights of way, easements and other matters
of
the public record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically referred
to in
the lender’s title insurance policy delivered to the originator of the
Mortgage Loan and (a) specifically referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan
or (b) which do not adversely affect the Appraised Value of the
Mortgaged Property set forth in such appraisal; and
|
-26-
| (iii) |
other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to
be
provided by the Mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Seller has full right to
sell
and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity
of Mortgage Documents.
The Mortgage Note and the Mortgage and any other agreement executed and
delivered by a Mortgagor in connection with a Mortgage Loan are genuine, and
each is the legal, valid and binding obligation of the maker thereof enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other laws
relating to or affecting creditors’ rights generally, and to general principles
of equity (regardless of whether enforcement is sought in a proceeding at law
or
in equity). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement,
and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect
to a
Mortgage Loan has taken place on the part of the Seller in connection with
the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. To Seller’s knowledge, the documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. To Seller’s knowledge, no fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect
to a
Mortgage Loan has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or any
other
party involved in the origination of the Mortgage Loan or in the application
for
any insurance in relation to such Mortgage Loan. The Seller has reviewed all
of
the documents constituting the Servicing File and has made such inquiries as
it
deems necessary to make and confirm the accuracy of the representations set
forth herein;
-27-
(l) Full
Disbursement of Proceeds.
The Mortgage Loan has been closed and the proceeds of the Mortgage Loan have
been fully disbursed and there is no requirement for future advances thereunder,
and any and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor
is
not entitled to any refund of any amounts paid or due under the Mortgage Note
or
Mortgage;
(m) Ownership.
The Seller is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by each Mortgage Note and upon the payment of the
Purchase Price, as defined in the related Purchase Price and Terms Agreement,
by
the Purchaser, and with respect to the applicable Mortgage Loans, the Seller
will retain the Mortgage Files or any part thereof with respect thereto not
delivered to the Custodian, the Purchaser or the Purchaser’s designee, in trust
only for the purpose of servicing and supervising the servicing of each Mortgage
Loan. The Mortgage Loan is not assigned or pledged, and the Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement and upon the payment of the Purchase
Price, as defined in the related Purchase Price and Terms Agreement, by the
Purchaser, and with respect to the applicable Mortgage Loans, the Purchaser
will
own such Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest. The Seller intends
to relinquish all rights to possess, control and monitor the Mortgage Loan,
except as may be required of the Seller in its capacity as Interim Servicer
of
such Mortgage Loan. Upon the payment of the Purchase Price, as defined in the
related Purchase Price and Terms Agreement, by the Purchaser, and with respect
to the applicable Mortgage Loans, the Seller will have no right to modify or
alter the terms of the sale of the Mortgage Loan and the Seller will have no
obligation or right to repurchase the Mortgage Loan or substitute another
Mortgage Loan, except as provided in this Agreement;
(n) Doing
Business.
All parties which have had any interest in the Mortgage Loan, whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were) (1) in compliance with any
and all applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (2) either (i) organized under the
laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national
bank having a principal office in such state, or (3) not doing business in
such state;
(o) LTV,
PMI Policy.
No Mortgage Loan has an LTV greater than 100%. Unless otherwise referenced
in
the related Purchase Price and Terms Agreement, any Mortgage Loan that had
at
the time of origination an LTV in excess of 80% is insured as to payment
defaults by a PMI Policy. Any PMI Policy in effect covers the related Mortgage
Loan for the life of such Mortgage Loan. All provisions of such PMI Policy
have
been and are being complied with, such policy is in full force and effect,
and
all premiums due thereunder have been paid. No action, inaction, or event has
occurred and no state of facts exists that has, or will result in the exclusion
from, denial of, or defense to coverage. Any Mortgage Loan subject to a PMI
Policy obligates the Mortgagor thereunder to maintain the PMI Policy and to
pay
all premiums and charges in connection therewith. The Mortgage Interest Rate
for
the Mortgage Loan as set forth on the related Mortgage Loan Schedule is net
of
any such insurance premium;
-28-
(p) Title
Insurance.
With respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan
is
covered by an ALTA lender’s title insurance policy or other generally acceptable
form of policy or insurance acceptable under the Underwriting Guidelines and
each such title insurance policy is issued by a title insurer acceptable under
the Underwriting Guidelines and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Seller, its successors
and
assigns, as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan (or to the extent a Mortgage Note provides for
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), subject only to the exceptions contained in clauses (i)
and (ii) of clause (j) of this Subsection 9.02,
and in the case of Adjustable Rate Mortgage Loans, against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
To Seller’s knowledge, no claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender’s title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(q) No
Defaults.
Other than payments due but not yet 30 days or more delinquent, there is no
default, breach, violation or event which would permit acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither the Seller nor any of its affiliates nor any of their
respective predecessors, have waived any default, breach, violation or event
which would permit acceleration;
(r) No
Mechanics’ Liens.
To Seller’s knowledge, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that
under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
-29-
(s) Location
of Improvements; No Encroachments.
To Seller’s knowledge, all improvements which were considered in determining the
Appraised Value of the Mortgaged Property lay wholly within the boundaries
and
building restriction lines of the Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgaged Property. No improvement
located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(t) Origination;
Payment Terms.
The Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act, a savings and loan association, a savings bank, a commercial bank,
credit union, insurance company or other similar institution which is supervised
and examined by a federal or state authority. Principal payments on the Mortgage
Loan commenced no more than seventy days after funds were disbursed in
connection with the Mortgage Loan. The Mortgage Interest Rate as well as, in
the
case of an Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic
Rate Cap and the Periodic Rate Floor are as set forth on the related Mortgage
Loan Schedule. The Mortgage Interest Rate is adjusted with respect to the
Adjustable Rate Mortgage Loans, on each Interest Rate Adjustment Date to equal
the Index plus the Gross Margin (rounded up or down to the nearest 0.125%),
subject to the Periodic Rate Cap. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgage Loan is payable
on
the first day of each month. The Mortgage Loan does not require a balloon
payment on its stated maturity date; and by its original terms or any
modification thereof, does not provide for amortization beyond its scheduled
maturity date;
(u) Customary
Provisions.
The Mortgage contains customary and enforceable provisions such as to render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines.
The Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines (a copy of which is attached to each related Assignment and
Conveyance Agreement). The Mortgage Note and Mortgage are on forms acceptable
to
Xxxxxxx Mac or Xxxxxx Mae and no representations have been made to a Mortgagor
that are inconsistent with the mortgage instruments used;
-30-
(w) Occupancy
of the Mortgaged Property.
To Seller’s knowledge, as of the related Closing Date, the Mortgaged Property is
lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities. Unless otherwise specified on the related Mortgage Loan Schedule,
the Mortgagor represented at the time of origination of the Mortgage Loan that
the Mortgagor would occupy the Mortgaged Property as the Mortgagor’s primary
residence;
(x) No
Additional Collateral.
The Mortgage Note is not and has not been secured by any collateral except
the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (j) above;
(y) Deeds
of Trust.
In the event the Mortgage constitutes a deed of trust, a trustee, authorized
and
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(z) Acceptable
Investment.
There are no circumstances or conditions with respect to the Mortgage, the
Mortgaged Property, the Mortgagor, the Mortgage File or the Mortgagor’s credit
standing that can reasonably be expected to cause private institutional
investors who invest in prime mortgage loans similar to the Mortgage Loan to
regard the Mortgage Loan as an unacceptable investment cause the Mortgage Loan
to become delinquent, or adversely affect the value or marketability of the
Mortgage Loan, or cause the Mortgage Loan to prepay during any period materially
faster or slower than the mortgage loans originated by the Seller generally.
No
Mortgaged Property is located in a state, city, county or other local
jurisdiction which the Purchaser has determined in its sole good faith
discretion would cause the related Mortgage Loan to be ineligible for whole
loan
sale or securitization in a transaction consistent with the prevailing sale
and
securitization industry (including, without limitation, the practice of the
rating agencies) with respect to substantially similar mortgage
loans;
(aa) [Reserved];
(bb) Transfer
of Mortgage Loans.
The Assignment of Mortgage (except with respect to any Mortgage that has been
recorded in the name of MERS or its designee) with respect to each Mortgage
Loan
is in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(cc) Due-On-Sale.
With respect to each Fixed Rate Mortgage Loan, the Mortgage contains an
enforceable provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event that the Mortgaged Property
is sold or transferred without the prior written consent of the mortgagee
thereunder, and to the best of the Seller’s knowledge, such provision is
enforceable;
-31-
(dd) Assumability.
With respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are paid or partially paid with funds deposited in any separate account
established by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor,
or paid by any source other than the Mortgagor nor does it contain any other
similar provisions which may constitute a “buydown” provision. The Mortgage Loan
is not a graduated payment mortgage loan and the Mortgage Loan does not have
a
shared appreciation or other contingent interest feature;
(ff) Consolidation
of Future Advances.
Any future advances made to the Mortgagor prior to the applicable Cut-off Date
have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The lien of the Mortgage securing
the
consolidated principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring the
mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(gg) Mortgaged
Property Undamaged; No Condemnation Proceedings.
