Exhibit 99.9b
EXECUTION COPY
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FOURTH AMENDED AND RESTATED MORTGAGE LOAN PURCHASE
AND WARRANTIES AGREEMENT
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XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
MORTGAGEIT, INC.,
Seller
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Dated as of March 1, 2006
Conventional,
Fixed and Adjustable Rate
Residential Mortgage Loans
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................1
SECTION 2. AGREEMENT TO PURCHASE...........................................15
SECTION 3. MORTGAGE SCHEDULES..............................................16
SECTION 4. PURCHASE PRICE..................................................16
SECTION 5. EXAMINATION OF MORTGAGE FILES...................................17
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER.............................17
SECTION 7. SERVICING OF THE MORTGAGE LOANS.................................20
SECTION 8. [RESERVED]......................................................21
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH.............................................21
SECTION 10. CLOSING.........................................................41
SECTION 11. CLOSING DOCUMENTS...............................................42
SECTION 12. COSTS...........................................................43
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION.....................43
SECTION 14. THE SELLER......................................................45
SECTION 15. FINANCIAL STATEMENTS............................................46
SECTION 16. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST..................47
SECTION 17. NOTICES.........................................................47
SECTION 18. SEVERABILITY CLAUSE.............................................48
SECTION 19. COUNTERPARTS....................................................48
SECTION 20. INTENTION OF THE PARTIES........................................48
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT........49
SECTION 22. WAIVERS.........................................................49
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SECTION 23. EXHIBITS........................................................49
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES.................................49
SECTION 25. REPRODUCTION OF DOCUMENTS.......................................50
SECTION 26. FURTHER AGREEMENTS..............................................50
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE..........................50
SECTION 28. NO SOLICITATION.................................................50
SECTION 29. WAIVER OF TRIAL BY JURY.........................................51
SECTION 30. GOVERNING LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS.......51
SECTION 31. AMENDMENT.......................................................52
SECTION 32. CONFIDENTIALITY.................................................52
SECTION 33. ENTIRE AGREEMENT................................................52
SECTION 34. COMPLIANCE WITH REGULATION AB...................................52
EXHIBITS
EXHIBIT A-1 MORTGAGE LOAN DOCUMENTS
EXHIBIT A-2 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G UNDERWRITING GUIDELINES
EXHIBIT H FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
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FOURTH AMENDED AND RESTATED MORTGAGE LOAN PURCHASE
AND WARRANTIES AGREEMENT
This FOURTH AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT ("Agreement"), dated as of March 1, 2006, by and between Xxxxxx
Xxxxxxx Mortgage Capital Inc., a New York corporation (the "Purchaser"), and
MortgageIT, Inc., a New York corporation (the "Seller").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller are parties to that certain Mortgage
Loan Purchase and Warranties Agreement, dated as of October 1, 2004, as amended
by that certain Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2005, as amended by that certain Second Amended
and Restated Mortgage Loan Purchase and Warranties Agreement, dated as of March
1, 2005, as amended by that certain Third Amended and Restated Mortgage Loan
Purchase and Warranties Agreement, dated as of December 1, 2005 (the "Original
Purchase Agreement") and the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain conventional fixed and adjustable rate residential first-lien
and second-lien mortgage loans (the "Mortgage Loans") on a servicing released
basis as described herein, and which shall be delivered in pools of whole loans
(each, a "Mortgage Loan Package") on various dates as provided herein (each, a
"Closing Date");
WHEREAS, the Purchaser and the Seller desire to enter into this Agreement
to amend and restate the Original Purchase Agreement to make certain
modifications as set forth herein with respect to all Mortgage Loans subject to
this Agreement or the Original Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller agree
as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall have
the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices which are in accordance with accepted 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.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement, the Mortgage Interest Rate of which is adjusted from time to time in
accordance with the terms of the related Mortgage Note.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Fourth Amended and Restated Mortgage Loan Purchase and
Warranties Agreement including all exhibits, schedules, amendments and
supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgaged Property, the lesser of (i)
the value thereof as determined by an appraisal made for the originator of the
Mortgage Loan at the time of origination of the Mortgage Loan by a Qualified
Appraiser and (ii) the purchase price paid for the related Mortgaged Property by
the Mortgagor with the proceeds of the Mortgage Loan; provided, however, that in
the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by a Qualified Appraiser.
Assignment and Conveyance Agreement: As defined in Subsection 6.01.
Assignment of Mortgage: An individual assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form and in blank, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property is
located to give record notice of the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan (a) that requires only payments
of interest until the stated maturity date of the Mortgage Loan or (b) for which
Monthly Payments of principal (not including the payment due on its stated
maturity date) are based on an amortization schedule that would be insufficient
to fully amortize the principal thereof by the stated maturity date of the
Mortgage Loan.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a day on
which banking and savings and loan institutions, in the State of New York or the
State in which the Interim Servicer's servicing operations are located or (iii)
the state in which the Custodian's operations are located, are authorized or
obligated by law or executive order to be closed.
Cash-Out Refinance: A Refinanced Mortgage Loan in which the proceeds
received were in excess of the amount of funds required to repay the principal
balance of any existing first mortgage on the related Mortgaged Property, pay
related closing costs and satisfy
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any outstanding subordinate mortgages on the related Mortgaged Property and
which provided incidental cash to the related Mortgagor of more than 1% of the
original principal balance of such Mortgage Loan.
Closing Date: The date or dates on which the Purchaser from time to time
shall purchase, and the Seller from time to time shall sell, the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Closing Documents: The documents required to be delivered on each Closing
Date pursuant to Section 11.
CLTA: The California Land Title Association.
CLTV: As of any date and as to any Second Lien Loan, the ratio, expressed
as a percentage, of (a) the sum of (i) the outstanding principal balance of the
Second Lien Loan and (ii) the outstanding principal balance as of such date of
any mortgage loan or mortgage loans that are senior or equal in priority to the
Second Lien Loan and which are secured by the same Mortgaged Property to (b) the
Appraised Value as determined pursuant to the Underwriting Guidelines of the
related Mortgaged Property as of the origination of the Second Lien Loan.
Code: The Internal Revenue Code of 1986, as amended, or any successor
statute thereto.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in respect
of a taking of all or part of a Mortgaged Property, whether permanent or
temporary, partial or entire, by exercise of the power of condemnation or the
right of eminent domain, to the extent not required to be released to a
Mortgagor in accordance with the terms of the related Mortgage Loan Documents.
Co-op: A private, cooperative housing corporation, having only one class
of stock outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and the
issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock allocated to a
dwelling unit in a residential cooperative housing corporation and a collateral
assignment of the related Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to Appendix
E of Standard & Poor's Glossary.
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Custodial Account: The separate trust account created and maintained
pursuant to Subsection 2.04 of the Interim Servicing Agreement (with respect to
each Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the individual Custodial Agreements shall collectively be
referred to as the "Custodial Agreement."
Custodian: LaSalle Bank National Association, a national banking
association and its successors in interest, or any successor to the Custodian
under the Custodial Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related Mortgage
Loan Schedule with respect to the related Mortgage Loan Package.
Deemed Material and Adverse Representation: Each representation and
warranty identified as such in Section 9.02 of this Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or to be
repurchased or replaced or to be replaced with a Qualified Substitute Mortgage
Loan by the Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Determination Date: The date specified in the Interim Servicing Agreement
(with respect to each Mortgage Loan, for an interim period, as specified
therein).
Due Date: The day of the month on which the Monthly Payment is due on a
Mortgage Loan, exclusive of any days of grace.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the Mortgagee pursuant to the Mortgage or any other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association, or any successor
thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide, as amended or restated from time to time.
Xxxxxx Xxx Transfer: As defined in Section 13.
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FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement Act
of 1989, as amended and in effect from time to time.
First Lien Loan: A Mortgage Loan secured by a first lien Mortgage on the
related Mortgaged Property.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased pursuant to
this Agreement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Xxxxxxx Mac Transfer: As defined in Section 13.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount is
added to the Index in accordance with the terms of the related Mortgage Note to
determine on each Interest Rate Adjustment Date the Mortgage Interest Rate for
such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership and
Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans" as that term
was defined in clause (1) of the definition of that term in the New Jersey Home
Ownership Security Act of 2002 that were originated between November 26, 2003
and July 7, 2004), "high risk home," "predatory" or similar loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees) or (c) a Mortgage Loan categorized as High Cost
pursuant to Appendix E of Standard & Poor's Glossary. For avoidance of doubt,
the parties agree that this definition shall apply to any law regardless of
whether such law is presently, or in the future becomes, the subject of judicial
review or litigation.
Home Loan: A Mortgage Loan categorized as a Home Loan pursuant to Appendix
E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to Mortgage Insurance issued by the FHA. The term "HUD," for
purposes of this Agreement, is also deemed to include subdivisions thereof such
as the FHA and Government National Mortgage Association.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
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Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Interim Servicer: The servicer under the Interim Servicing Agreement, or
its successor in interest, or any successor to the Interim Servicer under the
Interim Servicing Agreement, as therein provided.
Interim Servicing Agreement: The agreement to be entered into by the
Purchaser and the Interim Servicer, providing for the Interim Servicer to
service the Mortgage Loans as specified by the Interim Servicing Agreement.
Investor: With respect to each MERS Designated Mortgage Loan, the Person
named on the MERS System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Liquidation Proceeds: The 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 or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, other than amounts received following the
acquisition of REO Property, Insurance Proceeds and Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, as of any date of
determination, the ratio (expressed as a percentage) the numerator of which is
the outstanding principal balance of the Mortgage Loan as of the related Cut-off
Date (unless otherwise indicated), and the denominator of which is the lesser of
(a) the Appraised Value of the Mortgaged Property at origination and (b) if the
Mortgage Loan was made to finance the acquisition of the related Mortgaged
Property, the purchase price of the Mortgaged Property.
LTV: Loan-to-Value Ratio.
Manufactured Home: A single family residential unit that is constructed in
a factory in sections in accordance with the Federal Manufactured Home
Construction and Safety Standards adopted on June 15, 1976, by the Department of
Housing and Urban Development
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("HUD Code"), as amended in 2000, which preempts state and local building codes.
Each unit is identified by the presence of a HUD Plate/Compliance Certificate
label. The sections are then transported to the site and joined together and
affixed to a pre-built permanent foundation (which satisfies the manufacturer's
requirements and all state, county, and local building codes and regulations).
The manufactured home is built on a non-removable, permanent frame chassis that
supports the complete unit of walls, floors, and roof. The underneath part of
the home may have running gear (wheels, axles, and brakes) that enable it to be
transported to the permanent site. The wheels and hitch are removed prior to
anchoring the unit to the permanent foundation. The manufactured home must be
classified as real estate and taxed accordingly. The permanent foundation may be
on land owned by the mortgager or may be on leased land.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the Seller has
designated or will designate MERS as, and has taken or will take such action as
is necessary to cause MERS to be, the mortgagee of record, as nominee for the
Seller, in accordance with MERS Procedures Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: With respect to any Mortgage Loan, the scheduled payment
of principal and interest payable by a Mortgagor under the related Mortgage Note
on each Due Date.
Mortgage: With respect to a Mortgage Loan that is not a Co-op Loan, the
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien, in the case of a First Lien Loan, or a second lien, in the
case of a Second Lien Loan, on the related Mortgaged Property. With respect to a
Co-op Loan, the Security Agreement.
Mortgage File: With respect to any Mortgage Loan, the Mortgage Loan
Documents and the items listed in Exhibit A-2 hereto and any additional
documents required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: With respect to each Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in the
related Mortgage Note.
