EXHIBIT 10.1.2
SELLER'S WARRANTIES AND SERVICING AGREEMENT, DATED AS OF
JANUARY 1, 2002, BETWEEN XXXXXXX XXXXX MORTGAGE COMPANY
AND ABN AMRO MORTGAGE GROUP, INC.
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XXXXXXX SACHS MORTGAGE COMPANY
Purchaser
and
ABN AMRO MORTGAGE GROUP INC.
Company
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SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of January 1, 2002
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.......................................................................................................1
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; DELIVERY OF DOCUMENTS.........................................................................11
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage Files;Maintenance of
Servicing Files................................................................................11
Section 2.02 Books and Records; Transfers of Mortgage Loans.................................................12
Section 2.03 Delivery of Documents..........................................................................13
Section 2.04 Mortgage Schedule..............................................................................15
Section 2.05 Examination of Mortgage Files..................................................................15
Section 2.06 Reserved.......................................................................................15
Section 2.07 Representation, Warranties and Agreement of Purchaser..........................................16
Section 2.08 Closing........................................................................................18
Section 2.09 Closing Documents..............................................................................19
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES AND BREACH..............................................................19
Section 3.01 Company Representations and Warranties.........................................................19
Section 3.02 Representations and Warranties Regarding Individual Mortgage Loans.............................23
Section 3.03 Repurchase.....................................................................................32
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................................................................34
Section 4.01 Company to Act as Servicer.....................................................................34
Section 4.02 Liquidation of Mortgage Loans..................................................................35
Section 4.03 Collection of Mortgage Loan Payments...........................................................36
Section 4.04 Establishment of and Deposits to Custodial Account.............................................36
Section 4.05 Permitted Withdrawals From Custodial Account...................................................38
Section 4.06 Establishment of and Deposits to Escrow Account................................................40
Section 4.07 Permitted Withdrawals From Escrow Account......................................................41
Section 4.08 Payment of Taxes, Insurance and Other Charges..................................................41
Section 4.09 Protection of Accounts.........................................................................42
Section 4.10 Maintenance of Hazard Insurance................................................................42
Section 4.12 Maintenance of Mortgage Impairment Insurance...................................................44
Section 4.13 Maintenance of Fidelity Bond and Errors and Omissions Insurance................................45
Section 4.14 Inspections....................................................................................46
Section 4.15 Restoration of Mortgaged Property..............................................................46
Section 4.16 Claims.........................................................................................46
Section 4.17 Title, Management and Disposition of REO Property..............................................47
Section 4.18 Real Estate Owned Reports......................................................................48
Section 4.19 Liquidation Reports............................................................................48
Section 4.20 Reports of Foreclosures and Abandonments of Mortgaged Property.................................49
ARTICLE V
PAYMENTS TO PURCHASER............................................................................................49
Section 5.01 Remittances....................................................................................49
Section 5.02 Statements to Purchaser........................................................................50
Section 5.03 Monthly Advances by Company....................................................................50
ARTICLE VI
GENERAL SERVICING PROCEDURES.....................................................................................51
Section 6.01 Transfers of Mortgaged Property................................................................51
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files........................................51
Section 6.03 Servicing Compensation.........................................................................52
Section 6.04 Annual Statement as to Compliance..............................................................52
Section 6.05 Annual Independent Public Accountants' Servicing Report........................................53
Section 6.06 Right to Examine Company Records...............................................................53
Section 6.07 Compliance with REMIC Provisions...............................................................53
ARTICLE VII
COMPANY TO COOPERATE.............................................................................................53
Section 7.01 Provision of Information.......................................................................53
Section 7.02 Financial Statements; Servicing Facility.......................................................54
ARTICLE VIII
THE COMPANY......................................................................................................54
Section 8.01 Indemnification; Third Party Claims............................................................54
Section 8.02 Merger or Consolidation of the Company.........................................................55
Section 8.03 Limitation on Liability of Company and Others..................................................56
Section 8.04 Limitation on Resignation and Assignment by Company............................................56
ARTICLE IX
PASS-THROUGH TRANSFER............................................................................................57
Section 9.01 Removal of Mortgage Loans from Inclusion Under this Agreement Upon a Pass-
Through Transfer...............................................................................57
ARTICLE X
DEFAULT..........................................................................................................59
Section 10.01 Events of Default..............................................................................59
Section 10.02 Waiver of Defaults.............................................................................61
ARTICLE XI
TERMINATION......................................................................................................61
Section 11.01 Termination....................................................................................61
Section 11.02 Termination Without Cause......................................................................61
Section 11.03 Termination With Cause.........................................................................61
ARTICLE XII
MISCELLANEOUS PROVISIONS.........................................................................................62
Section 12.01 Successor to Company...........................................................................62
Section 12.02 Amendment......................................................................................63
Section 12.03 Governing Law..................................................................................63
Section 12.04 Duration of Agreement..........................................................................64
Section 12.05 Notices........................................................................................64
Section 12.07 Relationship of Parties........................................................................65
Section 12.08 Execution; Successors and Assigns..............................................................65
Section 12.09 Recordation of Assignments of Mortgage.........................................................66
Section 12.10 Assignment by Purchaser........................................................................66
Section 12.11 Solicitation of Mortgagor......................................................................66
DEFAULT REPORTS.................................................................................................E-2
EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Contents of Each Mortgage Loan File
Exhibit C Form of Custodial Agreement
Exhibit D Form of Opinion of Counsel
Exhibit E Items to Be Included in Monthly Remittance Advice
Exhibit F Form of Assignment and Assumption Agreement
Exhibit G Form of Seller's Officer's Certificate
This is a Seller's Warranties and Servicing Agreement for various
residential first mortgage loans, dated and effective as of Janaury 1,
2002, and is executed between Xxxxxxx Xxxxx Mortgage Company, as purchaser
(the "Purchaser"), and ABN AMRO Mortgage Group Inc., as seller and servicer
(the "Company").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Purchaser has agreed to purchase from the Company and
the Company has agreed to sell to the Purchaser certain 5/1 adjustable rate
Mortgage Loans which have an aggregate Scheduled Principal Balance as of
the close of business on the Cut-off Date (as defined below), of
approximately $155.5 million ( with a possible variance of plus or minus
5.0%);
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed
of trust or other security instrument creating a first lien on a
one-to-four family residential dwelling located in the jurisdiction
indicated on the Mortgage Loan Schedule, which is annexed hereto as Exhibit
A; and
WHEREAS, the Purchaser and the Company wish to prescribe the
manner of purchase of the Mortgage Loans and the conveyance, servicing and
control of the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and the
Company agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those customary mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located.
The servicing procedures set forth in FNMA or FHLMC servicing guides will
be considered Accepted Servicing Practices.
Agreement: This Seller's Warranties and Servicing Agreement and
all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor
thereto.
Appraised Value: With respect to any Mortgage Loan, the lesser of
(i) the value set forth on the appraisal made in connection with the
origination of the related Mortgage Loan as the value of the related
Mortgage Property, or (ii) the purchase price paid for the Mortgage
Property; provided, however, in the case of a refinanced Mortgage Loan,
such value shall be based solely on the appraisal made in connection with
the refinance of such Mortgage Loan.
Assignment and Assumption Agreement: The Assignment, Assumption
and Recognition Agreement pursuant to which the Purchaser may assign in
whole or in part, its interest under this Agreement with respect to the
Mortgage Loans to a third party, a form of which is attached as Exhibit F
hereto.
Assignment of Mortgage or Assignment: 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 or
its designated assignee.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii)
a day on which banking and savings and loan institutions in the states
where the parties are located are authorized or obligated by law or
executive order to be closed.
Closing Date: January 29, 2002.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S.
Department of the Treasury regulations issued pursuant thereto.
Company: ABN AMRO Mortgage Group Inc., or its successor in
interest or assigns, or any successor to the Company under this Agreement
appointed as herein provided.
Company Employee: The meaning assigned to such term in Section
4.13.
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.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents, a form of which is annexed hereto as Exhibit C.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under
the Custodial Agreement as provided therein.
Cut-off Date: January 1, 2002.
Determination Date: The 15th day of every month, or if such day is
not a Business Day, the preceding Business Day.
Due Date: The first day of the month on which the Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month in which such
Remittance Date occurs and ending on (and including) the first day of the
month in which such Remittance Date occurs.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
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 related document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: Federal Home Loan Mortgage Corporation and its successors.
FHLMC Guidelines: The servicing guidelines periodically updated
and distributed by Xxxxxxx Mac.
Fidelity Bond: A fidelity bond to be maintained by the Company
pursuant to Section 4.12.
FIFO: As defined in Section 10.01.
First Remittance Date: February 18, 2002.
FNMA: Federal National Mortgage Association and its successors.
GNMA: Government National Mortgage Association and its successors.
Insurance Proceeds: Proceeds of any mortgage insurance, title
policy, hazard policy or other insurance policy covering a Mortgage Loan,
if any, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor
in accordance with the procedures that the Company would follow in
servicing mortgage loans held for its own account.
Liquidation Proceeds: Cash (other than Insurance Proceeds or
Condemnation Proceeds) received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale, sale of REO Property, 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: With respect to any Mortgage Loan, the ratio
of the original loan amount of the Mortgage Loan at its origination or
refinancing, as applicable, to the Appraised Value of the Mortgaged
Property.
Monthly Advance: The portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on
the Determination Date required to be advanced by the Company pursuant to
Section 5.03 on the Business Day immediately preceding the Remittance Date
of the related month.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Remittance Advice: The meaning assigned to such term in
Section 5.02.
Mortgage: The mortgage, deed of trust or other instrument and
riders thereto securing a Mortgage Note, which creates a first lien on an
unsubordinated estate in fee simple in real property securing the Mortgage
Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B 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 in accordance with the provisions of the 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 Mortgage Loan Schedule, which Mortgage
Loan includes without limitation the Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
original related Mortgage Note with applicable addenda and riders, the
original related security instrument and the originals of any required
addenda and riders, the original related Assignment and any original
intervening related Assignments, the original related title insurance
policy, and the related appraisal report.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal
to the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto as Exhibit A, such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the Company's Mortgage Loan number;
(2) the address, city, state and zip code of the Mortgaged Property; (3) a
code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three-family residence, four-family
residence or planned unit development; (4) the purpose of the Mortgage
Loan; (5) the current Mortgage Interest Rate; (6) the Mortgage Loan
Remittance Rate; (7) the Servicing Fee Rate; (8) the current Monthly
Payment; (9) the original term to maturity; (10) the scheduled maturity
date (and, if different, the stated maturity date indicated on the Mortgage
Note on its date of origination); (11) the principal balance of the
Mortgage Loan as of the Cut-off Date after deduction of payments of
principal due on or before the Cut-off Date whether or not collected; (12)
the Loan-to-Value Ratio; (13) the due date of the Mortgage Loan; (14) a
code indicating whether the Mortgagor or the Mortgaged Property is the
subject of a bankruptcy case; (15) the amount of any delinquencies and the
due date of any delinquent payments and (16) the CPI twelve month pay
string.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage and riders thereto.
Mortgaged Property: The real property securing repayment of the
debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President, an
Assistant Vice President, the Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Company, and delivered
to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Company, reasonably acceptable to the Purchaser.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a
publicly issued or privately placed mortgage-backed securities transaction.
Payaheads: Scheduled Monthly Payments on a Mortgage Loan made by a
Mortgagor that are due in a Due Period subsequent to the period in which
received by the Servicer, and which are not required to be applied as a
prepayment of principal on such Mortgage Loan.
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.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 3.02(xxxii), or
any replacement policy therefor obtained by the Servicer pursuant to
Section 4.08.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Balance: As to each Mortgage Loan, (i) the actual
outstanding principal balance of the Mortgage Loan at the Cut-off Date
after giving effect to payments of principal due on or before such date,
whether or not received, minus (ii) all amounts attributable to principal
collected from or on behalf of the Mortgagor, including the principal
portion of Liquidation Proceeds, Condemnation Proceeds, and Insurance
Proceeds.
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not
accompanied by an amount of interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment.
Principal Prepayment Period: With respect to each Remittance Date,
the period commencing on the first day of the month preceding the month in
which such Remittance Date occurs, and ending on the last day of such
month.
Purchase Price: The purchase price specified in the Purchase Price
and Terms Letter.
Purchase Price and Terms Letter: The purchase price and terms
letter between the Purchaser and the Company, dated December 20, 2001.
Purchaser: Xxxxxxx Sachs Mortgage Company, or its successor in
interest or any successor to the Purchaser under this Agreement as herein
provided.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Mortgage File, (b) the absence of a document in
the Mortgage File, or (c) the breach of any representation, warranty or
covenant with respect to the Mortgage Loan made by the Company, but, in
each case, only if the affected Mortgage Loan would cease to qualify as a
"qualified mortgage" for purposes of the REMIC Provisions.
Qualified Depository: A federal or state chartered depository
institution, which may be an affiliate of the Company, the deposits in
which are insured by the FDIC to the applicable limits and the short-term
unsecured debt obligations of which (or, in the case of a depository
institution that is a subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1 by
Standard & Poor's Ratings Group or Prime-1 by Xxxxx'x Investors Service,
Inc. (or a comparable rating if another rating agency is specified by the
Purchaser by written notice to the Company) at the time any deposits are
held on deposit therein.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by GNMA.
Rating Agency: Xxxxx'x Investors Services, Inc., Standard & Poor's
Ratings Group, Fitch, Inc., or any other nationally recognized statistical
credit rating agency rating any security issued in connection with any
Pass-Through Transfer.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be reconstituted as part of a
Pass-Through Transfer or Whole Loan Transfer pursuant to Section 9.01
hereof. The Reconstitution Date shall be such date the Purchaser shall
designate in writing to the Company. Such date shall be no later than May
1, 2002.
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 Advice Date: The 12th day of each month or, if such
12th day is not a Business Day, the first Business Day immediately
preceding such day.
Remittance Date: The 18th day (or if such 18th day is not a
Business Day, the first Business Day immediately preceding such date) of
any month, beginning with the First Remittance Date.
REO Disposition: The final sale by the Company of any REO
Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on
behalf of the Purchaser through foreclosure or by deed in lieu of
foreclosure, as described in Section 4.16.
Repurchase Price: Unless agreed otherwise by the Purchaser and the
Company (including without limitation as set forth in the Purchase Price
and Terms Letter), a price equal to (i) the Scheduled Principal Balance of
the Mortgage Loan plus (ii) interest on such Scheduled Principal Balance at
the Mortgage Loan Remittance Rate from the date on which interest has last
been paid and distributed to the Purchaser to the last day of the month of
repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase, to the extent such amounts are
actually paid to the Purchaser upon the repurchase of the related Mortgage
Loan.
Scheduled Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the Cut-off Date after giving
effect to payments of principal due on or before such date, whether or not
received, minus (ii) all amounts previously collected by the Company as
servicer hereunder or advanced and distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal or advances made in lieu thereof.
Servicing Advances: All customary, reasonable and necessary "out
of pocket" costs and expenses other than Monthly Advances (including
reasonable attorney's fees and disbursements) incurred in the performance
by the Company of its servicing obligations, including, but not limited to,
the cost of (a) the preservation, restoration and protection of the
Mortgaged Property, (b) any enforcement or judicial proceedings, including
foreclosures, (c) the management and liquidation of any REO Property and
(d) compliance with the obligations under Section 4.08.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the per annum fee the Purchaser shall pay to the Company, which shall, for
a period of one full month, be equal to one-twelfth of the product of (a)
the Servicing Fee Rate and (b) the Scheduled Principal Balance of such
Mortgage Loan. Such fee shall be payable monthly, computed on the basis of
the same principal amount and same period for which any related interest
payment on a Mortgage Loan is computed. 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 Section
4.05) of such Monthly Payment collected by the Company, or as otherwise
provided under Section 4.05.
Servicing Fee Rate: 0.375% per annum for each Mortgage Loan.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Company consisting of originals of all documents in the
Mortgage File which are not delivered to the Custodian and copies of the
Mortgage Loan Documents listed in the Custodial Agreement the originals of
which are delivered to the Custodian pursuant to Section 2.03.
Servicing Officer: Any officer of the Company involved in or
responsible for the administration and servicing of the Mortgage Loans
whose name appears on a list of servicing officers furnished by the Company
to the Purchaser upon request, as such list may from time to time be
amended.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is
not a Pass-Through Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files.
The Company, simultaneously with the execution and delivery of
this Agreement, does hereby sell, transfer, assign, set over and convey to
the Purchaser, without recourse, but subject to the terms of this
Agreement, all the right, title and interest of the Company in and to the
Mortgage Loans, including all interest and principal accrued on or received
by the Company on or with respect to the related Mortgage Loans after the
Cut-off Date (and including Monthly Payments due after the Cut-off Date but
received by the Company on or before the Cut-off Date, but not including
payments of principal and interest due on the Mortgage Loans on or before
the Cut-off Date).
The principal balance of each Mortgage Loan as of the Cut-off Date
shall be determined after application of payments of principal due on or
before the Cut-off Date whether or not collected. Therefore, payments of
scheduled principal and interest prepaid for a Due Date beyond the Cut-off
Date shall not be applied to the principal balance as of the Cut-off Date.
Such prepaid amounts (minus interest at the Servicing Fee Rate) shall be
the property of the Purchaser. The Company 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 Company to the
Purchaser, and shall remit such amounts as provided in Section 5.01.
Pursuant to Section 2.03, the Company has delivered the Mortgage
Loan Documents to the Custodian. The contents of each Mortgage File not
delivered to the Custodian are and shall be held in trust by the Company
for the benefit of the Purchaser as the owner thereof. The Company shall
maintain a Servicing File consisting of a copy of the contents of each
Mortgage File and the originals of the documents in each Mortgage File not
delivered to the Custodian. The possession of each Servicing File by the
Company is for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Company is in a custodial capacity
only. Upon the sale of the Mortgage Loans the ownership of each Mortgage
Note, the related Mortgage and the related Mortgage File and Servicing File
shall vest immediately 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 Company shall vest immediately in the
Purchaser and shall be retained and maintained by the Company, in trust, at
the will of the Purchaser and only in such custodial capacity. The Company
shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Purchaser, unless such
release is required as incidental to the Company's servicing of the
Mortgage Loans or is in connection with a repurchase of any Mortgage Loan
pursuant to Section 2.03, 3.03 or 6.02.
Section 2.02 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser all
rights arising out of the Mortgage Loans including but not limited to all
funds received on or in connection with the Mortgage Loans on account of
interest and principal due after the Cut-off Date, shall be received and
held by the Company in trust for the benefit of the Purchaser as owner of
the Mortgage Loans, and the Company shall retain record title to the
related Mortgages for the sole purpose of facilitating the servicing and
the supervision of the servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the
Company. The Company 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. To the extent that original documents are not required for
purposes of realization of Liquidation Proceeds or Insurance Proceeds,
documents maintained by the Company may be in the form of microfilm or
microfiche or such other reliable means of recreating original documents,
including but not limited to, optical imagery techniques so long as the
Company complies with the requirements of the FNMA or FHLMC Selling and
Servicing Guide, as amended from time to time.
The Company shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Purchaser or its designee the
related Servicing File during the time the Purchaser retains ownership of a
Mortgage Loan and thereafter in accordance with applicable laws and
regulations.