To Seller’s knowledge: (i) there is no proceeding pending or threatened for the
total or partial condemnation of the Mortgaged Property; (ii) the Mortgaged
Property is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which the
premises were intended and each Mortgaged Property is in good repair; and (iii)
there have not been any condemnation proceedings with respect to the Mortgaged
Property and the Seller has no knowledge of any such proceedings in the future;
(hh) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The origination, servicing and collection practices used by the Seller and
the
Interim Servicer with respect to the Mortgage Loan have been in all respects
in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of, the Seller or the Interim Servicer and there exist no deficiencies
in connection therewith for which customary arrangements for repayment thereof
have not been made. All Escrow Payments have been collected in full compliance
with state and federal law and the provisions of the related Mortgage Note
and
Mortgage. An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that remains unpaid
and has been assessed but is not yet due and payable. No escrow deposits or
Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate
adjustments have been made in strict compliance with state and federal law
and
the terms of the related Mortgage and Mortgage Note on the related Interest
Rate
Adjustment Date. If, pursuant to the terms of the Mortgage Note, another index
was selected for determining the Mortgage Interest Rate, the same index was
used
with respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage
Note.
The Seller or the Interim Servicer executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state, federal and
local law has been properly paid and credited;
-32-
(ii) Conversion
to Fixed Interest Rate.
The Mortgage Loan does not contain a provision whereby the Mortgagor is
permitted to convert the Mortgage Interest Rate from an adjustable rate to
a
fixed rate;
(jj) Other
Insurance Policies; No Defense to Coverage.
To Seller’s knowledge, no action, inaction or event has occurred and no state of
facts exists or has existed on or prior to the Closing Date that has resulted
or
will result in the exclusion from, denial of, or defense to coverage under
any
applicable hazard insurance policy, PMI Policy or bankruptcy bond (including,
without limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured), irrespective of the cause of such
failure of coverage. The Seller has caused or will cause to be performed any
and
all acts required to preserve the rights and remedies of the Purchaser in any
insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies
or
interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser. In connection with the placement
of
any such insurance, no commission, fee, or other compensation has been or will
be received by the Seller or by any officer, director, or employee of the Seller
or any designee of the Seller or any corporation in which the Seller or any
officer, director, or employee had a financial interest at the time of placement
of such insurance;
(kk) No
Violation of Environmental Laws.
To the best of the Seller’s knowledge, there is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue; there is no violation of
any
environmental law, rule or regulation with respect to the Mortgage Property;
and
nothing further remains to be done to satisfy in full all requirements of each
such law, rule or regulation constituting a prerequisite to use and enjoyment
of
said property;
(ll) Servicemembers
Civil Relief Act.
The Mortgagor has not notified the Seller, and the Seller has no knowledge
of
any relief requested or allowed to the Mortgagor under the Servicemembers Relief
Act or other similar state statute;
(mm) Appraisal.
The Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a Qualified Appraiser,
duly appointed by the Seller, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all
as
in effect on the date the Mortgage Loan was originated;
-33-
(nn) Disclosure
Materials.
The Mortgagor has executed a statement to the effect that the Mortgagor has
received all disclosure materials required by, and the Seller has complied
with,
all applicable law with respect to the making of the Mortgage Loans. The Seller
shall maintain such statement in the Mortgage File;
(oo) Construction
or Rehabilitation of Mortgaged Property.
No Mortgage Loan was made in connection with the construction (other than a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow
Analysis.
If applicable, with respect to each Mortgage Loan, the Seller has within the
last twelve months (unless such Mortgage was originated within such twelve
month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(qq) Credit
Information.
As to each consumer report (as defined in the Fair Credit Reporting Act, Public
Law 91-508) or other credit information furnished by the Seller to the
Purchaser, that Seller has full right and authority and is not precluded by
law
or contract from furnishing such information to the Purchaser and the Purchaser
is not precluded from furnishing the same to any subsequent or prospective
purchaser of such Mortgage. The Seller has and shall in its capacity as
servicer, for each Mortgage Loan, fully furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g. favorable and unfavorable) on its borrower credit files to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis. This representation and warranty
is a
Deemed Material and Adverse Representation;
(rr) Leaseholds.
If the Mortgage Loan is secured by a leasehold estate, (1) the ground lease
is
assignable or transferable; (2) the ground lease will not terminate earlier
than
five years after the maturity date of the Mortgage Loan; (3) the ground lease
does not provide for termination of the lease in the event of lessee’s default
without the mortgagee being entitled to receive written notice of, and a
reasonable opportunity to cure the default; (4) the ground lease permits the
mortgaging of the related Mortgaged Property; (5) the ground lease protects
the
mortgagee’s interests in the event of a property condemnation; (6) all ground
lease rents, other payments, or assessments that have become due have been
paid;
and (7) the use of leasehold estates for residential properties is a widely
accepted practice in the jurisdiction in which the Mortgaged Property is
located;
(ss) Prepayment
Penalty.
Each Mortgage Loan that is subject to a Prepayment Penalty as provided in the
related Mortgage Note is identified on the related Mortgage Loan Schedule.
With
respect to each Mortgage Loan that has a Prepayment Penalty feature, each such
Prepayment Penalty is enforceable and will be enforced by the Seller during
the
period the Seller is acting as Interim Servicer for the benefit of the
Purchaser, and each Prepayment Penalty is permitted pursuant to federal, state
and local law. Each such Prepayment Penalty is in an amount not more than the
maximum amount permitted under applicable law and no such Prepayment Penalty
may
provide for a term in excess of five (5) years unless the Mortgage Loan was
modified to reduce the Prepayment Penalty period to no more than three (3)
years
from the date of the related Mortgage Note and the Mortgagor was notified in
writing of such reduction in Prepayment Penalty period. With respect to any
Mortgage Loan that contains a provision permitting imposition of a Prepayment
Penalty upon a prepayment prior to maturity: (i) the Mortgage Loan provides
some
benefit to the Mortgagor (e.g.,
a rate or fee reduction) in exchange for accepting such Prepayment Penalty,
(ii)
the Mortgage Loan’s originator had a written policy of offering the Mortgagor,
or requiring third-party brokers to offer the Mortgagor, the option of obtaining
a mortgage loan that did not require payment of such a penalty and (iii) the
Prepayment Penalty was adequately disclosed to the Mortgagor in the mortgage
loan documents pursuant to applicable state, local and federal law. This
representation and warranty is a Deemed Material and Adverse
Representation;
-34-
(tt) Predatory
Lending Regulations.
No Mortgage Loan is a High Cost Loan or Covered Loan, as applicable. No Mortgage
Loan is covered by the Home Ownership and Equity Protection Act of 1994 and
no
Mortgage Loan is in violation of any comparable state or local law. The
Mortgaged Property is not located in a jurisdiction where a breach of this
representation with respect to the related Mortgage Loan may result in
additional assignee liability to the Purchaser, as determined by Purchaser
in
its reasonable discretion. This representation and warranty is a Deemed Material
and Adverse Representation;
(uu) Single-premium
credit life insurance policy.
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, mortgage, disability, property, accident, unemployment or health
insurance product) or debt cancellation agreement as a condition of obtaining
the extension of credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, property, accident,
unemployment, mortgage or health insurance) in connection with the origination
of the Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase
single premium credit insurance policies or debt cancellation agreements as
part
of the origination of, or as a condition to closing, such Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse
Representation;
(vv) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(ww) Tax
Service Contract.
Each Mortgage Loan is covered by a paid in full, life of loan, tax service
contract issued by First American Real Estate Tax Service, and such contract
is
transferable. On the related Closing Date, the Seller shall remit to the
Purchaser a transfer fee of two dollars ($2.00) for each Mortgage Loan covered
by such a tax service contract. If such a tax service contract with First
American Real Estate Tax Service is not in place then a placement fee of seventy
two dollars ($72.00) will apply for each such Mortgage Loan;
(xx) Origination.
No predatory or deceptive lending practices, including, without limitation,
the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
-35-
(yy) Recordation.
Each original Mortgage was recorded and all subsequent assignments of the
original Mortgage (other than the assignment to the Purchaser) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Seller, or is in the
process of being recorded;
(zz) Co-op
Loans.
With respect to a Mortgage Loan that is a Co-op Loan, the stock that is pledged
as security for the Mortgage Loan is held by a person as a tenant-stockholder
(as defined in Section 216 of the Code) in a cooperative housing
corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor
Bankruptcy.
To the Seller’s knowledge, on or prior to the date 60 days after the related
Closing Date, the Mortgagor has not filed and will not file a bankruptcy
petition or has not become the subject and will not become the subject of
involuntary bankruptcy proceedings or has not consented to or will not consent
to the filing of a bankruptcy proceeding against it or to a receiver being
appointed in respect of the related Mortgaged Property;
(bbb) No
Prior Offer.
The Mortgage Loan has not previously been offered for sale;
(ccc) Georgia
Fair Lending Act.
There is no Mortgage Loan that was originated (or modified) on or after October
1, 2002 and before March 7, 2003 which is secured by property located in the
State of Georgia. There is no Mortgage Loan that was originated on or after
March 7, 2003 that is a “high cost home loan” as defined under the Georgia Fair
Lending Act. This representation and warranty is a Deemed Material and Adverse
Representation;
(ddd) No
Arbitration.