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Mortgage Loan: Each mortgage loan sold, assigned and transferred pursuant
to this Agreement and identified on the applicable Mortgage Loan Schedule, which
Mortgage Loan includes, without limitation, the Mortgage File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, Servicing Rights and all other rights, benefits, proceeds
and obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage Loan Documents: With respect to any Mortgage Loan, the documents
required to be delivered to the Custodian pursuant to Subsection 6.03.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan in the related Mortgage
Loan Package: (1) the Seller's Mortgage Loan identifying number; (2) the
Mortgagor's name; (3) the social security number of the Mortgagor; (4) a code
indicating whether the Mortgagor's race and/or ethnicity is (i) native American
or Alaskan native, (ii) Asian/Pacific islander, (iii) African American, (iv)
white, (v) Hispanic or Latino, (vi) other minority, (vii) not provided by the
Mortgagor, (viii) not applicable (if the Mortgagor is an entity) and (ix)
unknown or missing; (5) the street address of the Mortgaged Property including
the city, state and zip code; (6) a code indicating whether the Mortgagor is
self-employed; (7) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (8) a code indicating the
number and type of residential units constituting the Mortgaged Property (e.g.,
single family residence, two-family residence, three-family residence,
four-family residence, multifamily residence, condominium, manufactured housing,
mixed-use property, raw land and other non residential properties, planned unit
development or cooperative stock in a cooperative housing corporation); (9) the
original months to maturity or the remaining months to maturity from the related
Cut-off Date, in any case based on the original amortization schedule and, if
different, the maturity expressed in the same manner but based on the actual
amortization schedule; (10) the LTV or CLTV, as applicable, at origination; (11)
the Mortgage Interest Rate as of the related Cut-off Date; (12) the date on
which the first Monthly Payment was due on the Mortgage Loan and, if such date
is not consistent with the Due Date currently in effect, the Due Date; (13) the
stated maturity date; (14) the amount of the Monthly Payment as of the related
Cut-off Date; (15) whether the Mortgage Loan has Monthly Payments that are
interest-only for a period of time, and the interest-only period, if applicable
(and with respect to each Second Lien Loan, whether the related first lien
mortgage loan has monthly payments that are interest-only for a period of time,
and the interest-only period, if applicable); (16) the last payment date on
which a payment was actually applied to the outstanding principal balance; (17)
the schedule of the payment delinquencies in the prior 12 months; (18) the
Servicing Fee Rate; (19) the original principal amount of the Mortgage Loan;
(20) the principal balance of the Mortgage Loan as of the close of business on
the related Cut-off Date, after deduction of payments of principal due and
collected on or before the related Cut-off Date; (21) with respect to each
Mortgage Loan with a second lien behind it, the combined principal balance of
the Mortgage Loan and the applicable second lien loan, at origination, (22) a
code indicating whether there is a simultaneous second; (23) with respect to
Adjustable Rate Mortgage Loans, the Interest Rate Adjustment Date; (24) with
respect to Adjustable Rate Mortgage Loans, the Gross Margin; (25) with respect
to
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Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (26) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index, including the methodology for rounding (e.g.,
rounded upward, if necessary, to the nearest ten thousandth (.0001)) and the
applicable time frame for determining the Index; (27) the product type of
Mortgage Loan (i.e., Fixed Rate, Adjustable Rate, First Lien Loan or Second Lien
Loan), and with respect to each Second Lien Loan, the product type of the
related first lien loan; (28) a code indicating the purpose of the loan (i.e.,
purchase, Rate/Term Refinance or Cash-Out Refinance); (29) a code indicating the
documentation style (i.e., no documents, full, alternative, reduced, no
income/no asset, stated income, no ration, reduced or NIV); (30) asset
verification (Y/N); (31) the loan credit classification (as described in the
Underwriting Guidelines); (32) whether such Mortgage Loan provides for a
Prepayment Penalty; (33) the Prepayment Penalty period of such Mortgage Loan, if
applicable; (34) a description of the Prepayment Penalty, if applicable; (35)
the Mortgage Interest Rate as of origination; (36) the credit risk score (FICO
score); (37) the date of origination; (38) with respect to Adjustable Rate
Mortgage Loans, the Mortgage Interest Rate adjustment period; (39) with respect
to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment
percentage; (40) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest Rate floor; (41) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (42) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Cap as of the first Interest Rate Adjustment Date; (43)
with respect to each Adjustable Rate Mortgage Loan, a code indicating whether
the Mortgage Loan provides for negative amortization; (44) a code indicating
whether the Mortgage Loan has negative amortization and the maximum of such
negative amortization; (45) a code indicating whether the Mortgage Loan is a
Balloon Mortgage Loan; (46) a code indicating whether the Mortgage Loan by its
original terms or any modifications thereof provides for amortization beyond its
scheduled maturity date; (47) the original Monthly Payment due; (48) the
Appraised Value; (49) appraisal type; (50) appraisal date; (51) a code
indicating whether the Mortgage Loan is covered by a PMI Policy and, if so,
identifying the PMI Policy provider; (54) the certificate number of the PMI
Policy, if applicable; (52) the amount of coverage of the PMI Policy, if
applicable; (53) in connection with a condominium unit, a code indicating
whether the condominium project where such unit is located is low-rise or
high-rise; (54) a code indicating whether the Mortgaged Property is a leasehold
estate; (55) with respect to the related Mortgagor, the debt-to-income ratio;
(56) sales price; (57) automated valuation model (AVM); (58) a code indicating
whether the Mortgage Loan is a MERS Designated Mortgage Loan and the MERS
Identification Number, if applicable; (59) a field indicating whether such
Mortgage Loan is a Home Loan; and (60) the DU or LP number, if applicable. With
respect to the Mortgage Loans in the aggregate, the related Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; (4) the weighted average maturity of the
Mortgage Loans; (5) the average principal balance of the Mortgage Loans; (6) the
applicable Cut-off Date; and (7) the applicable Closing Date.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a Co-op
Loan, the Mortgagor's real property securing repayment of a related Mortgage
Note, consisting of an
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unsubordinated estate in fee simple or, with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate, in a single parcel or
multiple parcels of real property improved by a Residential Dwelling. With
respect to a Co-op Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and the
successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of the
Mortgaged Property and the grantor or mortgagor named in the Mortgage and such
grantor's or mortgagor's successors in title to the Mortgaged Property.
Nonrecoverable Advance: Any advance previously made or proposed to be made
in respect of a Mortgage Loan which, in the good faith judgment of the Interim
Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable from related Insurance Proceeds, Liquidation Proceeds or
otherwise. The determination by the Interim Servicer that it has made a
Nonrecoverable Advance or that any proposed advance of principal and interest,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by an
Officers' Certificate delivered to the Purchaser.
Officer's Certificate: A certificate signed by the Chairman of the Board
or the Vice Chairman of the Board or a President or a Chief Executive Officer or
a Chief Financial Officer or an Executive Vice President and by the Treasurer or
the Secretary or one of the Assistant Treasurers or Assistant Secretaries of the
Seller, and delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Seller, reasonably acceptable to the Purchaser, provided that any Opinion of
Counsel relating to (a) the qualification of any account required to be
maintained pursuant to the Interim Servicing Agreement as an Eligible Account,
(b) qualification of the Mortgage Loans in a REMIC or (c) compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion of Counsel)
an opinion of counsel who (i) is in fact independent of the Seller and any
servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Seller or any servicer of the Mortgage Loans
or in an Affiliate of either and (iii) is not connected with the Seller or any
servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth as such on the related Mortgage Loan Schedule.
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Periodic Rate Floor: With respect to each Adjustable Rate Mortgage Loan,
the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Interest
Rate Adjustment Date below the Mortgage Interest Rate previously in effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued by an
insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the amount of any
premium or penalty required to be paid by the Mortgagor if the Mortgagor prepays
such Mortgage Loan as provided in the related Mortgage Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any Prepayment Penalty thereon, and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: Each agreement setting forth the
general terms and conditions of the purchase and sale of the Mortgage Loans to
be purchased from time to time under this Agreement.
Purchase Price Percentage: The percentage of par (expressed as a decimal)
set forth in the related Purchase Price and Terms Agreement.
Purchaser: Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation,
and its successors in interest and assigns, or any successor to the Purchaser
under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who had
no interest, direct or indirect, in the Mortgaged Property or in any loan made
on the security thereof, and whose compensation was not affected by the approval
or disapproval of the Mortgage Loan, and such appraiser and the appraisal made
by such appraiser both satisfied the requirements of Title XI of FIRREA and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were
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originated pursuant to an agreement between the Seller and such Person that
contemplated that such Person would underwrite mortgage loans from time to time,
for sale to the Seller, in accordance with underwriting guidelines designated by
the Seller ("Designated Guidelines") or guidelines that do not vary materially
from such Designated Guidelines; (ii) such Mortgage Loans were in fact
underwritten as described in clause (i) above and were acquired by the Seller
within 180 days after origination; (iii) either (x) the Designated Guidelines
were, at the time such Mortgage Loans were originated, used by the Seller in
origination of mortgage loans of the same type as the Mortgage Loans for the
Seller's own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Seller on a consistent basis
for use by lenders in originating mortgage loans to be purchased by the Seller;
and (iv) the Seller employed, at the time such Mortgage Loans were acquired by
the Seller, pre-purchase or post-purchase quality assurance procedures (which
may involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied the
underwriting criteria designated by the Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, be approved by the Purchaser and (i) have an unpaid principal
balance, after deduction of all scheduled payments due in the month of
substitution (or in the case of a substitution of more than one mortgage loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess of
the unpaid principal balance of the Deleted Mortgage Loan (the amount of any
shortfall will be deposited in the Custodial Account by the Seller in the month
of substitution); (ii) have a Mortgage Interest Rate not less than and not more
than one percent (1%) greater than the Mortgage Interest Rate of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than and not
more than one (1) year less than that of the Deleted Mortgage Loan; (iv) be of
the same type as the Deleted Mortgage Loan (i.e., fixed rate or adjustable rate
with same Mortgage Interest Rate Cap and Index); (v) comply as of the date of
substitution with each representation and warranty set forth in Section 9 of
this Agreement; (vi) be current in the payment of principal and interest; (vii)
be secured by a Mortgaged Property of the same type and occupancy status as
secured the Deleted Mortgage Loan; and (viii) have payment terms that do not
vary in any material respect from those of the Deleted Mortgage Loan.
Rate/Term Refinance: A Refinanced Mortgage Loan, in which the proceeds
received were not in excess of the amount of funds required to repay the
principal balance of any existing first mortgage loan on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property and did not provide incidental cash
to the related Mortgagor of more than one percent (1%) of the original principal
balance of such Mortgage Loan.
Reconstitution: Any Securitization Transaction or a Whole Loan Transfer.
Reconstitution Agreements: The agreement or agreements entered into by the
Seller and the Purchaser and/or certain third parties on the Reconstitution Date
or Dates with respect to any or all of the Mortgage Loans sold hereunder, in
connection with a Whole Loan Transfer, Agency Transfer or a Securitization
Transaction pursuant to Section 13, including, but not limited to, a seller's
warranties and servicing agreement with respect to a Whole Loan
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Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to a
Securitization Transaction.
Reconstitution Date: As defined in Section 13.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to a
REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The date specified in the Interim Servicing Agreement
(with respect to each Mortgage Loan, as specified therein).
REO Property: A Mortgaged Property acquired by the Interim Servicer
through foreclosure or deed in lieu of foreclosure.
Repurchase Price: With respect to any Mortgage Loan, a price equal to the
unpaid principal balance of the Mortgage Loan to be repurchased, plus accrued
interest thereon at the Mortgage Interest Rate and including the last Due Date
through which interest had last been paid through the date of such repurchase,
plus the amount of any outstanding advances owed to any servicer, plus all costs
and expenses incurred by the Purchaser or any servicer arising out of or based
upon such breach, including without limitation costs and expenses incurred in
the enforcement of the Seller's repurchase obligation hereunder.
Residential Dwelling: Any one of the following: (i) a detached one-family
dwelling, (ii) a detached two- to four-family dwelling, (iii) a one-family
dwelling unit in a condominium project or (iv) a one-family dwelling in a
planned unit development, none of which is a co-operative, mobile or
Manufactured Home.
RESPA: The Real Estate Settlement Procedures Act, as amended from time to
time.
Second Lien Loan: A Mortgage Loan secured by a second lien Mortgage on the
related Mortgaged Property.
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Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all of
the Mortgage Loans.
Security Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of the Agreement, together
with its successors in interest.
Seller Information: As defined in Subsection 34.04(a).
Servicing Fee: With respect to each Mortgage Loan subject to the Interim
Servicing Agreement, a fee payable monthly equal to one-twelfth of the product
of (a) the Servicing Fee Rate and (b) the outstanding principal balance of such
Mortgage Loan. Such fee shall be payable monthly and shall be pro-rated for any
portion of a month during which the Mortgage Loan is serviced by the Interim
Servicer under the Interim Servicing Agreement. The obligation of the Purchaser
to pay the Servicing Fee is limited to, and the Servicing Fee is payable solely
from, the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by this Agreement) of such Monthly
Payment collected by the Interim Servicer, or as otherwise provided under this
Agreement.
Servicing Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file retained by
the Interim Servicer consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan Documents set forth in Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all rights to
service the Mortgage Loans; (b) any payments to or monies received by the Seller
for servicing the Mortgage Loans; (c) any late fees, penalties or similar
payments with respect to the Mortgage Loans; (d) all agreements or documents
creating, defining or evidencing any such servicing rights to the extent they
relate to such servicing rights and all rights of the Seller thereunder; (e)
Escrow Payments or other similar payments with respect to the Mortgage Loans and
any amounts actually collected by the Seller with respect thereto; (f) all
accounts and other rights to payment related to any of the property described in
this paragraph; and (g) any and all documents, files, records, servicing files,
servicing documents, servicing records, data tapes, computer records, or other
information pertaining to the Mortgage Loans or pertaining to the past, present
or prospective servicing of the Mortgage Loans.
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Sponsor: The sponsor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary, as
may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan on any date of
determination, (i) the principal balance of such Mortgage Loan at the related
Cut-off Date after giving effect to payments of principal due on or before such
date, to the extent actually received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal on such Mortgage Loan.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: Any servicer of one or more Mortgage Loans designated
by the Purchaser as being entitled to the benefits of the indemnifications set
forth in Subsections 9.03 and 14.01.
Third-Party Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Seller.
Transfer Date: In the event the Interim Servicer is terminated as servicer
of a Mortgage Loan pursuant to the Interim Servicing Agreement, the date on
which the Purchaser, or its designee, shall receive the transfer of servicing
responsibilities and begin to perform the servicing of such Mortgage Loans, and
the Interim Servicer shall cease all servicing responsibilities.
Underwriting Guidelines: The underwriting guidelines of the Seller, a copy
of which is attached hereto as Exhibit G and a then-current copy of which is
attached as an exhibit to the related Assignment and Conveyance.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller agrees to sell from time to time, and the Purchaser agrees to
purchase from time to time, Mortgage Loans having an aggregate actual unpaid
principal balance on the related Cut-off Date in an amount as set forth in the
related Purchase Price and Terms Agreement, or in such other amount as agreed by
the Purchaser and the Seller as evidenced by the actual aggregate unpaid
principal balance of the Mortgage Loans accepted by the Purchaser on each
Closing Date, together with the related Mortgage Files and all rights and
obligations arising under the documents contained therein.
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SECTION 3. Mortgage Schedules.
The Seller from time to time shall provide the Purchaser with certain
information constituting a preliminary listing of the Mortgage Loans to be
purchased on each Closing Date in accordance with the related Purchase Price and
Terms Agreement and this Agreement (each, a "Preliminary Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans to be purchased on a particular Closing Date to the Purchaser at
least five (5) Business Days prior to the related Closing Date. The related
Mortgage Loan Schedule shall be the related Preliminary Mortgage Schedule with
those Mortgage Loans which have not been funded prior to the related Closing
Date deleted.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan and the related Servicing Rights
shall be the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein), multiplied by the
aggregate actual unpaid principal balance, as of the related Cut-off Date, of
the Mortgage Loans listed on the related Mortgage Loan Schedule, after
application of scheduled payments of principal due on or before the related
Cut-off Date, but only to the extent such payments were actually received. The
initial principal amount of the related Mortgage Loans shall be the aggregate
actual unpaid principal balance of the Mortgage Loans, so computed as of the
related Cut-off Date. If so provided in the related Purchase Price and Terms
Agreement, portions of the Mortgage Loans and/or the Servicing Rights shall be
priced and paid for separately.
In addition to the Purchase Price as described above, the Purchaser shall
pay to the Seller, at closing, accrued interest from the last "interest paid to"
date through the day immediately preceding the related Closing Date, inclusive,
on the aggregate actual unpaid principal amount of the related Mortgage Loans as
of the related Cut-off Date at the weighted average Mortgage Interest Rate of
those Mortgage Loans. The Purchase Price plus accrued interest as set forth in
the preceding paragraph shall be paid to the Seller by wire transfer of
immediately available funds to an account designated by the Seller in writing.
The Purchaser shall be entitled to (1) all scheduled principal due after
the related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, and (3) all payments of interest on the Mortgage
Loans net of applicable Servicing Fees (minus that portion of any such payment
which is allocable to the period prior to the related Cut-off Date). The
outstanding principal balance of each Mortgage Loan as of the related Cut-off
Date is determined after application of payments of principal due on or before
the related Cut-off Date, to the extent actually collected, together with any
unscheduled principal prepayments collected prior to such Cut-off Date;
provided, however, that payments of scheduled principal and interest paid prior
to such Cut-off date, but to be applied on a Due Date beyond the related Cut-off
Date shall not be applied to the principal balance as of the related Cut-off
Date. Such prepaid amounts shall be the property of the Purchaser. The Seller
shall deposit any such prepaid amounts into the Custodial Account, which account
is established for the benefit of the Purchaser for subsequent remittance by the
Seller to the Purchaser.