The Company shall keep at its servicing office books and records
in which, subject to such reasonable regulations as it may prescribe, the
Company shall note transfers of Mortgage Loans. No transfer of a Mortgage
Loan may be made unless such transfer is in compliance with the terms
hereof. For the purposes of this Agreement, the Company shall be under no
obligation to deal with any person with respect to this Agreement or the
Mortgage Loans unless the books and records show such person as the owner
of the Mortgage Loan. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that in no event shall there be more than five Persons (including
Xxxxxxx Xxxxx Mortgage Company) in the aggregate having the status of
"Purchaser" hereunder, subject to Section 9.01 hereof. The Purchaser also
shall advise the Company of the transfer in writing. Upon receipt of notice
of the transfer, the Company shall xxxx its books and records to reflect
the ownership of the Mortgage Loans of such assignee, and shall release the
previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred. If the Company receives notification of
a transfer less than five (5) Business Days before the monthly
Determination Date, the Company's duties to remit and report to the new
purchaser(s) as required by Section 5 shall begin with the first
Determination Date after the Reconstitution Date.
Section 2.03 Delivery of Documents.
Pursuant to the Custodial Agreement delivered to the Purchaser
prior to or contemporaneously with the delivery of this Agreement, the
Company has delivered and released to the Custodian those Mortgage Loan
Documents as required by the Custodial Agreement and by this Agreement with
respect to each Mortgage Loan. Purchaser will pay any costs or expenses of
the Custodian associated with the initial inventory and maintenance of the
loan files.
The Custodian has certified its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement. The
Company will be responsible for the delivery of those Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement. The
Company will be responsible for the fees and expenses related to the
recording of the initial Assignments of Mortgage (including any fees and
expenses related to any preparation and recording of any intervening or
prior assignments of the Mortgage Loans to the Company or to any prior
owners of or mortgagees with respect to the Mortgage Loans). The Purchaser
will be responsible for the Custodian's fees and expenses with respect to
the initial inventory and maintenance of the Mortgage Loans on or before
the Closing Date. The Purchaser will be responsible for the ongoing fees of
the Custodian.
Within 90 days after the Closing Date, the Company shall deliver
to the Custodian each of the documents described in Exhibit B not delivered
pursuant to the Agreement.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
two weeks of their execution; provided, however, that the Company shall
provide the Custodian with a certified true copy of any such document
submitted for recordation within ten (10) days of its execution, and shall
provide the original of any document submitted for recordation or a copy of
such document certified by the appropriate public recording office to be a
true and complete copy of the original within 60 days of its submission for
recordation.
In the event the public recording office is delayed in returning
any original document, the Company shall deliver to the Custodian within
240 days of its submission for recordation, a copy of such document and 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 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. The Company will be required to deliver the document to the
Custodian by the date specified in (iv) above. An extension of the date
specified in (iv) above may be requested from the Purchaser, which consent
shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, if the originals or certified
copies required in this Section 2.03 are not delivered as required within
90 days following the Closing Date or as otherwise extended as set forth
above, the related Mortgage Loan shall, upon request of the Purchaser, be
repurchased by the Company in accordance with Section 3.03 hereof;
provided, however, that the foregoing repurchase obligation shall not apply
in the event the Company cannot deliver such items due to a delay caused by
the recording office in the applicable jurisdiction; provided that the
Company shall deliver instead a recording receipt of such recording office
or, if such recording receipt is not available, an Officer's Certificate
from the Company confirming that such documents have been accepted for
recording. Any such document shall be delivered to the Purchaser or its
designee promptly upon receipt thereof from the related recording office.
If the Company, the Purchaser or the Custodian finds any document
or documents constituting a part of a Mortgage File pertaining to a
Mortgage Loan to be defective (or missing) in any material respect, and
such defect or missing document materially and adversely affects the value
of the related Mortgage Loan or the interests of the Purchaser therein, the
party discovering such defect shall promptly so notify the Company. The
Company shall have a period of 90 days after receipt of such written notice
within which to correct or cure any such defect. The Company hereby
covenants and agrees that, if any material defect cannot be corrected or
cured, the Company will, upon the expiration of the applicable cure period
described above, repurchase the related Mortgage Loan in the manner set
forth in Section 3.03; provided, however, that with respect to any Mortgage
Loan, if such defect constitutes a Qualification Defect, any such
repurchase must take place within 75 days of the date such defect is
discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan,
if, at the end of such 90-day period, the Company delivers an Officer's
Certificate to the Purchaser certifying that the Company is using good
faith efforts to correct or cure such defect and identifying progress made,
then the Purchaser shall grant the Company an extension to correct or cure
such defect. The extension shall not extend beyond (1) the date that is 75
days after the date the defect is discovered, or, (2) if the defect is not
a Qualification Defect (as evidenced by an Opinion of Counsel), the date
that is 30 days beyond the original 90-day cure period. If the defect is
not a Qualification Defect, additional 30-day extensions may be obtained
pursuant to the same procedure, as long as the Company demonstrates
continued progress toward a correction or cure; provided that no extension
shall be granted beyond 180 days from the date on which the Company
received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan,
the failure of the Purchaser to notify the Company of any defective or
missing document in a Mortgage File within such 90-day period, or the
failure of the Purchaser to require the Company to cure or repurchase the
related Mortgage Loan upon expiration of such 90-day period, shall not
constitute a waiver of its rights hereunder, including the rights with
respect to a Mortgage Loan, to require the Company to repurchase the
affected Mortgage Loan and the right to indemnification pursuant to Section
3.03 hereof.
Notwithstanding the foregoing, to the extent that the Custodian
certifies any document as being delivered to it pursuant to the Custodial
Agreement in a non-defective state and such document subsequently becomes
missing or defective, the Seller shall not be obligated to repurchase the
related Mortgage Loan by reason of such missing or defective document, to
redeliver such document to the Custodian or to correct any such defect.
Section 2.04 Mortgage Schedule.
The Company has provided the Purchaser with certain information
constituting a listing of the Mortgage Loans to be purchased under this
Agreement (the "Mortgage Loan Schedule") substantially in the form attached
hereto as Exhibit A. The Mortgage Loan Schedule shall conform to the
definition of "Mortgage Loan Schedule" hereunder.
Section 2.05 Examination of Mortgage Files.
Prior to the Closing Date, the Company shall (a) deliver to the
Purchaser in escrow, for examination, the Mortgage File for each Mortgage
Loan, including a copy of the Assignment of Mortgage, pertaining to each
Mortgage Loan, or (b) make the Mortgage Files available to the Purchaser
for examination at the Company's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Company. Such examination
may be made by the Purchaser, or by any prospective purchaser of the
Mortgage Loans from the Purchaser, at any time before or after the Closing
Date upon prior reasonable notice to the Company. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans 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 under
this Agreement.
Section 2.06 Reserved.
Section 2.07 Representation, Warranties and Agreement of Purchaser.
The Purchaser, without conceding that the Mortgage Loans are
securities, hereby makes the following representations, warranties and
agreements, which shall have been deemed to have been made as of the
Closing Date.
(i) the Purchaser understands that the Mortgage Loans
have not been registered under the 1933 Act or the
securities laws of any state;
(ii) the Purchaser is acquiring the Mortgage Loans for its
own account only and not for any other person;
(iii) the Purchaser considers itself a substantial,
sophisticated institutional investor having such
knowledge and experience in financial and business
matters that it is capable of evaluating the merits
and risks of investment in the Mortgage Loans;
(iv) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its incorporation and has all
licenses necessary to carry out its business as now
being conducted, and is licensed and qualified to
transact business in and is in good standing under
the laws of each state in which any Mortgaged
Property is located or is otherwise exempt under
applicable law from such licensing or qualification
or is otherwise not required under applicable law to
effect such licensing or qualification and no demand
for such licensing or qualification has been made
upon the Purchaser by any such state, and in any
event the Purchaser is in compliance with the laws of
any such state to the extent necessary to ensure the
enforceability of each Mortgage Loan and the
servicing of the Mortgage Loans in accordance with
the terms of this Agreement;
(v) The Purchaser has the full power and authority and
legal right to hold, transfer and convey each
Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver and perform, and to enter into and
consummate all transactions contemplated by this
Agreement and the related Purchase Price and Terms
Letter and to conduct its business as presently
conducted; the Purchaser has duly authorized the
execution, delivery and performance of this Agreement
and any agreements contemplated hereby, has duly
executed and delivered this Agreement and the related
Purchase Price and Terms Letter, and any agreements
contemplated hereby, and this Agreement and the
related Purchase Price and Terms Letter and any
agreements contemplated hereby, constitute the legal,
valid and binding obligations of the Purchaser,
enforceable against it in accordance with their
respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights
of creditors; and all requisite corporate action has
been taken by the Purchaser to make this Agreement,
the related Purchase Price and Terms Letter and all
agreements contemplated hereby are valid and binding
upon the Purchaser in accordance with their terms;
(vi) Neither the execution and delivery of this Agreement,
the related Purchase Price and Terms Letter, the
purchase of the Mortgage Loans by the Purchaser, the
consummation of the transactions contemplated hereby,
nor the fulfillment of or compliance with the terms
and conditions of this Agreement and the related
Purchase Price and Terms Letter will conflict with
any of the terms, conditions or provisions of the
Purchaser's charter or by-laws or materially conflict
with or result in a material breach of any of the
terms, conditions or provisions of any legal
restriction or any agreement or instrument to which
the Purchaser is now a party or by which it is bound,
or constitute a default or result in an acceleration
under any of the foregoing, or result in the material
violation of any law, rule, regulation, order,
judgment or decree to which the Purchaser or its
property is subject;
(vii) There is no litigation, suit, proceeding or
investigation pending or threatened, or any order or
decree outstanding, which is reasonably likely to
have a material adverse effect on the purchase of the
Mortgage Loans, the execution, delivery, performance
or enforceability of this Agreement or the related
Purchase Price and Terms Letter, or which is
reasonably likely to have a material adverse effect
on the financial condition of the Purchaser;
(viii) No consent, approval, authorization or order of 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 and the related Purchase Price and Terms
Letter, except for consents, approvals,
authorizations and orders which have been obtained;
(ix) The consummation of the transactions contemplated by
this Agreement and the related Purchase Price and
Terms Letter are in the ordinary course of business
of the Purchaser;
(x) The Purchaser does not believe, nor does it have any
cause or reason to believe, that it cannot perform
each and every covenant contained in this Agreement
and the related Purchase Price and Terms Letter. The
Purchaser is solvent and the purchase of the Mortgage
Loans will not cause the Purchaser to become
insolvent; and
(xi) The Purchaser 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.
Section 2.08 Closing.
The closing for the purchase and sale of the Mortgage Loans shall
take place on the Closing Date. At the Purchaser's option, the 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.
The closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the
Company under this Agreement shall be true and
correct as of the Closing Date and no event shall
have occurred which, with notice or the passage of
time, would constitute a default under this
Agreement;
(ii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing
Documents as specified in Section 2.09 of this
Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required
pursuant to the respective terms thereof;
(iii) the Company shall have delivered and released to the
Custodian all documents required pursuant to this
Agreement and the Custodial Agreement, and
(iv) all other terms and conditions of this Agreement
shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to
the Company on the Closing Date the Purchase Price set forth in the
Purchase Price and Term Letter by wire transfer of immediately available
funds to the account designated by the Company.
Section 2.09 Closing Documents.
With respect to the Mortgage Loans, the Closing Documents shall
consist of fully executed originals of the following documents:
(i) this Agreement, dated as of the Cut-off Date, in two
counterparts;
(ii) the Custodial Agreement, dated as of the Cut-off
Date, in three counterparts, in the form attached as
Exhibit C to this Agreement;
(iii) the Mortgage Loan Schedule, one copy to be attached
to each counterpart of this Agreement, and to each
counterpart of the Custodial Agreement, as the
Mortgage Loan Schedule thereto;
(iv) a receipt and certification, as required under the
Custodial Agreement;
(v) an officer's certificate of the Seller substantially
in the form of Exhibit F attached hereto; and
(vi) an Opinion of Counsel of the Company, in the form of
Exhibit D hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties.
The Company hereby represents and warrants to the Purchaser that,
as of the Closing Date:
(a) Due Organization and Authority.
The Company is a Delaware corporation duly organized,
validly existing and in good standing under the laws
of the State of Delaware and has all licenses
necessary to carry on its business as now being
conducted and is licensed, qualified and in good
standing in each state where a 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 Company, and in any event the
Company is in compliance with the laws of any such
state to the extent necessary to ensure the
enforceability of the related Mortgage Loan and the
servicing of such Mortgage Loan in accordance with
the terms of this Agreement; the Company has the full
corporate power and authority to execute and deliver
this Agreement and to perform its obligations in
accordance herewith; the execution, delivery and
performance of this Agreement (including all
instruments of transfer to be delivered pursuant to
this Agreement) by the Company and the consummation
of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences
the valid, binding and enforceable obligation of the
Company, 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 in a proceeding in equity or at law; and
all requisite corporate action has been taken by the
Company to make this Agreement valid and binding upon
the Company in accordance with its terms;
(b) Ordinary Course of Business.
The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business
of the Company, which is in the business of selling
and servicing loans, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by
the Company pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No Conflicts.
Neither the execution and delivery of this Agreement,
the acquisition of the Mortgage Loans by the Company,
the sale of the Mortgage Loans to the Purchaser or
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, articles of
incorporation or by-laws or any legal restriction or
any agreement or instrument to which the Company is
now a party or by which it is bound in any material
respect, or constitute a default or result in the
violation of any law, rule, regulation, order,
judgment or decree to which the Company or its
property is subject in any material respect, or
impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage
Loans;
(d) Ability to Service.
The Company is an approved seller/servicer of
residential mortgage loans for FNMA and FHLMC, with
the facilities, procedures, and experienced personnel
necessary for the sound servicing of mortgage loans
of the same type as the Mortgage Loans. The Company
is in good standing to sell mortgage loans to and
service mortgage loans for FNMA and FHLMC, and no
event has occurred, including but not limited to a
change in insurance coverage, which would make the
Company unable to comply with FNMA or FHLMC
eligibility requirements or which would require
notification to FNMA or FHLMC;
(e) Reasonable Servicing Fee.
The Company 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 Company, for
accounting and tax purposes, as compensation for the
servicing and administration of the Mortgage Loans
pursuant to this Agreement;
(f) Ability to Perform.
The Company 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 Company is solvent and the sale of the Mortgage
Loans will not cause the Company to become insolvent.
The sale of the Mortgage Loans is not undertaken to
hinder, delay or defraud any of the Company's
creditors;
(g) No Litigation Pending.
There is no action, suit, proceeding or investigation
pending or threatened against the Company which,
either in any one instance or in the aggregate, will
likely 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 this Agreement or the Mortgage Loans or
of any action taken or to be contemplated herein, or
which would be likely to impair materially the
ability of the Company to perform under the terms of
this Agreement;
(h) No Consent Required.
No consent, approval, authorization or order of any
court or governmental agency or body is required for
the execution, delivery and performance by the
Company of or compliance by the Company with this
Agreement or the sale of the Mortgage Loans as
evidenced by the consummation of the transactions
contemplated by this Agreement, or if required, such
approval has been obtained prior to the Closing Date;
(i) No Untrue Information.
Neither this Agreement nor any report or other
document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of
fact or omits to state a fact necessary to make the
statements contained therein, in light of the
circumstances under which such statements are made,
not misleading;
(j) Sale Treatment.
The Company has determined that the disposition of
the Mortgage Loans pursuant to this Agreement will be
afforded sale treatment for accounting and tax
purposes;
(k) No Material Change.
There has been no material adverse change in the
business, operations, financial condition or assets
of the Company since the date of the Company's
most recent financial statements; and
(l) No Brokers' Fees.
The Company has not dealt with any broker, investment
banker, agent or other Person that may be entitled to
any commission or compensation in the connection with
the sale of the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual Mortgage Loans.
As to each Mortgage Loan, the Company hereby represents and
warrants to the Purchaser that as of the Closing Date (except as set forth
in (i) below):
(i) Mortgage Loans as Described.
The information set forth in the Mortgage Loan
Schedule attached hereto as Exhibit A is true and
correct in all material respects as of January 1,
2002;
(ii) Payment History.
As of the Cut-off Date, no Mortgage Loan shall be
30 days or more contractually delinquent, and no
Mortgage Loan shall have its first Scheduled
Payment due later than February 1, 2002. No
Mortgage Loan has previously been 30 days or more
delinquent more than once;
(iii) No Outstanding Charges.
There are no material defaults by the Company in
complying with the terms of the Mortgage Note or
Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal
charges, leasehold payments, ground rents, or
other charges which previously became due and
owing have been paid, or an escrow of funds has
been established for every such item which remains
unpaid and which has been assessed but is not yet
due and payable;
(iv) Original Terms Unmodified.
The terms of the Mortgage Note and Mortgage have
not been impaired, waived, altered or modified in
any respect, except by a written instrument which
has been recorded, if necessary to maintain the
lien priority of the Mortgage, and which has been
delivered to the Purchaser. The substance of any
such waiver, alteration or modification has been
approved by the mortgage insurer, if the Mortgage
Loan is insured, the title insurer, to the extent
required by the policy, and its terms are
reflected on the Mortgage Loan Schedule. No
Mortgagor has been released, in whole or in part;
(v) No Defenses.
The Mortgage Note, the Mortgage, and any
modifications or other agreements adding thereto
to or modifying the terms thereof, are 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;
(vi) No Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part
(other than by Principal Payments in full which
may have been received prior to the Closing Date),
and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that
would effect any such satisfaction, release,
cancellation, subordination or rescission;
(vii) Validity of Mortgage Documents.
The Mortgage Note, the Mortgage, and other
documents required to be in the Mortgage File,
which are listed as items (1) through (8) in
Exhibit B hereto, are genuine, and each is the
legal, valid and binding obligation of the maker
thereof enforceable in accordance with its terms,
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 parties to the Mortgage Note
and the Mortgage had legal capacity to enter into
the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage
Note and the Mortgage have been duly and properly
executed by such parties;
(viii) No Fraud.
All the documents executed in connection with the
Mortgage Loan including, but not limited to, the
Mortgage Note and the Mortgage are free of fraud
and any misrepresentation, are signed by the
persons they purport to be signed by, and
witnessed or, as appropriate, notarized by the
persons whose signatures appear as witnesses or
notaries, and each such document constitutes the
valid and binding legal obligation of the
signatories and is enforceable in accordance with
its terms; 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.
(ix) 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, equal
credit opportunity or disclosure laws applicable
to the origination, servicing, modification of the
Mortgage Loan have been complied with in all
material respects, and the Company shall maintain
in its possession, available for the Purchaser's
inspection in connection with any litigation,
legal proceedings or threatened legal proceedings,
and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements.
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;
(x) Location and Type of Mortgaged Property.
The Mortgaged Property is located in the state
identified in the Mortgage Loan Schedule and
consists of a single parcel (or more than one
contiguous parcel) of real property with a
detached single family residence erected thereon,
or a two-to four-family dwelling, or an
individual condominium unit in a condominium
project, or an individual unit in a planned unit
development or a townhouse;
(xi) Valid First Lien.