To Seller’s knowledge no Mortgagor with respect to any Mortgage Loan originated
on or after August 1, 2004 agreed
to submit to
arbitration to resolve any dispute arising out of or relating in any way to
the
mortgage loan transaction. This representation and warranty is a Deemed Material
and Adverse Representation;
(eee) Flood
Service Contract.
Each Mortgage Loan is covered by a paid in full, life of loan, flood service
contract issued by either First American Flood Data Services or Fidelity, and
such contract is transferable. If no such flood service contract is in place,
or
if such flood service contract is issued by an insurer other than First American
Flood Data Services or Fidelity, then on the related Closing Date, the Seller
shall remit to the Purchaser a placement fee of ten dollars ($10.00) for each
such Mortgage Loan;
(fff) Origination
Practices/No Steering.
The Mortgagor was not encouraged or required to select a mortgage loan product
offered by the Mortgage Loan’s originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Mortgage
Loan’s origination, such Mortgagor did not qualify taking into account such
facts as, without limitation, the Mortgage Loan’s requirements and the
Mortgagor’s credit history, income, assets and liabilities and debt-to-income
ratios for a lower-cost credit product then offered by the Mortgage Loan’s
originator or any affiliate of the Mortgage Loan’s originator. If, at the time
of loan application, the Mortgagor may have qualified for a lower-cost credit
product then offered by any mortgage lending affiliate of the Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration. For a Mortgagor who seeks
financing through a Mortgage Loan originator’s higher-priced subprime lending
channel, the Mortgagor was directed towards or offered the Mortgage Loan
originator’s standard mortgage line if the Mortgagor was able to qualify for one
of the standard products. This representation and warranty is a Deemed Material
and Adverse Representation;
-36-
(ggg) Underwriting
Methodology.
The methodology used in underwriting the extension of credit for each Mortgage
Loan does not rely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan. This representation and warranty
is a
Deemed Material and Adverse Representation;
(hhh) Points
and Fees.
No Mortgagor was charged “points and fees” (whether or not financed) in an
amount greater than (i) $1,000, or (ii) 5% of the principal amount of such
Mortgage Loan, whichever is greater. For purposes of this representation, such
5% limitation is calculated in accordance with Xxxxxx Mae’s anti-predatory
lending requirements as set forth in the Xxxxxx Xxx Guides and “points and fees”
(x) include origination, underwriting, broker and finder fees and charges that
the mortgagee imposed as a condition of making the Mortgage Loan, whether they
are paid to the mortgagee or a third party; and (y) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the Mortgage Loan (such as attorneys’ fees, notaries fees and
fees paid for property appraisals, credit reports, surveys, title examinations
and extracts, flood and tax certifications, and home inspections), the cost
of
mortgage insurance or credit-risk price adjustments, the costs of title, hazard,
and flood insurance policies, state and local transfer taxes or fees, escrow
deposits for the future payment of taxes and insurance premiums, and other
miscellaneous fees and charges that, in total, do not exceed 0.25% of the
principal amount of such Mortgage Loan. This representation and warranty is
a
Deemed Material and Adverse Representation; and
(iii) Fees
Charges.
All points, fees and charges (including finance charges) and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan have been disclosed in writing
to the Mortgagor in accordance with applicable state and federal law and
regulation. This representation and warranty is a Deemed Material and Adverse
Representation.
Subsection
9.03 Remedies
for Breach of Representations and Warranties.
It
is understood and agreed that the representations and warranties set forth
in
Subsections 9.01
and 9.02
shall survive the sale of the Mortgage Loans to the Purchaser and shall inure
to
the benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or
failure to examine any Mortgage File. With respect to any representation or
warranty contained in Sections
9.01
or 9.02
hereof that is made to the Seller’s knowledge, if it is discovered by the
Purchaser that the substance of such representation and warranty was inaccurate
as of the related Closing Date and such inaccuracy materially and adversely
affect the value of the related Mortgage Loan, then notwithstanding the Seller’s
lack of knowledge with respect to the inaccuracy at the time the representation
or warranty was made, such inaccuracy shall be deemed a breach of the applicable
representation or warranty. Upon discovery by either the Seller or the Purchaser
of a breach of any of the foregoing representations and warranties
(notwithstanding that such representation and warranty was made to the Seller’s
knowledge) that materially and adversely affects the value of one or more of
the
related Mortgage Loans, the party discovering such breach shall give prompt
written notice to the other relevant parties.
-37-
Within
60 days of the earlier of either discovery by or notice to the Seller of any
such breach of a representation or warranty, which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser therein
(or which materially and adversely affects the value of the applicable Mortgage
Loan or the interest of the Purchaser therein in the case of a representation
and warranty relating to a particular Mortgage Loan), the Seller shall use
its
commercially reasonable efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser’s option, repurchase such Mortgage Loan at the Repurchase Price.
Notwithstanding the above sentence, (i) within 60 days of the earlier of
either discovery by, or notice to, the Seller of any breach of the
representation and warranty set forth in clause (vv) of Subsection 9.02,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price and
(ii)
any breach of a Deemed Material and Adverse Representation shall automatically
be deemed to materially and adversely affect the value of the Mortgage Loans
or
the interest of the Purchaser therein. In the event that a breach shall involve
any representation or warranty set forth in Subsection 9.01,
and such breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Seller of such breach, all of the Mortgage Loans
affected by such breach shall, at the Purchaser’s option, be repurchased by the
Seller at the Repurchase Price. However, if the breach shall involve a
representation or warranty set forth in Subsection 9.02
(except as provided in the second sentence of this paragraph with respect to
certain breaches for which no substitution is permitted) and the Seller
discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller shall, at the Purchaser’s option and provided
that the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan (a “Deleted
Mortgage Loan”)
and substitute in its place a Qualified Substitute Mortgage Loan or Loans,
provided
that any such substitution shall be effected not later than ninety (90) days
after the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the Repurchase
Price. Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing
provisions of this Subsection 9.03
shall occur on a date designated by the Purchaser, and acceptable to the Seller,
and shall be accomplished by either (a) if the Interim Servicing Agreement
has
been entered into and is in effect, deposit in the Custodial Account of the
amount of the Repurchase Price for distribution to the Purchaser on the next
scheduled Remittance Date, after deducting therefrom any amount received in
respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution or (b) if the Interim Servicing
Agreement has not been entered into or is no longer in effect, by direct
remittance of the Repurchase Price to the Purchaser or its designee in
accordance with the Purchaser’s instructions.
-38-
At
the time of repurchase or substitution, the Purchaser and the Seller shall
arrange for the reassignment of the Deleted Mortgage Loan to the Seller and
the
delivery to the Seller of any documents held by the Custodian relating to the
Deleted Mortgage Loan. In the event of a repurchase or substitution, the Seller
shall, simultaneously with such reassignment, give written notice to the
Purchaser that such repurchase or substitution has taken place, amend the
Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan
from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to this Agreement.
In
connection with any such substitution, the Seller shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to the
Custodian or to such other party as the Purchaser may designate in writing
for
such Qualified Substitute Mortgage Loan the documents required by Subsection 6.03
and the Custodial Agreement, with the Mortgage Note endorsed as required by
Subsection 6.03
and the Custodial Agreement. No substitution will be made in any calendar month
after the 15th calendar day of such month. The Seller shall remit directly
to
the Purchaser, or its designee in accordance with the Purchaser’s instructions
the Monthly Payment less the Servicing Fee due, if any, on such Qualified
Substitute Mortgage Loan or Loans in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by the Seller. For the
month of substitution, distributions to the Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and
the
Seller shall thereafter be entitled to retain all amounts subsequently received
by the Seller in respect of such Deleted Mortgage Loan. The Seller shall give
written notice to the Purchaser that such substitution has taken place and
shall
amend the related Mortgage Loan Schedule to reflect the removal of such Deleted
Mortgage Loan from the terms of this Agreement and the substitution of the
Qualified Substitute Mortgage Loan. Upon such substitution, each Qualified
Substitute Mortgage Loan shall be subject to the terms of this Agreement in
all
respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan, as of the date of substitution, the
covenants, representations and warranties set forth in Subsections
9.01
and 9.02.
For
any month in which the Seller substitutes a Qualified Substitute Mortgage Loan
for a Deleted Mortgage Loan, the Seller shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Seller directly to the Purchaser or its designee in
accordance with the Purchaser’s instructions within two (2) Business Days of
such substitution.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents and any Successor Servicer and its present and former
directors, officers, employees and agents and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Seller representations and warranties contained in this Agreement
or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection
9.03
to cure, substitute for or repurchase a defective Mortgage Loan and to indemnify
the Purchaser and Successor Servicer as provided in this Subsection
9.03
and in Subsection
14.01
constitute the sole remedies of the Purchaser and Successor Servicer respecting
a breach of the foregoing representations and warranties. For purposes of this
paragraph “Purchaser” shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were “Purchasers” under
this Agreement and “Successor Servicer” shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were “Successor Servicers” pursuant to this Agreement.