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SECTION 5. Examination of Mortgage Files.
At least ten (10) Business Days prior to the related Closing Date, the
Seller shall either (a) deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available to the
Purchaser for examination at such other location as shall otherwise be
acceptable to the Purchaser. Such examination of the Mortgage Files may be made
by the Purchaser or its designee at any reasonable time before or after the
related Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans do not conform to any of the requirements set forth in the related
Purchase Price and Terms Agreement, or as an Exhibit annexed thereto, the
Purchaser may delete such Mortgage Loans from the related Mortgage Loan
Schedule, and such Deleted Mortgage Loan (or Loans) may be replaced by a
Qualified Substitute Mortgage Loan (or Loans) acceptable to the Purchaser. The
Purchaser may, at its option and without notice to the Seller, purchase some or
all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not impair in any way the Purchaser's (or any of its successor's) rights
to demand repurchase, substitution or other relief as provided in this
Agreement. In the event that the Seller fails to deliver the Mortgage File with
respect to any Mortgage Loan, the Seller shall, upon the request of the
Purchaser, repurchase such Mortgage Loan as the price and in the manner
specified in Subsection 9.03.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, simultaneously with the delivery of the Mortgage Loan Schedule
with respect to the related Mortgage Loan Package to be purchased on each
Closing Date, shall execute and deliver an Assignment and Conveyance Agreement
in the form attached hereto as Exhibit H (the "Assignment and Conveyance
Agreement"). The Seller shall ensure that the contents of each Servicing File,
which are required to be retained by or delivered to the Interim Servicer to
service the Mortgage Loans pursuant to the Interim Servicing Agreement and thus
not delivered to the Purchaser, or its designee, are and shall be held in trust
by the Interim Servicer for the benefit of the Purchaser as the owner thereof.
The Seller agrees that the Interim Servicer's possession of any portion of each
such Mortgage File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the Mortgage Loans pursuant to this Agreement, and
such retention and possession by the Interim Servicer shall be in a custodial
capacity only. The ownership of each Mortgage Note, each Mortgage and the
contents of each Mortgage File is vested in the Purchaser and the ownership of
all records and documents with respect to the related Mortgage Loan prepared by
or which come into the possession of the Interim Servicer shall immediately vest
in the Purchaser and shall be retained and maintained, in trust, by the Interim
Servicer at the will of the Purchaser in such custodial capacity only. The
Seller shall cause the Servicing File retained by the Interim Servicer pursuant
to this Agreement to be appropriately identified in the Seller's computer system
and/or books and records, as appropriate, to clearly reflect the sale of the
related Mortgage Loan to the Purchaser. The Seller shall cause the Interim
Servicer to release from its custody the contents of any Servicing File retained
by it
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only in accordance with this Agreement or the Interim Servicing Agreement,
except when such release is required in connection with a repurchase of any such
Mortgage Loan pursuant to Subsection 9.03 or if required under applicable law or
court order.
Subsection 6.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note as of the
related Closing Date shall be in the name of the Seller, an Affiliate of the
Seller, the Purchaser or one or more designees of the Purchaser, as the
Purchaser shall select; provided, however, that if a Mortgage has been recorded
in the name of MERS or its designee, the Seller is shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding the foregoing, ownership of each Mortgage and related Mortgage
Note shall be vested solely in the Purchaser or the appropriate designee of the
Purchaser, as the case may be. All rights arising out of the Mortgage Loans
including, but not limited to, all funds received by the Seller or the Interim
Servicer after the related Cut-off Date on or in connection with a Mortgage Loan
shall be vested in the Purchaser or one or more designees of the Purchaser;
provided, however, that all funds received on or in connection with a Mortgage
Loan shall be received and held by the Seller or the Interim Servicer in trust
for the benefit of the Purchaser or the appropriate designee of the Purchaser,
as the case may be, as the owner of the Mortgage Loans pursuant to the terms of
this Agreement.
The Seller shall be or shall cause the Interim Servicer to be responsible
for maintaining, and shall maintain, a complete set of books and records for
each Mortgage Loan which shall be marked clearly to reflect the ownership of
each Mortgage Loan by the Purchaser. In particular, the Seller shall or shall
cause the Interim Servicer to maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the National Flood Insurance Act of 1968, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the Xxxxxx Mae Guides. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Seller or the
Interim Servicer may be in the form of microfilm or microfiche so long as the
Seller or the Interim Servicer complies with the requirements of the Xxxxxx Xxx
Guides.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the related
Mortgage Loans by the Seller and not a pledge of such Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
Consequently, the sale of each Mortgage Loan shall be reflected as a purchase on
the Purchaser's business records, tax returns and financial statements, and as a
sale of assets on the Seller's business records, tax returns and financial
statements.
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Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than two
(2) Business Days prior to the related Closing Date those Mortgage Loan
Documents set forth on Exhibit A-1 hereto as required by the Custodial Agreement
with respect to each Mortgage Loan set forth on the related Mortgage Loan
Schedule.
In connection with the foregoing, the Seller shall indemnify the Purchaser
and its present and former directors, officers, employees and agents and any
Successor Servicer and its present and former directors, officers, employees and
agents, and hold such parties harmless against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
other costs and expenses based on or grounded upon, or resulting from, the fact
that any Mortgage Loan is not covered by an ALTA or CLTA lender's title
insurance policy. For purposes of the previous sentence, "Purchaser" shall mean
the Person then acting as the Purchaser under this Agreement and any and all
Persons who previously were "Purchasers" under this Agreement and "Successor
Servicer" shall mean any Person designated as the Successor Servicer pursuant to
this Agreement and any and all Persons who previously were "Successor Servicers"
pursuant to this Agreement.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian.
The Seller shall or shall cause the Interim Servicer to forward to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
original documents evidencing an assumption, modification, consolidation or
extension of any Mortgage Loan entered into in accordance with this Agreement
within two weeks of their execution, provided, however, that the Seller shall
provide the Custodian, or to such other Person as the Purchaser shall designate
in writing, with a certified true copy of any such document submitted for
recordation within two weeks of its execution, and shall promptly provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within two (2) weeks following receipt of the original
document by the Interim Servicer; provided, however, that such original recorded
document or certified copy thereof shall be delivered to the Purchaser no later
than 180 days following the related Closing Date, unless there has been a delay
at the applicable recording office.
If the original or copy of any document submitted for recordation to the
appropriate public recording office is not delivered to the Purchaser or its
designee within 180 days following the related Closing Date, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by the
Seller at the price and in the manner specified in Subsection 9.03. The
foregoing repurchase obligation shall not apply if the Seller cannot cause the
Interim Servicer to deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not available,
an
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officer's certificate of a servicing officer of the Seller, confirming that such
document has been accepted for recording, and (ii) such document is delivered
within twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
Assignments of Mortgage and any other fees or costs in transferring all original
documents to the Custodian or, upon written request of the Purchaser, to the
Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's designee
shall be responsible for recording the Assignments of Mortgage and shall be
reimbursed by the Seller for the costs associated therewith pursuant to the
preceding sentence.
Subsection 6.04 Quality Control Procedures.
The Seller shall, or shall cause the Interim Servicer to, have an internal
quality control program that verifies, on a regular basis, the existence and
accuracy of the legal documents, credit documents, property appraisals, and
underwriting decisions. The program shall include evaluating and monitoring the
overall quality of the Seller's loan production and the servicing activities of
the Interim Servicer. The program is to ensure that the Mortgage Loans are
originated in accordance with the Underwriting Guidelines; guard against
dishonest, fraudulent, or negligent acts; and guard against errors and omissions
by officers, employees, or other authorized persons.
Subsection 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller shall, on
or prior to the related Closing Date, designate the Purchaser as the Investor
and the Custodian as custodian, and no Person shall be listed as Interim Funder
on the MERS System. In addition, on or prior to the related Closing Date, Seller
shall provide the Custodian and the Purchaser with a MERS Report listing the
Purchaser as the Investor, the Custodian as custodian and no Person as Interim
Funder with respect to each MERS Designated Mortgage Loan.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the Purchaser on a
servicing released basis. Subject to and upon the terms and conditions of this
Agreement and the Interim Servicing Agreement (with respect to each Mortgage
Loan, for an interim period, as specified therein), the Seller hereby sells,
transfers, assigns, conveys and delivers to the Purchaser the Servicing Rights.
The Purchaser shall retain the Interim Servicer as contract servicer of
the Mortgage Loans for an interim period pursuant to and in accordance with the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified therein). The Seller
shall cause the Interim Servicer to execute the Interim Servicing Agreement on
the initial Closing Date.
The Seller shall cause the Interim Servicer to transfer the servicing of
the Mortgage Loans on each Transfer Date in accordance with the terms of the
Interim Servicing Agreement.
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SECTION 8. [RESERVED].
SECTION 9. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser that as of
the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a New York corporation,
validly existing, and in good standing under the laws of its jurisdiction of
incorporation or formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in the states where the Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Seller. The Seller has corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement has been duly executed and delivered and constitutes
the valid, legal, binding and enforceable obligation of the Seller, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Seller to make this Agreement valid and
binding upon the Seller in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or order is
required for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority having
jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller pursuant to this Agreement are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this Agreement,
the acquisition or origination of the Mortgage Loans by the Seller, the sale of
the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of
the terms, conditions or provisions of the Seller's charter or by-laws or any
legal restriction or any agreement or instrument to which the Seller is now a
party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Seller or its
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property is subject, or result in the creation or imposition of any lien, charge
or encumbrance that would have an adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the Mortgage
Loans, impair the value of the Mortgage Loans, or impair the ability of the
Purchaser to realize the full amount of any insurance benefits accruing pursuant
to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Seller, threatened against the
Seller, before any court, administrative agency or other tribunal asserting the
invalidity of this Agreement, seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or which, either in any one instance
or in the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Seller is solvent and the sale of the
Mortgage Loans will not cause the Seller to become insolvent. The sale of the
Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any
of Seller's creditors;
(g) Seller's Origination. The Seller's decision to originate any mortgage
loan or to deny any mortgage loan application is an independent decision based
upon the Underwriting Guidelines, and is in no way made as a result of
Purchaser's decision to purchase, or not to purchase, or the price Purchaser may
offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws, executive orders and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Seller has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(i) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present, in all material respects, the
pertinent results of operations and changes in financial position for each of
such periods and the financial position at the end of each such period of the
Seller and its subsidiaries and have been prepared in accordance with generally
accepted accounting principles
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consistently applied throughout the periods involved, except as set forth in the
notes thereto. In addition, the Seller has delivered information as to its loan
gain and loss experience in respect of foreclosures and its loan delinquency
experience for the immediately preceding three-year period, in each case with
respect to mortgage loans owned by it and such mortgage loans serviced for
others during such period, and all such information so delivered shall be true
and correct in all material respects. There has been no change in the business,
operations, financial condition, properties or assets of the Seller since the
date of the Seller's financial statements that would have a material adverse
effect on its ability to perform its obligations under this Agreement. The
Seller has completed any forms requested by the Purchaser in a timely manner and
in accordance with the provided instructions;
(j) Selection Process. The Mortgage Loans were selected from among the
outstanding one- to four-family mortgage loans in the Seller's portfolio at the
related Closing Date as to which the representations and warranties set forth in
Subsection 9.02 could be made and such selection was not made in a manner so as
to affect adversely the interests of the Purchaser;
(k) Mortgage Loan Characteristics. The characteristics of the related
Mortgage Loan Package are as set forth on the description of the pool
characteristics for the applicable Mortgage Loan Package delivered pursuant to
Section 11 on the related Closing Date in the form attached as Exhibit B to each
related Assignment and Conveyance Agreement;
(l) No Untrue Information. Neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to be
furnished pursuant to this Agreement or any Reconstitution Agreement or in
connection with the transactions contemplated hereby (including any
Securitization Transaction or Whole Loan Transfer) contains or will contain any
untrue statement of fact or omits or will omit to state a fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which it was made, not misleading;
(m) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(n) Sale Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans will be treated as a sale on the books and
records of the Seller and the Seller has determined that the disposition of the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes; and
(o) Reasonable Purchase Price. The consideration received by the Seller
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans.
-23-
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as to
each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the related
Closing Date for the Mortgage Loan under the terms of the Mortgage Note have
been made and credited. No payment required under the Mortgage Loan is 30 days
or more delinquent nor has any payment under the Mortgage Loan been 30 days or
more delinquent at any time since the origination of the Mortgage Loan;
(c) No Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by
one month the related Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination except by a written instrument which has been recorded, if
necessary to protect the interests of the Purchaser, and which has been
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and the
title insurer, if any, to the extent required by the policy, and its terms are
reflected on the related Mortgage Loan Schedule, if applicable. No Mortgagor has
been released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement is
part of the Mortgage Loan File delivered to the Custodian or to such other
Person as the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation
-24-
the defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Underwriting Guidelines. If required by
the National Flood Insurance Act of 1968, as amended, each Mortgage Loan is
covered by a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration as in effect which policy
conforms with the Underwriting Guidelines. All individual insurance policies
contain a standard mortgagee clause naming the Seller and its successors and
assigns as mortgagee, and all premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain the hazard insurance policy at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance at
such Mortgagor's cost and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Purchaser upon
the consummation of the transactions contemplated by this Agreement. The Seller
has not engaged in, and has no knowledge (based upon reasonable and diligent
inquiry) of the Mortgagor's having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
predatory and abusive lending, equal credit opportunity and disclosure laws
applicable to the Mortgage Loan, including, without limitation, any provisions
relating to a Prepayment Penalty have been complied with, the consummation of
the transactions contemplated hereby will not involve the violation of any such
laws or regulations, and the Seller shall maintain in its possession, available
for the Purchaser's inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements. This representation and
warranty is a Deemed Material and Adverse Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
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(i) Type of Mortgaged Property. With respect to a Mortgage Loan that is
not a Co-op Loan and is not secured by an interest in a leasehold estate, the
Mortgaged Property is a fee simple estate that consists of a single parcel of
real property with a detached single family residence erected thereon, or a
two- to four-family dwelling, or an individual residential condominium unit in
a condominium project, or an individual unit in a planned unit development
(or, with respect to each Co-op Loan, an individual unit in a residential
cooperative housing corporation); provided, however, that any condominium
unit, planned unit development or residential cooperative housing corporation
shall conform with the Underwriting Guidelines. No portion of the Mortgaged
Property (or underlying Mortgaged Property, in the case of a Co-op Loan) is
used for commercial purposes, and since the date of origination, no portion of
the Mortgaged Property has been used for commercial purposes; provided, that
Mortgaged Properties which contain a home office shall not be considered as
being used for commercial purposes as long as the Mortgaged Property has not
been altered for commercial purposes and is not storing any chemicals or raw
materials other than those commonly used for homeowner repair, maintenance
and/or household purposes. None of the Mortgaged Properties are Manufactured
Homes, log homes, mobile homes, geodesic domes or other unique property types.
