Exhibit 99.11b
EXECUTION COPY
Xxxxxx Xxxxxxx Mortgage Capital Inc.
and
Xxxxxx Xxxxxxx Credit Corporation
---------------------
THIRD AMENDED AND RESTATED MASTER MORTGAGE
LOAN PURCHASE AGREEMENT
Dated as of November 1, 2005
----------------------
Fixed, Adjustable Rate, and Pledged Asset Mortgage Loans
Seller Flow Delivery Program
Table of Contents
Section 1. Definitions ......................................................4
Section 2. Purchase of Mortgage Loans ......................................15
Section 3. Delivery Requirements. ..........................................16
Section 4. Examination of Mortgage Files ...................................20
Section 5. Representations, Warranties and Agreements of Seller ............20
Section 6. Representations, Warranties and Agreements of Purchaser .........30
Section 7. Servicing Obligations of Seller; Compliance with Regulation AB ..31
Section 8. Additional Indemnification by the Seller; Third Party Claims ....41
Section 9. Intention of the Parties ........................................41
Section 10. Costs ...........................................................41
Section 11. Further Agreements of Seller ....................................42
Section 12. Mandatory Delivery ..............................................42
Section 13. Termination .....................................................42
Section 14. Seller's Right of First Refusal .................................42
Section 15. Severability Clause .............................................42
Section 16. Waivers .........................................................43
Section 17. Survival ........................................................43
Section 18. Successor and Assigns: Assignment of Purchase Agreement ........43
Section 19. Notices .........................................................43
Section 20. Counterparts ....................................................43
Section 21. Entire Agreement ................................................43
Section 22. Governing Law and Amendments ....................................44
Section 23. Exhibits ........................................................44
Section 24. General Interpretive Principles .................................44
Section 25. Reproduction of Documents .......................................44
Section 26. Attorney-In-Fact ................................................45
Section 27. Confidentiality .................................................45
EXHIBIT 1 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 2 FORM OF AMENDED AND RESTATED MASTER SERVICING AGREEMENT
EXHIBIT 3 FORM OF CUSTODIAL AGREEMENT
EXHIBIT 4 UNDERWRITING GUIDE OF SELLER
EXHIBIT 5 FORM OF CERTIFICATE OF SELLER
EXHIBIT 6 FORM OF ASSIGNMENT FOR ADDITIONAL COLLATERAL AGREEMENTS
EXHIBIT 7 FORM OF NOTICE OF ASSIGNMENT TO AND ACKNOWLEDGMENT BY
PURCHASER
EXHIBIT 8 FORM OF WARRANTY XXXX OF SALE
EXHIBIT 9 FORM OF TRUST RECEIPT
EXHIBIT 10 FORM OF FINAL TRUST RECEIPT AND CERTIFICATION
EXHIBIT 11 FORM OF ANNUAL CERTIFICATION
-2-
EXHIBIT 12 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
-3-
THIRD AMENDED AND RESTATED MASTER MORTGAGE LOAN
PURCHASE AGREEMENT
This is a THIRD AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE
AGREEMENT (this "Agreement"), dated as of November 1, 2005, by and between
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation having its
principal office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and its successors
and assigns ("Purchaser"), and Xxxxxx Xxxxxxx Credit Corporation, a Delaware
corporation having its principal office at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, XX
00000 ("Seller").