The Mortgage is a valid, subsisting and
enforceable first lien on the Mortgaged Property,
including all buildings 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:
1. the lien of current real property taxes
and assessments not yet due and payable;
2. covenants, conditions and restrictions,
rights of way, easements and other
matters of the public record as of the
date of recording acceptable to mortgage
lending institutions generally and
specifically referred to in the lender's
title insurance policy delivered to the
originator of the Mortgage Loan and (i)
referred to or otherwise considered in
the appraisal made for the originator of
the Mortgage Loan and (ii) which do not
adversely affect the Appraised Value of
the Mortgaged Property set forth in such
appraisal; and
3. 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 and enforceable first
lien on the property described therein and the
Company has full right to sell and assign the same
to the Purchaser;
(xii) Full Disbursement of Proceeds.
The proceeds of the Mortgage Loan have been fully
disbursed, except for escrows established or
created due to seasonal weather conditions, and
there is no requirement for future advances
thereunder. 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;
(xiii) Ownership.
The Company is the sole owner of record and holder
of the Mortgage Loan and the related Mortgage Note
and the Mortgage are not assigned or pledged, and
the Company has good and marketable title thereto
and has full right and authority to transfer and
sell the Mortgage Loan to the Purchaser. The
Company is transferring the Mortgage Loan free and
clear of any and all encumbrances, liens, pledges,
equities, participation interests, claims, charges
or security interests of any nature encumbering
such Mortgage Loan;
(xiv) Origination; Doing Business.
The Mortgage Loan was originated directly by or
closed in the name of a savings and loan
association, a savings bank, a commercial bank, a
credit union, an insurance company, or by a state
licensed mortgage broker or banker or similar
institution which is supervised and examined by a
federal or state authority or a mortgagee approved
by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 or the National
Housing Act. 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 any qualification
requirements of FNMA or FHLMC, and (2) (a)
organized under the laws of such state, or (b)
qualified to do business in such state, or (c)
federal savings and loan associations or national
banks having principal offices in such state, or
(d) not doing business in such state;
(xv) Title Insurance.
The Mortgage Loan is covered by an ALTA lender's
title insurance policy or other generally
acceptable form of policy of insurance acceptable
to FNMA and FHLMC, issued by a title insurer
acceptable to FNMA and FHLMC and qualified to do
business in the jurisdiction where the Mortgaged
Property is located, insuring the Company, its
successors and assigns, as to the first priority
lien of the Mortgage in the original principal
amount of the Mortgage Loan, subject only to the
exceptions contained in clauses (1), (2) and (3)
of paragraph (xi) of this Section 3.02; provided,
however, that in the case of any Mortgage Loan
secured by a Mortgaged Property located in a
jurisdiction where such policies are generally not
available, the Mortgage Loan is the subject of an
opinion of counsel of the type customarily
rendered in such jurisdiction in lieu of title
insurance. The Company is the sole insured of such
lender's title insurance policy, and such lender's
title insurance policy is in full force and effect
and will be in force and effect upon the
consummation of the transactions contemplated by
this Agreement. No claims have been made under
such lender's title insurance policy, and no prior
holder of the Mortgage, including the Company, has
done, by act or omission, anything which would
impair the coverage of such lender's title
insurance policy;
(xvi) No Mechanics' Liens.
There are no mechanics' or similar liens or claims
which have been filed for work, labor or material
(and no rights are outstanding that under the 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 which are not insured
against by the title insurance policy referenced
in Section (xv) above;
(xvii) Location of Improvements; No Encroachments.
Except as insured against by the title insurance
policy referenced in Section (xv) above, 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. As of the date of
origination of each Mortgage Loan, no improvement
located on or being part of the Mortgaged Property
is in violation of any applicable zoning law or
regulation;
(xviii) 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. To the
best of the Company's knowledge, following the
date of origination of the Mortgage Loan, the
Mortgaged Property has not been subject to any
bankruptcy proceeding or foreclosure proceeding
and the Mortgagor has not filed for protection
under applicable bankruptcy laws. 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
right to foreclose the Mortgage;
(xix) Occupancy of the Mortgaged Property.
As of the date of origination, the Mortgaged
Property was lawfully occupied under applicable
law;
(xx) No Additional Collateral.
The Mortgage Note is not and has not been secured
by any collateral, pledged account or other
security except the lien of the corresponding
Mortgage and the security interest of any
applicable security agreement or chattel mortgage
referred to in (xi) above;
(xxi) Deeds of Trust.
In the event that the Mortgage constitutes a deed
of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly
designated and currently so serves and is named in
the Mortgage, and no fees or expenses are or will
become payable by the Mortgagee to the trustee
under the deed of trust, except in connection with
a trustee's sale after default by the Mortgagor;
(xxii) Transfer of Mortgage Loans.
The Assignment is in recordable form and is
acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is
located.
(xxiii) Mortgaged Property Undamaged.
The Mortgaged Property is not materially damaged
by water, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty or
vandalism 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;
(xxiv) Collection Practices; Escrow Deposits.
The origination and collection practices used with
respect to the Mortgage Loan have been in
accordance with Accepted Servicing Practices, and
have been in all material respects legal and
proper, and in accordance with the terms of the
Mortgage Note and Mortgage. All Escrow Payments
have been collected in full compliance with state
and federal law. An escrow of funds is not
prohibited by applicable law and has been
established 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 Company have
been capitalized under the Mortgage Note;
(xxv) No Condemnation.
To the best of Company's knowledge, there is no
proceeding pending or threatened for the total or
partial condemnation of the related Mortgaged
Property;
(xxvi) The Appraisal.
The Mortgage Loan Documents contain an appraisal
of the related Mortgaged Property by an appraiser
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 the appraiser
both satisfy the applicable requirements of FNMA
and FHLMC;
(xxvii) Insurance.
The improvements located on the Mortgaged Property
securing each Mortgage Loan are insured by an
insurer acceptable to FNMA or FHLMC against loss
by fire and such hazards as are covered under a
standard extended coverage endorsement and such
other hazards as are customary in the area where
the Mortgaged Property is located, in an amount
which is not less than the lesser of 100% of the
insurable value of the Mortgaged Property and the
outstanding principal balance of the Mortgage
Loan, but in no event less than the minimum amount
necessary to fully compensate for any damage or
loss on a replacement cost basis, and which
complies with the requirements of Section 4.10
hereof; if the Mortgaged Property is a condominium
unit, it is included under the coverage afforded
by a blanket policy for the project; the insurance
policy contains a standard clause naming the
originator of such mortgage loan, its successor
and assigns, as insured mortgagee; if upon
origination of the Mortgage Loan, the improvements
on the Mortgaged Property were in an area
identified in the Federal Register by the Federal
Emergency Management Agency as having special
flood hazards, a flood insurance policy meeting
the requirements of the current guidelines of the
Federal Insurance Administration is in effect with
a generally acceptable insurance carrier, in an
amount representing coverage not less than the
least of (A) the outstanding principal balance of
the Mortgage Loan, (B) the full insurable value
and (C) the maximum amount of insurance which was
available under the Flood Disaster Protection Act
of 1983, as amended; and the Mortgage obligates
the mortgagor thereunder to maintain all such
insurance at the mortgagor's cost and expense and
the Company has not acted or failed to act so as
to impair the coverage of any such insurance
policy or the validity, binding effect and
enforceability thereof; the Mortgage obligates the
Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and
on the Mortgagor's failure to do so, authorizes
the holder of the Mortgage to maintain such
insurance at Mortgagor's cost and expense and to
seek reimbursement therefor from the Mortgagor;
all such insurance policies contain a standard
mortgagee clause naming the originator of the
Mortgage Loan, its successors, and assigns as
mortgagee;
(xxviii) Soldiers' and Sailors' Civil Relief Act.
The Mortgagor has not notified the Company, and
the Company has no knowledge of any relief
requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940,
as amended;
(xxix) Payment Terms.
The Mortgage Note is payable on the first day of
each month in equal monthly installments of
principal and interest, with interest in arrears,
providing for full amortization by maturity over a
scheduled term of no more than 30 years. No
Mortgage Loan has a shared appreciation or other
contingent interest feature, or permits negative
amortization;
(xxx) No Defaults.
Except with respect to delinquencies identified on
the Mortgage Loan Schedule, there is no default,
breach, violation or event of acceleration
existing under any Mortgage or Mortgage Note and
no event that, with the passage of time or with
notice and the expiration of any grace or cure
period, would constitute a default, breach,
violation or event of acceleration, and the
Company has not waived any default, breach,
violation or event of acceleration;
(xxxi) Loan-to-Value Ratio; Modifications; No
Foreclosures.
The Loan-to-Value Ratio of each Mortgage Loan was
less than 100% at the time of its origination or
refinancing, as applicable. No Mortgage Loan is
subject to a written foreclosure agreement or
pending foreclosure proceedings;
(xxxii) Primary Mortgage Insurance.
Each Mortgage Loan with an LTV at origination in
excess of 80% will be subject to a Primary
Mortgage Insurance Policy, issued by an insurer
acceptable to FNMA or FHLMC, in at least such
amounts as are required by FHLMC or FNMA. All
provisions of such Primary Mortgage Insurance
Policy have been and are being complied with, such
policy is in full force and effect, and all
premiums due thereunder have been paid. Any
Mortgage subject to any such Primary Mortgage
Insurance Policy obligates the Mortgagor
thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith
unless terminable in accordance with FHLMC
standards or applicable law;
(xxxiii) Underwriting Guidelines.
The Mortgage Loan was underwritten in accordance
with the Company's underwriting guidelines in
effect at the time of origination with exceptions
thereto exercised in a reasonable manner; and
(xxxiv) Adverse Selection.
The Company used no adverse selection procedures
in selecting the Mortgage Loan from among the
outstanding first-lien residential mortgage loans
owned by it which were available for inclusion in
the Mortgage Loans.
Section 3.03 Repurchase.
It is understood and agreed that the representations and
warranties set forth in Sections 3.01 and 3.02 shall survive the sale of
the Mortgage Loans to the Purchaser and the delivery of the Mortgage Loan
Documents to the Custodian and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage
Note or Assignment of Mortgage or the examination or failure to examine any
Mortgage File. Upon discovery by either the Company or the Purchaser of a
breach of any of the foregoing representations and warranties which
materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser (or which materially and adversely affects the
interests of Purchaser in the related Mortgage Loan in the case of a
representation and warranty relating to a particular Mortgage Loan), the
party discovering such breach shall give prompt written notice to the
other.
Within 90 days of the earlier of either discovery by or notice to
the Company of any breach of a representation or warranty which materially
and adversely affects the value of the Mortgage Loans, (i) the Company
shall use its best efforts promptly to cure such breach in all material
respects and (ii) if such breach cannot be cured, the Company shall, at the
Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price.
In the event that a breach shall involve any representation or warranty set
forth in Section 3.01, and such breach cannot be cured within 90 days of
the earlier of either discovery by or notice to the Company of such breach,
all of the Mortgage Loans shall, at the Purchaser's option, be repurchased
by the Company at the Repurchase Price. Any repurchase of a Mortgage Loan
or Loans pursuant to the foregoing provisions of this Section 3.03 shall be
accomplished by deposit in the Custodial Account of the amount of the
Repurchase Price as required in Section 4.04, for distribution to Purchaser
on the Remittance Date for the month following the date of the repurchase,
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 for application in accordance with Section 5.01.
At the time of repurchase, the Purchaser and the Company shall
arrange for the reassignment of the repurchased Mortgage Loan to the
Company and the delivery to the Company of any documents held by the
Custodian relating to the repurchased Mortgage Loan. In the event of a
repurchase, the Company shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase has taken place and
amend the Mortgage Loan Schedule to reflect the withdrawal of the
repurchased Mortgage Loan from this Agreement.
In addition to such repurchase obligation, the Company shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other reasonable costs and expenses
(excluding, however, punitive damages, loss of profit damages and exemplary
damages) resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Company's representations
and warranties contained in this Agreement. It is understood and agreed
that the obligations of the Company set forth in this Section 3.03 to cure
or repurchase a defective Mortgage Loan, constitute the sole remedies of
the Purchaser respecting a breach of the foregoing representations and
warranties.
Any cause of action against the Company relating to or arising out
of the breach of any representations and warranties made in Sections 3.01
and 3.02 shall accrue as to any Mortgage Loan upon the earliest of (i)
discovery of such breach by the Company or the Purchaser or notice thereof
by the Purchaser to the Company, (ii) failures by the Company to cure such
breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Company by the Purchaser for compliance with this
Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer.
The Company, as an independent contractor, shall service and
administer the Mortgage Loans and shall have full power and authority,
acting alone or through the utilization of a third party servicing
provider, to do any and all things in connection with such servicing and
administration which the Company may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices.
Consistent with the terms of this Agreement and subject to the
REMIC Provisions if the Mortgage Loans have been transferred to a REMIC,
the Company may waive, modify or vary any term of any Mortgage Loan or
consent to the postponement of compliance with any such term or in any
manner grant indulgence to any Mortgagor if in the Company's reasonable and
prudent determination such waiver, modification, postponement or indulgence
is not materially adverse to the Purchaser. In the event of any such
modification which permits the deferral of interest or principal payments
on any Mortgage Loan, the Company shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such principal or
interest payment has been deferred, deposit in the Custodial Account from
its own funds, in accordance with Section 5.03, the difference between (a)
such month's principal and one month's interest at the Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and
(b) the amount paid by the Mortgagor. The Company shall be entitled to
reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 5.03. Without limiting the generality of
the foregoing, the Company shall continue, and is hereby authorized and
empowered, to execute and deliver on behalf of itself and the Purchaser,
all instruments of satisfaction or cancellation, or of partial or full
release, discharge and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties. If
reasonably required by the Company, the Purchaser shall furnish the Company
with any powers of attorney and other documents necessary or appropriate to
enable the Company to carry out its servicing and administrative duties
under this Agreement.
In servicing and administering the Mortgage Loans, the Company
shall employ procedures (including collection procedures) and exercise the
same care that it customarily employs and exercises in servicing and
administering mortgage loans for its own account, giving due consideration
to Accepted Servicing Practices where such practices do not conflict with
the requirements of this Agreement, and the Purchaser's reliance on the
Company.
Section 4.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due
and payable, or in the event the Mortgagor fails to perform any other
covenant or obligation under the Mortgage Loan and such failure continues
beyond any applicable grace period, the Company shall take such action as
(1) the Company would take under similar circumstances with respect to a
similar mortgage loan held for its own account for investment, (2) shall be
consistent with Accepted Servicing Practices, and (3) the Company shall
determine to be in the best interest of Purchaser. In the event that any
payment due under any Mortgage Loan is not postponed pursuant to Section
4.01 and remains delinquent for a period of 90 days or any other default
continues for a period of 90 days beyond the expiration of any grace or
cure period, the Company shall commence foreclosure proceedings. In the
event the Purchaser objects to such foreclosure action, the Company shall
not be required to make Monthly Advances with respect to such Mortgage
Loan, pursuant to Section 5.03, and the Company's obligation to make such
Monthly Advances shall terminate on the 90th day referred to above. In such
connection, the Company shall from its own funds make all necessary and
proper Servicing Advances; provided, however, that the Company shall not be
required to expend its own funds in connection with any foreclosure or
towards the restoration or preservation of any Mortgaged Property, unless
it shall determine (a) that such preservation, restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan
to Purchaser after reimbursement to itself for such expenses and (b) that
such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from
the Custodial Account pursuant to Section 4.05) or through Insurance
Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Company has reasonable cause to believe that
a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Purchaser otherwise requests an environmental inspection
or review of such Mortgaged Property, such an inspection or review is to be
conducted by a qualified inspector. The cost for such inspection or review
shall be borne by the Purchaser. Upon completion of the inspection or
review, the Company shall promptly provide the Purchaser with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates
that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Purchaser directs the Company to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, the
Company shall be reimbursed for all reasonable costs associated with such
foreclosure or acceptance of a deed in lieu of foreclosure and any related
environmental clean up costs, as applicable, from the related Liquidation
Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.05 hereof. In the
event the Purchaser directs the Company not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all Servicing Advances made with respect to the related
Mortgaged Property from the Custodial Account pursuant to Section 4.05
hereof.
Section 4.03 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, the Company shall proceed
diligently in accordance with this Agreement to collect all payments due
under each of the Mortgage Loans when the same shall become due and payable
in accordance with FHLMC Guidelines, and shall, in accordance with the Real
Estate Settlement Procedures Act and applicable state law, take special
care in ascertaining and estimating Escrow Payments and all other charges
that will become due and payable with respect to the Mortgage Loan and the
Mortgaged Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
Section 4.04 Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
Custodial Accounts, in the form of time deposit or demand accounts, titled
"ABN AMRO Mortgage Group Inc., in trust for the Purchaser of residential
Mortgage Loans serviced under a Seller's Warranties and Servicing
Agreement, dated as of January 1, 2002, and various Mortgagors - P & I", or
as otherwise directed in writing by the Purchaser or its assigns after the
Closing Date in connection with any Whole Loan Transfer or Pass-Through
Transfer. The Custodial Account shall be established with a Qualified
Depository. Upon request of the Purchaser and within ten (10) days thereof,
the Company shall provide the Purchaser with written confirmation of the
existence of such Custodial Account. Any funds deposited in the Custodial
Account shall at all times be insured to the fullest extent allowed by
applicable law. Funds deposited in the Custodial Account may be drawn on by
the Company in accordance with Section 4.05.
The Company shall deposit into the Custodial Account within one
Business Day (or two Business Days in the case of the amounts described in
clauses (iii) through (v) below) of the Company's receipt, and retain
therein, the following collections received by the Company and payments
made by the Company after the Cut-off Date, other than payments of
principal and interest due on or before the Cut-off Date:
(i) all payments on account of principal on the
Mortgage Loans, including all Principal
Prepayments, but not including Payaheads;
(ii) all payments on account of interest on the
Mortgage Loans, adjusted to the Mortgage Loan
Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required
to be deposited pursuant to Section 4.10 (other
than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in
accordance with Section 4.14), Section 4.11 and
Section 4.15;
(v) all Condemnation Proceeds which are not applied to
the restoration or repair of the Mortgaged
Property or released to the Mortgagor in
accordance with Section 4.14;
(vi) any amount required to be deposited in the
Custodial Account pursuant to Section 4.01, 5.01,
5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the
repurchase of any Mortgage Loan pursuant to
Section 2.03, 3.03 or 6.02;
(viii) with respect to each Principal Prepayment
including, for this purpose, the principal portion
of Insurance Proceeds, Condemnation Proceeds, and
Liquidation Proceeds an amount (to be paid by the
Company out of its own funds, but not in excess of
its aggregate Servicing Fee for the related Due
Period) which, when added to all amounts allocable
to interest received in connection with the
Principal Prepayment, equals one month's interest
on the amount of principal so prepaid at the
Mortgage Loan Remittance Rate;
(ix) any amounts required to be deposited by the
Company pursuant to Section 4.11 in connection
with the deductible clause in any blanket hazard
insurance policy; and
(x) any amounts received with respect to or related to
any REO Property and all REO Disposition Proceeds
pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting
the generality of the foregoing, payments in the nature of late payment
charges and assumption fees, to the extent permitted by Section 6.01, need
not be deposited by the Company into the Custodial Account. Any interest
paid on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Company and the Company
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account.