-39-
Any
cause of action against the Seller relating to or arising out of the breach
of
any representations and warranties made in Subsections
9.01
and 9.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser,
(ii) failure by the Seller to cure such breach, substitute a Qualified
Substitute Mortgage Loan or repurchase such Mortgage Loan as specified above
and
(iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
Subsection
9.04 Repurchase
of Mortgage Loans with First Payment Defaults.
If the related Mortgagor is 30 or more days delinquent with respect to the
Mortgage Loan’s first Monthly Payment either (i) after origination of such
Mortgage Loan, or (ii) after the related Closing Date, such delinquency is
not
attributable to the servicing transfer, and Purchaser provided written
notification to Seller of such delinquency within 90 days of such delinquency
(unless the Seller or its affiliate is interim servicing the Mortgage Loan
at
the time of the early payment default, in which case Purchaser shall have 90
days from its receipt of notice of such default to request such repurchase),
the
Seller, at the Purchaser’s option, shall repurchase such Mortgage Loan from the
Purchaser at a price equal to the Repurchase Price. The Seller shall repurchase
such delinquent Mortgage Loan within thirty (30) days of such
request.
Subsection
9.05 Premium
Recapture.
With respect to any Mortgage Loan that prepays in full (i) on or prior to the
related Closing Date and (ii) during the first three months following the
related Closing Date, the Seller shall pay the Purchaser, within three (3)
Business Days after such prepayment in full, an amount equal to the sum of
(i)
the excess of the Purchase Price Percentage for such Mortgage Loan over par,
multiplied by the then outstanding principal balance of such Mortgage Loan
and
(ii) the Servicing Rights Purchase Price Percentage (as defined in the Purchase
Price and Terms Agreement) multiplied by the then outstanding principal balance
of such Mortgage Loan. Notwithstanding anything contained herein to the
contrary, Seller shall not be required to reimburse any applicable premium
with
respect to any Mortgage Loan that prepays in full during the time periods
specified in this Subsection
9.05
unless Purchaser provides written notification of the prepayment in full within
90 days of such prepayment in full.
SECTION
10. Closing
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each Closing shall be
either: by telephone, confirmed by letter or wire as the parties shall agree,
or
conducted in person, at such place as the parties shall agree.
-40-
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
| (i) |
at
least two Business Days prior to the related Closing Date, the Seller
shall deliver to the Purchaser a magnetic diskette, or transmit by
modem,
a listing on a loan-level basis of the necessary information to compute
the Purchase Price of the Mortgage Loans delivered on such Closing
Date
(including accrued interest), and prepare a Mortgage Loan
Schedule;
|
| (ii) |
all
of the representations and warranties of the Seller under this Agreement
and the Interim Servicing Agreement (with respect to each Mortgage
Loan
for an interim period, as specified therein) shall be true and correct
as
of the related Closing Date and no event shall have occurred which,
with
notice or the passage of time, would constitute a default under this
Agreement or an Event of Default under the Interim Servicing
Agreement;
|
| (iii) |
the
Purchaser shall have received, or the Purchaser’s attorneys shall have
received in escrow, all closing documents as specified in Section
11
of this Agreement, in such forms as are agreed upon and acceptable
to the
Purchaser, duly executed by all signatories other than the Purchaser
as
required pursuant to the terms
hereof;
|
| (iv) |
the
Seller shall have delivered and released to the Custodian all documents
required pursuant to this Agreement;
and
|
| (v) |
all
other terms and conditions of this Agreement and the related Purchase
Price and Terms Agreement shall have been complied
with.
|
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section
4
of this Agreement, by wire transfer of immediately available funds to the
account designated by the Seller.
SECTION
11. Closing
Documents.
The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
-41-
| (i) |
this
Agreement (to be executed and delivered only for the initial Closing
Date);
|
| (ii) |
the
related Mortgage Loan Schedule (one copy to be attached to the related
Assignment and Conveyance as the Mortgage Loan Schedule
thereto);
|
| (iii) |
a
Custodian’s Certification, as required under the Custodial Agreement, in
the form of Exhibit 2 to the Custodial
Agreement;
|
| (iv) |
with
respect to the initial Closing Date, an Officer’s Certificate, in the form
of Exhibit C hereto with respect to each of the Seller, including all
attachments thereto; with respect to subsequent Closing Dates, an
Officer’s Certificate upon request of the
Purchaser;
|
| (v) |
a
Security Release Certification, in the form of Exhibit F, as
applicable, hereto executed by any person, as requested by the Purchaser,
if any of the Mortgage Loans have at any time been subject to any
security
interest, pledge or hypothecation for the benefit of such
person;
|
| (vi) |
a
certificate or other evidence of merger or change of name, signed
or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated
by
the Seller while conducting business under a name other than its
present
name, if applicable;
|
| (vii) |
with
respect to the initial Closing Date, the Underwriting Guidelines
to be
attached hereto as Exhibit G and with respect to each subsequent
Closing
Date, the Underwriting Guidelines to be attached to the related Assignment
and Conveyance;
|
| (viii) |
Assignment
and Conveyance Agreement in the form of Exhibit H hereto, and all
exhibits thereto; and
|
| (ix) |
no
later than 2 Business Days after the related Closing Date, a MERS
Report
listing the Purchaser as Investor, the Custodian as custodian and
no
Person as Interim Funder for each MERS Designated Mortgage
Loan.
|
The
Seller shall bear the risk of loss of the closing documents until such time
as
they are received by the Purchaser or its attorneys.
-42-
SECTION
12. Costs.
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys and custodial fees. All other costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans
and
the Servicing Rights including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage,
and
the Seller’s attorney’s fees, shall be paid by the Seller.
SECTION
13. Cooperation
of Seller with a Reconstitution.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after the related Closing Date, on one or more dates (each, a
“Reconstitution
Date”)
at the Purchaser’s sole option, the Purchaser may effect a sale (each, a
“Reconstitution”)
of some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
| (i) |
Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each, a “Xxxxxx
Mae Transfer”);
or
|
| (ii) |
Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
|
| (iii) |
one
or more third party purchasers in one or more Whole Loan Transfers;
or
|
| (iv) |
one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
|
The
Seller agrees to execute in connection with a Whole Loan Transfer and a
Securitization Transaction, an assignment, assumption and recognition agreement,
substantially in the form attached hereto as Exhibit
E
(collectively, the agreements referred to herein are designated the
“Reconstitution
Agreements”).
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures and (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser and (3) to restate the
representations and warranties set forth in Subsection 9.01
as of the settlement or closing date in connection with such Reconstitution
and
to restate the representations and warranties set forth in Subsection
9.02
as of the related Closing Date, or make the representations and warranties
as
may be required by any rating agency in connection with such Reconstitution.
The
Seller shall provide to such servicer or issuer, as the case may be, and any
other participants or purchasers in such Reconstitution: (i) any and all
information and appropriate verification of information which may be reasonably
available to the Seller or its affiliates, whether through letters of its
auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request (at the expense of the Purchaser if such information
or verification of information is not reasonably available to the Seller or
its
affiliates); and (ii) to execute, deliver and satisfy all conditions set
forth in any indemnity agreement required by the Purchaser or any such
participant, including, without limitation, an Indemnification and Contribution
Agreement in substantially the form attached hereto as Exhibit
B.
Moreover, the Seller agrees to cooperate with all reasonable requests made
by
the Purchaser to effect such Reconstitution Agreements. The Seller shall
indemnify the Purchaser, each affiliate of the Purchaser participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate
and
their respective present and former directors, officers, employees and agents,
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain arising out
of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the information provided by or on behalf of the Seller
regarding the Seller, the Mortgage Loans or the Underwriting Guidelines set
forth in any offering document prepared in connection with any Reconstitution;
provided, however,
that Seller shall be liable in any such case only to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with such information. For purposes
of
the previous sentence, “Purchaser” shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
“Purchasers” under this Agreement.
-43-
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if the Interim Servicing Agreement shall remain
in effect with respect to the related Mortgage Loan Package, shall continue
to
be serviced in accordance with the terms of this Agreement and the Interim
Servicing Agreement and with respect thereto this Agreement and the Interim
Servicing Agreement shall remain in full force and effect.
SECTION
14. The
Seller.
Subsection
14.01 Additional
Indemnification by the Seller; Third Party Claims.
(a) The
Seller shall indemnify any Purchaser and its present and former directors,
officers, employees and agents and the Successor Servicer and its present and
former directors, officers, employees and agents, and hold such parties harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and expenses (including legal fees and expenses incurred in
connection with the enforcement of the Seller’s indemnification obligation under
this Subsection 14.01)
and related costs, judgments, and any other costs, fees and expenses that such
parties may sustain in any way related to the failure of the Seller to perform
its duties and to service the Mortgage Loans in strict compliance with the
terms
of this Agreement or any Reconstitution Agreement entered into pursuant to
Section 13
or any breach of any of Seller’s representations, warranties and covenants set
forth in this Agreement. For purposes of this clause “Purchaser” shall mean the
Person then acting as the Purchaser under this Agreement and any and all Persons
who previously were “Purchasers” under this Agreement and “Successor Servicer”
shall mean any Person designated as the Successor Servicer pursuant to this
Agreement and any and all Persons who previously were “Successor Servicers”
pursuant to this Agreement.