This representation and warranty is a Deemed Material and Adverse
Representation;;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time with respect to the
foregoing. The lien of the Mortgage is subject only to:
(i) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments not yet due
and payable;
(iii) covenants, conditions and restrictions, rights of way, easements and
other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (A)
specifically referred to or otherwise considered in the appraisal
made for the originator of the Mortgage Loan or (B) which do not
adversely affect the Appraised Value of the Mortgaged Property set
forth in such appraisal; and
(iv) 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.
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Any security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Mortgage Loan establishes and creates a
valid, subsisting, enforceable and perfected first lien (with respect to a First
Lien Loan) or second lien (with respect to a Second Lien Loan) and first
priority (with respect to a First Lien Loan) or second priority (with respect to
a Second Lien Loan) security interest on the property described therein and the
Seller has full right to sell and assign the same to the Purchaser.
With respect to any Co-op Loan, the related Mortgage is a valid,
subsisting and enforceable first priority security interest on the related
cooperative shares securing the Mortgage Note, subject only to (a) liens of the
related residential cooperative housing corporation for unpaid assessments
representing the Mortgagor's pro rata share of the related residential
cooperative housing corporation's payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security interest intended to be provided by the
related Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the Mortgage and
any other agreement executed and delivered by a Mortgagor in connection with a
Mortgage Loan are genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms (including,
without limitation, any provisions therein relating to Prepayment Penalties).
All parties to the Mortgage Note, the Mortgage and any other such related
agreement had legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note, the Mortgage and any such agreement, and the Mortgage
Note, the Mortgage and any other such related agreement have been duly and
properly executed by other such related parties. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of the Seller in connection with the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. The documents, instruments and agreements
submitted for loan underwriting were not falsified and contain no untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the information and statements therein not
misleading. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of any
Person, including without limitation, the Mortgagor, any appraiser, any builder
or developer, or any other party involved in the origination of the Mortgage
Loan or in the application for any insurance in relation to such Mortgage Loan.
The Seller has reviewed all of the documents constituting the Servicing File and
has made such inquiries as it deems necessary to make and confirm the accuracy
of the representations set forth herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed and
the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
-27-
(m) Ownership. The Seller is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon the
sale of the Mortgage Loans to the Purchaser, the Seller will retain the Mortgage
Files or any part thereof with respect thereto not delivered to the Custodian,
the Purchaser or the Purchaser's designee, in trust only for the purpose of
servicing and supervising the servicing of each Mortgage Loan. The Mortgage Loan
is not assigned or pledged, and the Seller has good, indefeasible and marketable
title thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, such Mortgage Loan will be free
and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest. The Seller intends to relinquish all rights
to possess, control and monitor the Mortgage Loan, except as may be required of
the Seller in its Mortgage capacity as Servicer of such Mortgage Loan. After the
related Closing Date, the Seller will have no right to modify or alter the terms
of the sale of the Mortgage Loan and the Seller will have no obligation or right
to repurchase the Mortgage Loan or substitute another Mortgage Loan, except as
provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(o) CLTV, LTV and PMI Policy. No Mortgage Loan that is a Second Lien Loan
has a CLTV greater than 100%. No Mortgage Loan has an LTV greater than 100%. Any
Mortgage Loan that had at the time of origination an LTV in excess of 80% is
insured as to payment defaults by a PMI Policy. Any PMI Policy in effect covers
the related Mortgage Loan for the life of such Mortgage Loan. All provisions of
such PMI Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. No action,
inaction, or event has occurred and no state of facts exists that has, or will
result in the exclusion from, denial of, or defense to coverage. Any Mortgage
Loan subject to a PMI Policy obligates the Mortgagor thereunder to maintain the
PMI Policy and to pay all premiums and charges in connection therewith. The
Mortgage Interest Rate for the Mortgage Loan as set forth on the related
Mortgage Loan Schedule is net of any such insurance premium if the related PMI
Policy is lender-paid;
(p) Title Insurance. With respect to a Mortgage Loan which is not a Co-op
Loan, the Mortgage Loan is covered by an ALTA lender's title insurance policy or
other generally acceptable form of policy or insurance acceptable under the
Underwriting Guidelines and each such title insurance policy is issued by a
title insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first (with respect to a First
Lien Loan) or second (with respect to a Second Lien Loan) priority lien of the
Mortgage in the original principal amount of the Mortgage Loan (or to the extent
a Mortgage Note provides for
-28-
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), subject only to the exceptions contained in clauses (i),
(ii), (iii) and (iv) of paragraph (j) of this Subsection 9.02, and in the case
of Adjustable Rate Mortgage Loans, against any loss by reason of the invalidity
or unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller, its successor and assigns, are the sole insured of
such lender's title insurance policy, and such lender's title insurance policy
is valid and remains in full force and effect and will be in force and effect
upon the consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender's title insurance policy, and no prior
holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements which
were considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. Principal payments on the Mortgage Loan commenced no more than
seventy days after funds were disbursed in connection with the Mortgage Loan.
The Mortgage Interest Rate as well as, in the case of an Adjustable Rate
Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate Cap and the Periodic
Rate Floor are
-29-
as set forth on the related Mortgage Loan Schedule. The Mortgage Interest Rate
is adjusted with respect to Adjustable Rate Mortgage Loans, on each Interest
Rate Adjustment Date to equal the Index plus the Gross Margin (rounded up or
down to the nearest 0.125%), subject to the Periodic Rate Cap. The Mortgage Note
is payable in equal monthly installments of principal (except for Mortgage Loans
that provide for a fixed period of interest-only payments at the beginning of
their term) and interest, which installments of interest, with respect to
Adjustable Rate Mortgage Loans, are subject to change due to the adjustments to
the Mortgage Interest Rate on each Interest Rate Adjustment Date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date, over an original term of not more than thirty
(30) years from commencement of amortization. With respect to any Mortgage Loan
that provides for a fixed period of interest-only payments at the beginning of
its term, at the end of such interest-only period, the Monthly Payment will be
recalculated so as to require Monthly Payments sufficient to amortize the
Mortgage Loan fully by its stated maturity date. The Mortgage Loan is payable on
the first day of each month. The Mortgage Loan does not require a balloon
payment on its stated maturity date; and by its original terms or any
modification thereof, does not provide for amortization beyond its scheduled
maturity date;
(u) Customary Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on,
or trustee's sale of, the Mortgaged Property pursuant to the proper procedures,
the holder of the Mortgage Loan will be able to deliver good and merchantable
title to the Mortgaged Property. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage,
subject to applicable federal and state laws and judicial precedent with respect
to bankruptcy and right of redemption or similar law;
(v) Conformance with Agency and Underwriting Guidelines. The Mortgage Loan
was underwritten in accordance with the Underwriting Guidelines (a copy of which
is attached to the related Assignment and Conveyance Agreement). The Mortgage
Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae and no
representations have been made to a Mortgagor that are inconsistent with the
mortgage instruments used;
(w) Occupancy of the Mortgaged Property. As of the related Closing Date
the Mortgaged Property is lawfully occupied under applicable law, to the best of
the Seller's knowledge. All inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including, but
not limited to, certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgagor represented at
the time of origination of the Mortgage Loan that the Mortgagor would occupy the
Mortgaged Property as the Mortgagor's primary residence;
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(x) No Additional Collateral. The Mortgage Note is not and has not been
secured by any collateral except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(z) Acceptable Investment. To the Seller's knowledge based upon reasonable
and diligent inquiry, there are no circumstances or conditions with respect to
the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage File or the
Mortgagor's credit standing that can reasonably be expected to cause private
institutional investors who invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable investment cause
the Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan, or cause the Mortgage Loan to prepay during
any period materially faster or slower than the mortgage loans originated by the
Seller generally. No Mortgaged Property is located in a state, city, county or
other local jurisdiction which the Purchaser has determined in its sole good
faith discretion would cause the related Mortgage Loan to be ineligible for
whole loan sale or securitization in a transaction consistent with the
prevailing sale and securitization industry (including, without limitation, the
practice of the rating agencies) with respect to substantially similar mortgage
loans;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered under
the Custodial Agreement for each Mortgage Loan have been delivered to the
Custodian. The Seller is in possession of a complete, true and accurate Mortgage
File in compliance with Exhibit A attached hereto, except for such documents the
originals of which have been delivered to the Custodian;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(cc) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the Mortgagee thereunder;
(dd) Assumability. With respect to each Adjustable Rate Mortgage Loan, the
Mortgage Loan Documents provide that after the related first Interest Rate
Adjustment Date, a related Mortgage Loan may only be assumed if the party
assuming such Mortgage Loan meets certain credit requirements stated in the
Mortgage Loan Documents;
(ee) No Buydown Provisions; No Graduated Payments or Contingent Interests.
Unless otherwise agreed by the Purchaser in writing, the Mortgage Loan does not
contain
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provisions pursuant to which Monthly Payments are paid or partially paid with
funds deposited in any separate account established by the Seller, the
Mortgagor, or anyone on behalf of the Mortgagor, or paid by any source other
than the Mortgagor nor does it contain any other similar provisions which may
constitute a "buydown" provision. The Mortgage Loan is not a graduated payment
mortgage loan and the Mortgage Loan does not have a shared appreciation or other
contingent interest feature;
(ff) Consolidation of Future Advances. Any future advances made to the
Mortgagor prior to the applicable Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first (with respect to a First Lien Loan) or second (with
respect to a Second Lien Loan) lien priority by a title insurance policy, an
endorsement to the policy insuring the Mortgagee's consolidated interest or by
other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings. There is
no proceeding pending, to the knowledge of the Seller, or threatened for the
total or partial condemnation of the Mortgaged Property. The Mortgaged Property
is undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended and each Mortgaged Property is in good repair. There have not been
any condemnation proceedings with respect to the Mortgaged Property and the
Seller has no knowledge of any such proceedings in the future;
(hh) Collection Practices; Escrow Deposits; Interest Rate Adjustments. The
origination, servicing and collection practices used by the Seller and the
Interim Servicer with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of, the Seller or the Interim Servicer and there exist no deficiencies
in connection therewith for which customary arrangements for repayment thereof
have not been made. All Escrow Payments have been collected in full compliance
with state and federal law and the provisions of the related Mortgage Note and
Mortgage. An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that remains unpaid
and has been assessed but is not yet due and payable. No escrow deposits or
Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law and
the terms of the related Mortgage and Mortgage Note on the related Interest Rate
Adjustment Date. If, pursuant to the terms of the Mortgage Note, another index
was selected for determining the Mortgage Interest Rate, the same index was used
with respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage Note.
The Seller or the Interim Servicer executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and
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the Monthly Payment adjustments. Any interest required to be paid pursuant to
state, federal and local law has been properly paid and credited;
(ii) Conversion to Fixed Interest Rate. The Mortgage Loan does not contain
a provision whereby the Mortgagor is permitted to convert the Mortgage Interest
Rate from an adjustable rate to a fixed rate;
(jj) Other Insurance Policies; No Defense to Coverage. No action, inaction
or event has occurred and no state of facts exists or has existed on or prior to
the Closing Date that has resulted or will result in the exclusion from, denial
of, or defense to coverage under any applicable hazard insurance policy, PMI
Policy or bankruptcy bond (including, without limitation, any exclusions,
denials or defenses which would limit or reduce the availability of the timely
payment of the full amount of the loss otherwise due thereunder to the insured),
irrespective of the cause of such failure of coverage. The Seller has caused or
will cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. In connection
with the placement of any such insurance, no commission, fee, or other
compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(kk) No Violation of Environmental Laws. To the best of the Seller's
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule or
regulation with respect to the Mortgage Property; and nothing further remains to
be done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers Civil Relief Act. The Mortgagor has not notified the
Seller, and the Seller has no knowledge of any relief requested or allowed to
the Mortgagor under the Servicemembers Civil Relief Act or other similar state
statute;
(mm) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the approval of the Mortgage Loan application
by a Qualified Appraiser, duly appointed by the Seller, who had no interest,
direct or indirect in the Mortgaged Property or in any loan made on the security
thereof at the time of origination, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan, and the appraisal and
appraiser both satisfy the requirements of Xxxxxx Xxx or Xxxxxxx Mac and Title
XI of FIRREA and the regulations promulgated thereunder, all as in effect on the
date the Mortgage Loan was originated;
(nn) Disclosure Materials. The Mortgagor has executed a statement to the
effect that the Mortgagor has received all disclosure materials required by, and
the Seller has complied with, all applicable law with respect to the making of
the Mortgage Loans. The Seller shall maintain such statement in the Mortgage
File;
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(oo) Construction or Rehabilitation of Mortgaged Property. No Mortgage
Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow Analysis. If applicable, with respect to each Mortgage Loan,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit Information. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage. The Seller
has and shall in its capacity as servicer, for each Mortgage Loan, fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g. favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis. This
representation and warranty is a Deemed Material and Adverse Representation;
(rr) Leaseholds. If the Mortgage Loan is secured by a leasehold estate,
(1) the ground lease is assignable or transferable; (2) the ground lease will
not terminate earlier than five years after the maturity date of the Mortgage
Loan; (3) the ground lease does not provide for termination of the lease in the
event of lessee's default without the Mortgagee being entitled to receive
written notice of, and a reasonable opportunity to cure the default; (4) the
ground lease permits the mortgaging of the related Mortgaged Property; (5) the
ground lease protects the Mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments that
have become due have been paid; and (7) the use of leasehold estates for
residential properties is a widely accepted practice in the jurisdiction in
which the Mortgaged Property is located;
(ss) Prepayment Penalty. Each Mortgage Loan that is subject to a
Prepayment Penalty as provided in the related Mortgage Note is identified on the
related Mortgage Loan Schedule. With respect to each Mortgage Loan that has a
Prepayment Penalty feature, each such Prepayment Penalty is enforceable and will
be enforced by the Seller during the period the Seller is acting as Interim
Servicer for the benefit of the Purchaser, and each Prepayment Penalty is
permitted pursuant to federal, state and local law. Each such Prepayment Penalty
is in an amount not more than the maximum amount permitted under applicable law
and no such Prepayment Penalty may be imposed for a term in excess of five (5)
years with respect to Mortgage Loans originated prior to October, 1, 2002. With
respect to Mortgage Loans originated on or after October 1, 2002, the duration
of the Prepayment Penalty period shall not exceed three (3) years from the date
of the Mortgage Note unless the Mortgage Loan was modified to reduce the
Prepayment Penalty period to no more than three (3) years from the date of the
related Mortgage Note and the Mortgagor was notified in writing of such
reduction in Prepayment Penalty period.