The Company shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Purchaser in the amounts
and in the manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the
Company's funds made pursuant to Section 5.03, the
Company's right to reimburse itself pursuant to
this subclause (ii) being limited to amounts
received on the related Mortgage Loan which
represent late payments of principal and/or
interest respecting which any such advance was
made, it being understood that, in the case of any
such reimbursement, the Company's right thereto
shall be prior to the rights of Purchaser, except
that, where the Company is required to repurchase
a Mortgage Loan pursuant to Section 2.03, 3.03 or
6.02, the Company's right to such reimbursement
shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to such
sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage
Loan;
(iii) to reimburse itself for unreimbursed Servicing
Advances, and for any unpaid Servicing Fees, the
Company's right to reimburse itself pursuant to
this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation
Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be
collected by the Company from the Mortgagor or
otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such
reimbursement, the Company's right thereto shall
be prior to the rights of Purchaser, except that
where the Company is required to repurchase a
Mortgage Loan pursuant to Section 2.03, 3.03 or
6.02, in which case the Company's right to such
reimbursement shall be subsequent to the payment
to the Purchaser of the Repurchase Price pursuant
to such sections and all other amounts required to
be paid to the Purchaser with respect to such
Mortgage Loan;
(iv) to pay itself as servicing compensation any
interest on funds deposited in the Custodial
Account;
(v) to reimburse itself for expenses incurred to the
extent reimbursable pursuant to Section 8.01;
(vi) to pay any amount required to be paid pursuant to
Section 4.16 related to any REO Property, it being
understood that, in the case of any such
expenditure or withdrawal related to a particular
REO Property, the amount of such expenditure or
withdrawal from the Custodial Account shall be
limited to amounts on deposit in the Custodial
Account with respect to the related REO Property;
(vii) to reimburse itself for any Monthly Advances,
Servicing Advances or REO expenses after
liquidation of the Mortgaged Property to the
extent not otherwise reimbursed above;
(viii) to reimburse the trustee for any Pass-Through
Transfer for any unreimbursed Monthly Advances or
Servicing Advances made by the Trustee, as
applicable, the right to reimbursement pursuant to
this subclause (viii) with respect to any Mortgage
Loan being limited to related Liquidation
Proceeds, proceeds of REO Dispositions,
Condemnation Proceeds, Insurance Proceeds and such
other amounts as may be collected by the Company
from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the
case of such reimbursement, such trustee's right
thereto shall be prior to the rights of the
Company to reimbursement under (ii) and (iii), and
prior to the rights of the Purchaser under (i);
(ix) to remove funds inadvertently placed in the
Custodial Account by the Company; and
(x) to clear and terminate the Custodial Account upon
the termination of this Agreement.
In the event that the Custodial Account is interest bearing, on
each Remittance Date, the Company shall withdraw all interest earned on
funds on deposit in the Custodial Account. The Company may use such
withdrawn funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate
and apart from any of its own funds and general assets and shall establish
and maintain one or more Escrow Accounts, in the form of time deposit or
demand accounts, titled, "ABN AMRO Mortgage Group Inc., in trust for the
Purchaser under the Seller's Warranties and Servicing Agreement dated as of
January 1, 2002 and/or subsequent purchasers of Mortgage Loans, and various
Mortgagors - T & I." The Escrow Accounts shall be established with a
Qualified Depository, in a manner which shall provide maximum available
insurance thereunder. Upon request of the Purchaser and within ten (10)
days thereof, the Company shall provide the Purchaser with written
confirmation of the existence of such Escrow Account. Funds deposited in
the Escrow Account may be drawn on by the Company in accordance with
Section 4.07.
The Company shall deposit in the Escrow Account or Accounts within
two (2) Business Days of the Company's receipt, and retain therein:
(i) all Escrow Payments collected on account of the
Mortgage Loans, for the purpose of effecting
timely payment of any such items as required under
the terms of this Agreement;
(ii) all amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to
the restoration or repair of any Mortgaged
Property; and
(iii) all amounts representing proceeds of any Primary
Mortgage Insurance Policy.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than interest on escrowed funds required by law to be paid to the
Mortgagor. To the extent required by law, the Company shall pay interest on
escrowed funds to the Mortgagor notwithstanding that the Escrow Account may
be non-interest bearing or that interest paid thereon is insufficient for
such purposes.
Section 4.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance
premiums, condominium charges, fire and hazard
insurance premiums or other items constituting
Escrow Payments for the related Mortgage;
(ii) to reimburse the Company for any Servicing
Advances made by the Company pursuant to Section
4.08 with respect to a related Mortgage Loan, but
only from amounts received on the related Mortgage
Loan which represent late collections of Escrow
Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be
in excess of the amounts required under the terms
of the related Mortgage Loan;
(iv) for transfer to the Custodial Account and
application to reduce the principal balance of the
Mortgage Loan in accordance with the terms of the
related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the
Mortgaged Property in accordance with the
procedures outlined in Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the
extent required by law, any interest paid on the
funds deposited in the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow
Account by the Company;
(viii) to apply the proceeds of Primary Mortgage
Insurance as if such proceeds were payments on, or
Liquidation Proceeds of, the related Mortgage
Loan, as the case may be; and
(ix) to clear and terminate the Escrow Account on the
termination of this Agreement.
Section 4.08 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien
upon the Mortgaged Property and fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Company in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. The Company assumes full
responsibility for the timely payment of all such bills and shall effect
timely payment of all such charges irrespective of each Mortgagor's
faithful performance in the payment of same of the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect
such payments.
Section 4.09 Protection of Accounts.
The Company may transfer the Custodial Account or the Escrow
Account to a different Qualified Depository from time to time, upon prior
written notice to the Purchaser.
Section 4.10 Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are
insured by an insurer acceptable to FNMA or FHLMC, against loss by fire,
hazards of extended coverage and such other hazards as are customary in the
area where the Mortgaged Property is located, in an amount which is at
least equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that the proceeds thereof shall be sufficient to prevent the Mortgagor or
the loss payee from becoming a co-insurer. In the event a hazard insurance
policy shall be in danger of being terminated, or in the event the insurer
shall cease to be acceptable to FNMA or FHLMC, the Company shall notify the
Purchaser and the related Mortgagor, and shall use its best efforts, as
permitted by applicable law, to obtain from another Qualified Insurer a
replacement hazard insurance policy substantially and materially similar in
all respects to the original policy. In no event, however, shall a Mortgage
Loan be without a hazard insurance policy at any time, subject only to
Section 4.11 hereof.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified by the Flood Emergency
Management Agency as having special flood hazards (and such flood insurance
has been made available) a flood insurance policy meeting the requirements
of the current guidelines of the Federal Insurance Administration is in
effect with a generally acceptable insurance carrier acceptable to FNMA or
FHLMC, in an amount representing coverage equal to the lesser of (i) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of
building insured) and (ii) the maximum amount of insurance which is
available under the Flood Disaster Protection Act of 1983, as amended.
If a Mortgage is secured by a unit in a condominium project, the
Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being
maintained in accordance with then current FNMA/ FHLMC requirements, and
inform the owner's association to notify the Company promptly of any change
in the insurance coverage or of any condemnation or casualty loss that may
have a material effect on the value of the Mortgaged Property as security.
In the event that any Purchaser or the Company shall determine
that the Mortgaged Property should be insured against loss or damage by
hazards and risks not covered by the insurance required to be maintained by
the Mortgagor pursuant to the terms of the Mortgage, the Company shall
communicate and consult with the Mortgagor with respect to the need for
such insurance and bring to the Mortgagor's attention the desirability of
protection of the Mortgaged Property.
All policies required hereunder shall name the Company as loss
payee and shall be endorsed with standard or union mortgagee clauses,
without contribution, which shall provide for at least 30 days prior
written notice of any cancellation, reduction in amount or material change
in coverage.
The Company shall not interfere with the Mortgagor's freedom of
choice in selecting either his/her insurance carrier or agent, provided,
however, that the Company shall not accept any such insurance policies from
insurance companies unless such companies are acceptable to FNMA and FHLMC
and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Company shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property owner,
and that they properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Company
under any such policies (other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to
be released to the Mortgagor, in accordance with the Company's normal
servicing procedures as specified in Section 4.14) shall be deposited in
the Custodial Account subject to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Primary Mortgage Insurance Policy; Claims.
With respect to each Mortgage Loan with a LTV in excess of 80%,
the Company shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a Primary Mortgage Insurance
Policy insuring that portion of the Mortgage Loan in excess of a percentage
in conformance with FHLMC requirements. The Company shall pay or shall
cause the Mortgagor to pay the premium thereon on a timely basis, at least
until the LTV of such Mortgage Loan is reduced to 80%, or such amount as
required by applicable law, or such other amount as FHLMC permits for
cancellation of mortgage insurance. In the event that such Primary Mortgage
Insurance Policy shall be terminated, the Company shall obtain from another
insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated Primary Mortgage Insurance Policy. If
the insurer shall cease to be a qualified insurer, the Company shall
determine whether recoveries under the Primary Mortgage Insurance Policy
are jeopardized for reasons related to the financial condition of such
insurer, it being understood that the Company shall in no event have any
responsibility or liability for any failure to recover under the Primary
Mortgage Insurance Policy for such reason. If the Company determines that
recoveries are so jeopardized, it shall notify the Purchaser and the
Mortgagor, if required, and obtain from another qualified insurer a
replacement insurance policy. The Company shall not take any action which
would result in noncoverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Company would have
been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Subsection 6.01,
the Company shall promptly notify the insurer under the related Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such Primary Mortgage Insurance
Policy and shall take all actions which may be required by such insurer as
a condition to the continuation of coverage under such Primary Mortgage
Insurance Policy. If such Primary Mortgage Insurance Policy is terminated
as a result of such assumption or substitution of liability, the Company
shall obtain a replacement Primary Mortgage Insurance Policy as provided
above.
In connection with its activities as Company, the Company agrees
to prepare and present, on behalf of itself and the Purchaser, claims to
the insurer under any Primary Mortgage Insurance Policy in a timely fashion
in accordance with the terms of such Primary Mortgage Insurance Policy and,
in this regard, to take such action as shall be necessary to permit
recovery under any Primary Mortgage Insurance Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 4.06, any amounts collected by the
Company under any Primary Mortgage Insurance Policy shall be deposited in
the Escrow Account, subject to withdrawal pursuant to Section 4.07.
Section 4.12 Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the amount required pursuant
to Section 4.10 and otherwise complies with all other requirements of
Section 4.10, it shall conclusively be deemed to have satisfied its
obligations as set forth in Section 4.10. The Company shall prepare and
make any claims on the blanket policy as deemed necessary by the Company in
accordance with Accepted Servicing Practices. Any amounts collected by the
Company under any such policy relating to a Mortgage Loan shall be
deposited in the Custodial Account subject to withdrawal pursuant to
Section 4.05. Such policy may contain a deductible clause, in which case,
in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with Section 4.10, and there shall
have been a loss which would have been covered by such policy, the Company
shall deposit in the Custodial Account at the time of such loss the amount
not otherwise payable under the blanket policy because of such deductible
clause, such amount to be deposited from the Company's funds, without
reimbursement therefor. Upon request of any Purchaser, the Company shall
cause to be delivered to such Purchaser a certified true copy of such
policy and a statement from the insurer thereunder that such policy shall
in no event be terminated or materially modified without 30 days' prior
written notice to such Purchaser.
Section 4.13 Maintenance of Fidelity Bond and Errors and Omissions Insurance.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance
Policy, with broad coverage on all officers, employees or other persons
acting in any capacity requiring such persons to handle funds, money,
documents or papers relating to the Mortgage Loans ("Company Employees").
Any such Fidelity Bond and Errors and Omissions Insurance Policy shall be
in the form of the Mortgage Banker's Blanket Bond and shall protect and
insure the Company against losses, including forgery, theft, embezzlement,
fraud, errors and omissions and negligent acts of such Company Employees.
Such Fidelity Bond and Errors and Omissions Insurance Policy also shall
protect and insure the Company against losses in connection with the
release or satisfaction of a Mortgage Loan without having obtained payment
in full of the indebtedness secured thereby. No provision of this Section
4.13 requiring such Fidelity Bond and Errors and Omissions Insurance Policy
shall diminish or relieve the Company from its duties and obligations as
set forth in this Agreement. The minimum coverage under any such bond and
insurance policy shall be at least equal to the amounts acceptable to GNMA.
Upon the request of any Purchaser, the Company shall cause to be delivered
to such Purchaser a certified true copy of such fidelity bond and insurance
policy and a statement from the surety and the insurer that such fidelity
bond and insurance policy shall in no event be terminated or materially
modified without 30 days' prior written notice to the Purchaser.
Section 4.14 Inspections.
If any Mortgage Loan is more than 60 days delinquent, the Company
or its agent immediately shall inspect the Mortgaged Property and shall
conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer.
The Company shall keep a written report of each such inspection for a
reasonable period of time in accordance with its customary file retention
practices.
Section 4.15 Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be applied to the restoration or repair of the Mortgaged Property if
such release is in accordance with Accepted Servicing Practices. For claims
greater than $15,000, at a minimum the Company shall comply with the
following conditions in connection with any such release of Insurance
Proceeds or Condemnation Proceeds:
(i) The Company shall receive satisfactory independent
verification of completion of repairs and issuance
of any required approvals with respect thereto;
(ii) the Company shall take all steps necessary to
preserve the priority of the lien of the Mortgage,
including, but not limited to requiring waivers
with respect to mechanics' and materialmen's
liens;
(iii) the Company shall verify that the Mortgage Loan is
not in default; and
(iv) pending repairs or restoration, the Company shall
place the Insurance Proceeds or Condemnation
Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Company
is hereby empowered to endorse any loss draft issued in respect of such a
claim in the name of the Purchaser.
Section 4.16 Claims.
In connection with its activities as servicer, the Company agrees
to prepare and present, on behalf of itself and the Purchaser, claims to
the insurer in a timely fashion and, in this regard, to take such action as
shall be necessary to permit recovery respecting a defaulted Mortgage Loan.
Pursuant to Section 4.04, any amounts collected by the Company under any
guaranty shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section 4.17 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be taken in the name of the Company or its nominee, or in the
event the Company is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be
adversely affected under the "doing business" or tax laws of such state by
so holding title, or the perfection of the ownership or security interest
of the Purchaser in such REO Property would be adversely effected, the deed
or certificate of sale shall be taken in the name of such Person or Persons
as shall be consistent with an Opinion of Counsel obtained by the Company
from any attorney duly licensed to practice law in the state where the REO
Property is located. The Person or Persons holding such title other than
the Purchaser shall acknowledge in writing that such title is being held as
nominee for the Purchaser.
The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition
and sale. The Company, either itself or through an agent selected by the
Company, shall manage, conserve, protect and operate the REO Property in
the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. The
Company shall attempt to sell the same (and may temporarily rent the same
for a period not greater than one year, except as otherwise provided below)
on such terms and conditions as the Company deems to be in the best
interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless (i)
a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the
Company determines, and gives an appropriate notice to the Purchaser to
such effect, that a longer period is necessary for the orderly liquidation
of such REO Property. If a period longer than one year is permitted under
the foregoing sentence and is necessary to sell any REO Property, (i) the
Company shall report monthly to the Purchaser as to the progress being made
in selling such REO Property and (ii) if, with the written consent of the
Purchaser, a purchase money mortgage is taken in connection with such sale,
such purchase money mortgage shall name the Company as mortgagee, and such
purchase money mortgage shall not be held pursuant to this Agreement, but
instead a separate participation agreement among the Company and Purchaser
shall be entered into with respect to such purchase money mortgage.
The Company shall also maintain on each REO Property fire and
hazard insurance with extended coverage in amount which is at least equal
to the maximum insurable value of the improvements which are a part of such
property, liability insurance and, to the extent required and available
under the Flood Disaster Protection Act of 1983, as amended, flood
insurance in the amount required above.
The disposition of REO Property shall be carried out by the
Company at such price, and upon such terms and conditions, as the Company
deems to be in the best interests of the Purchaser. The proceeds of sale of
the REO Property shall be promptly deposited in the Custodial Account. As
soon as practical thereafter the expenses of such sale shall be paid and
the Company shall reimburse itself for any related unreimbursed Servicing
Advances, unpaid Servicing Fees and unreimbursed advances made pursuant to
Section 5.03. On the Remittance Date immediately following the Principal
Prepayment Period in which such sale proceeds are received the net cash
proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The Company shall withdraw from the Custodial Account funds
necessary for the proper operation management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant
to Section 4.10 and the fees of any managing agent of the Company, or the
Company itself. The Company shall make monthly distributions on each
Remittance Date to the Purchaser of the net cash flow from the REO Property
(which shall equal the revenues from such REO Property net of the expenses
described in the Section 4.16 and of any reserves reasonably required from
time to time to be maintained to satisfy anticipated liabilities for such
expenses).
Section 4.18 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.02,
the Company shall furnish to the Purchaser on or before the Remittance Date
each month a statement with respect to any REO Property covering the
operation of such REO Property for the previous month and the Company's
efforts in connection with the sale of such REO Property and any rental of
such REO Property incidental to the sale thereof for the previous month.
That statement shall be accompanied by such other information as the
Purchaser shall reasonably request.
Section 4.19 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Purchaser pursuant to a deed in lieu of
foreclosure, the Company shall submit to the Purchaser a liquidation report
with respect to such Mortgaged Property.
Section 4.20 Reports of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as
required pursuant to Section 6050J of the Code. The Company shall file
information reports with respect to the receipt of mortgage interest
received in a trade or business and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances.
On each Remittance Date the Company shall remit by wire transfer
of immediately available funds to the Purchaser (a) all amounts deposited
in the Custodial Account as of the close of business on the Determination
Date (net of charges against or withdrawals from the Custodial Account
pursuant to Section 4.05), plus (b) all amounts, if any, which the Company
is obligated to distribute pursuant to Section 5.03, minus (c) any amounts
attributable to Principal Prepayments received after the applicable
Principal Prepayment Period which amounts shall be remitted on the
following Remittance Date, together with any additional interest required
to be deposited in the Custodial Account in connection with such Principal
Prepayment in accordance with Section 4.04(viii); and minus (d) any amounts
attributable to Monthly Payments collected but due on a Due Date or Dates
subsequent to the first day of the month of the Remittance Date.
With respect to any remittance received by the Purchaser after the
date on which such payment was due, the Company shall pay to the Purchaser
interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each charge, plus two percentage points,
but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the
Company on the date such late payment is made and shall cover the period
commencing with the day following such second Business Day and ending with
the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Company of any such interest
shall not be deemed an extension of time for payment or a waiver of any
Event of Default by the Company.
Section 5.02 Statements to Purchaser.
Not later than the Remittance Advice Date, the Company shall
furnish to the Purchaser a Monthly Remittance Advice, including the
information set forth in Exhibit E attached hereto, with a trial balance
report attached thereto, as to the preceding remittance and the period
ending on the last day of the preceding month, in a form to be agreed upon
by the Purchaser and the Company.
Section 5.03 Monthly Advances by Company.