-44-
(b) Promptly
after receipt by an indemnified party under this Subsection
14.01
of notice of the commencement of any action, such indemnified party will, if
a
claim in respect thereof is to be made against the indemnifying party under
this
Subsection
14.01,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party under this
Subsection
14.01,
except to the extent that it has been prejudiced in any material respect, or
from any liability which it may have, otherwise than under this Subsection
14.01.
In case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided that
if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, the indemnified party or parties shall have the right
to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval
by
the indemnified party of counsel, the indemnifying party will not be liable
to
such indemnified party for expenses incurred by the indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have
employed separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with one local counsel, if
applicable)), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
Subsection
14.02 Merger
or Consolidation of the Seller.
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall have a net worth of at least $25,000,000.
-45-
Notwithstanding
anything contained herein to the contrary it is understood and agreed that
a
transaction in which one hundred percent of Seller’s stock is transferred to a
thrift institution or other lending institution that is wholly owned by Rock
Holdings, Inc, a Michigan Corporation, (which as of the date of this Agreement,
is the Seller’s direct parent) shall not result in a breach of
contract.
SECTION
15. Financial
Statements.
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
audited financial statements of the Seller for the most recently completed
three
fiscal years respecting which such statements are available, as well as a
Consolidated Statement of Condition of the Seller at the end of the last two
fiscal years covered by such Consolidated Statement of Operations. The Seller
shall also make available any comparable interim statements to the extent any
such statements have been prepared by the Seller (and are available upon request
to members or stockholders of the Seller or the public at large). The Seller,
if
it has not already done so, agrees to furnish promptly to the Purchaser copies
of the statements specified above. The Seller shall also make available
information on its servicing performance with respect to loans serviced for
others, including delinquency ratios.
The
Seller also agrees to allow reasonable access to a knowledgeable financial
or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller or
the
financial statements of the Seller.
Notwithstanding
anything herein to the contrary, the Purchaser shall cause each prospective
purchaser to execute a confidentiality agreement, in a form reasonably
acceptable to the Seller, with respect to the information provided by the Seller
as contemplated by the two preceding paragraphs and prior to the disclosure
of
such information by the Purchaser.
SECTION
16. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the related Closing Date of the Mortgage Loans described
on
the related Mortgage Loan Schedule is mandatory from and after the date of
the
execution of the related Purchase Price and Terms Agreement, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller’s failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. All rights and remedies of
the
Purchaser under this Agreement are distinct from, and cumulative with, any
other
rights or remedies under this Agreement or afforded by law or equity and all
such rights and remedies may be exercised concurrently, independently or
successively.
-46-
SECTION
17. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
if
to the Seller:
Quicken
Loans, Inc.
00000
Xxxxxx Xxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxx Xxxxxxx
Fax:
000-000-0000
Email:
XxxXxxxxxx@xxxxxxxxxxxx.xxx
if
to the Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax:
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
copies
to:
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx - Servicing Oversight
0000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx,
Xxxxxxx 00000
Fax:
000-000-0000
Email:
xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - RFPG
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax:
000-000-0000
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or
such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed
to
have been received on the date delivered to or received at the premises of
the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
-47-
SECTION
18. Severability
Clause.
Any
part, provision representation or warranty of this Agreement which is prohibited
or unenforceable or is held to be void or unenforceable in any jurisdiction
shall be ineffective, as to such jurisdiction, to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
SECTION
19. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
20. Governing
Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Purchaser in the State of New York and shall be deemed to have
been made in the State of New York. The Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
the
substantive laws of the State of New York (without regard to conflicts of laws
principles), except to the extent preempted by Federal law.
SECTION
21. Intention
of the Parties.
It
is the intention of the parties that the Purchaser is purchasing, and the Seller
is selling the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the transaction
for Federal income tax purposes as a sale by the Seller, and a purchase by
the
Purchaser, of the Mortgage Loans. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent direct
ownership of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such
review.
-48-
SECTION
22. Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This Agreement
shall
not be assigned, pledged or hypothecated by the Seller to a third party without
the prior written consent of the Purchaser, which consent may be withheld by
the
Purchaser in its sole discretion. This Agreement may be assigned, pledged or
hypothecated by the Purchaser in whole or in part, and with respect to one
or
more of the Mortgage Loans, without the consent of the Seller. There shall
be no
limitation on the number of assignments or transfers allowable by the Purchaser
with respect to the Mortgage Loans and this Agreement. In the event the
Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser’s obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability
to
the Seller with respect thereto.
SECTION
23. Waivers.
No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
SECTION
24. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
SECTION
25. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
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(e) the
words “herein,” “hereof,” “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision; and
(f) the
terms “include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
26. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in
the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
27. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION
28. Recordation
of Assignments of Mortgage.
To
the extent permitted by applicable law, each of the Assignments of Mortgage
is
subject to recordation in all appropriate public offices for real property
records in all the counties or their comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
SECTION
29. No
Solicitation.
From
and after the related Closing Date, the Seller agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone
or mail (via electronic means or otherwise), solicit a Mortgagor under any
Mortgage Loan for the purpose of refinancing a Mortgage Loan, in whole or in
part, without the prior written consent of the Purchaser. Notwithstanding the
foregoing, it is understood and agreed that the Seller, or any of its respective
affiliates:
| (i) |
may
advertise its availability for handling refinancings of mortgages
in its
portfolio, including the promotion of terms it has available for
such
refinancings, through the sending of letters or promotional material,
so
long as it does not specifically target Mortgagors and so long as
such
promotional material either is sent to the mortgagors for all of
the
mortgages in the servicing portfolio of the Seller and any of its
affiliates (those it owns as well as those serviced for others);
and
|
-50-
| (ii) |
may
provide pay-off information and otherwise cooperate with individual
mortgagors who contact it about prepaying their mortgages by advising
them
of refinancing terms and streamlined origination arrangements that
are
available.
|
Promotions
undertaken by the Seller or by any affiliate of the Seller which are directed
to
the general public at large (including, without limitation, mass mailing based
on commercially acquired mailing lists, newspaper, radio and television
advertisements), shall not constitute solicitation under this Section
29.
SECTION
30. Waiver
of Trial by Jury.
THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION
31. Jurisdiction;
Consent to Service of Process.
EACH
OF THE PURCHASER AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS
OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES,
TO
THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN
ANY
ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT
IN
ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY
MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES
HEREUNDER.
SECTION
32. Confidentiality.
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All
information furnished by one party (the “Protected
Party”)
to the other party in connection with this Agreement and the transactions
contemplated hereby shall be kept confidential by such other party, and shall
be
used by it only in connection with this Agreement and the transactions
contemplated hereby, except to the extent that such information (i) at the
time of disclosure or thereafter, is generally available to and known by the
public (other than as a result of a disclosure directly or indirectly by such
other party), (ii) was available to such other party on a non-confidential
basis from a source other than the Protected Party or its advisers, provided
that such source, to the best of such other party’s knowledge, is not and was
not bound by a confidentiality agreement with the Protected Party,
(iii) has been independently acquired or developed by such other party
without violating any of such other party’s obligations under this Agreement,
(iv) is required to be disclosed in the financial statements of such other
party or its Affiliates, to the extent required by applicable accounting
principles, or in any filing with the Securities and Exchange Commission,
(v) is required to be publicly disclosed to its Affiliates, auditors,
counsel or bank regulators, provided that such affiliates, auditors or counsel
agree to be bound by the provisions of this Section 11.10,
or (vi) is required by law, regulation or court order to be disclosed by
such other party, provided that prior notice of such disclosure has been given
to the Protected Party, when legally permissible, and that such party which
is
required to make the disclosure uses commercially reasonable efforts to provide
sufficient notice to permit the Protected Party to take legal action to prevent
the disclosure. In the event that the transactions contemplated by this
Agreement shall fail to be consummated, each party hereto shall promptly cause
all originals and copies of documents or extracts thereof containing any such
information and data as to a Protected Party to be returned to such Protected
Party or destroyed and, upon request of the Protected Party, shall cause an
officer to so certify to such Protected Party. This provision shall survive
any
termination of this Agreement or transfer of assets hereunder.
SECTION
33. Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding relating to the
subject matter hereof between the parties hereto and any prior oral or written
agreements between them shall be deemed to have merged herewith.
SECTION
34. Compliance
With Regulation AB.
Subsection
34.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Section 34
of this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act, the
Seller acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private
offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to negotiate in good faith with Purchaser or any Depositor upon requests
made by the Purchaser or any Depositor in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, the Seller shall
cooperate as provided herein with the Purchaser to deliver to the Purchaser
(including any of its assignees or designees) and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser or any Depositor to permit
the
Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Seller, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in order
to effect such compliance.