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With respect to any Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior to the
Mortgage Loan's origination, the Mortgagor agreed to such premium in exchange
for a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the Mortgage Loan's origination, the Mortgagor was offered the
option of obtaining a mortgage loan that did not require payment of such a
premium, and (iii) the Prepayment Penalty is disclosed to the Mortgagor in the
mortgage loan documents pursuant to applicable state, local and federal law.
This representation and warranty is a Deemed Material and Adverse
Representation;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High Cost Loan
or Covered Loan, as applicable. No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in violation
of any comparable state or local law. The Mortgaged Property is not located in a
jurisdiction where a breach of this representation with respect to the related
Mortgage Loan may result in additional assignee liability to the Purchaser, as
determined by Purchaser in its reasonable discretion. This representation and
warranty is a Deemed Material and Adverse Representation;
(uu) Single-premium credit life insurance policy. No Mortgagor was
required to purchase any single premium credit insurance policy (e.g., life,
credit disability, property, accident, credit unemployment or credit property
insurance policy) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, disability, property, accident, unemployment,
mortgage or health insurance) in connection with the origination of the Mortgage
Loan. No proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse Representation;
(vv) Qualified Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(ww) Tax Service Contract. Each Mortgage Loan is either (x) a First Lien
Loan covered by a paid in full, life of loan, tax service contract issued by
First American Real Estate Tax Service, and such contract is transferable, or
(y) a Second Lien Loan subordinate to a First Lien Loan which, to the best of
Seller's knowledge, is covered by a paid in full, life of loan, tax service
contract issued by First American Real Estate Tax Service, and such contract is
transferable. On the related Closing Date, the Seller shall remit to the
Purchaser a transfer fee of two dollars ($2.00) for each Mortgage Loan covered
by such a tax service contract. If such a tax service contract with First
American Real Estate Tax Service is not in place then a placement fee of seventy
two dollars ($72.00) will apply for each such Mortgage Loan
(xx) Origination. No predatory or deceptive lending practices, including,
without limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of credit which has no apparent benefit to
the Mortgagor, were employed in the origination of the Mortgage Loan;
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(yy) Recordation. Each original Mortgage was recorded and all subsequent
assignments of the original Mortgage (other than the assignment to the
Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(zz) Co-op Loans. With respect to a Mortgage Loan that is a Co-op Loan,
the stock that is pledged as security for the Mortgage Loan is held by a person
as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor Bankruptcy. On or prior to the date 60 days after the
related Closing Date, the Mortgagor has not filed and will not file a bankruptcy
petition or has not become the subject and will not become the subject of
involuntary bankruptcy proceedings or has not consented to or will not consent
to the filing of a bankruptcy proceeding against it or to a receiver being
appointed in respect of the related Mortgaged Property;
(bbb) No Prior Offer. The Mortgage Loan has not previously been offered
for sale;
(ccc) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated (or modified) on or after October 1, 2002 and before March 7, 2003
which is secured by property located in the State of Georgia. There is no
Mortgage Loan that was originated on or after March 7, 2003 that is a "high cost
home loan" as defined under the Georgia Fair Lending Act. This representation
and warranty is a Deemed Material and Adverse Representation;;
(ddd) No Arbitration. No Mortgagor with respect to any Mortgage Loan
originated on or after August 1, 2004 agreed to submit to arbitration to resolve
any dispute arising out of or relating in any way to the mortgage loan
transaction. This representation and warranty is a Deemed Material and Adverse
Representation;
(eee) Flood Service Contract. Each Mortgage Loan is covered by a paid in
full, life of loan, flood service contract issued by either First American Flood
Data Services or Fidelity, and such contract is transferable. If no such flood
service contract is in place, or if such flood service contract is issued by an
insurer other than First American Flood Data Services or Fidelity, then on the
related Closing Date, the Seller shall remit to the Purchaser a placement fee of
ten dollars ($10.00) for each such Mortgage Loan;
(fff) Negative Amortization. Unless otherwise disclosed in the Mortgage
Loan Schedule, no Mortgage Loan is subject to negative amortization;
(ggg) Origination Practices/No Steering. No Mortgagor was encouraged or
required to select a mortgage loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination, such Mortgagor
did not qualify taking into account credit history and debt-to-income ratios for
a lower-cost credit product then offered by the Mortgage Loan's originator or
any affiliate of the Mortgage Loan's originator. If, at the time of loan
application, the Mortgagor may have qualified for a lower-cost credit product
then offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the Mortgagor's
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application to such affiliate for underwriting consideration. This
representation and warranty is a Deemed Material and Adverse Representation;
(hhh) Underwriting Methodology. The methodology used in underwriting the
extension of credit for each Mortgage Loan employs, in part, objective
mathematical principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the Mortgagor's equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan. This representation and warranty is a Deemed
Material and Adverse Representation;
(iii) Points and Fees. No Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than (i) $1,000, or (ii) 5% of
the principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, such 5% limitation is calculated in accordance with
Xxxxxx Mae's anti-predatory lending requirements as set forth in the Xxxxxx
Xxx Guides and "points and fees" (x) include origination, underwriting, broker
and finder fees and charges that the mortgagee imposed as a condition of
making the Mortgage Loan, whether they are paid to the mortgagee or a third
party; and (y) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the Mortgage Loan
(such as attorneys' fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections), the cost of mortgage insurance or
credit-risk price adjustments, the costs of title, hazard, and flood insurance
policies, state and local transfer taxes or fees, escrow deposits for the
future payment of taxes and insurance premiums, and other miscellaneous fees
and charges that, in total, do not exceed 0.25% of the principal amount of
such Mortgage Loan. This representation and warranty is a Deemed Material and
Adverse Representation;
(jjj) Fees Charges. All points, fees and charges (including finance
charges) and whether or not financed, assessed, collected or to be collected
in connection with the origination and servicing of each Mortgage Loan have
been disclosed in writing to the Mortgagor in accordance with applicable state
and federal law and regulation. This representation and warranty is a Deemed
Material and Adverse Representation; and
(kkk) Second Lien Loans. With respect to each Second Lien Loan:
(i) No Negative Amortization of Related First Lien Loan. The related
first lien loan does not permit negative amortization;
(ii) Request for Notice; No Consent Required. Where required or customary
in the jurisdiction in which the Mortgaged Property is located, the
original lender has filed for record a request for notice of any
action by the related senior lienholder, and the Seller has notified
such senior lienholder in writing of the existence of the Second
Lien Loan and requested notification of any action to be taken
against the Mortgagor by such senior lienholder. Either (a) no
consent for the Second Lien Loan is required by
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the holder of the related first lien loan or (b) such consent has
been obtained and is contained in the related Mortgage File;
(iii) No Default Under First Lien. To the best of Seller's knowledge, the
related first lien loan is in full force and effect, and there is no
default lien, breach, violation or event which would permit
acceleration existing under such first lien mortgage or mortgage
note, and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
default, breach, violation or event which would permit acceleration
under such first lien loan; and
(iv) Right to Cure First Lien. The related first lien mortgage contains a
provision which provides for giving notice of default or breach to
the mortgagee under the Mortgage Loan and allows such mortgagee to
cure any default under the related first lien mortgage.
Subsection 9.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties set
forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage Loans
to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. With respect to any representation or warranty contained in Subsections
9.01 or 9.02 hereof that is made to the Seller's knowledge, if it is discovered
by the Purchaser that the substance of such representation and warranty was
inaccurate as of the related Closing Date and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, then notwithstanding
the Seller's lack of knowledge with respect to the inaccuracy at the time the
representation or warranty was made, such inaccuracy shall be deemed a breach of
the applicable representation or warranty. Upon discovery by either the Seller
or the Purchaser of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other relevant parties.
Within sixty (60) days after the earlier of either discovery by or notice
to the Seller of any breach of a representation or warranty, which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan or Mortgage Loans at the
Repurchase Price. Notwithstanding the above sentence, (i) within sixty (60) days
after the earlier of either discovery by, or notice to, the Seller of any breach
of the representation and warranty set forth in clause (vv) of Subsection 9.02,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price and (ii)
any breach of a Deemed Material and Adverse Representation shall automatically
be deemed to materially and adversely affects the value of the Mortgage Loans or
the interest of the Purchaser therein. In the event that a breach shall involve
any representation or warranty set forth in Subsection 9.01, and such breach
cannot be cured within 60 days of the earlier of either discovery by or notice
to the Seller
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of such breach, all of the Mortgage Loans affected by such breach shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Subsection 9.02 (except as provided in the second sentence of this paragraph
with respect to certain breaches for which no substitution is permitted) and the
Seller discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller shall, at the Purchaser's option and provided
that the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan and substitute in
its place a Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage
Loans, provided, however, that any such substitution shall be effected within
such one hundred twenty (120) days after the related Closing Date. If the Seller
has no Qualified Substitute Mortgage Loan, it shall repurchase the deficient
Mortgage Loan at the Repurchase Price. Any repurchase of a Mortgage Loan
pursuant to the foregoing provisions of this Subsection 9.03 shall occur on a
date designated by the Purchaser, and acceptable to Seller, and shall be
accomplished by either (a) if the Interim Servicing Agreement has been entered
into and is in effect, deposit in the Custodial Account of the amount of the
Repurchase Price for distribution to the Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution or (b) if the Interim Servicing Agreement has not been
entered into or is no longer in effect, by direct remittance of the Repurchase
Price to the Purchaser or its designee in accordance with the Purchaser's
instructions.
At the time of repurchase of any deficient Mortgage Loan (or removal of
any Deleted Mortgage Loan), the Purchaser and the Seller shall arrange for the
reassignment of the repurchased Mortgage Loan (or Deleted Mortgage Loan) to the
Seller or its designee and the delivery to the Seller of any documents held by
the Custodian relating to the repurchased Mortgage Loan (or Deleted Mortgage
Loan). In the event of a repurchase or substitution, the Seller shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase or substitution has taken place, amend the Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Seller shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to the
Custodian or to such other party as the Purchaser may designate in writing for
such Qualified Substitute Mortgage Loan the documents required by Subsection
6.03 and the Custodial Agreement, with the Mortgage Note endorsed as required by
Subsection 6.03 and the Custodial Agreement. No substitution will be made in any
calendar month after the Determination Date for such month. The Seller shall
cause the Interim Servicer to remit directly to the Purchaser, or its designee
in accordance with the Purchaser's instructions the Monthly Payment less the
Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan or Loans
in the month following the date of such substitution. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Seller. For the month of substitution, distributions to
the Purchaser shall include the Monthly Payment due on any Deleted Mortgage Loan
in the month of substitution, and the Seller shall
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thereafter be entitled to retain all amounts subsequently received by the Seller
in respect of such Deleted Mortgage Loan. The Seller shall give written notice
to the Purchaser that such substitution has taken place and shall amend the
related Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage
Loan from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan. Upon such substitution, each Qualified Substitute
Mortgage Loan shall be subject to the terms of this Agreement in all respects,
and the Seller shall be deemed to have made with respect to such Qualified
Substitute Mortgage Loan, as of the date of substitution, the covenants,
representations and warranties set forth in Subsections 9.01 and 9.02.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller
shall determine the amount (if any) by which the aggregate principal balance of
all such Qualified Substitute Mortgage Loans as of the date of substitution is
less than the aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after application of scheduled principal payments due in the month of
substitution). The amount of such shortfall shall be distributed by the Seller
directly to the Purchaser or its designee in accordance with the Purchaser's
instructions within two (2) Business Days of such substitution.
In addition to such repurchase or substitution obligation, the Seller
shall indemnify the Purchaser and its present and former directors, officers,
employees and agents and any Successor Servicer and its present and former
directors, officers, employees and agents and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of the Seller representations and warranties contained in this Agreement
or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection 9.03 to cure, repurchase
or substitute for a defective Mortgage Loan and to indemnify the Purchaser and
Successor Servicer as provided in this Subsection 9.03 and in Subsection 14.01
constitute the sole remedies of the Purchaser and Successor Servicer respecting
a breach of the foregoing representations and warranties. For purposes of this
paragraph "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement and "Successor Servicer" shall mean any Person designated as the
Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" pursuant to this Agreement.
Any cause of action against the Seller relating to or arising out of the
breach of any representations and warranties made in Subsections 9.01 and 9.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the
Seller to cure such breach, substitute a Qualified Substitute Mortgage Loan, or
repurchase such Mortgage Loan as specified above and (iii) demand upon the
Seller by the Purchaser for compliance with this Agreement.
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Subsection 9.04 Repurchase of Mortgage Loans with First Payment Defaults.
If the related Mortgagor is delinquent with respect to the Mortgage Loan's
first Monthly Payment either (i) after origination of such Mortgage Loan, or
(ii) after the related Closing Date, the Seller, at the Purchaser's option,
shall repurchase such Mortgage Loan from the Purchaser at a price equal to the
Repurchase Price. The Seller shall repurchase such delinquent Mortgage Loan
within thirty (30) days of such request.
Subsection 9.05 Premium Recapture.
With respect to any Mortgage Loan without Prepayment Penalties that
prepays in full during the first 90 days following the related Closing Date, and
with respect to any Mortgage Loan that is repurchased pursuant to Subsection
9.04, the Seller shall pay the Purchaser, within 30 calendar days after giving
notice of such prepayment in full or repurchase, an amount equal to the excess
of the Purchase Price Percentage for such Mortgage Loan over par, multiplied by
the outstanding principal balance of such Mortgage Loan as of the related
Cut-off Date.