On the Business Day immediately preceding each Remittance Date,
the Company shall deposit in the Custodial Account from its own funds or
from amounts held for future distribution an amount equal to all Monthly
Payments (with interest adjusted to the Mortgage Loan Remittance Rate)
which were due on the Mortgage Loans during the applicable Due Period and
which were delinquent at the close of business on the Determination Date
immediately preceding such Remittance Date or which were deferred pursuant
to Section 4.01. Any amounts held for future distribution and so used shall
be replaced by the Company by deposit into the Custodial Account on or
before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Purchaser required to be
made on such Remittance Date. Notwithstanding the foregoing, the Company
shall not be permitted to make any advances from amounts held for future
distribution, and instead shall be required to make all advances from its
own funds, unless the Company, its parent, or their respective successors
hereunder shall have a long-term credit rating of at least "A" by Fitch,
Inc., or the equivalent rating of another Rating Agency. The Company's
obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of the Mortgage Loan, or through the the last Remittance Date prior to the
Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan or REO Property; provided,
however, that such obligation shall cease if the Company determines, in its
sole reasonable opinion, that advances with respect to such Mortgage Loan
are non-recoverable by the Company from Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, or otherwise with respect to a particular
Mortgage Loan. In the event that the Company determines that any such
advances are non-recoverable, the Company shall provide the Purchaser with
a certificate signed by two officers of the Company evidencing such
determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to
deny assumption not specifically allowed under the terms of the Mortgage
Note by the person to whom the Mortgaged Property has been or is about to
be sold whether by absolute conveyance or by contract of sale, and whether
or not the Mortgagor remains liable on the Mortgage and the Mortgage Note.
When the Mortgaged Property has been conveyed by the Mortgagor, the Company
shall, to the extent it has knowledge of such conveyance, exercise its
rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that the
Company shall not exercise such rights if prohibited by law from doing so.
If the Company reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Company shall enter into (i)
an assumption and modification agreement with the person to whom such
property has been conveyed, pursuant to which such person becomes liable
under the Mortgage Note and the original Mortgagor remains liable thereon
or (ii) in the event the Company is unable under applicable law to require
that the original Mortgagor remain liable under the Mortgage Note and the
Company has the prior consent of the primary mortgage guaranty insurer, a
substitution of liability agreement with the purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from
liability and the purchaser of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. If an assumption fee
is collected by the Company for entering into an assumption agreement the
fee will be retained by the Company as additional servicing compensation.
In connection with any such assumption, neither the Mortgage Interest Rate
borne by the related Mortgage Note, the term of the Mortgage Loan nor the
outstanding principal amount of the Mortgage Loan shall be changed without
Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company
shall inquire diligently into the credit worthiness of the proposed
transferee, and shall use the underwriting criteria for approving the
credit of the proposed transferee which are used with respect to
underwriting mortgage loans of the same type as the Mortgage Loans. If the
credit of the proposed transferee does not meet such underwriting criteria,
the Company diligently shall, to the extent permitted by the Mortgage or
the Mortgage Note and by applicable law, accelerate the maturity of the
Mortgage Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, the Company shall
notify the Purchaser in the Monthly Remittance Advice as provided in
Section 5.02, and may request the release of any Mortgage Loan Documents.
If the Company satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage
or should the Company otherwise prejudice any rights the Purchaser may have
under the mortgage instruments, upon written demand of the Purchaser, the
Company shall repurchase the related Mortgage Loan at the Repurchase Price
by deposit thereof in the Custodial Account within 2 Business Days of
receipt of such demand by the Purchaser. The Company shall maintain the
Fidelity Bond and Errors and Omissions Insurance Policy as provided for in
Section 4.12 insuring the Company against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
Section 6.03 Servicing Compensation.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amount of its Servicing Fee. The
Servicing Fee shall be payable monthly and shall be computed on the basis
of the same unpaid scheduled principal balance and for the period
respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is
limited to, and payable solely from, the interest portion of such Monthly
Payments.
Additional servicing compensation in the form of assumption fees,
to the extent provided in Section 6.01, and late payment charges shall be
retained by the Company to the extent not required to be deposited in the
Custodial Account. The Company shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and
shall not be entitled to reimbursement thereof except as specifically
provided for herein.
Section 6.04 Annual Statement as to Compliance.
Within one hundred twenty (120) days after the Company's fiscal
year end, an Officer's Certificate, stating that (i) a review of the
activities of the Company during the preceding calendar year and of the
Company's performance under this Agreement has been made under such
officer's supervision, and (ii) the Company has complied with the
provisions of this Agreement or similar agreements, and (iii) to the best
of such officer's knowledge, based on such review, the Company has
fulfilled all its obligations under this Agreement or similar agreements
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof and the action being taken by the Company to
cure such default.
Section 6.05 Annual Independent Public Accountants' Servicing Report.
Within one hundred twenty (120) days after the Company's fiscal
year end, the Company at its expense shall cause a firm of independent
public accountants which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Purchaser to the effect
that such firm has, with respect to the Company's overall servicing
operations, examined such operations in accordance with the requirements of
the Uniform Single Attestation Program for Mortgage Bankers, stating such
firm's conclusions relating thereto.
Section 6.06 Right to Examine Company Records.
The Purchaser, or its designee, shall have the right to examine
and audit any and all of the books, records, or other information of the
Company, whether held by the Company or by another on its behalf, with
respect to or concerning this Agreement or the Mortgage Loans, during
business hours or at such other times as may be reasonable under applicable
circumstances, upon reasonable advance notice. The Purchaser shall pay its
own travel expenses associated with such examination.
Section 6.07 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, the Company shall
not take any action, cause the REMIC to take any action or fail to take (or
fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (i) endanger the status of
the REMIC as a REMIC or (ii) result in the imposition of a tax upon the
REMIC (including but not limited to the tax on "prohibited transactions" as
defined Section 860G(a)(2) of the Code and the tax on "contributions" to a
REMIC set forth in Section 860(D) of the Code) unless the Company has
received an Opinion of Counsel (at the expense of the party seeking to take
such action) to the effect that the contemplated action will not endanger
such REMIC status or result in the imposition of any such tax.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01 Provision of Information.
During the term of this Agreement, the Company shall furnish to
the Purchaser such periodic, special, or other reports or information, and
copies or originals of any documents contained in the Servicing File for
each Mortgage Loan provided for herein. All other special reports or
information not provided for herein as shall be necessary, reasonable, or
appropriate with respect to the Purchaser or any regulatory agency will be
provided at the Purchaser's expense. All such reports, documents or
information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give.
The Company shall execute and deliver all such instruments and
take all such action as the Purchaser may reasonably request from time to
time, in order to effectuate the purposes and to carry out the terms of
this Agreement.
Section 7.02 Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser may
make available to a prospective Purchaser a Consolidated Statement of
Operations of the Company (which may be presented as a component of the
audited financial statements of the parent of the Company) for the most
recently completed two fiscal years for which such a statement is
available, as well as a Consolidated Statement of Condition at the end of
the last two fiscal years covered by such Consolidated Statement of
Operations. The Company also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on
behalf of the Company (and are available upon request to members or
stockholders of the Company or to the public at large).
The Company also shall make available to Purchaser or prospective
Purchaser a knowledgeable financial or accounting officer for the purpose
of answering questions respecting recent developments affecting the Company
or the financial statements of the Company, and to permit any prospective
Purchaser to inspect the Company's servicing facilities for the purpose of
satisfying such prospective Purchaser that the Company has the ability to
service the Mortgage Loans as provided in this Agreement.
ARTICLE VIII
THE COMPANY
Section 8.01 Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other reasonable costs, fees and expenses (excluding, however, punitive
damages, loss of profit damages and exemplary damages) that the Purchaser
may sustain in any way related to the failure of the Company to perform its
duties and service the Mortgage Loans in compliance with the terms of this
Agreement. The Company immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Purchaser) the defense of any
such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which
may be entered against it or the Purchaser in respect of such claim. The
Company shall follow any reasonable written instructions received from the
Purchaser in connection with such claim. The Purchaser promptly shall
reimburse the Company for all costs, fees or expenses advanced by it
pursuant to this paragraph except to the extent the claim in any way
results from, relates to or arises out of any liability, obligation, act or
omission of the Company, including without limitation, the Company's
indemnification obligation under Section 3.03 and this Section 8.01, any
repurchase obligation of the Company hereunder including Sections 2.03,
3.03 and 6.02, or the failure of the Company to service and administer the
Mortgage Loans and otherwise perform its obligations hereunder in
compliance with the terms of this Agreement.
Section 8.02 Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and
franchises as a corporation, and shall 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 Company may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation
to which the Company shall be a party, or any Person succeeding to the
business of the Company, shall be the successor of the Company 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 be an institution which is a FNMA/FHLMC-approved company in good
standing. Furthermore, in the event the Company transfers or otherwise
disposes of all or substantially all of its assets to an affiliate of the
Company, such affiliate shall satisfy the condition above, and shall also
be fully liable to the Purchaser for all of the Company's obligations and
liabilities hereunder. Notwithstanding the foregoing, any party to whom the
Company sells or otherwise disposes of all or substantially all of its
property or assets shall become a party to this Agreement.
Section 8.03 Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees
or agents of the Company shall be under any liability to the Purchaser for
any action taken or for refraining from the taking of any action in
accordance with Accepted Servicing Practices and in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Company against any breach of warranties or
representations made herein, or failure to perform its obligations in
compliance with any standard of care set forth in this Agreement or any
other liability which would otherwise be imposed under this Agreement. The
Company and any director, officer, employee or agent of the Company may
rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder. The Company shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties
to service the Mortgage Loans in accordance with this Agreement and which
in its opinion may involve it in any expense or liability; provided,
however, that the Company may, with the consent of the Purchaser, undertake
any such action which it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto. In such event,
the Company shall be entitled to reimbursement from the Purchaser of the
reasonable legal expenses and costs of such action.
Section 8.04 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company,
and subsequent Purchasers will purchase the Mortgage Loans in reliance upon
the independent status of the Company, and the representations as to the
adequacy of its servicing facilities, plant, personnel, records and
procedures, its integrity, reputation and financial standing, and the
continuance thereof. Except for transactions under Section 8.02, the
Company shall neither assign this Agreement or the servicing hereunder, nor
delegate its rights or duties hereunder or any portion thereof without the
prior written consent of the Purchaser, which consent shall not be
unreasonably withheld or delayed.
The Company shall not resign from the obligations and duties
hereby imposed on it except by mutual consent of the Company and the
Purchaser or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Company. Any such determination permitting the resignation of the Company
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Purchaser which Opinion of Counsel shall be in form and substance
acceptable to the Purchaser. No such resignation shall become effective
until a successor shall have assumed the Company's responsibilities and
obligations hereunder in the manner provided in Section 12.01.
Without in any way limiting the generality of this Section 8.04,
in the event that the Company either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or
any portion thereof; or sell or otherwise dispose of all or substantially
all of its property or assets (not including transactions under Section
8.02 hereof), without the prior written consent of the Purchaser, which
shall not be unreasonably withheld, then the Purchaser shall have the right
to terminate this Agreement upon notice given as set forth in Section
10.01, without any payment of any penalty or damages and without any
liability whatsoever to the Company or any third party.
ARTICLE IX
PASS-THROUGH TRANSFER
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Pass-Through Transfer
The Purchaser and the Company agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, may at any
time effect Whole Loan Transfers or Pass-Through Transfers, retaining the
Company as the Servicer thereof or subservicer if a master servicer is
employed, or as applicable the "seller/servicer"; provided, however, that
the Purchaser shall use its reasonable best efforts to give the Company 10
Business Days' prior written notice of each such transfer and, in the event
Purchaser shall for any reason be unable to provide such 10 Business Days'
notice, shall reasonably cooperate with Company in its efforts to minimize
any negative effects of such failure; and, provided, further, that the
Purchaser shall not transfer any or all Mortgage Loans more than five times
in the aggregate unless the Purchaser pays to the Company a fee of 0.0625%
of the outstanding principal balance of the Mortgage Loans being
transferred. From and after the Reconstitution Date, the Mortgage Loans
transferred shall remain covered by this Agreement, insofar as the Company
shall continue to service such Mortgage Loans on behalf of the Purchaser in
accordance with the terms and provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with
each Whole Loan Transfer or Pass-Through Transfer in accordance with this
Article IX. In connection therewith the Company shall:
(a) make all representations and warranties under Section
3.01 hereof as of the Closing Date and under Section 3.02
hereof as of the closing date of each Whole Loan Transfer
or Pass-Through Transfer but not later than May 1, 2002;
(b) negotiate in good faith and execute any seller/servicer
agreements required by the issuer to effectuate the
foregoing provided such agreements create no greater
obligation or cost on the part of the Company than
otherwise set forth in this Agreement;
(c) provide as applicable:
(i) any and all appropriate information and
appropriate verification of information which
may be reasonably available to the Company,
whether through letters of its auditors and
counsel or otherwise, as the Purchaser shall
reasonably request; and
(ii) such additional representations, warranties,
covenants, opinions of counsel, letters from
auditors, financial description of the Company
as servicer as may be reasonably required for
inclusion in any offering memorandum to be
distributed to potential investors in connection
with a Pass-Through Transfer with respect to the
Mortgage Loans, and certificates of public
officials or officers of the Company as are
reasonably believed necessary by the trustee,
any Rating Agency, any credit enhancer or the
mortgage insurance provider, as the case may be,
in connection with such Whole Loan Transfers or
Pass-Through Transfers. The Purchaser shall pay
all third party costs (including all necessary
fees and expenses of external counsel)
associated with the preparation of such
information. The Company shall execute any
seller/servicer agreements required within a
reasonable period of time after receipt of such
seller/servicer agreements which time shall be
sufficient for the Company and Company's counsel
to review such seller/servicer agreements. Under
this Agreement, the Company shall retain a
servicing fee at a rate per annum equal to no
less than 0.375% per Mortgage Loan; and
(d) indemnify the Purchaser for any material misstatements
contained in the information provided pursuant to (c)
above.
In the event the Purchaser has elected to have the Company hold
record title to the Mortgages, prior to the Reconstitution Date and after
the Closing Date the Company shall prepare an Assignment in blank or, at
the option of the Purchaser, to the trustee from the Company (to the extent
such Assignment has not been prepared on or before the Closing Date)
acceptable to the trustee for each Mortgage Loan that is part of the Whole
Loan Transfers or Pass-Through Transfers. The Purchaser shall pay all
preparation and recording costs associated therewith. The Company shall
execute each Assignment, track such Assignments to ensure they have been
recorded and deliver them as required by the trustee upon the Company's
receipt thereof. Additionally, at the Purchaser's expense, the Company
shall prepare and execute, at the direction of the Purchaser, any note
endorsements in connection with any and all seller/servicer agreements.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
Each of the following shall constitute an Event of Default on the
part of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this
Agreement which continues unremedied for a period of
three Business Days after the date upon which written
notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the
Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements
on the part of the Company set forth in this Agreement
which continues unremedied for a period of 30 days after
the date on which written notice of such failure,
requiring the same to be remedied, shall have been given
to the Company by the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do
business in any jurisdiction where the Mortgaged Property
is located if such license is required; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Company and such decree or order
shall have remained in force undischarged or unstayed for
a period of 60 days; or
(v) the Company shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the
Company or of or relating to all or substantially all of
its property; or
(vi) the Company shall admit in writing its inability to pay
its debts generally as they become due, file a petition
to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend
payment of its obligations or cease its normal business
operations for three Business Days; or
(vii) the Company ceases to meet the qualifications of a
FNMA/FHLMC servicer; or
(viii) the Company attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the
servicing responsibilities hereunder or to delegate its
duties hereunder or any portion thereof in violation of
Section 8.04; or
(ix) the taking of any action by the Company, any Company
Employee, any Affiliate or any director or employee
thereof that has been determined by any court,
governmental body or arbitrator having competent
jurisdiction to constitute fraud or criminal activity in
the performance of its obligations under this Agreement
or the indictment of any of the foregoing Persons for
criminal activity related to the mortgage origination or
servicing activities of the Company, in each case, where
such indictment materially and adversely affects the
ability of the Company to perform its obligations under
this Agreement (subject to the condition that such
indictment is not dismissed within 90 days).
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatever rights the Purchaser may
have at law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Company, may
terminate with cause all the rights and obligations of the Company under
this Agreement and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority
and power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.01. Upon written request from any
Purchaser, the Company shall prepare, execute and deliver to the successor
entity designated by the Purchaser any and all documents and other
instruments, place in such successor's possession all Mortgage Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not
limited to the transfer and endorsement or assignment of the Mortgage Loans
and related documents, at the Company's sole expense. The Company shall
cooperate with the Purchaser and such successor in effecting the
termination of the Company's responsibilities and rights hereunder,
including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be
credited by the Company to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans. The Company will
remain entitled to repayment of outstanding Servicing Advances and advances
of Monthly Payments, which shall be reimbursed to it either (i) by the
successor Servicer upon its becoming servicer or (ii) when such advances
would otherwise have been reimbursed from the Mortgage Loans, but on a
"first in/first out" or "FIFO" basis as to each Mortgage Loan between the
Servicer and the successor servicer.
Section 10.02 Waiver of Defaults.
By a written notice, the Purchaser may waive any default by the
Company in the performance of its obligations hereunder and its
consequences. Upon any waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
This Agreement shall terminate upon any of: (i) the later of the
final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or the disposition of any REO Property with respect
to the last Mortgage Loan and the remittance of all funds due hereunder,
(ii) mutual consent of the Company and the Purchaser in writing or (iii)
termination pursuant to Section 10.01, 11.02 or 11.03.
Section 11.02 Termination Without Cause.
Upon at least 30 days' prior written notice, at any time and
without cause, the Purchaser may terminate, at its sole option, any rights
the Company may have hereunder as provided in this Section 11.02 upon
payment to the Company of a termination fee equal to [two and one-half
percent (2.5%)] of the aggregate outstanding principal balance of the
Mortgage Loans as of the date of such termination. Any such notice of
termination shall be in writing and delivered to the Company by registered
mail as provided in Section 12.05.
Section 11.03 Termination With Cause.
Notwithstanding any other provision hereof to the contrary, the
Purchaser, at its option, may terminate this Agreement, and any rights the
Company may have hereunder, with cause upon ten (10) Business Days' prior
written notice. For all purposes of determining "cause" with respect to
termination of this Agreement or the rights of the Company hereunder, such
term shall mean (i) termination upon the occurrence of any Event of Default
hereunder which is not cured within any applicable cure period and not
waived by the Purchaser or (ii) any repeated material failure to comply
with the terms and provisions of this Agreement. In the event of a
termination of the Company for cause under this Section 11.03, no
liquidated damages shall be payable to the Company pursuant to Section
11.02.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company.