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Subsection
34.02 Additional
Representations and Warranties of the Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Subsection
34.03
that, except as disclosed in writing to the Purchaser or such Depositor prior
to
such date: (i) there are no material legal or governmental proceedings
pending (or known to be contemplated) against the Seller or any Third-Party
Originator; and (ii) there are no affiliations, relationships or
transactions relating to the Seller or any Third-Party Originator with respect
to any Securitization Transaction and any party thereto identified by the
related Depositor of a type described in Item 1119 of Regulation
AB.
(b) If
so requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Subsection
34.03,
the Seller shall, within five Business Days following such request, confirm
in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
Subsection
34.03 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser or any Depositor (which request
shall be made in writing promptly after such initial notification and include
information identifying the Mortgage Loans, stating that they meet the threshold
percentages of Regulation AB and specifying the Securitization Transaction
and
those threshold percentages), provide to the Purchaser and such Depositor (or,
as applicable, cause each Third-Party Originator to provide), in writing and
in
form and substance reasonably satisfactory to the Purchaser and such Depositor,
the information and materials specified in paragraphs (a) of this Section,
and
(ii) as promptly as practicable following notice to or discovery by the Seller,
provide to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
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(a) Subject
to paragraph (e) of this Subsection, if so requested by the Purchaser or any
Depositor, the Seller shall provide such information regarding (i) the Seller,
as originator of the Mortgage Loans (including as an acquirer of Mortgage Loans
from a Qualified Correspondent), or (ii) each Third-Party Originator, as is
requested for the purpose of compliance with Items 1103(a)(1), 1110, 1117 and
1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a
brief description in accordance with Regulation AB of any material legal or
governmental proceedings pending (or known to be contemplated) against the
Seller and each Third-Party Originator; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator and any of the following parties to a Securitization
Transaction, as such parties are identified to the Seller by the Purchaser
or
any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) [Reserved].
(c) [Reserved].
(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of (A)
any
material litigation or governmental proceedings pending against the Seller
or
any Third-Party Originator and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between
the
Seller or any Third-Party Originator and any of the parties specified in clause
(D) of paragraph (a) of this Section (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or relationships.
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(e) The
Purchaser hereby acknowledges and agrees that as of the date hereof, the Seller
is unable and will not be obligated to provide any Static Pool Information
contemplated under Item 1105 of Regulation AB.
Subsection
34.04 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing and of the
Depositor, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
| (i) |
(A) any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants’ letter or other
material provided in written or electronic form under this Section 34
by or on behalf of the Seller, or provided under this Section 34
by or on behalf of any Third-Party Originator (collectively, the
“Seller
Information”),
or (B) the omission or alleged omission to state in the Seller
Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph
shall
be construed solely by reference to the Seller Information and not
to any
other information communicated in connection with a sale or purchase
of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such
other
information;
|
-55-
| (ii) |
any
failure by the Seller or any Third-Party Originator to deliver any
information, report, certification, accountants’ letter or other material
when and as required under this Section 34;
or
|
| (iii) |
any
breach by the Seller of a representation or warranty set forth in
Subsection
34.02(a)
or in a writing furnished pursuant to Subsection
34.02(b)
and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not
cured by
such closing date, or any breach by the Seller of a representation
or
warranty in a writing furnished pursuant to Subsection
34.02(b)
to the extent made as of a date subsequent to such closing
date.
|
In
the case of any failure of performance described in clause (a)(ii) of this
Section, the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By:________________________________________
Name:
Title:
QUICKEN
LOANS, INC.
By:________________________________________
Name:
Title:
EXHIBIT
A-1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall include each
of
the following items, which shall be available for inspection by the Purchaser
and any prospective Purchaser, and which shall be delivered to the Custodian,
or
to such other Person as the Purchaser shall designate in writing, pursuant
to
Section
6
of the Third Amended and Restated Mortgage Loan Purchase and Warranties
Agreement to which this Exhibit is attached (the “Agreement”):
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last
Endorsee”)
by an authorized officer. To the extent that there is no room on the face of
the
Mortgage Notes for endorsements, the endorsement may be contained on an allonge,
if state law so allows and the Custodian is so advised by the Seller that state
law so allows. If the Mortgage Loan was acquired by the Seller in a merger,
the
endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be by
“[Last Endorsee], formerly known as [previous name]”;
(b) an
imaged copy of the original of any guarantee executed in connection with the
Mortgage Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, an imaged copy of the
original Mortgage with evidence of recording thereon. With respect to any Co-op
Loan, an imaged copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the imaged
copy of the original Mortgage with evidence of recording thereon on or prior
to
the Closing Date because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original recorded
Mortgage, the Seller shall deliver or cause to be delivered to the Custodian,
an
imaged copy of such Mortgage, together with (i) in the case of a delay
caused by the public recording office, an Officer’s Certificate of the Seller
(or certified by the title company, escrow agent, or closing attorney) stating
that such Mortgage has been dispatched to the appropriate public recording
office for recordation and that an imaged copy of the original recorded Mortgage
with evidence of recording will be promptly delivered to the Custodian upon
receipt thereof by the Seller; or (ii) in the case of a Mortgage where a
public recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, an
imaged copy of such Mortgage certified by such public recording office to be
a
true and complete copy of the original recorded Mortgage;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
A-1-1
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment
of
Mortgage for each Mortgage Loan, in form and substance acceptable for recording
(except with respect to MERS Designated Loans). The Assignment of Mortgage
must
be duly recorded only if recordation is either necessary under applicable law
or
commonly required by private institutional mortgage investors in the area where
the Mortgaged Property is located or on direction of the Purchaser as provided
in this Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage
shall be assigned to the Purchaser. If the Assignment of Mortgage is not to
be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by “[Seller], successor by merger to [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be by “[Seller], formerly
known as [previous name]”;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, an imaged copy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording
office, an Officer’s Certificate of the Seller (or certified by the title
company, escrow agent, or closing attorney) stating that such intervening
assignment of mortgage has been dispatched to the appropriate public recording
office for recordation and that an imaged copy of such original recorded
intervening assignment of mortgage with evidence of recording will be promptly
delivered to the Custodian upon receipt thereof by the Seller; or (ii) in
the case of an intervening assignment where a public recording office retains
the original recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, an imaged
copy of such intervening assignment certified by such public recording office
to
be a true and complete copy of the original recorded intervening
assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, an imaged copy of the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true imaged copy of the related policy
binder or commitment for title certified to be true and complete by the title
insurance company;
(h) an
imaged copy of the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: imaged copies of (i) the Co-op Lease and the
assignment of such Co-op Lease, with all intervening assignments showing a
complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor
to
the originator of such Co-op Loan; and (iv) the financing statement filed by
the
originator as secured party and, if applicable, a filed UCC-3 assignment of
the
subject security interest showing a complete chain of title, together with
an
executed UCC-3 assignment of such security interest by the Seller in a form
sufficient for filing; and
A-1-2
(j) if
any of the above documents has been executed by a person holding a power of
attorney, an original or photocopy of such power certified by the Seller to
be a
true and correct copy of the original.
In
the event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within 90 days
of
the related Closing Date, an Officer’s Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered to
the Custodian; provided,
however,
that any recorded document shall in no event be delivered later than one year
following the related Closing Date. An extension of the date specified in clause
(iv) above may be requested from the Purchaser, which consent shall not be
unreasonably withheld.
X-0-0
XXXXXXX
X-0
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, unless otherwise disclosed to the Purchaser on the data tape,
which shall be available for inspection by the Purchaser and which shall be
retained by the Interim Servicer or delivered to the Purchaser:
(a) Copies
of the Mortgage Loan Documents.
(b) Residential
loan application.
(c) Mortgage
Loan closing statement.
(d) Verification
of employment and income, if required.
(e) Verification
of acceptable evidence of source and amount of downpayment.
(f) Credit
report on Mortgagor, in a form acceptable to either Xxxxxx Mae or Xxxxxxx
Mac.
(g) Residential
appraisal report.
(h) Photograph
of the Mortgaged Property and photographs of comparable properties.
(i) Survey
of the Mortgaged Property, unless a survey is not required by the title
insurer.
(j) To
the extent provided to the Seller, a copy of each instrument necessary to
complete identification of any exception set forth in the exception schedule
in
the title policy, i.e., map or plat, restrictions, easements, home owner
association declarations, etc.
(k) Copies
of all required disclosure statements.
(l) If
applicable, termite report, structural engineer’s report, water potability and
septic certification.
(m) Sales
Contract, if applicable.
(n) Copy
of the owner’s title insurance policy or attorney’s opinion of title and
abstract of title, as applicable.
Evidence
of electronic notation of the hazard insurance policy, and, if required by
law,
evidence of the flood insurance policy.