SECTION 10. Closing
The closing for the purchase and sale of each Mortgage Loan Package shall
take place on the related Closing Date. At the Purchaser's option, each Closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing Date
shall be subject to each of the following conditions:
(i) at least two Business Days prior to the related Closing Date, the
Seller shall deliver to the Purchaser a magnetic diskette, or
transmit by modem, a listing on a loan-level basis of the necessary
information to compute the Purchase Price of the Mortgage Loans
delivered on such Closing Date (including accrued interest), and
prepare a Mortgage Loan Schedule;
(ii) all of the representations and warranties of the Seller under this
Agreement and of the Interim Servicer under the Interim Servicing
Agreement (with respect to each Mortgage Loan for an interim period,
as specified therein) shall be true and correct as of the related
Closing Date and no event shall have occurred which, with notice or
the passage of time, would constitute a default under this Agreement
or an Event of Default under the Interim Servicing Agreement;
(iii) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all closing documents as specified in
Section 11 of this Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other
than the Purchaser as required pursuant to the terms hereof;
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(iv) the Seller shall have delivered and released to the Custodian all
documents required pursuant to the Custodial Agreement; and
(v) all other terms and conditions of this Agreement and the related
Purchase Price and Terms Agreement shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the Seller
on the related Closing Date the Purchase Price, plus accrued interest pursuant
to Section 4 of this Agreement, by wire transfer of immediately available funds
to the account designated by the Seller.
SECTION 11. Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
1. this Agreement (to be executed and delivered only for the initial
Closing Date);
2. with respect to the initial Closing Date, the Custodial Agreement,
dated as of the initial Cut-off Date;
3. the related Mortgage Loan Schedule (one copy to be attached to the
Custodian's counterpart of the Custodial Agreement in connection
with the initial Closing Date, and one copy to be attached to the
related Assignment and Conveyance as the Mortgage Loan Schedule
thereto);
4. a Custodian's Certification, as required under the Custodial
Agreement, in the form of Exhibit 2 to the Custodial Agreement;
5. with respect to the initial Closing Date, an Officer's Certificate,
in the form of Exhibit C hereto with respect to the Seller,
including all attachments thereto; with respect to subsequent
Closing Dates, an Officer's Certificate upon request of the
Purchaser;
6. with respect to the initial Closing Date, an Opinion of Counsel of
the Seller (who may be an employee of the Seller), generally in the
form of Exhibit D hereto ("Opinion of Counsel of the Seller"); with
respect to subsequent Closing Dates, an Opinion of Counsel of the
Seller upon request of the Purchaser;
7. with respect to the initial Closing Date, an Opinion of Counsel of
the Custodian (who may be an employee of the Custodian), in the form
of an exhibit to the Custodial Agreement(s), if required;
8. a Security Release Certification, in the form of Exhibit E or F, as
applicable, hereto executed by any person, as requested by the
Purchaser,
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if any of the Mortgage Loans have at any time been subject to any
security interest, pledge or hypothecation for the benefit of such
person;
9. a certificate or other evidence of merger or change of name, signed
or stamped by the applicable regulatory authority, if any of the
Mortgage Loans were acquired by the Seller by merger or acquired or
originated by the Seller while conducting business under a name
other than its present name, if applicable;
10. with respect to the initial Closing Date, the Underwriting
Guidelines to be attached hereto as Exhibit G and with respect to
each subsequent Closing Date, the Underwriting Guidelines to be
attached to the related Assignment and Conveyance;
11. Assignment and Conveyance Agreement in the form of Exhibit H hereto,
and all exhibits thereto; and
12. a MERS Report reflecting the Purchaser as Investor, the Custodian as
custodian and no Person as Interim Funder for each MERS Designated
Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents until such
time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay any commissions due its salesmen and the legal
fees and expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
Loans and the Servicing Rights including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage, and
the Seller's attorney's fees, shall be paid by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all of the
Mortgage Loans, after the related Closing Date, on one or more dates (each, a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may effect
a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
(i) Xxxxxx Xxx under its Cash Purchase Program or MBS Program (Special
Servicing Option) (each, a "Xxxxxx Mae Transfer"); or
(ii) Xxxxxxx Mac (the "Xxxxxxx Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
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(iv) one or more trusts or other entities to be formed as part of one or
more Securitization Transactions.
The Seller agrees to execute in connection with any Agency Transfer, any
and all reasonably acceptable pool purchase contracts, and/or agreements among
the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may be) and
any servicer in connection with a Whole Loan Transfer, a seller's warranties and
servicing agreement or a participation and servicing agreement, each in form and
substance reasonably acceptable to the parties, and in connection with a
Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties (collectively, the agreements
referred to herein are designated the "Reconstitution Agreements"), together
with an opinion of counsel with respect thereto.
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees: (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; and (3) to
restate the representations and warranties set forth in Subsections 9.01 and
9.02 as of the settlement or closing date in connection with such
Reconstitution; or make the representations and warranties set forth in the
related selling/servicing guide of the servicer or issuer (solely to the extent
such representations and warranties are substantially the same as the
representations and warranties contained herein), as the case may be, or such
representations or warranties as may be required by any rating agency or
prospective purchaser of the related securities or such Mortgage Loans in
connection with such Reconstitution (solely to the extent such representations
and warranties are substantially the same as the representations and warranties
contained herein); The Seller shall provide to such servicer or issuer, as the
case may be, and any other participants or purchasers in such Reconstitution:
(i) any and all information and appropriate verification of information which
may be reasonably available to the Seller or its affiliates, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall request; (ii) such additional representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller or the Interim
Servicer as are reasonably believed necessary by the Purchaser or any such other
participant, at the sole expense of the Purchaser or such other Participant; and
(iii) to execute, deliver and satisfy all conditions set forth in any indemnity
agreement required by the Purchaser or any such participant, including, without
limitation, an Indemnification and Contribution Agreement in substantially the
form attached hereto as Exhibit B. Moreover, the Seller agrees to cooperate with
all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser participating in the Reconstitution and each Person who controls the
Purchaser or such affiliate and their respective present and former directors,
officers, employees and agents, and hold each of them harmless from and against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that each of
them may sustain in any way related to any information provided by the Seller
regarding the Seller, the Mortgage Loans or the Underwriting Guidelines set
forth in any offering document prepared in connection with any Reconstitution.
For purposes of the previous sentence, "Purchaser" shall mean the Person then
acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement.
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All Mortgage Loans not sold or transferred pursuant to a Reconstitution
shall remain subject to this Agreement and, if the Interim Servicing Agreement
shall remain in effect with respect to the related Mortgage Loan Package, shall
continue to be serviced in accordance with the terms of this Agreement and the
Interim Servicing Agreement and with respect thereto this Agreement shall remain
in full force and effect.
SECTION 14. The Seller.
Subsection 14.01 Additional Indemnification by the Seller; Third Party
Claims.
(a) The Seller shall indemnify any Purchaser and its present and former
directors, officers, employees and agents and the Successor Servicer and its
present and former directors, officers, employees and agents, and hold such
parties harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including legal fees and expenses incurred
in connection with the enforcement of the Seller's indemnification obligation
under this Subsection 14.01) and related costs, judgments, and any other costs,
fees and expenses that such parties may sustain in any way related to the
failure of the Seller to perform its duties and the Interim Servicer to service
the Mortgage Loans in strict compliance with the terms of this Agreement or any
Reconstitution Agreement entered into pursuant to Section 13 or any breach of
any of Seller's representations, warranties and covenants set forth in this
Agreement. For purposes of this clause "Purchaser" shall mean the Person then
acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement and "Successor Servicer" shall
mean any Person designated as the Successor Servicer pursuant to this Agreement
and any and all Persons who previously were "Successor Servicers" pursuant to
this Agreement.
(b) Promptly after receipt by an indemnified party under this Subsection
14.01 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Subsection 14.01, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Subsection 14.01, except to the extent that it has
been prejudiced in any material respect, or from any liability which it may
have, otherwise than under this Subsection 14.01. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified party of
counsel, the
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indemnifying party will not be liable to such indemnified party for expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable)), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Subsection 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and franchises as
a corporation under the laws of the state of its incorporation except as
permitted herein, and will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
or any of the Mortgage Loans and to perform its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
SECTION 15. Financial Statements.
The Seller understands that in connection with the Purchaser's marketing of
the Mortgage Loans, the Purchaser shall make available to prospective purchasers
audited financial statements of MortgageIT Holdings, Inc., the Seller's direct
parent company, for the most recently completed three fiscal years respecting
which such statements are available, as well as a Consolidated Statement of
Condition of the Seller at the end of the last two fiscal years covered by such
Consolidated Statement of Operations. The Seller shall also make available any
comparable interim statements to the extent any such statements have been
prepared by the Seller (and are available upon request to members or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller shall also make available information on
its servicing performance with respect to loans serviced for others, including
delinquency ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller, unless such access contravenes federal
or state securities laws, regulations and reasonable interpretations thereof.
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SECTION 16. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the related Closing Date of the Mortgage Loans
described on the related Mortgage Loan Schedule is mandatory from and after the
date of the execution of the related Purchase Price and Terms Agreement, it
being specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller's failure to deliver (i) each of the related
Mortgage Loans or (ii) one or more Qualified Substitute Mortgage Loans or (iii)
one or more Mortgage Loans otherwise acceptable to the Purchaser on or before
the related Closing Date. The Seller hereby grants to the Purchaser a lien on
and a continuing security interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by the
Seller of its obligations under the fully-executed related Purchase Price and
Terms Agreement, and the Seller agrees that it shall hold such Mortgage Loans in
custody for the Purchaser subject to the Purchaser's (a) right to reject any
Mortgage Loan (or Qualified Substitute Mortgage Loan) under the terms of this
Agreement and to require another Mortgage Loan (or Qualified Substitute Mortgage
Loan) to be substituted therefor, and (b) obligation to pay the Purchase Price
for the Mortgage Loans. All rights and remedies of the Purchaser under this
Agreement are distinct from, and cumulative with, any other rights or remedies
under this Agreement or afforded by law or equity and all such rights and
remedies may be exercised concurrently, independently or successively.
SECTION 17. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed, by registered or certified
mail, return receipt requested, or, if by other means, when received by the
other party at the address as follows:
(i) if to the Seller:
MortgageIT, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10038
Attention: General Counsel
(ii) if to the Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
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with copies to:
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx - Servicing Oversight
0000 X-Xxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx - RFPG
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 18. Severability Clause.
Any part, provision representation or warranty of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 19. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 20. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing, and
the Seller is selling the Mortgage Loans and not a debt instrument of the Seller
or another security. Accordingly, the parties hereto each intend to treat the
transaction for federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans.
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Moreover, the arrangement under which the Mortgage Loans are held shall be
consistent with classification of such arrangement as a grantor trust in the
event it is not found to represent direct ownership of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Mortgage Loan Files to determine the characteristics of the Mortgage Loans which
shall affect the federal income tax consequences of owning the Mortgage Loans
and the Seller shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
SECTION 21. Successors and Assigns; Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by
the Seller and the Purchaser and the respective permitted successors and assigns
of the Seller and the successors and assigns of the Purchaser. This Agreement
shall not be assigned, pledged or hypothecated by the Seller to a third party
without the prior written consent of the Purchaser, which consent may be
withheld by the Purchaser in its sole discretion. This Agreement may be
assigned, pledged or hypothecated by the Purchaser in whole or in part, and with
respect to one or more of the Mortgage Loans, without the consent of the Seller.
There shall be no limitation on the number of assignments or transfers allowable
by the Purchaser with respect to the Mortgage Loans and this Agreement. In the
event the Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser's obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability to
the Seller with respect thereto.
SECTION 22. Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
SECTION 23. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
SECTION 24. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to them
in this Agreement and include the plural as well as the singular, and the use of
any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
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(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section is a
reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular provision;
and
(f) the terms "include" and "including" shall mean without limitation by
reason of enumeration.
SECTION 25. Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to the other
such reasonable and appropriate additional documents, instruments or agreements
as may be necessary or appropriate to effectuate the purposes of this Agreement.
SECTION 27. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments of
Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or their comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
SECTION 28. No Solicitation.
From and after the related Closing Date, the Seller agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
or affiliates, or by any independent contractors on the Seller's behalf, to
personally, by telephone or mail (via electronic means or otherwise), solicit a
Mortgagor under any Mortgage Loan for the purpose of
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refinancing a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. Notwithstanding the foregoing, it is understood and
agreed that the Seller, or any of its respective affiliates:
(i) may advertise its availability for handling refinancings of mortgages
in its portfolio, including the promotion of terms it has available
for such refinancings, through the sending of letters or promotional
material, so long as it does not specifically target Mortgagors and so
long as such promotional material either is sent to the mortgagors for
all of the mortgages in the servicing portfolio of the Seller and any
of its affiliates (those it owns as well as those serviced for
others); and
(ii) may provide pay-off information and otherwise cooperate with
individual mortgagors who contact it about prepaying their mortgages
by advising them of refinancing terms and streamlined origination
arrangements that are available.
Promotions undertaken by the Seller or by any affiliate of the Seller which
are directed to the general public at large (including, without limitation, mass
mailing based on commercially acquired mailing lists, newspaper, radio and
television advertisements), shall not constitute solicitation under this Section
28.
SECTION 29. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 30. Governing Law Jurisdiction; Consent to Service of Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED COUNTERPART
THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND SHALL BE
DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER
IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
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PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A
COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES
HEREUNDER.
SECTION 31. Amendment.
This Agreement may be amended from time to time by the Purchaser and the
Seller by written agreement signed by the parties hereto.
SECTION 32. Confidentiality.
Each of the Purchaser and the Seller shall employ proper procedures and
standards designed to maintain the confidential nature of the terms of this
Agreement, except to the extent: (a) the disclosure of which is reasonably
believed by such party to be required in connection with regulatory requirements
or other legal requirements relating to its affairs; (b) disclosed to any one or
more of such party's employees, officers, directors, agents, attorneys or
accountants who would have access to the contents of this Agreement and such
data and information in the normal course of the performance of such Person's
duties for such party, to the extent such party has procedures in effect to
inform such Person of the confidential nature thereof; (c) that is disclosed in
a prospectus, prospectus supplement or private placement memorandum relating to
a securitization of the Mortgage Loans by the Purchaser (or an affiliate
assignee thereof) or to any Person in connection with the resale or proposed
resale of all or a portion of the Mortgage Loans by such party in accordance
with the terms of this Agreement; and (d) that is reasonably believed by such
party to be necessary for the enforcement of such party's rights under this
Agreement.
Notwithstanding any other express or implied agreement to the contrary,
each of the Purchaser and the Seller agree and acknowledge that each of them and
each of their employees, representatives, and other agents may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to any of them relating to such tax
treatment and tax structure, except to the extent that confidentiality is
reasonably necessary to comply with U.S. federal or state securities laws. For
purposes of this paragraph, the terms "tax treatment" and "tax structure" have
the meanings specified in Treasury Regulation section 1.6011-4(c).