Prior to termination of the Company's responsibilities and duties
under this Agreement pursuant to Section 8.04, 10.01 or 11.01, the
Purchaser shall, (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this Agreement, or
(ii) appoint a successor having the characteristics set forth in Section
8.02 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Company under this
Agreement prior to the termination of Company's responsibilities, duties
and liabilities under this Agreement. In connection with such appointment
and assumption, the Purchaser may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree. In the event that the Company's duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Company shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise
under this Agreement, and shall take no action whatsoever that might impair
or prejudice the rights or financial condition of its successor. The
resignation or removal of the Company pursuant to the aforementioned
sections shall not become effective until a successor shall be appointed
pursuant to this Section 12.01 and shall in no event relieve the Company of
the representations and warranties made pursuant to Sections 3.01 and 3.02
and the remedies available to the Purchaser under Sections 2.03, 3.03 and
6.02, it being understood and agreed that the provisions of such Sections
2.03, 3.01, 3.02, 3.03 and 6.01 shall be applicable to the Company
notwithstanding any such sale, assignment, resignation or termination of
the Company, or the termination of this Agreement; provided that the
Company, as servicer, shall not be liable hereunder for any acts or
omissions occurring subsequent to its resignation or removal as servicer
hereunder or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Company and to the Purchaser an instrument
accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 3.01, except for the
portion of subsection (h) relating to sale of the mortgage loans and all of
subsections (j) and (l) thereof, whereupon such successor shall become
fully vested with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Company, with like effect as if
originally named as a party to this Agreement; provided, however, that the
Company shall retain its right to reimbursement for any unreimbursed
Advances made by it prior to its resignation or removal to the same extent
that the Company was entitled to reimbursement prior to such removal or
resignation. Any termination or resignation of the Company or termination
of this Agreement pursuant to Section 8.04, 10.01, 11.01, 11.02 or 11.03
shall not affect any claims that any Purchaser may have against the Company
arising out of the Company's actions or failure to act prior to any such
termination or resignation.
The Company shall deliver promptly to the successor servicer the
funds in the Custodial Account and Escrow Account and all Mortgage Files
and related documents and statements held by it hereunder and the Company
shall account for all funds and shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company
shall notify by mail the Purchaser of such appointment in accordance with
the procedures set forth in Section 12.05.
Section 12.02 Amendment.
This Agreement may be amended from time to time by the Company by
written agreement signed by the Company and the Purchaser.
Section 12.03 Governing Law.
This 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 such laws.
EACH OF THE COMPANY AND THE PURCHASER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY OTHER DOCUMENTS AND
INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE
COMPANY OR THE PURCHASER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
PURCHASER TO ENTER INTO THIS AGREEMENT.
Section 12.04 Duration of Agreement.
This Agreement shall continue in existence and effect until
terminated as herein provided. This Agreement shall continue
notwithstanding transfers of the Mortgage Loans by the Purchaser.
Section 12.05 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, certified mail, postage prepaid, addressed
as follows:
(i) if to the Company:
ABN AMRO MORTGAGE GROUP INC.
0000 Xxxx Xxx Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy:
With a copy to:
Legal Department
Xxxxxx X. Xxxxx
or such other address as may hereafter be furnished to
the Purchaser in writing by the Company;
(ii) if to Purchaser:
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished to
the Company in writing by the Purchaser.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever,
then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement.
Section 12.07 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
the Company shall be rendered as an independent contractor and not as agent
for the Purchaser.
Section 12.08 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when
so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same agreement. Subject to Section
8.04, this Agreement shall inure to the benefit of and be binding upon, and
shall be enforceable by, the Company and the Purchaser and their respective
successors and assigns, including without limitation, any trustee appointed
by the Purchaser with respect to any Whole Loan Transfer or Pass-Through
Transfer.
Section 12.09 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 other comparable jurisdictions
in which any or all of the Mortgaged Properties are situated, and in any
other appropriate public recording office or elsewhere, which recordation
shall have been effected at the Company's expense in the event recordation
is either necessary under applicable law or requested by the Purchaser at
its sole option. The Company shall not be responsible for any erroneous
recording which results from misleading directions from the Purchaser.
Section 12.10 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Company but subject to the limit set forth in Section 2.02 hereof, to
assign, in whole or in part, its interest under this Agreement with respect
to some or all of the Mortgage Loans, and designate any person to exercise
any rights of the Purchaser hereunder, by executing an Assignment and
Assumption Agreement substantially in the form of Exhibit F hereto and the
assignee or designee shall accede to the rights and obligations hereunder
of the Purchaser with respect to such Mortgage Loans. All references to the
Purchaser in this Agreement shall be deemed to include its assignee or
designee, subject to Section 9.01.
Section 12.11 Solicitation of Mortgagor.
From and after the Closing Date, neither the Company nor the
Purchaser shall take any action to solicit the refinancing of any Mortgage
Loan or provide information to any other entity to solicit the refinancing
of any Mortgage Loan; provided that, the foregoing shall not preclude the
Company, the Purchaser or any of their affiliates from (a) engaging in
general solicitations to its customer base (provided, that the Mortgagors
under the Mortgage Loan shall not be deemed included in the "customer base"
of the Purchaser or its affiliates solely by virtue of being included in
this transaction), including by mass mailing or as part of monthly or
periodic statements mailed to its borrowers or to holders of deposit or
other accounts, (b) engaging in solicitations to the general public,
including without limitation by mass mailing, newspaper, radio, television
or other media which are not specifically directed toward the Mortgagors or
(c) refinancing the Mortgage Loan of any Mortgagor who, without
solicitation, contacts the Company or the Purchaser to request the
refinancing of the related Mortgage Loan.
IN WITNESS WHEREOF, the Company and the Purchaser have caused
their names to be signed hereto by their respective duly authorized
officers as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Sachs Real Estate
Funding Corp., its General Partner
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
ABN AMRO MORTGAGE GROUP INC,
As seller and servicer
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X Xxxxxxx
Title: First Vice President
ABN AMRO Mortgage Group, Inc.
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 29th day of January, 2002 before me, a Notary Public in and
for said State, personally appeared Xxxxx Xxxx, known to me to be the Vice
President of Xxxxxxx Sachs Real Estate Funding Corp., the general partner
of Xxxxxxx Xxxxx Mortgage Company, the partnership that executed the within
instrument and also known to me to be the person who executed it on behalf
of said partnership, and acknowledged to me that such corporation executed
the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
/s/ Onyx S. Wellington
-------------------------------------
Notary Public
My Commission expires April 10, 0000
XXXXX XX XXXXXXX )
) ss:
COUNTY OF PALM BEACH )
On the 29th day of January, 2002 before me, a Notary Public in and
for said State, personally appeared Xxxxxx X. Xxxxxxx, known to me to be
the First Vice President of ABN AMRO Mortgage Group Inc., the corporation
that executed the within instrument, who acknowledged to me to be the
person who executed the within instrument on behalf of said corporation on
January 29, 2002.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Notary Public
My Commission expires June 12, 2005
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Loan Number FNAME LNAME Address City State Zip
----------- ---------- ------------- ------------------------ ---------------- ----- ------
612872343 XXXX XXXX 000 XXXX XX XXX Xxxxxxx XX 00000
615689622 XXXXX XXXXXXXX 0000 X XXXXXXXX Xxxxxxx XX 00000
616025062 XXXXX XXXXXX 000 00XX XX Xxxxx Xxxxxx XX 00000
616309964 XXXXXXXXX XXXXXXXXX-XXX 00 XXXXXXX XX XXXXXX XXXXX XX 00000
616517169 XXXXXXXXX XXXXX 0000 XXXXXXXXXX XXX Xxx Xxxx XX 00000
616673001 XXXXXXX XXXXXXX 0000 XXXXXX XXX Xxxxxxxxx Xxxxx XX 00000
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Loan Number County Balance Pmt Date Int Rate P+I Date Type FRCDT Chg Date
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619056384 Cook 600000 1/1/02 5.75 3501.44 12/1/31 5/1 ARM 12/1/06 1/1/07
619064395 Montgomery 344000 1/1/02 6 2062.45 12/1/31 5/1 ARM 12/1/06 1/1/07
619066649 335700 1/1/02 5.875 1985.79 12/1/31 5/1 ARM 12/1/06 1/1/07
619069130 Santa Clara 504000 1/1/02 6.125 3062.36 12/1/31 5/1 ARM 12/1/06 1/1/07
619071338 Los Angeles 592500 1/1/02 6.125 3600.09 12/1/31 5/1 ARM 12/1/06 1/1/07
619075172 San Mateo 670000 1/1/02 6 4016.99 12/1/31 5/1 ARM 12/1/06 1/1/07
619076333 Oakland 627000 1/1/02 6 3759.18 12/1/31 5/1 ARM 12/1/06 1/1/07
619077094 Tarrant 999950 1/1/02 6 5995.21 12/1/31 5/1 ARM 12/1/06 1/1/07
619078426 San Mateo 636000 1/1/02 6 3813.14 12/1/31 5/1 ARM 12/1/06 1/1/07
619095644 Travis 337600 1/1/02 5.5 1916.86 12/1/31 5/1 ARM 12/1/06 1/1/07
619113873 OAKLAND 519000 1/1/02 6.125 3153.5 12/1/31 5/1 ARM 12/1/06 1/1/07
619116444 El Dorado 363750 1/1/02 6 2180.87 12/1/31 5/1 ARM 12/1/06 1/1/07
619118787 Santa Clara 345000 1/1/02 6.125 2096.26 12/1/31 5/1 ARM 12/1/06 1/1/07
619121065 Hamilton 380000 1/1/02 6.25 2339.73 12/1/31 5/1 ARM 12/1/06 1/1/07
619126903 Alameda 405600 1/1/02 6.125 2464.47 12/1/31 5/1 ARM 12/1/06 1/1/07
619130179 San Mateo 538000 1/1/02 6 3225.58 12/1/31 5/1 ARM 12/1/06 1/1/07
619140080 Fairfield 600000 1/1/02 6.125 3645.66 12/1/31 5/1 ARM 12/1/06 1/1/07
619140160 Fairfield 401250 1/1/02 6.125 2438.04 12/1/31 5/1 ARM 12/1/06 1/1/07
619146100 Los Angeles 599250 1/1/02 5.75 3497.06 12/1/31 5/1 ARM 12/1/06 1/1/07
619149682 San Diego 360000 1/1/02 6.125 2187.4 12/1/31 5/1 ARM 12/1/06 1/1/07
619156717 San Francisco 410000 1/1/02 6.25 2524.44 12/1/31 5/1 ARM 12/1/06 1/1/07
619168016 Maricopa 622500 1/1/02 5.875 3682.32 12/1/31 5/1 ARM 12/1/06 1/1/07
619171077 Santa Cruz 340000 1/1/02 5 1825.19 12/1/31 5/1 ARM 12/1/06 1/1/07
619187144 Orange 328000 1/1/02 6 1966.53 12/1/31 5/1 ARM 12/1/06 1/1/07
619195224 375000 1/1/02 6 2248.31 12/1/31 5/1 ARM 12/1/06 1/1/07
619200221 Los Angeles 576800 1/1/02 6.125 3504.7 12/1/31 5/1 ARM 12/1/06 1/1/07
619203894 Los Angeles 468000 1/1/02 6.25 2881.56 12/1/31 5/1 ARM 12/1/06 1/1/07
619210859 Orange 609750 1/1/02 6.25 3754.34 12/1/31 5/1 ARM 12/1/06 1/1/07
619213453 Orange 707900 1/1/02 6 4244.22 12/1/31 5/1 ARM 12/1/06 1/1/07
619222487 Alameda 494500 1/1/02 6 2964.78 12/1/31 5/1 ARM 12/1/06 1/1/07
619254351 Orange 463900 1/1/02 6 2781.31 12/1/31 5/1 ARM 12/1/06 1/1/07
619255443 El Dorado 550000 1/1/02 6 3297.53 12/1/31 5/1 ARM 12/1/06 1/1/07
619271955 Alameda 375000 1/1/02 6.25 2308.94 12/1/31 5/1 ARM 12/1/06 1/1/07
619274048 Santa Clara 825000 1/1/02 6 4946.29 12/1/31 5/1 ARM 12/1/06 1/1/07
619274527 Santa Clara 650000 1/1/02 6.25 4002.16 12/1/31 5/1 ARM 12/1/06 1/1/07
619294393 Hamilton 475000 1/1/02 5.75 2771.97 12/1/31 5/1 ARM 12/1/06 1/1/07
619298104 COOK 650000 1/1/02 6 3897.08 12/1/31 5/1 ARM 12/1/06 1/1/07
619302439 Cook 650000 1/1/02 6 3897.08 12/1/31 5/1 ARM 12/1/06 1/1/07
619303599 Tarrant 630000 1/1/02 5.75 3676.51 12/1/31 5/1 ARM 12/1/06 1/1/07
619311021 Santa Clara 873000 2/1/02 6 5234.08 1/1/32 5/1 ARM 1/1/07 2/1/07
619311349 Lake 486000 1/1/02 5.75 2836.16 12/1/31 5/1 ARM 12/1/06 1/1/07
619316981 DuPage 356000 1/1/02 6 2134.4 12/1/31 5/1 ARM 12/1/06 1/1/07
619329190 Santa Clara 482000 1/1/02 6 2889.83 12/1/31 5/1 ARM 12/1/06 1/1/07
619337292 Montgomery 457000 1/1/02 6 2739.95 12/1/31 5/1 ARM 12/1/06 1/1/07
619356979 Orange 332000 1/1/02 5.875 1963.91 12/1/31 5/1 ARM 12/1/06 1/1/07
619364274 Santa Clara 562000 1/1/02 5.75 3279.68 12/1/31 5/1 ARM 12/1/06 1/1/07
619365630 Montgomery 350000 1/1/02 6 2098.43 12/1/31 5/1 ARM 12/1/06 1/1/07
619371171 Los Angeles 800000 1/1/02 5.625 4605.25 12/1/31 5/1 ARM 12/1/06 1/1/07
619376611 Fulton 485000 1/1/02 5.625 2791.93 12/1/31 5/1 ARM 12/1/06 1/1/07
619385008 San Diego 478600 1/1/02 6 2869.45 12/1/31 5/1 ARM 12/1/06 1/1/07
619385199 Los Angeles 585000 1/1/02 6 3507.37 12/1/31 5/1 ARM 12/1/06 1/1/07
619396977 Montgomery 372000 2/1/02 6 2230.33 1/1/32 5/1 ARM 1/1/07 2/1/07
619417233 Hamilton 648000 1/1/02 5.75 3781.55 12/1/31 5/1 ARM 12/1/06 1/1/07
619440301 Santa Clara 600000 1/1/02 6 3597.3 12/1/31 5/1 ARM 12/1/06 1/1/07
619441869 Fairfield 510000 1/1/02 6.25 3140.16 12/1/31 5/1 ARM 12/1/06 1/1/07
619469258 728000 1/1/02 5.75 4248.41 12/1/31 5/1 ARM 12/1/06 1/1/07
619475860 Santa Clara 463000 1/1/02 6 2775.92 12/1/31 5/1 ARM 12/1/06 1/1/07
619479192 Santa Clara 475000 1/1/02 6.25 2924.66 12/1/31 5/1 ARM 12/1/06 1/1/07
619484598 Fairfax 305000 1/1/02 6.125 1853.21 12/1/31 5/1 ARM 12/1/06 1/1/07
619498015 Mecklenburg 400000 1/1/02 6.25 2462.87 12/1/31 5/1 ARM 12/1/06 1/1/07
619498981 460000 2/1/02 6.25 2832.3 1/1/32 5/1 ARM 1/1/07 2/1/07
619524687 Santa Clara 410000 1/1/02 6.25 2524.44 12/1/31 5/1 ARM 12/1/06 1/1/07
619524858 Santa Clara 485000 1/1/02 6.125 2946.91 12/1/31 5/1 ARM 12/1/06 1/1/07
619539980 Santa Cruz 368000 2/1/02 6 2206.35 1/1/32 5/1 ARM 1/1/07 2/1/07
619548366 Alameda 645000 1/1/02 5.5 3662.24 12/1/31 5/1 ARM 12/1/06 1/1/07
619552682 Los Angeles 620000 1/1/02 6.25 3817.45 12/1/31 5/1 ARM 12/1/06 1/1/07
619558245 Pinellas 378000 1/1/02 6 2266.3 12/1/31 5/1 ARM 12/1/06 1/1/07
619633612 SOUTH ORANGE 380000 1/1/02 6 2278.29 12/1/31 5/1 ARM 12/1/06 1/1/07
619661888 Maricopa 574800 1/1/02 5.75 3354.38 12/1/31 5/1 ARM 12/1/06 1/1/07
619742943 Santa Clara 384000 1/1/02 6 2302.27 12/1/31 5/1 ARM 12/1/06 1/1/07
619751978 Los Angeles 408000 1/1/02 5.875 2413.47 12/1/31 5/1 ARM 12/1/06 1/1/07
619752899 360000 1/1/02 6.25 2216.58 12/1/31 5/1 ARM 12/1/06 1/1/07
619763153 ORANGE 406250 1/1/02 6.75 2634.93 12/1/31 5/1 ARM 12/1/06 1/1/07
619835683 Santa Clara 576800 2/1/02 6.5 3645.77 1/1/32 5/1 ARM 1/1/07 2/1/07
First Rate Periodic
Loan Number Margin Adj Cap Rate Cap Lifetime Cap Index Lookback Frequency ROUNDING
----------- ------ ------- -------- ------------ ----- -------- --------- --------
612872343 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
615689622 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616025062 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616309964 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616517169 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616673001 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616689624 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616775925 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616977031 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616980639 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
616997320 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617184410 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617186991 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617267432 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617433228 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617453757 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617515875 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617564808 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617589497 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617707105 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617734302 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617886909 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617891713 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617892348 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617906823 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617907027 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617912455 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617914311 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617917154 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617922765 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617925405 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617925973 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617926202 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617927851 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617930446 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617932949 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617933461 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617933520 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617947398 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617948220 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617959428 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617963026 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617964016 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617965723 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617972243 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617972378 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617973790 2.75 2 5 2 5 1 Year CMT 45 Days annual 0.125
617974381 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617977168 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617990041 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
617991053 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618009395 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618016942 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618020232 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618023020 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618028753 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618029139 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618050422 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618064326 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618064792 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618079891 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618105256 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618107123 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618112825 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618115657 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618126785 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618130304 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618134331 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618142080 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618145539 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618151936 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618158864 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618164349 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618181157 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618184628 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618185583 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618188962 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618189213 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618193856 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618198840 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618199965 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618212531 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618214043 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618214054 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618214167 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618243128 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618258503 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618261121 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618264932 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618277506 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618285005 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618295336 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618295531 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618298636 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618300151 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618301799 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618305555 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618316308 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618335799 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618339839 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618340217 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618345860 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618363157 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618364784 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618371453 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618372294 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618374285 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618389614 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618390309 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618402837 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618415239 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618417549 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618421475 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618429623 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618436724 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618437509 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618439705 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618450368 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618454124 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618464488 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618469702 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618475573 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618482366 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618483813 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618489693 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618494020 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618505421 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618524572 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618544213 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618551894 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618553705 