A-2-1
EXHIBIT
B
FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This
INDEMNIFICATION AND CONTRIBUTION AGREEMENT (“Agreement”),
dated as of [_______], 200_, among [________________] (the “Depositor”),
a [______________] corporation (the “Depositor”),
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation (“Xxxxxx”)
and Quicken Loans, Inc., a Michigan corporation (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus
Supplement”),
relating to [________________] Certificates (the “Certificates”)
to be issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the “P&S”),
among the Depositor, as depositor, [________________], as servicer (the
“Servicer”),
and [________________], as trustee (the “Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”)
to enter into the Underwriting Agreement, dated [____________________] (the
“Underwriting
Agreement”)
between the Depositor and the Underwriter[s], and [_______________] (the
“Initial
Purchaser[s]”)
to enter into the Certificate Purchase Agreement, dated [_________] (the
“Certificate
Purchase Agreement”)
between the Depositor and the Initial Purchaser[s], Seller has agreed to provide
for indemnification and contribution on the terms and conditions hereinafter
set
forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage
Loans”)
pursuant to a Third Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2006 (the “Purchase
Agreement”),
by and between Xxxxxx and Seller; and
WHEREAS,
pursuant to Section 13 of the Purchase Agreement, the Seller has agreed to
indemnify the Depositor, Xxxxxx, the Underwriter[s] and their respective
affiliates, present and former directors, officers, employees and
agents.
B-1
NOW
THEREFORE, in consideration of the agreements contained herein, and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
1. Indemnification
and Contribution.
(a) The
Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] and their respective affiliates and
their respective present and former directors, officers, employees and agents
and each person, if any, who controls the Depositor, Xxxxxx, the Underwriter[s]
, the Initial Purchaser[s] or such affiliate within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the “1933 Act”),
or Section 20 of the Securities Exchange Act of 1934, as amended (the
“1934
Act”),
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the 1933 Act, the 1934 Act
or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement, the Offering Circular, the ABS Informational and Computational
Materials or in the Free Writing Prospectus or any omission or alleged omission
to state in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or in the Free Writing Prospectus
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any such untrue statement or omission or alleged untrue statement or alleged
omission made in any amendment of or supplement to the Prospectus Supplement,
the Offering Circular, the ABS Informational and Computational Materials or
the
Free Writing Prospectus and agrees to reimburse the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] or such affiliates and each such
officer, director, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however,
that Seller shall be liable in any such case only to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon (i)
any
breach of the representation and warranty set forth in Section 2(vii) below
or
(ii) any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with the Seller Information.
The foregoing indemnity agreement is in addition to any liability which Seller
may otherwise have to the Depositor, Xxxxxx, the Underwriter[s], the Initial
Purchaser[s] their affiliates or any such director, officer, employee, agent
or
controlling person of the Depositor, Xxxxxx, the Underwriter[s], the Initial
Purchaser[s] or their respective affiliates.
As
used herein:
“Seller
Information”
means any information relating to Seller, the Mortgage Loans and/or the
underwriting guidelines relating to the Mortgage Loans set forth in the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Materials or the Free Writing Prospectus.
B-2
“Free
Writing Prospectus”
means any written communication that constitutes a “free writing prospectus,” as
defined in Rule 405 under the 1933 Act.
“ABS
Informational and Computational Material”
means any written communication as defined in Item 1101(a) of Regulation AB
under the 1933 Act and the 1934 Act, as may be amended from time to
time.
“Offering
Circular”
means the offering circular, dated [___________] relating to the private
offering of the [___________] Certificates.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
(b) Promptly
after receipt by any indemnified party under this Section 1
of notice of any claim or the commencement of any action, such indemnified
party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided,
however,
that the failure to notify an indemnifying party shall not relieve it from
any
liability which it may have under this Section 1
except to the extent it has been materially prejudiced by such failure; and
provided, further,
however,
that the failure to notify any indemnifying party shall not relieve it from
any
liability which it may have to any indemnified party otherwise than under this
Section 1.
If
any such claim or action shall be brought against an indemnified party, and
it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, except as provided in the following paragraph,
the indemnifying party shall not be liable to the indemnified party under this
Section 1
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless:
(i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified party,
in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of
such action on behalf of such indemnified party, it being understood, however,
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified
parties.
B-3
Each
indemnified party, as a condition of the indemnity agreements contained in
this
Section 1,
shall cooperate with the indemnifying party in the defense of any such action
or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there
be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any
loss or liability by reason of such settlement or judgment.
Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees
and
expenses of counsel, the indemnifying party agrees that it shall be liable
for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(c) If
the indemnification provided for in this Section 1
is unavailable to an indemnified party, then the indemnifying party, in lieu
of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(d) The
indemnity and contribution agreements contained in this Section 1
and the representations and warranties set forth in Section 2
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the
Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s] their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, Xxxxxx, the Underwriter[s] the Initial Purchaser[s] or any such
affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates or the Private Certificates.
B-4
2. Representations
and Warranties.
Seller represents and warrants that:
(i) Seller
is validly existing and in good standing under the laws of its jurisdiction
of
formation or incorporation, as applicable, and has full power and authority
to
own its assets and to transact the business in which it is currently engaged.
Seller is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or any
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of Seller;
(ii) Seller
is not required to obtain the consent of any other person or any consent,
license, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this
Agreement;
(iii) the
execution, delivery and performance of this Agreement by Seller will not violate
any provision of any existing law or regulation or any order decree of any
court
applicable to Seller or any provision of the charter or bylaws of Seller, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which Seller is a party or by which it may be bound;
(iv) (a) no
proceeding of or before any court, tribunal or governmental body is currently
pending or, (b) to the knowledge of Seller, threatened against Seller or
any of its properties or with respect to this Agreement or the Offered
Certificates, in either case, which would have a material adverse effect on
the
business, properties, assets or condition (financial or otherwise) of
Seller;
(v) Seller
has full power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated hereunder, and has taken
all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will constitute
the legal, valid and binding obligation of each of Seller enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution
thereunder;
(vi) this
Agreement has been duly executed and delivered by Seller; and
(vii) the
Seller represents that the information provided by or on behalf of Seller for
inclusion in the Seller Information satisfies the requirements of the applicable
provisions of Regulation AB that Seller is obligated to comply with under the
Purchase Agreement.
3. Notices.
All communications hereunder will be in writing and effective only on receipt,
and, if sent to Seller, will be mailed, delivered or faxed or emailed and
confirmed by mail [______________________]; if sent to Xxxxxx, xxxx be mailed,
delivered or faxed or emailed and confirmed by mail to Xxxxxx Xxxxxxx Mortgage
Capital Inc., 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx - Whole
Loans Operations Manager, Fax: [_______], Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with copies to (i) Xxxxxxxx Xxxxx,
Xxxxxx Xxxxxxx - Legal Counsel, Securities, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax [_____], Email:
xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx -
SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Fax [_____], Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if to the
Depositor, will be mailed, delivered or telegraphed and confirmed to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
B-5
4. Miscellaneous.
This Agreement shall be governed by, and construed in accordance with, the
laws
of the State of New York without giving effect to the conflict of laws
provisions thereof. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their successors and assigns and the controlling
persons referred to herein, and no other person shall have any right or
obligation hereunder. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or
termination is sought. This Agreement may be executed in counterparts, each
of
which when so executed and delivered shall be considered an original, and all
such counterparts shall constitute one and the same instrument. Capitalized
terms used but not defined herein shall have the meanings provided in the
P&S.
[SIGNATURE
PAGE FOLLOWS]
B-6
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, this __th day
of
[_____________].
[DEPOSITOR]
By:________________________________________
Name:
Title:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By:________________________________________
Name:
Title:
QUICKEN
LOANS, INC.
By:________________________________________
Name:
Title:
B-7
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected
[Vice] President of Quicken Loans, Inc., a state chartered institution
organized under the laws of the state of Michigan (the “Company”)
and further as follows:
1. Attached
hereto as Exhibit
1
is a true, correct and complete copy of the charter of the Company which is
in
full force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since ___________.
2. Attached
hereto as Exhibit
2
is a true, correct and complete copy of the bylaws of the Company which are
in
effect on the date hereof and which have been in effect without amendment,
waiver, rescission or modification since ___________.
3. Attached
hereto as Exhibit
3
is an original certificate of good standing of the Company issued within ten
days of the date hereof, and no event has occurred since the date thereof which
would impair such standing.
4. Attached
hereto as Exhibit
4
is a true, correct and complete copy of the corporate resolutions of the Board
of Directors of the Company authorizing the Company to execute and deliver
(a)
the Mortgage Loan Purchase and Warranties Agreement, dated as of _____ __,
200_
(the “Purchase
Agreement”),
by and between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”)
and the Company [and to endorse the Mortgage Notes and execute the Assignments
of Mortgages by original [or facsimile] signature], and such resolutions are
in
effect on the date hereof and have been in effect without amendment, waiver,
rescission or modification since ____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, [the sale of the mortgage loans] or the consummation of the
transactions contemplated by the agreements; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Purchase Agreement conflicts or will conflict with or results
or
will result in a breach of or constitutes or will constitute a default under
the
charter or by-laws of the Company or, to the best of my knowledge, the terms
of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound or to which it is subject, or any statute or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which it
is
bound.
C-1
7. To
the best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Purchase Agreement, or the mortgage loans or of any action
taken
or to be taken in connection with the transactions contemplated hereby, or
which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Purchase Agreement.