SECTION 33. Entire Agreement.
This Agreement constitutes the entire agreement and understanding relating
to the subject matter hereof between the parties hereto and any prior oral or
written agreements between them shall be deemed to have merged herewith.
SECTION 34. Compliance with Regulation AB
Subsection 34.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose of
Section 34 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with
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the provisions of Regulation AB and related rules and regulations of the
Commission. Although Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission thereunder (or
the provision in a private offering of disclosure comparable to that required
under the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate fully with the Purchaser to deliver to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Seller, any Third-Party Originator and the Mortgage Loans, or the servicing of
the Mortgage Loans, reasonably believed by the Purchaser or any Depositor to be
necessary in order to effect such compliance.
Subsection 34.02 Additional Representations and Warranties of the Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to any
Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 34.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the Seller is
not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Seller; (ii) the Interim Servicer has
not been terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing performance
test or trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of residential mortgage loans
involving the Interim Servicer as servicer has been disclosed or reported by the
Seller; (iv) no material changes to the Interim Servicer's policies or
procedures with respect to the servicing function it will perform under the
Interim Servicing Agreement and any Reconstitution Agreement for mortgage loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Interim Servicer's financial condition that could have a
material adverse effect on the performance by the Interim Servicer of its
servicing obligations under the Interim Servicing Agreement or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller, Interim
Servicer, any Subservicer or any Third-Party Originator; and (vii) there are no
affiliations, relationships or
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transactions relating to the Seller, Interim Servicer, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date following
the date on which information is first provided to the Purchaser or any
Depositor under Subsection 34.03, the Seller shall, within ten Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
Subsection 34.03 Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall (i)
within ten Business Days following request by the Purchaser or any Depositor,
provide to the Purchaser and such Depositor (or, as applicable, cause each
Third-Party Originator to provide), in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a) and (b) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Seller shall
provide such information regarding (i) the Seller, as originator of the Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and how long the
originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator's
experience in originating mortgage loans of a similar type as the
Mortgage Loans; information regarding the size and composition of the
originator's origination portfolio; and information that may be
material, in the good faith judgment of the Purchaser or any
Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators' credit-granting or underwriting criteria
for mortgage loans of similar type(s) as the Mortgage Loans and such
other information as the Purchaser or any Depositor may reasonably
request for the purpose of compliance with Item 1110(b)(2) of
Regulation AB;
(C) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each
Third-Party Originator; and
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(D) a description of any affiliation or relationship between the Seller,
each Third-Party Originator and any of the following parties to a
Securitization Transaction, as such parties are identified to the
Seller by the Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
(2) the sponsor;
(3) the depositor;
(4) the issuing entity;
(5) any servicer;
(6) any trustee;
(7) any originator;
(8) any significant obligor;
(9) any enhancement or support provider; and
(10) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide) Static
Pool Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator; provided, that such obligation to
provide Static Pool Information shall be subject to the provisions of the last
paragraph of Subsection 34.03(d). Such Static Pool Information shall be prepared
in form and substance reasonably satisfactory to the Purchaser by the Seller (or
Third-Party Originator) on the basis of its reasonable, good faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB. To
the extent that there is reasonably available to the Seller (or Third-Party
Originator) Static Pool Information with respect to more than one mortgage loan
type, the Purchaser or any Depositor shall be entitled to specify whether some
or all of such information shall be provided pursuant to this paragraph. Such
Static Pool Information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in increments no less frequently than
quarterly over the life of the mortgage loans included in the vintage
origination year or prior securitized pool. The most recent periodic increment
must be as of a date no later than 135 days prior to the date of the prospectus
or other offering document in which the Static Pool Information is to be
included or incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of a material error in Static Pool
Information provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided pursuant to
such paragraph), the Seller shall provide corrected Static Pool Information to
the Purchaser or any Depositor, as applicable, in the same format in which
Static Pool Information was previously provided to such party by the Seller.
If so requested by the Purchaser or any Depositor, the Seller shall provide
(or, as applicable, cause each Third-Party Originator to provide), at the
expense of the requesting party
-55-
(to the extent of any additional incremental expense associated with delivery
pursuant to this Agreement), such agreed-upon procedures letters of certified
public accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior securitized
pools for securitizations closed on or after January 1, 2006 or, in the case of
Static Pool Information with respect to the Seller's or Third-Party Originator's
originations or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) [Reserved]
(d) If so requested by the Purchaser or any Depositor for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to any
class of asset-backed securities, the Seller shall (or shall cause each
Third-Party Originator to) (i) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental proceedings pending against the
Seller or any Third-Party Originator and (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Seller or any Third-Party Originator and any of the parties specified in
clause (D) of paragraph (a) of this Section (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or relationships.
With respect to those Mortgage Loans that were originated by Seller and
sold to the Purchaser pursuant to this Agreement and subsequently securitized by
the Purchaser or any of its Affiliates, the Purchaser shall, to the extent
consistent with then-current industry practice, cause the servicer (or another
party to such securitization) under the securitization to be obligated to
provide information with respect to the Mortgage Loans from and after cut-off
date of such securitization necessary for the Seller to comply with its
obligations under Regulation AB, including, without limitation, providing to the
Seller static pool information, as set forth in Item 1105(a)(2) and (5) of
Regulation AB.
Subsection 34.04 Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, and shall hold each of them harmless from and
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against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged to be
contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under
this Section 34 by or on behalf of the Seller, or provided under this
Section 34 by or on behalf of any Third-Party Originator
(collectively, the "Seller Information"), or (B) the omission or
alleged omission to state in the Seller Information a material fact
required to be stated in the Seller Information or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be construed
solely by reference to the Seller Information and not to any other
information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such
other information;
(ii) any failure by the Seller or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other
material when and as required under this Section 34; or
(iii) any breach by the Seller of a representation or warranty set forth in
Subsection 34.02(a) or in a writing furnished pursuant to Subsection
34.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is
not cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to
Subsection 34.02(b) to the extent made as of a date subsequent to such
closing date.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Seller shall promptly reimburse the Purchaser, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
(b) Any failure by the Seller or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other material when
and as required under this Section 34, or any breach by the Seller of a
representation or warranty set forth in Subsection 34.02(a) or in a writing
furnished pursuant to Subsection 34.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Seller of a
representation or
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warranty in a writing furnished pursuant to Subsection 34.02(b) to the extent
made as of a date subsequent to such closing date, shall immediately and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Seller under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Interim Servicer as servicer under the Interim Servicing Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to the
contrary) of any compensation to the Interim Servicer; provided that to the
extent that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Interim Servicer as servicer, such provision shall
be given effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:_________________________________
Name:
Title:
MORTGAGEIT, INC.
By:_________________________________
Name:
Title:
EXHIBIT A-1
MORTGAGE LOAN DOCUMENTS
-----------------------
With respect to each Mortgage Loan, the Mortgage Loan Documents shall
include each of the following items, which shall be available for inspection by
the Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Fourth Amended and Restated Mortgage Loan Purchase
and Warranties Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be
substantially in the form "[Last Endorsee], successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be
substantially in the form "[Last Endorsee], formerly known as [previous name]";
(b) the original of any guarantee executed in connection with the Mortgage
Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the original
Mortgage with evidence of recording thereon. With respect to any Co-op Loan, an
original or copy of the Security Agreement. If in connection with any Mortgage
Loan, the Seller 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 Seller 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 Seller (or certified by the title company,
escrow agent, or closing attorney) stating that such Mortgage has been
dispatched to the appropriate public recording office for recordation and that
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
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
A-1-1
(e) with respect to Mortgage Loans that are not Co-op Loans, the original
Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable
for recording (except with respect to MERS Designated Loans). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage investors
in the area where the Mortgaged Property is located or on direction of the
Purchaser as provided in this Agreement. If the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned to the Purchaser. If the Assignment of
Mortgage is not to be recorded, the Assignment of Mortgage shall be delivered in
blank. If the Mortgage Loan was acquired by the Seller in a merger, the
Assignment of Mortgage must be made by "[Seller], successor by merger to [name
of predecessor]". If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the Assignment of Mortgage must be by
"[Seller], formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the originals
of all intervening assignments of mortgage (if any) evidencing a complete chain
of assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Loan, MERS) with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, 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 Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, 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;
(g) with respect to Mortgage Loans that are not Co-op Loans, the original
mortgagee policy of title insurance or, in the event such original title policy
is unavailable, a certified true copy of the related policy binder or commitment
for title certified to be true and complete by the title insurance company;
(h) the original or, if unavailable, a copy of any security agreement,
chattel mortgage or equivalent document executed in connection with the
Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease and the
assignment of such Co-op Lease, with all intervening assignments showing a
complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the Mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; and (iv) copies of the financial statement
filed by the originator as secured party
A-1-2
and, if applicable, a filed UCC-3 assignment of the subject security interest
showing a complete chain of title, together with an executed UCC-3 assignment of
such security interest by the Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person holding a
power of attorney, an original or photocopy of such power certified by the
Seller to be a true and correct copy of the original.
In the event an Officer's Certificate of the Seller is delivered to the
Purchaser because of a delay caused by the public recording office in returning
any recorded document, the Seller shall deliver to the Purchaser, within 90 days
of the related Closing Date, an Officer's Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation, and
(iv) specify the date the applicable recorded document will be delivered to the
Custodian; provided, however, that any recorded document shall in no event be
delivered later than one year following the related Closing Date. An extension
of the date specified in clause (iv) above may be requested from the Purchaser,
which consent shall not be unreasonably withheld.
X-0-0
XXXXXXX X-0
CONTENTS OF EACH MORTGAGE FILE
------------------------------
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, unless otherwise disclosed to the Purchaser on the data
tape, which shall be available for inspection by the Purchaser and which shall
be retained by the Interim Servicer or delivered to the Purchaser:
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on Mortgagor, in a form acceptable to either Xxxxxx Mae
or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property and photographs of comparable
properties.
(i) Survey of the Mortgaged Property, unless a survey is not required by
the title insurer.
(j) Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e., map or
plat, restrictions, easements, home owner association declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report, water
potability and septic certification.
(m) Sales Contract, if applicable.
(n) Copy of the owner's title insurance policy or attorney's opinion of
title and abstract of title, as applicable.
Evidence of electronic notation of the hazard insurance policy, and, if
required by law, evidence of the flood insurance policy.
A-2-1
EXHIBIT B
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"), dated as of
[_______], 200_, among [________________] (the "Depositor"), a [______________]
corporation (the "Depositor"), Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York
corporation ("Xxxxxx") and [_____________], a [_______________] (the "Seller").
W I T N E S S E T H:
WHEREAS, the Depositor is acting as depositor and registrant with respect
to the Prospectus, dated [________________], and the Prospectus Supplement to
the Prospectus, [________________] (the "Prospectus Supplement"), relating to
[________________] Certificates (the "Certificates") to be issued pursuant to a
Pooling and Servicing Agreement, dated as of [________________] (the "P&S"),
among the Depositor, as depositor, [________________], as servicer (the
"Servicer"), and [________________], as trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S, and
[____________________] (the "Underwriter[s]") to enter into the Underwriting
Agreement, dated [____________________] (the "Underwriting Agreement") between
the Depositor and the Underwriter[s], and [_______________] (the "Initial
Purchaser[s]") to enter into the Certificate Purchase Agreement, dated
[____________] (the "Certificate Purchase Agreement") between the Depositor and
the Initial Purchaser[s], Seller has agreed to provide for indemnification and
contribution on the terms and conditions hereinafter set forth;
WHEREAS, Xxxxxx purchased from Seller certain of the Mortgage Loans
underlying the Certificates (the "Mortgage Loans") pursuant to a Fourth Amended
and Restated Mortgage Loan Purchase and Warranties Servicing Agreement, dated as
of [DATE] (the "Purchase Agreement"), by and between Xxxxxx and Seller; and
WHEREAS, pursuant to Section 13 of the Purchase Agreement, the Seller has
agreed to indemnify, to the extent set forth herein, the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] and their respective affiliates,
present and former directors, officers, employees and agents.
B-1
NOW THEREFORE, in consideration of the agreements contained herein, and
other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Xxxxxx and the Seller agree as follows:
1. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless the Depositor, Xxxxxx,
the Underwriter[s], the Initial Purchaser[s] and their respective affiliates and
their respective present and former directors, officers, employees and agents
and each person, if any, who controls the Depositor, Xxxxxx, the Underwriter[s],
the Initial Purchaser[s] or such affiliate within the meaning of either Section
15 of the Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
Supplement, the Offering Circular, the ABS Informational and Computational
Materials or in the Free Writing Prospectus or any omission or alleged omission
to state in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Materials or in the Free Writing Prospectus a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any such untrue statement or omission or alleged untrue statement or alleged
omission made in any amendment of or supplement to the Prospectus Supplement,
the Offering Circular, the ABS Informational and Computational Materials or the
Free Writing Prospectus and agrees to reimburse the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] or such affiliates and each such
officer, director, employee, agent and controlling person promptly upon demand
for any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that Seller shall be liable in any such case only to the extent that
any such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any breach of the representation and warranty set forth in Section
2(vii) below or (ii) any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with the
Seller Information. The foregoing indemnity agreement is in addition to any
liability which Seller may otherwise have to the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] their affiliates or any such director,
officer, employee, agent or controlling person of the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] or their respective affiliates.
As used herein:
"Seller Information" means any information relating to Seller, the Mortgage
Loans and/or the underwriting guidelines relating to the Mortgage Loans set
forth in the Prospectus Supplement, the Offering Circular, the ABS Informational
and Computational Materials or the Free Writing Prospectus [and static pool
information regarding mortgage loans originated or acquired by the Seller [and
included in the Prospectus Supplement, the Offering
B-2
Circular, the ABS Informational and Computational Materials or the Free Writing
Prospectus] [incorporated by reference from the website located at
______________].
"Free Writing Prospectus" means any written communication that constitutes
a "free writing prospectus," as defined in Rule 405 under the 1933 Act.
"ABS Informational and Computational Material" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as may be amended from time to time.