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618555284 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618559585 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618564310 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618564673 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618581424 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618591039 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618593235 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618593850 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618614092 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618614888 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618624857 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618627246 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618633346 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618639774 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618640298 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618641186 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618641621 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618645705 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618648207 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618649652 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618650816 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618650883 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618657971 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618663387 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618663651 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618676008 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618676360 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618679114 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618695012 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618699540 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618713081 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618720400 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618725746 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618730219 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618732585 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618743269 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618747515 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618748015 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618748377 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618768236 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618773288 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618774132 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618775883 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618782289 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618784748 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618787627 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618787729 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618790724 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618790746 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618791736 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618794318 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618814492 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618816290 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618819113 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618821889 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618828498 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618829956 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618830174 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618830312 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618837796 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618861343 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618863027 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618877067 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618882532 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618900306 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618904344 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618905915 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618917292 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618917715 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618918681 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618918772 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618920231 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618924827 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618929365 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618946970 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618950410 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618950922 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618962755 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618963552 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618966748 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618967237 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618986662 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
618988879 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619001344 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619003084 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619005042 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619025796 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619026138 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619028276 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619028447 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619035801 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619036221 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619046882 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619056384 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619064395 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619066649 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619069130 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619071338 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619075172 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619076333 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619077094 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619078426 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619095644 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619113873 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619116444 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619118787 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619121065 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619126903 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619130179 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619140080 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619140160 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619146100 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619149682 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619156717 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619168016 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619171077 2.75 2 5 2 5 1 Year CMT 45 Days annual 0.125
619187144 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619195224 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619200221 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619203894 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619210859 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619213453 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619222487 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619254351 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619255443 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619271955 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619274048 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619274527 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619294393 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619298104 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619302439 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619303599 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619311021 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619311349 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619316981 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619329190 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619337292 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619356979 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619364274 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619365630 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619371171 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619376611 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619385008 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619385199 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619396977 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619417233 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619440301 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619441869 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619469258 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619475860 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619479192 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619484598 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619498015 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619498981 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619524687 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619524858 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619539980 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619548366 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619552682 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619558245 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619633612 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619661888 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619742943 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619751978 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619752899 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619763153 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
619835683 2.75 2 2 5 1 Year CMT 45 Days annual 0.125
Loan Number ROUNDLIT Negam Max Rate Min Rate 185 CONVERT Modify (Y/N) 197
----------- -------- ----- -------- -------- --- ------ ------------ ---
612872343 Nearest NO 10 2.75 3.00 NO N
615689622 Nearest NO 11.5 2.75 4.5 NO N
616025062 Nearest NO 11 2.75 4.0 NO N
616309964 Nearest NO 11.25 2.75 4.25 NO N
616517169 Nearest NO 12 2.75 5.0 NO N
616673001 Nearest NO 11.25 2.75 4.25 NO N
616689624 Nearest NO 11 2.75 4.0 NO N
616775925 Nearest NO 11.25 2.75 4.25 NO N
616977031 Nearest NO 11.75 2.75 4.75 NO N
616980639 Nearest NO 11.375 2.75 2.00 NO N
616997320 Nearest NO 11.5 2.75 4.5 NO N
617184410 Nearest NO 11.25 2.75 4.25 NO N
617186991 Nearest NO 10.625 2.75 3.625 NO N
617267432 Nearest NO 11.125 2.75 4.13 NO N
617433228 Nearest NO 11.5 2.75 4.5 NO N
617453757 Nearest NO 10.5 2.75 3.50 NO N
617515875 Nearest NO 11.375 2.75 4.375 NO N
617564808 Nearest NO 11.25 2.75 4.25 NO N
617589497 Nearest NO 11.125 2.75 4.125 NO N
617707105 Nearest NO 11.125 2.75 4.125 NO N
617734302 Nearest NO 11 2.75 4.00 NO N
617886909 Nearest NO 11.25 2.75 4.25 NO N
617891713 Nearest NO 11.375 2.75 4.375 NO N
617892348 Nearest NO 11.375 2.75 4.375 NO N
617906823 Nearest NO 11.25 2.75 4.25 NO N
617907027 Nearest NO 11.375 2.75 4.375 NO N
617912455 Nearest NO 11.25 2.75 4.25 NO N
617914311 Nearest NO 11.25 2.75 4.25 NO N
617917154 Nearest NO 11.25 2.75 4.25 NO N
617922765 Nearest NO 11.25 2.75 4.25 NO N
617925405 Nearest NO 11.25 2.75 4.25 NO N
617925973 Nearest NO 11.25 2.75 4.25 NO N
617926202 Nearest NO 11.25 2.75 4.25 NO N
617927851 Nearest NO 11.25 2.75 4.25 NO N
617930446 Nearest NO 11.25 2.75 4.25 NO N
617932949 Nearest NO 11.25 2.75 4.25 NO N
617933461 Nearest NO 11.25 2.75 4.25 NO N
617933520 Nearest NO 11.25 2.75 4.25 NO N
617947398 Nearest NO 11.125 2.75 4.125 NO N
617948220 Nearest NO 11.25 2.75 4.25 NO N
617959428 Nearest NO 11.25 2.75 4.25 NO N
617963026 Nearest NO 10.75 2.75 3.75 NO N
617964016 Nearest NO 11.25 2.75 4.25 NO N
617965723 Nearest NO 11.25 2.75 4.25 NO N
617972243 Nearest NO 11.25 2.75 4.25 NO N
617972378 Nearest NO 11.25 2.75 4.25 NO N
617973790 Nearest NO 11.25 2.75 NO N
617974381 Nearest NO 11.25 2.75 4.25 NO N
617977168 Nearest NO 11.25 2.75 4.25 NO N
617990041 Nearest NO 11 2.75 4.0 NO N
617991053 Nearest NO 11.25 2.75 4.25 NO N
618009395 Nearest NO 11.25 2.75 4.25 NO N
618016942 Nearest NO 11.125 2.75 4.125 NO N
618020232 Nearest NO 11.25 2.75 4.25 NO N
618023020 Nearest NO 11.25 2.75 4.25 NO N
618028753 Nearest NO 11.25 2.75 4.25 NO N
618029139 Nearest NO 11.25 2.75 4.25 NO N
618050422 Nearest NO 11.25 2.75 4.25 NO N
618064326 Nearest NO 11.25 2.75 4.25 NO N
618064792 Nearest NO 11.375 2.75 4.375 NO N
618079891 Nearest NO 11.25 2.75 4.25 NO N
618105256 Nearest NO 11.125 2.75 4.13 NO N
618107123 Nearest NO 11 2.75 4.0 NO N
618112825 Nearest NO 11.25 2.75 4.25 NO N
618115657 Nearest NO 11.25 2.75 4.25 NO N
618126785 Nearest NO 11.25 2.75 4.25 NO N
618130304 Nearest NO 11.25 2.75 4.25 NO N
618134331 Nearest NO 11.25 2.75 4.25 NO N
618142080 Nearest NO 11.25 2.75 4.25 NO N
618145539 Nearest NO 11.125 2.75 4.125 NO N
618151936 Nearest NO 11.375 2.75 4.375 NO
618158864 Nearest NO 11.25 2.75 4.25 NO N
618164349 Nearest NO 11.25 2.75 4.25 NO N
618181157 Nearest NO 11 2.75 4.0 NO N
618184628 Nearest NO 11.25 2.75 4.25 NO N
618185583 Nearest NO 11.375 2.75 4.375 NO N
618188962 Nearest NO 11.25 2.75 4.25 NO N
618189213 Nearest NO 11.125 2.75 4.125 NO N
618193856 Nearest NO 11.25 2.75 4.25 NO N
618198840 Nearest NO 11.25 2.75 4.25 NO N
618199965 Nearest NO 10.5 2.75 3.50 NO N
618212531 Nearest NO 11.25 2.75 4.25 NO N
618214043 Nearest NO 11 2.75 4.0 NO N
618214054 Nearest NO 11 2.75 4.00 NO N
618214167 Nearest NO 11.25 2.75 4.25 NO N
618243128 Nearest NO 11.25 2.75 4.25 NO N
618258503 Nearest NO 11.5 2.75 4.50 NO N
618261121 Nearest NO 11.25 2.75 4.25 NO N
618264932 Nearest NO 11.25 2.75 4.25 NO N
618277506 Nearest NO 11.25 2.75 4.25 NO N
618285005 Nearest NO 11.25 2.75 4.25 NO N
618295336 Nearest NO 11.25 2.75 4.375 NO N
618295531 Nearest NO 11.375 2.75 4.375 NO N
618298636 Nearest NO 11.5 2.75 4.50 NO N
618300151 Nearest NO 11.5 2.75 4.50 NO N
618301799 Nearest NO 11.125 2.75 4.125 NO N
618305555 Nearest NO 11.25 2.75 4.25 NO N
618316308 Nearest NO 11.25 2.75 4.25 NO N
618335799 Nearest NO 11 2.75 4.00 NO N
618339839 Nearest NO 11.125 2.75 4.125 NO N
618340217 Nearest NO 11.25 2.75 4.25 NO N
618345860 Nearest NO 11.25 2.75 4.25 NO N
618363157 Nearest NO 11.125 2.75 4.125 NO N
618364784 Nearest NO 11.5 2.75 4.50 NO N
618371453 Nearest NO 10.75 2.75 3.75 NO N
618372294 Nearest NO 11.125 2.75 4.125 NO N
618374285 Nearest NO 10.75 2.75 3.75 NO N
618389614 Nearest NO 11.25 2.75 4.25 NO N
618390309 Nearest NO 11.5 2.75 4.50 NO N
618402837 Nearest NO 11.125 2.75 4.125 NO N
618415239 Nearest NO 11.25 2.75 4.25 NO N
618417549 Nearest NO 11.25 2.75 4.25 NO N
618421475 Nearest NO 11.375 2.75 4.375 NO N
618429623 Nearest NO 11 2.75 4.00 NO N
618436724 Nearest NO 11.5 2.75 4.50 NO N
618437509 Nearest NO 11.25 2.75 4.25 NO N
618439705 Nearest NO 11.25 2.75 4.25 NO N
618450368 Nearest NO 11.125 2.75 4.125 NO N
618454124 Nearest NO 10.5 2.75 3.50 NO N
618464488 Nearest NO 11.375 2.75 4.375 NO N
618469702 Nearest NO 11 2.75 4.00 NO N
618475573 Nearest NO 11.125 2.75 4.125 NO N
618482366 Nearest NO 11 2.75 4.00 NO N
618483813 Nearest NO 11.25 2.75 4.25 NO N
618489693 Nearest NO 11.125 2.75 4.125 NO N
618494020 Nearest NO 11.375 2.75 4.375 NO N
618505421 Nearest NO 10.75 2.75 3.75 NO N
618524572 Nearest NO 11.25 2.75 4.25 NO N
618544213 Nearest NO 11.25 2.75 4.25 NO N
618551894 Nearest NO 11.25 2.75 4.25 NO N
618553705 Nearest NO 11.375 2.75 4.375 NO N
618555284 Nearest NO 11 2.75 4.00 NO N
618559585 Nearest NO 11.5 2.75 4.50 NO N
618564310 Nearest NO 11.5 2.75 4.50 NO N
618564673 Nearest NO 11.5 2.75 4.50 NO N
618581424 Nearest NO 11.375 2.75 4.375 NO N
618591039 Nearest NO 11 2.75 4.00 NO N
618593235 Nearest NO 11 2.75 4.00 NO N
618593850 Nearest NO 11.25 2.75 4.25 NO N
618614092 Nearest NO 11.125 2.75 4.125 NO N
618614888 Nearest NO 11.5 2.75 4.50 NO N
618624857 Nearest NO 11.25 2.75 4.25 NO N
618627246 Nearest NO 11.5 2.75 4.50 NO N
618633346 Nearest NO 11.125 2.75 4.125 NO N
618639774 Nearest NO 11 2.75 4.00 NO N
618640298 Nearest NO 11.25 2.75 4.25 NO N
618641186 Nearest NO 11.125 2.75 4.125 NO N
618641621 Nearest NO 11.25 2.75 4.25 NO N
618645705 Nearest NO 11.25 2.75 4.25 NO N
618648207 Nearest NO 11.25 2.75 4.25 NO N
618649652 Nearest NO 11 2.75 4.00 NO N
618650816 Nearest NO 11.125 2.75 4.125 NO N
618650883 Nearest NO 10.875 2.75 3.875 NO N
618657971 Nearest NO 11.25 2.75 4.25 NO N
618663387 Nearest NO 11 2.75 4.00 NO N
618663651 Nearest NO 11.25 2.75 4.25 NO N
618676008 Nearest NO 11 2.75 4.00 NO N
618676360 Nearest NO 11.25 2.75 4.25 NO N
618679114 Nearest NO 10.75 2.75 3.75 NO N
618695012 Nearest NO 11.25 2.75 4.25 NO N
618699540 Nearest NO 11 2.75 4.00 NO N
618713081 Nearest NO 11 2.75 4.00 NO N
618720400 Nearest NO 11.25 2.75 4.25 NO N
618725746 Nearest NO 11.25 2.75 4.25 NO N
618730219 Nearest NO 11.125 2.75 4.125 NO N
618732585 Nearest NO 11.5 2.75 4.50 NO N
618743269 Nearest NO 10.75 2.75 3.75 NO N
618747515 Nearest NO 11.25 2.75 4.25 NO N
618748015 Nearest NO 11.125 2.75 4.125 NO N
618748377 Nearest NO 11 2.75 4.00 NO N
618768236 Nearest NO 11.25 2.75 4.25 NO N
618773288 Nearest NO 10.875 2.75 3.875 NO N
618774132 Nearest NO 11.25 2.75 4.25 NO N
618775883 Nearest NO 11.25 2.75 4.25 NO N
618782289 Nearest NO 11.25 2.75 4.25 NO N
618784748 Nearest NO 11.25 2.75 4.25 NO N
618787627 Nearest NO 11 2.75 4.00 NO N
618787729 Nearest NO 10.75 2.75 3.75 NO N
618790724 Nearest NO 11.25 2.75 4.25 NO N
618790746 Nearest NO 11.25 2.75 4.25 NO N
618791736 Nearest NO 11.25 2.75 4.25 NO N
618794318 Nearest NO 11.25 2.75 4.25 NO N
618814492 Nearest NO 11.25 2.75 4.25 NO N
618816290 Nearest NO 10.5 2.75 3.50 NO N
618819113 Nearest NO 11 2.75 4.00 NO N
618821889 Nearest NO 11.25 2.75 4.25 NO N
618828498 Nearest NO 11.25 2.75 4.25 NO N
618829956 Nearest NO 11.125 2.75 4.125 NO N
618830174 Nearest NO 11.25 2.75 4.25 NO N
618830312 Nearest NO 11 2.75 4.00 NO N
618837796 Nearest NO 11.25 2.75 4.25 NO N
618861343 Nearest NO 11.25 2.75 4.25 NO N
618863027 Nearest NO 11.25 2.75 4.25 NO N
618877067 Nearest NO 11.25 2.75 4.25 NO N
618882532 Nearest NO 11.125 2.75 4.125 NO N
618900306 Nearest NO 11.25 2.75 4.25 NO N
618904344 Nearest NO 11.25 2.75 4.25 NO N
618905915 Nearest NO 11.125 2.75 4.125 NO N
618917292 Nearest NO 11.125 2.75 4.125 NO N
618917715 Nearest NO 10.875 2.75 3.875 NO N
618918681 Nearest NO 11.25 2.75 4.25 NO N
618918772 Nearest NO 11.25 2.75 4.25 NO N
618920231 Nearest NO 11.25 2.75 4.25 NO N
618924827 Nearest NO 11 2.75 4.00 NO N
618929365 Nearest NO 11.125 2.75 4.125 NO N
618946970 Nearest NO 11 2.75 4.00 NO N
618950410 Nearest NO 11.25 2.75 4.25 NO N
618950922 Nearest NO 11.25 2.75 4.25 NO N
618962755 Nearest NO 11.25 2.75 4.25 NO N
618963552 Nearest NO 11.25 2.75 4.25 NO N
618966748 Nearest NO 11 2.75 4.00 NO N
618967237 Nearest NO 11 2.75 4.00 NO N
618986662 Nearest NO 11.125 2.75 4.125 NO N
618988879 Nearest NO 11.25 2.75 4.25 NO N
619001344 Nearest NO 11 2.75 4.00 NO N
619003084 Nearest NO 11.25 2.75 4.25 NO N
619005042 Nearest NO 11.125 2.75 4.125 NO N
619025796 Nearest NO 10.75 2.75 3.75 NO N
619026138 Nearest NO 11.125 2.75 4.125 NO N
619028276 Nearest NO 10.5 2.75 3.50 NO N
619028447 Nearest NO 11 2.75 4.00 NO N
619035801 Nearest NO 11.125 2.75 4.125 NO N
619036221 Nearest NO 11.125 2.75 4.125 NO N
619046882 Nearest NO 11 2.75 4.00 NO N
619056384 Nearest NO 10.75 2.75 3.75 NO
619064395 Nearest NO 11 2.75 4.00 NO N
619066649 Nearest NO 10.875 2.75 3.875 NO N
619069130 Nearest NO 11.125 2.75 4.125 NO N
619071338 Nearest NO 11.125 2.75 4.125 NO N
619075172 Nearest NO 11 2.75 4.00 NO N
619076333 Nearest NO 11 2.75 4.00 NO N
619077094 Nearest NO 11 2.75 4.00 NO N
619078426 Nearest NO 11 2.75 4.00 NO N
619095644 Nearest NO 10.5 2.75 3.50 NO N
619113873 Nearest NO 11.125 2.75 4.125 NO N
619116444 Nearest NO 11 2.75 4.00 NO N
619118787 Nearest NO 11.125 2.75 4.125 NO N
619121065 Nearest NO 11.25 2.75 4.25 NO N
619126903 Nearest NO 11.125 2.75 4.125 NO N
619130179 Nearest NO 11 2.75 4.00 NO N
619140080 Nearest NO 11.125 2.75 4.125 NO N
619140160 Nearest NO 11.125 2.75 4.125 NO N
619146100 Nearest NO 10.75 2.75 3.75 NO N
619149682 Nearest NO 11.125 2.75 4.125 NO N
619156717 Nearest NO 11.25 2.75 4.25 NO N
619168016 Nearest NO 10.875 2.75 NO N
619171077 Nearest NO 10 2.75 3.00 NO N
619187144 Nearest NO 11 2.75 4.00 NO N
619195224 Nearest NO 11 2.75 4.00 NO N
619200221 Nearest NO 11.125 2.75 4.125 NO N
619203894 Nearest NO 11.25 2.75 4.25 NO N
619210859 Nearest NO 11.25 2.75 4.25 NO N
619213453 Nearest NO 11 2.75 4.00 NO N
619222487 Nearest NO 11 2.75 4.00 NO N
619254351 Nearest NO 11 2.75 4.00 NO N
619255443 Nearest NO 11 2.75 4.00 NO N
619271955 Nearest NO 11.25 2.75 4.25 NO N
619274048 Nearest NO 11 2.75 4.00 NO N
619274527 Nearest NO 11.25 2.75 4.25 NO N
619294393 Nearest NO 10.75 2.75 3.75 NO N
619298104 Nearest NO 11 2.75 4.00 NO N
619302439 Nearest NO 11 2.75 4.00 NO N
619303599 Nearest NO 10.75 2.75 3.75 NO N
619311021 Nearest NO 11 2.75 4.00 NO N
619311349 Nearest NO 10.75 2.75 3.75 NO N
619316981 Nearest NO 11 2.75 4.00 NO N
619329190 Nearest NO 11 2.75 4.00 NO N
619337292 Nearest NO 11 2.75 4.00 NO N
619356979 Nearest NO 10.875 2.75 3.875 NO N
619364274 Nearest NO 10.75 2.75 3.75 NO N
619365630 Nearest NO 11 2.75 4.00 NO N
619371171 Nearest NO 10.625 2.75 3.625 NO N
619376611 Nearest NO 10.625 2.75 3.625 NO N
619385008 Nearest NO 11 2.75 4.00 NO N
619385199 Nearest NO 11 2.75 4.00 NO N
619396977 Nearest NO 11 2.75 4.00 NO N
619417233 Nearest NO 10.75 2.75 3.75 NO N
619440301 Nearest NO 11 2.75 4.00 NO N
619441869 Nearest NO 11.25 2.75 4.25 NO N
619469258 Nearest NO 10.75 2.75 3.75 NO N
619475860 Nearest NO 11 2.75 4.00 NO N
619479192 Nearest NO 11.25 2.75 6.25 NO N
619484598 Nearest NO 11.125 2.75 4.125 NO N
619498015 Nearest NO 11.25 2.75 4.25 NO N
619498981 Nearest NO 11.25 2.75 4.25 NO N
619524687 Nearest NO 11.25 2.75 4.25 NO N
619524858 Nearest NO 11.125 2.75 4.125 NO N
619539980 Nearest NO 11 2.75 4.00 NO N
619548366 Nearest NO 10.5 2.75 3.50 NO N
619552682 Nearest NO 11.25 2.75 4.25 NO N
619558245 Nearest NO 11 2.75 4.00 NO N
619633612 Nearest NO 11 2.75 4.00 NO N
619661888 Nearest NO 10.75 2.75 3.75 NO N
619742943 Nearest NO 11 2.75 4.00 NO N
619751978 Nearest NO 10.875 2.75 3.875 NO N
619752899 Nearest NO 11.25 2.75 4.25 NO N
619763153 Nearest NO 11.75 2.75 4.75 NO N
619835683 Nearest NO 11.5 2.75 4.50 NO N
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, which shall be available for
inspection by the Purchaser and any prospective Purchaser, and which shall
be retained by the Company in the Servicing File or delivered to the
Custodian pursuant to Sections 2.01 and 2.03 of the Seller's Warranties and
the Servicing Agreement to which this Exhibit is attached (the
"Agreement"):
1. The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of
______________, without recourse" and signed in the name
of the Company by an authorized officer (in the event
that the Mortgage Loan was acquired by the Company in a
merger, the signature must be in the following form:
"[Company], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan
was acquired or originated by the Company while doing
business under another name, the signature must be in the
following form: "[Company], formerly know as [previous
name]").