8. Each
person listed on Exhibit
5
attached hereto who, as an officer or representative of the Company, signed
(a) the Purchase Agreement, and (b) any other document delivered or on
the date hereof in connection with any purchase described in the agreements
set
forth above was, at the respective times of such signing and delivery, and
is
now, a duly elected or appointed, qualified and acting officer or representative
of the Company, who holds the office set forth opposite his or her name on
Exhibit
5,
and the signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
| Dated:____________________ | By:___________________________ |
| Name:_________________________ | |
| [Seal] | Title: [Vice] President |
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is
[her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
| Dated:____________________ | By:___________________________ |
| Name:_________________________ | |
| Title: [Assistant] Secretary |
C-2
EXHIBIT
5 to
Company’s
Officer’s Certificate
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TITLE
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SIGNATURE
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C-3
EXHIBIT
D
[RESERVED]
D-1
EXHIBIT
E
FORM
OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __, 20__]
(“Agreement”),
among Xxxxxx Xxxxxxx Mortgage Capital Inc. (“Assignor”),
[____________________] (“Assignee”)
and Quicken Loans, Inc. (the “Company”):
For
and in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit
A
(the “Mortgage
Loans”)
and (b) except as described below, that certain Third Amended and Restated
Mortgage Loan Purchase and Warranties Agreement (the “Purchase
and Warranties Agreement”),
dated as of June 1, 2006, between the Assignor, as purchaser (the “Purchaser”),
and the Company, as seller, solely insofar as the Purchase and Warranties
Agreement relates to the Mortgage Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to (a) Subsection
9.05
of the Purchase and Warranties Agreement or (b) any mortgage loans subject
to
the Purchase and Warranties Agreement which are not the Mortgage Loans set
forth
on the Mortgage Loan Schedule and are not the subject of this
Agreement.
Recognition
of the Company
2. From
and after the date hereof (the “Securitization
Closing Date”),
the Company shall and does hereby recognize that the Assignee will transfer
the
Mortgage Loans and assign its rights under the Purchase and Warranties Agreement
(solely to the extent set forth herein) and this Agreement to
[__________________] (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of [__________,
200_] (the “Pooling
Agreement”),
among the Assignee, the Assignor, [___________________], as trustee (including
its successors in interest and any successor trustees under the Pooling
Agreement, the “Trustee”),
[____________________], as servicer (including its successors in interest and
any successor servicer under the Pooling Agreement, the “Servicer”).
The Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of
the
Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate
to
the Mortgage Loans, under the Purchase and Warranties Agreement, including,
without limitation, the enforcement of the document delivery requirements set
forth in Section 6 of the Purchase and Warranties Agreement, and shall be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iv) all references to the Purchaser
or the Custodian under the Purchase and Warranties Agreement insofar as they
relate to the Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee and the Servicer acting on the Trust’s behalf). Neither the Company
nor the Assignor shall amend or agree to amend, modify, waiver, or otherwise
alter any of the terms or provisions of the Purchase and Warranties Agreement
which amendment, modification, waiver or other alteration would in any way
affect the Mortgage Loans or the Company’s performance under the Purchase and
Warranties Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
E-1
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase and Warranties Agreement. The execution by the
Company of this Agreement is in the ordinary course of the Company’s business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company is
now
a party or by which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its property
is
subject. The execution, delivery and performance by the Company of this
Agreement have been duly authorized by all necessary corporate action on part
of
the Company. This Agreement has been duly executed and delivered by the Company,
and, upon the due authorization, execution and delivery by the Assignor and
the
Assignee, will constitute the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms except
as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at
law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement; and
(d) There
is no action, suit, proceeding or investigation pending or threatened against
the Company, before any court, administrative agency or other tribunal, which
would draw into question the validity of this Agreement or the Purchase and
Warranties Agreement, or which, either in any one instance or in the aggregate,
would result in any material adverse change in the ability of the Company to
perform its obligations under this Agreement or the Purchase and Warranties
Agreement, and the Company is solvent.
E-2
4. Subject
to such events or circumstances which may have occurred or arisen since the
related Closing Date, the Company hereby represents and warrants, for the
benefit of the Assignor, the Assignee and the Trust, that the representations
and warranties set forth in (i) Section 9.01 of the Purchase and Warranties
Agreement are true and correct as of the date hereof as if such representations
and warranties were made on the date hereof and (ii) Section 9.02 of the
Purchase and Warranties Agreement are true and correct as of the related Closing
Date.
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3
and 4
hereof shall be as set forth in Subsection 9.03 of the Purchase and Warranties
Agreement as if they were set forth herein (including without limitation the
repurchase and indemnity obligations set forth therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced, with the prior written consent of
the
Trustee.
8. This
Agreement shall inure to the benefit of (i) the successors and assigns of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of this Agreement and the Purchase and Warranties Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Purchase and
Warranties Agreement (to the extent assigned hereunder) by Assignor to Assignee
and by Assignee to the Trust and nothing contained herein shall supersede or
amend the terms of the Purchase and Warranties Agreement.
10. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
E-3
11. In
the event that any provision of this Agreement conflicts with any provision
of
the Purchase and Warranties Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
and
Warranties Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
QUICKEN
LOANS, INC.
By:
Name:__________________________________
Its:_____________________________________
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By:
Name:__________________________________
Its:_____________________________________
E-4
EXHIBIT
F
FORM
OF SECURITY RELEASE CERTIFICATION
I. Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule
A
(the “Mortgage
Loans”),
to be purchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the company named
on the next page (the “Company”)
pursuant to that certain Third Amended and Restated Mortgage Loan Purchase and
Warranties Agreement, dated as of June 1, 2006, and certifies that all
notes, mortgages, assignments and other documents in its possession relating
to
such Mortgage Loans have been delivered and released to the Company or its
designees, as of the date and time of the sale of such Mortgage Loans to Xxxxxx
Xxxxxxx Mortgage Capital Inc. Such release shall be effective automatically
without any further action by any party upon payment in one or more
installments, in immediately available funds, of $_____________, in accordance
with the wire instructions set forth below.
Name,
Address and Wire Instructions of Financial Institution
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
By:_____________________________
F-1
II. Certification
of Release
The
Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage Capital Inc.
that, as of the date and time of the sale of the above-mentioned Mortgage Loans
to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in the Mortgage
Loans released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Company
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
_____________________________
By:__________________________
Title:_________________________
Date:_________________________
F-2
EXHIBIT
G
UNDERWRITING
GUIDELINES
G-1
EXHIBIT
H
FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this ___ day of _______, 200_, Quicken Loans, Inc. (“Seller”),
as the Seller under (i) that certain Purchase Price and Terms Agreement,
dated as of _________, 200__ (the “PPTA”),
and (ii) that certain Third Amended and Restated Mortgage Loan Purchase and
Warranties Agreement, dated as of June 1, 2006 (the “Purchase
Agreement”),
simultaneously with the payment of the related Purchaser Price by Xxxxxx Xxxxxxx
Mortgage Capital Inc. (“Purchaser”),
does hereby sell, transfer, assign, set over and convey to Purchaser
as the Purchaser under the Agreements (as defined below) without recourse,
but
subject to the terms of the Agreements, all right, title and interest of, in
and
to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto
as
Exhibit A
(the “Mortgage
Loans”),
together with the Mortgage Files and the related Servicing Rights and all rights
and obligations arising under the documents contained therein. Each Mortgage
Loan subject to the Agreements was underwritten in accordance with, and conforms
to, the Underwriting Guidelines attached hereto as Exhibit C.
Pursuant to Section 6 of the Purchase Agreement, the Seller has delivered
to the Custodian the documents for each Mortgage Loan to be purchased as set
forth in the Purchase Agreement. The contents of each Servicing File required
to
be retained by the Interim Servicer to service the Mortgage Loans pursuant
to
the Interim Servicing Agreement and thus not delivered to the Purchaser are
and
shall be held in trust by the Interim Servicer in its capacity as Interim
Servicer for the benefit of the Purchaser as the owner thereof. The Interim
Servicer’s possession of any portion of the Servicing File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the related Mortgage
Loan pursuant to the Interim Servicing Agreement, and such retention and
possession by the Interim Servicer shall be in a custodial capacity only. The
ownership of each Mortgage Note, Mortgage and the contents of the Mortgage
File
and Servicing File is vested in the Purchaser and the ownership of all records
and documents with respect to the related Mortgage Loan prepared by or which
come into the possession of the Seller shall immediately vest in the Purchaser
and shall be retained and maintained, in trust, by the Seller at the will of
the
Purchaser in a custodial capacity only. The PPTA and the Purchase Agreement
shall collectively be referred to as the “Agreements”
herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B
hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser accepts
the Mortgage Loans listed on Exhibit A
attached hereto. Notwithstanding the foregoing the Purchaser does not waive
any
rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
H-1
|
QUICKEN
LOANS, IN.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Accepted
and Agreed:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
| By: | _________________________ | ||
| Name: | |||
| Title: |
H-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
H-3
EXHIBIT
B
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF EACH MORTGAGE LOAN
PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less than $_____;
(2) an origination date earlier than __ months prior to the related Cut-off
Date; (3) an LTV of greater than ____%; (4) a FICO Score of less than
___; or (5) a debt-to-income ratio of more than ___%. Each Mortgage Loan
has a Mortgage Interest Rate of at least ___% per annum and an outstanding
principal balance of less than $______. Each Adjustable Rate Mortgage Loan
has
an Index of [______].
H-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
H-5