"Offering Circular" means the offering circular, dated [__________]
relating to the private offering of the [_______________] Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
(b) Promptly after receipt by any indemnified party under this Section 1 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 1 except to the extent it has been materially
prejudiced by such failure; and provided, further, however, that the failure to
notify any indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 1.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except as provided in the following
paragraph, the indemnifying party shall not be liable to the indemnified party
under this Section 1 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to
B-3
employ separate counsel; or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for reasonable fees and expenses of counsel, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(c) If the indemnification provided for in this Section 1 is unavailable to
an indemnified party, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party, respectively, in connection with
the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(d) The indemnity and contribution agreements contained in this Section 1
and the representations and warranties set forth in Section 2 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Depositor, Xxxxxx, the
Underwriter[s], the Initial Purchaser[s] their respective affiliates, directors,
officers, employees or agents or any person controlling the Depositor, Xxxxxx,
the Underwriter[s], the Initial Purchaser[s] or any such affiliate, and (iii)
acceptance of and payment for any of the Offered Certificates or the Private
Certificates.
B-4
2. Representations and Warranties. Seller represents and warrants that:
(i) Seller is validly existing and in good standing under the laws of its
jurisdiction of formation or incorporation, as applicable, and has full power
and authority to own its assets and to transact the business in which it is
currently engaged. Seller is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business
transacted by it or any properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets or condition (financial or
otherwise) of Seller;
(ii) Seller is not required to obtain the consent of any other person or
any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement (except as have been obtained by Seller);
(iii) the execution, delivery and performance of this Agreement by Seller
will not violate any provision of any existing law or regulation or any order
decree of any court applicable to Seller or any provision of the charter or
bylaws of Seller, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which Seller is a party or by which it may be
bound;
(iv) (a) no proceeding of or before any court, tribunal or governmental
body is currently pending or, (b) to the knowledge of Seller, threatened
against Seller or any of its properties or with respect to this Agreement or
the Offered Certificates, in either case, which would have a material adverse
effect on the business, properties, assets or condition (financial or
otherwise) of Seller;
(v) Seller has full power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated hereunder,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of each of
Seller enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, by the
availability of equitable remedies, and by limitations of public policy under
applicable securities law as to rights of indemnity and contribution
thereunder;
(vi) this Agreement has been duly executed and delivered by Seller; and
(vii) the Seller represents that the Seller Information satisfies the
requirements of the applicable provisions of Regulation AB.
3. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to Seller, will be mailed, delivered or faxed or
emailed and confirmed by mail [______________________]; if sent to Xxxxxx, xxxx
be mailed, delivered or faxed or emailed and confirmed by mail to Xxxxxx Xxxxxxx
Mortgage Capital Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxxxx - Whole Loans
B-5
Operations Manager, Fax: [_______], Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx,
with copies to (i) Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx - Legal Counsel, Securities,
Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax
[_____], Email: xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx - SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Fax [_____], Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if
to the Depositor, will be mailed, delivered or telegraphed and confirmed to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
4. Miscellaneous. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to the
conflict of laws provisions thereof. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their successors and assigns and
the controlling persons referred to herein, and no other person shall have any
right or obligation hereunder. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be considered
an original, and all such counterparts shall constitute one and the same
instrument. Capitalized terms used but not defined herein shall have the
meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
B-6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, this
__th day of [_____________].
[DEPOSITOR]
By: __________________________________
Name:
Title:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: __________________________________
Name:
Title:
[SELLER]
By: __________________________________
Name:
Title:
B-7
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
------------------------------
I, ____________________, hereby certify that I am the duly elected
[Vice] President of ________________[COMPANY], a [state] [federally] chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the date
hereof and which has been in effect without amendment, waiver, rescission
or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver the Fourth Amended and
Restated Mortgage Loan Purchase and Warranties Agreement, dated as of
_______ __, 200_ (the "Purchase Agreement"), by and between Xxxxxx Xxxxxxx
Mortgage Capital Inc. (the "Purchaser") and the Company [and to endorse the
Mortgage Notes and execute the Assignments of Mortgages by original [or
facsimile] signature], and such resolutions are in effect on the date
hereof and have been in effect without amendment, waiver, rescission or
modification since ____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Purchase Agreement, [the sale of the mortgage loans] or the
consummation of the transactions contemplated by the agreements; or (ii)
any required consent, approval, authorization or order has been obtained by
the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement conflicts with or
results in a breach of or constitutes a default under the charter or
by-laws of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to
which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
C-1
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment of the
right or ability of the Company to carry on its business substantially as
now conducted or in any material liability on the part of the Company or
which would draw into question the validity of the Purchase Agreement, or
the Mortgage Loans or of any action taken or to be taken in connection with
the transactions contemplated hereby, or which would be reasonably likely
to impair materially the ability of the Company to perform under the terms
of the Purchase Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an officer
or representative of the Company, signed (a) the Purchase Agreement, and
(b) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Company, who holds the office set forth opposite his or her name on Exhibit
5, and the signatures of such persons appearing on such documents are their
genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
C-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:_______________________________ By:__________________________________
Name:
Title: [Vice] President
[Seal]
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:_______________________________ By:__________________________________
Name:
Title: [Assistant] Secretary
[Seal]
C-3
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
-------------------- -------------------- --------------------
-------------------- -------------------- --------------------
-------------------- -------------------- --------------------
-------------------- -------------------- --------------------
-------------------- -------------------- --------------------
-------------------- -------------------- --------------------
-------------------- -------------------- --------------------
C-4
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
----------------------------------------
(date)
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General Counsel
to ___________________ (the "Company"), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans pursuant to that
certain Fourth Amended and Restated Mortgage Loan Purchase and Warranties
Agreement by and between the Company and Xxxxxx Xxxxxxx Mortgage Capital Inc.
(the "Purchaser"), dated as of ______ __, 200_ (the "Purchase Agreement") which
sale is in the form of whole loans, delivered pursuant to a Custodial Agreement
dated as of _____ __, ____ among the Purchaser, the Company,
___________________________ (the "Interim Servicer") and
___________________________ [CUSTODIAN] (the "Custodial Agreement", and
collectively with the Purchase Agreement, the "Agreements"). Capitalized terms
not otherwise defined herein have the meanings set forth in the Purchase
Agreement.
[We] [I] have examined the following documents:
1. the Purchase Agreement;
2. the Custodial Agreement;
3. the form of Assignment of Mortgage;
4. the form of endorsement of the Mortgage Notes; and
5. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I] have
relied upon the representations and warranties of the Company contained in the
Purchase Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly
existing and in good standing under the laws of the [United
States] and is qualified to
D-1
transact business in, and is in good standing under, the
laws of [the state of incorporation/formation].
2. The Company has the power to engage in the transactions
contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver the
Agreements and to perform and observe the terms and
conditions of the Agreements.
3. Each of the Agreements has been duly authorized, executed
and delivered by the Company, and is a legal, valid and
binding agreement enforceable in accordance with its
respective terms against the Company, subject to bankruptcy
laws and other similar laws of general application affecting
rights of creditors and subject to the application of the
rules of equity, including those respecting the availability
of specific performance, none of which will materially
interfere with the realization of the benefits provided
thereunder or with the Purchaser's ownership of the Mortgage
Loans.
4. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Agreements.
5. The Company has been duly authorized to allow any of its
officers to execute by original [or facsimile] signature
the endorsements to the Mortgage Notes and the Assignments
of Mortgages, and the original [or facsimile] signature of
the officer at the Company executing the endorsements to
the Mortgage Notes and the Assignments of Mortgages
represents the legal and valid signature of said officer
of the Company.
6. Either (i) no consent, approval, authorization or order of
any court or governmental agency or body is required for
the execution, delivery and performance by the Company of
or compliance by the Company with the Agreements and the
sale of the Mortgage Loans by the Company or the
consummation of the transactions contemplated by the
Agreements or (ii) any required consent, approval,
authorization or order has been obtained by the Company.
7. Neither the consummation of the transactions contemplated
by, nor the fulfillment of the terms of, the Agreements
conflicts or will conflict with or results or will result
in a breach of or constitutes or will constitute a default
under the charter or by-laws of the Company, the terms of
any indenture or other agreement or instrument to which
the Company is a party or by which it is bound or to which
it is subject, or violates any statute or order, rule,
regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the
Company is subject or by which it is bound.
D-2
8. There is no action, suit, proceeding or investigation
pending or, to the best of [our] [my] knowledge,
threatened against the Company which, in [our] [my]
judgment, either in any one instance or in the aggregate,
may result in any material adverse change in the business,
operations, financial condition, properties or assets of
the Company or in any material impairment of the right or
ability of the Company to carry on its business
substantially as now conducted or in any material
liability on the part of the Company or which would draw
into question the validity of the Agreements or the
Mortgage Loans or of any action taken or to be taken in
connection with the transactions contemplated thereby, or
which would be likely to impair materially the ability of
the Company to perform under the terms of the Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Agreements is sufficient to
fully transfer to the Purchaser all right, title and
interest of the Company thereto as noteholder and
mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in the Custodial
Agreement. The Assignments of Mortgage are in recordable
form, except for the insertion of the name of the
assignee, and upon the name of the assignee being
inserted, are acceptable for recording under the laws of
the state where each related Mortgaged Property is
located. The endorsement of the Mortgage Notes, the
delivery to the Purchaser, or its designee, of the
Assignments of Mortgage, and the delivery of the original
endorsed Mortgage Notes to the Purchaser, or its designee,
are sufficient to permit the Purchaser to avail itself of
all protection available under applicable law against the
claims of any present or future creditors of the Company,
and are sufficient to prevent any other sale, transfer,
assignment, pledge or hypothecation of the Mortgages and
the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of the date of this
opinion.
Very truly yours,
----------------------------
[Name]
[Assistant] General Counsel
D-3
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
__________________________
__________________________
__________________________
Attention: ______________________
______________________
Re: Notice of Sale and Release of Collateral
----------------------------------------
Dear Sirs:
This letter serves as notice that ________________________[COMPANY] a
[type of entity], organized pursuant to the laws of [the State of incorporation]
(the "Company") has committed to sell to Xxxxxx Xxxxxxx Mortgage Capital Inc.
under a Fourth Amended and Restated Master Mortgage Loan Purchase and Warranties
Agreement, dated as of April 1, 2006, certain mortgage loans originated by the
Association. The Company warrants that the mortgage loans to be sold to Xxxxxx
Xxxxxxx Mortgage Capital Inc. are in addition to and beyond any collateral
required to secure advances made by the Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxx Xxxxxxx Mortgage Capital Inc. shall not be used as additional or
substitute collateral for advances made by the Association. Xxxxxx Xxxxxxx
Mortgage Capital Inc. understands that the balance of the Company's mortgage
loan portfolio may be used as collateral or additional collateral for advances
made by the Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc.
E-1
Very truly yours,
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
Date:____________________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
Date:____________________________
E-2
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the company named on
the next page (the "Company") pursuant to that certain Fourth Amended and
Restated Mortgage Loan Purchase and Warranties Agreement, dated as of April 1,
2006, and certifies that all notes, mortgages, assignments and other documents
in its possession relating to such Mortgage Loans have been delivered and
released to the Company or its designees, as of the date and time of the sale
of such Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc. Such release
shall be effective automatically without any further action by any party upon
payment in one or more installments, in immediately available funds, of
$_____________, in accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
-----------------------------------------------------
(Name)
-----------------------------------------------------
(Address)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
By:
--------------------------------------------------
F-1
II. Certification of Release
------------------------
The Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage
Capital Inc. that, as of the date and time of the sale of the above-mentioned
Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in
the Mortgage Loans released by the above-named financial institution comprise
all security interests relating to or affecting any and all such Mortgage Loans.
The Company warrants that, as of such time, there are and will be no other
security interests affecting any or all of such Mortgage Loans.
______________________________________
By:___________________________________
Title:________________________________
Date:_________________________________
F-2
EXHIBIT G
UNDERWRITING GUIDELINES
-----------------------
G-1
EXHIBIT H
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
-------------------------------------------
On this ___ day of _______, 200_, [____________] ("Seller"), as the
Seller under (i) that certain Purchase Price and Terms Agreement, dated as of
_________, 200__ (the "PPTA"), and (ii) that certain Fourth Amended and Restated
Master Mortgage Loan Purchase and Warranties Agreement, dated as of March 1,
2006 (the "Purchase Agreement"), does hereby sell, transfer, assign, set over
and convey to Xxxxxx Xxxxxxx Mortgage Capital Inc. ("Purchaser") as the
Purchaser under the Agreements (as defined below) without recourse, but subject
to the terms of the Agreements, all right, title and interest of, in and to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as Exhibit A
(the "Mortgage Loans"), together with the Mortgage Files and the related
Servicing Rights and all rights and obligations arising under the documents
contained therein. Each Mortgage Loan subject to the Agreements was underwritten
in accordance with, and conforms to, the Underwriting Guidelines attached hereto
as Exhibit C. Pursuant to Section 6 of the Purchase Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be purchased
as set forth in the Purchase Agreement. The contents of each Servicing File
required to be retained by the Interim Servicer to service the Mortgage Loans
pursuant to the Interim Servicing Agreement and thus not delivered to the
Purchaser are and shall be held in trust by the Interim Servicer in its capacity
as Interim Servicer for the benefit of the Purchaser as the owner thereof. The
Interim Servicer's possession of any portion of the Servicing File is at the
will of the Purchaser for the sole purpose of facilitating servicing of the
related Mortgage Loan pursuant to the Interim Servicing Agreement, and such
retention and possession by the Interim Servicer shall be in a custodial
capacity only. The ownership of each Mortgage Note, Mortgage and the contents of
the Mortgage File and Servicing File is vested in the Purchaser and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be retained and maintained, in trust, by the
Seller at the will of the Purchaser in a custodial capacity only. The PPTA and
the Purchase Agreement shall collectively be referred to as the "Agreements"
herein.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B hereto.
In accordance with Section 6 of the Purchase Agreement, the Purchaser
accepts the Mortgage Loans listed on Exhibit A attached hereto. Notwithstanding
the foregoing the Purchaser does not waive any rights or remedies it may have
under the Agreements.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
H-1
[SELLER]
By:__________________________________
Name:_____________________________
Title:____________________________
Accepted and Agreed:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:_________________________________
Name:
Title:
H-2
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
------------------
H-3
EXHIBIT B
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
-------------------------------------------------------
CHARACTERISTICS OF EACH MORTGAGE LOAN PACKAGE
---------------------------------------------
Pool Characteristics of the Mortgage Loan Package as delivered on the related
Closing Date:
No Mortgage Loan has: (1) an outstanding principal balance less than $_____;
(2) an origination date earlier than __ months prior to the related Cut-off
Date; (3) a CLTV of greater than ____%; (4) a FICO Score of less than ___; or
(5) a debt-to-income ratio of more than ___%. Each Mortgage Loan has a
Mortgage Interest Rate of at least ___% per annum and an outstanding principal
balance of less than $______. Each Adjustable Rate Mortgage Loan has an Index
of [______].
H-4
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
-----------------------
H-5