2. The original of any personal endorsement, surety and/or
guaranty agreement executed in connection with the
Mortgage Note, if any.
3. The original Mortgage, with evidence of recording thereon
or a certified true and correct copy of the Mortgage sent
for recordation. If in connection with any Mortgage Loan,
the Company cannot deliver or cause to be delivered 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 Company shall deliver
or cause to be delivered to the Custodian, a photocopy of
such Mortgage, together with (i) in the case of a delay
caused by the public recording office, an Officer's
Certificate of the Company stating that such Mortgage has
been dispatched to the appropriate public recording
office for recordation and that the original recorded
Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of
the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Company; or
(ii) in the case of a Mortgage where a public recording
office retains the original recorded Mortgage or in the
case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage
certified by such public recording office or by the title
insurance company that issued the title policy to be a
true and complete copy of the original recorded Mortgage.
4. The originals or certified true copies of all assumption,
modification, consolidation or extension agreements, with
evidence of recording noted thereon if recordation is
required to maintain the lien of the mortgage or is
otherwise required, or, if recordation is not so
required, an original or copy of any such assumption,
modification, consolidation or extension agreements.
5. The original Assignment of Mortgage for each Mortgage
Loan, in form and substance acceptable for recording,
from the Company to "______________" or as otherwise
directed by the Purchaser. If the Mortgage Loan was
acquired by the Company in a merger, the Assignment of
Mortgage must be made by "[Company], successor by merger
to [name of predecessor]." If the Mortgage Loan was
acquired or originated by the Company while doing
business under another name, the Assignment of Mortgage
must be by "[Company], formerly know as [previous name]."
Subject to the foregoing and where permitted under the
applicable laws of the jurisdiction wherein the Mortgaged
property is located, such Assignments of Mortgage may be
made by blanket assignments for Mortgage Loans secured by
the Mortgaged Properties located in the same county.
6. Originals or certified true copies of all intervening
assignments of the Mortgage necessary to show a complete
chain of title from the original mortgagee to the Seller,
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 Company shall deliver or
cause to be delivered to the Custodian, a photocopy of
such intervening assignment, together with (i) in the
case of a delay caused by the public recording office, an
Officer's Certificate of the Company stating that such
intervening assignment of mortgage has been dispatched to
the appropriate public recording office for recordation
and that such original recorded intervening assignment of
mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording
office or by the title insurance company that issued the
title policy to be a true and complete copy of the
original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt
thereof by the Company; or (ii) in the case of an
intervening assignment where a public recording office
retains the original recorded intervening assignment or
in the case where an intervening assignment is lost after
recordation in a public recording office, a copy of such
intervening assignment certified by such public recording
office to be a true and complete copy of the original
recorded intervening assignment; provided, that such
intervening assignments may be in the form of blanket
assignments, a copy of which, with evidence of recording
noted thereon, shall be acceptable.
7. The original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title
(accompanied by an abstract of title), as the case may
be, with respect to each Mortgage Loan.
8. Any security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items to the extent in the possession of the Company or in
the possession of the Company's agent(s):
9. Verification of Mortgage Insurance.
10. The original hazard insurance policy and, if required by
law, flood insurance policy, in accordance with Section
4.10 of the Agreement.
11. Residential loan application.
12. Mortgage Loan closing statement.
13. Verification of employment and income, unless originated
under the Company's Limited Documentation program, FNMA
Timesaver Plus.
14. Verification of acceptable evidence of source and amount
of down payment.
15. Credit report on the Mortgagor, if available.
16. Residential appraisal report.
17. Photograph of the Mortgaged Property.
18. Survey of the Mortgaged Property, if required by the
title company or applicable law.
19. Copy of each instrument necessary to complete
identification of any exception set forth in the
exception schedule in the title policy, i.e. map or plat,
restrictions, easements, sewer agreements, home
association declarations, etc.
20. All required disclosure statements.
21. If available, termite report, structural engineer's
report, water potability and septic certification.
22. Sales contract, if applicable.
23. Evidence of payment of taxes and insurance premiums,
insurance claim files, correspondence, current and
historical computerized data files, and all other
processing, underwriting and closing papers and records
which are customarily contained in a mortgage loan file
and which are required to document the Mortgage Loan or
to service the Mortgage Loan.
24. Amortization schedule, if available.
25. Original power of attorney, if applicable.
In the event an Officer's Certificate of the Company is delivered
to the Custodian because of a delay caused by the public recording office
in returning any recorded document, the Company shall deliver to the
Custodian, within 240 days of the 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. The
Company shall be required to deliver to the Custodian the applicable
recorded document by the date specified in (iv) above. An extension of the
date specified in (iv) above may be requested from the Purchaser, which
consent shall not be unreasonably withheld.
EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
See Attached
EXHIBIT D
FORM OF OPINION OF COUNSEL
See Attached
EXHIBIT E
ITEMS TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
INVESTOR REPORTS
Monthly Cutoffs:
Scheduled Remittance:
P139 Trial Balance by Investor
T62A Loan Activity Report
T62C Monthly Accounting Report
T62D Reconciliation of Principal and Calculation of Minimum Cash
Required
T62E Liquidation Report
S50Y Private Pool Detail Report
S21H Participant Summary of Curtailments Made Remittance Report
S21J Participant Summary of Paid In Full Remittance Report
S21K Participant Consolidation of Remittance Report
DEFAULT REPORTS
Delinquents:
Loan Number
Borrower Name
Address
Due Date
Unpaid Principal Balance
Escrow Advance
Corporate Advance
Comments
Foreclosure:
Loan Number
Borrower Name
Address
Unpaid Principal Balance
Default Code Description
Escrow Advance
Corporate Advance
FC/Stop
Status
Part A Filing Date
Part B Filing Date
Indicator
Step Code Description
Actual Date
REO Start Date
Comments
Bankruptcy:
Loan Number
Loan Type (PMI / No PMI)
MI Coverage Amount
Borrower Name
Address
Unpaid Principal Balance
Default Code Description
Escrow Advance
Corporate Advance
Chapter
Filing Date
Confirm Hearing Date
Post Petition Due Date
Motion For Relief Filed Date
Motion For Relief Hearing Date
Motion For Relief Denied Date
Motion For Relief Followup Date
Dismissal Date
Discharge Date
Comments
EXHIBIT F
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made
this _____ day of __________________, 200_, among ABN AMRO Mortgage Group
Inc., a ________________________ (the "Servicer"), ______________________ a
______________________ (the "Assignee"), and _____________________________,
a _______________________ (the "Assignor).
WHEREAS, Goldman Sachs Mortgage Company and the Servicer
have entered into a certain Seller's Warranties and Servicing Agreement
dated as of January 1, 2002 (the "Servicing Agreement"), pursuant to which
the Servicer sold certain mortgage loans listed on the mortgage loan
schedule attached as an exhibit to the Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and
conditions to purchase from the Assignor certain mortgage loans (the
"Mortgage Loans"), which Mortgage Loans are subject to the provisions of
the Servicing Agreement and are listed on the mortgage loan schedule
attached as Exhibit 1 hereto (the "Mortgage Loan Schedule");
WHEREAS, pursuant to a Trust Agreement, dated as of
[______ __], 200__ (the "Trust Agreement"), between GS Mortgage Securities
Corp., as Depositor, and [______], as Trustee (the "Trustee"), the Assignee
will transfer the Mortgage Loans to the Trustee, together with the
Assignee's rights in the [Sale and Servicing Agreement];
NOW THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee
all of its right, title and interest in and to the Mortgage Loans and the
Servicing Agreement, to the extent relating to the Mortgage Loans (other
than the rights of the Assignor to indemnification thereunder), and the
Assignee hereby assumes all of the Assignor's obligations under the
Servicing Agreement, to the extent relating to the Mortgage Loans from and
after the date hereof, and the Servicer hereby acknowledges such assignment
and assumption and hereby agrees to the release of the Assignor from any
obligations under the Servicing Agreement from and after the date hereof,
to the extent relating to the Mortgage Loans. Notwithstanding the
foregoing, it is understood that the Assignor is not released from
liability for any breaches of the representations and warranties made in
Section 3.06 of the Servicing Agreement, and the Assignee is not
undertaking any such liability hereunder.
(b) The Assignor represents and warrants to the
Assignee that the Assignor has not taken any action which would serve to
impair or encumber the Assignor's ownership interest in the Mortgage Loans
since the date of the Servicing Agreement.
(c) The Servicer and the Assignor shall have the
right to amend, modify or terminate the Servicing Agreement without the
joinder of the Assignee with respect to mortgage loans not conveyed to the
Assignee hereunder, provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to
the Assignee that (i) attached hereto as Exhibit 2 is a true, accurate and
complete copy of the Servicing Agreement, (ii) the Servicing Agreement is
in full force and effect as of the date hereof, (iii) the Servicing
Agreement has not been amended or modified in any respect and (iv) no
notice of termination has been given to the Servicer under the Servicing
Agreement.
3. Recognition of Purchaser.
From and after the date hereof, the Servicer shall note
the transfer of the Mortgage Loans to the Assignee in its books and
records, shall recognize the Assignee as the owner of the Mortgage Loans
and shall service the Mortgage Loans for the benefit of the Assignee
pursuant to the Servicing Agreement, the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and
Assignee that the Servicing Agreement shall be binding upon and inure to
the benefit of the Servicer and the Assignee and their successors and
assigns.
4. Representations and Warranties.
(a) Decision to Purchase. The Assignee
represents and warrants that it is a sophisticated investor able to
evaluate the risks and merits of the transactions contemplated hereby, and
that it has not relied in connection therewith upon any statements or
representations of the Assignor or the Servicer other than those contained
in the Servicing Agreement or this Assignment Agreement.
(b) Authority. The Assignee hereto represents
and warrants that it is duly and legally authorized to enter into this
Assignment Agreement and to perform its obligations hereunder and under the
Servicing Agreement.
(c) Enforceability. The Assignee hereto
represents and warrants that this Assignment Agreement has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto)
constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The
Assignor hereby represents and warrants to the Assignee as follows:
(a) The Assignor has been duly organized and is
validly existing as a _____________ in good standing under the laws of the
State of New York with full power and authority (corporate and other) to
enter into and perform its obligations under the Servicing Agreement and
this Assignment Agreement.
(b) This Assignment Agreement has been duly
executed and delivered by the Assignor, and, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a
legal, valid, and binding agreement of the Assignor, enforceable against it
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law.
(c) The execution, delivery and performance by
the Assignor of this Assignment Agreement and the consummation of the
transactions contemplated hereby do not require the consent or approval of,
the giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental authority or
agency, except such as has been obtained, given, effected or taken prior to
the date thereof.
(d) The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate
action on the part of the Assignor; neither the execution and delivery by
the Assignor of this Assignment Agreement, nor the consummation by the
Assignor of the transactions herein contemplated, nor compliance by the
Assignor with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of the
governing documents of the Assignor or any law, governmental rule or
regulation or any material judgment, decree or order binding on the
Assignor or any of its properties, or any of the provisions of any material
indenture, mortgage, deed of trust, contract or other instrument to which
the Assignor is a party or by which it is bound.
(e) There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Assignment
Agreement or (B) with respect to any other matter that in the judgment of
the Assignor will be determined adversely to the Assignor and will if
determined adversely to the Assignor materially adversely affect its
ability to perform its obligations under this Assignment Agreement.
(f) Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(g) The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded any Mortgage, and the
Assignor has not released any Mortgaged Property from the lien of any
Mortgage, in whole or in part, nor has the Assignor executed an instrument
that would effect any such release, cancellation, subordination, or
rescission. The Assignor has not released any Mortgagor, in whole or in
part, except in connection with an assumption agreement or other agreement
approved by the related Federal Insurer, to the extent such approval was
required.
It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive delivery of the
respective Mortgage Files to the Custodian and shall inure to the benefit
of the Assignee and its assigns notwithstanding any restrictive or
qualified endorsement or assignment. Upon the discovery by the Assignor or
the Assignee and its assigns of a breach of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other parties to this Assignment Agreement, and in no event
later than two (2) Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Assignor set forth in
Section 6 to repurchase a Mortgage Loan constitute the sole remedies
available to the Assignee and its assigns on their behalf respecting a
breach of the representations and warranties contained in this Section 5.
It is further understood and agreed that the Assignor shall be deemed not
to have made the representations and warranties in this Section 5 with
respect to, and to the extent of, representations and warranties made, as
to the matters covered in this Section 5, by the Servicer in the Servicing
Agreement (or any officer's certificate delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 5, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
6. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of
any representation, warranty, or covenant under this Assignment Agreement
that materially and adversely affects the value of any Mortgage Loan or the
interest of the Assignee therein (it being understood that any such defect
or breach shall be deemed to have materially and adversely affected the
value of the related Mortgage Loan or the interest of the Assignee therein
if the Assignee incurs a loss as a result of such defect or breach), the
Assignee promptly shall request that the Assignor cure such breach and, if
the Assignor does not cure such breach in all material respects within 60
days from the date on which it is notified of the breach (such date the
"Defect Discovery Date"), the Assignee may enforce the Assignor's
obligation hereunder to purchase such Mortgage Loan from the Assignee.
Notwithstanding the foregoing, however, if such breach is a Qualification
Defect, such cure or repurchase must take place within 75 days of the
Defect Discovery Date.
In the event the Servicer has breached a representation
or warranty under the Servicing Agreement that is substantially identical
to a representation or warranty breached by the Assignor hereunder, the
Assignee shall first proceed against the Servicer. If the Servicer does not
within 60 days after notification of the breach, take steps to cure such
breach (which may include certifying to progress made and requesting an
extension of the time to cure such breach, as permitted under the Servicing
Agreement) or purchase, or substitute for the Mortgage Loan, the Trustee
shall be entitled to enforce the obligations of the Assignor hereunder to
cure such breach or to purchase the Mortgage Loan from the Trust. In such
event, the Assignor shall succeed to the rights of the Assignee to enforce
the obligations of the Servicer to cure such breach or repurchase such
Mortgage Loan under the terms of the related Servicing Agreement with
respect to such Mortgage Loan.
Except as specifically set forth herein, the Assignee
shall have no responsibility to enforce any provision of this Assignment
Agreement, to oversee compliance hereof, or to take notice of any breach or
default thereof.
7. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement
shall remain in full force and effect in accordance with its terms.
8. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS).
9. Notices.
Any notices or other communications permitted or required
hereunder or under the Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed
by registered mail, postage prepaid, and return receipt requested or
transmitted by telex, telegraph or telecopier and confirmed by a similar
mailed writing, to: (i) in the case of the Servicer,
[______________________, _____________________] or such address as may
hereafter be furnished by the Servicer; (ii) in the case of the Assignee,
_________________, _________________, Attention: ________________________,
or such other address as may hereafter be furnished by the Assignee, and
(iii) in the case of the Assignor, __________________, Attention:
_________________, or such other address as may hereafter be furnished by
the Assignor.
10. Counterparts.
This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same instrument.
11. Definitions.
Any capitalized term used but not defined in this
Assignment Agreement has the same meaning as in the Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
ASSIGNEE:
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
ASSIGNOR:
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
Acknowledged by:
SERVICER:
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
EXHIBIT G
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, ______________________, hereby certify that I am a
duly elected [Vice President] of _____________________________, a
corporation organized under the laws of the State of _________ (the
"Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and
complete copy of the Articles of Incorporation of the Company which is in
full force and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and
complete copy of the by-laws of the Company which are in effect on the date
hereof.
3. The execution and delivery by the Company of the
Seller's Warranties and Servicing Agreement, dated as of January 1, 2002
(the "Sale and Servicing Agreement") and the Custodial Agreement , dated as
of January 1, 2002 (the "Custodial Agreement" and, together with the Sale
and Servicing Agreement, the "Agreements") are in the ordinary course of
business of the Company and no special resolutions or consents of the board
of directors of the Company are required in connection therewith.
4. Each person who, as an officer or representative of
the Company, signed (a) the Sale and Servicing Agreement, or (b) any other
document delivered prior hereto or on the date hereof in connection with
any transaction described in the Agreements was, at the respective times of
such signing and delivery 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 3, and the signatures of such persons
appearing on such documents are their genuine signatures.
No proceedings for dissolution, merger, consolidation,
liquidation, conservatorship or receivership of the Company or for the sale
of all or substantially all of its assets is pending, or to my knowledge
threatened, and no such proceeding is contemplated by the Company.
IN WITNESS WHEREOF, I have hereunto signed my name and
affixed the seal of the Company.
Dated: By:
---------------------------
Title: Vice President
I, ______________ the Secretary of __________________,
hereby certify that ____________________ is a duly elected and acting Vice
President of the Company and that the signature appearing above is his
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
-----------------------
Title: Secretary