PRELIMINARY STATEMENT
Seller and Purchaser are parties to that certain Amended and Restated
Master Mortgage Loan Purchase Agreement, dated as of March 1, 2000 (the
"Original Purchase Agreement"), pursuant to which Seller may sell, from time to
time, to Purchaser, and Purchaser may purchase, from time to time, from Seller,
certain groups of fixed- and adjustable-rate, residential first mortgage loans
(the "Mortgage Loans") as set forth therein (each date on which a closing of
such a sale occurs is referred to as a "Closing Date") on a servicing-retained
basis. In addition, Purchaser and Seller are parties to that certain Amended
and Restated Master Servicing Agreement, dated as of November 1, 2005 (the
"Servicing Agreement") pursuant to which Seller services and administers each
Mortgage Loan for Purchaser, its successors and assigns from and after the
respective Closing Date. At the present time, Purchaser and Seller desire to
amend and restate the Original Purchase Agreement as amended and restated by
the Amended and Restated Master Mortgage Loan Purchase Agreement dated as of
March 1, 2000 and further amended and restated by the Second Amended and
Restated Master Mortgage Loan Purchase Agreement dated as of February 1, 2004,
to make certain modifications as set forth herein.
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, Purchaser and Seller agree as
follows:
Section 1. Definitions.
For purposes of this Agreement, the following capitalized terms shall
have the respective meanings set forth below. Other capitalized terms used in
this Agreement and not defined herein shall have the respective meanings set
forth in the form of Amended and Restated Master Servicing Agreement.
"Additional Collateral": With respect to any Additional Collateral
Mortgage Loan, the securities and other assets held in a Trading Account
subject to a security interest securing such Additional Collateral Mortgage
Loan.
"Additional Collateral Mortgage Loan": A Mortgage Loan secured by
Additional Collateral in the form of a security interest in the securities and
other assets held in a Trading
-4-
Account and that is identified by Seller as an Additional Collateral Mortgage
Loan as to which the Additional Collateral is still required to be provided.
"Additional Collateral Pledge Agreement": With respect to each
Additional Collateral Mortgage Loan, any pledge and security agreement and
account control agreement in favor of Seller granting a security interest and
other rights in a securities account to secure the related Mortgage Loan.
"Adjustable Rate Mortgage Loan": A Mortgage Loan that provides for the
adjustment of the Mortgage Interest Rate payable with respect thereto in
accordance with the terms of the related Mortgage Note.
"Affiliate": With respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
"Agreement": This Third Amended and Restated Master Mortgage Loan
Purchase Agreement and all exhibits hereto, amendments hereof and supplements
hereto.
"Appraised Value": With respect to any Mortgage Loan, the value of the
related Mortgaged Property based upon the lesser of (i) the appraisal, made for
the originator at the time of the origination of the Mortgage Loan, and (ii) if
applicable, the sales price of the Mortgaged Property at such time of
origination.
"Assignment": An assignment of the Mortgage, notice of transfer or
equivalent instrument, sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale or
transfer of the Mortgage Loan, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages securing Mortgaged Properties located in the same county, if
permitted by applicable law and acceptable for recording by the applicable
recording office. With respect to any Mortgage Loan registered with MERS, an
Assignment shall include a notice of transfer sufficient under the governing
instruments of MERS to reflect a transfer of the Mortgage Loan. An Assignment
shall include, as applicable, such instruments as are necessary and sufficient
under the laws of the jurisdiction where a Cooperative Apartment is located to
reflect of record the sale or transfer of the Mortgage Loan and security
interest in the Mortgaged Property affecting such Cooperative Apartment.
"Assumed Principal Balance": With respect to any Mortgage Loan as of any
date of determination (i) the outstanding principal balance as of the Cut-off
Date, after application of principal payments due on or before such date
whether or not received, minus (ii) all amounts previously distributed to
Purchaser with respect to such Mortgage Loan representing (a) payments or other
recoveries of principal, or (b) advances of principal made pursuant to Section
5.03 of the Amended and Restated Master Servicing Agreement.
"Balloon Mortgage Loan": Any Mortgage Loan which by its original terms
or any modifications thereof provides for amortization beyond its scheduled
maturity date.
-5-
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings associations in the States of New York or
Illinois are authorized or obligated by law or executive order to be closed.
"Certificate of Seller": A certificate signed by the Secretary or one of
the Assistant Secretaries of Seller, substantially in the form attached hereto
as Exhibit 5.
"Closing Date": For each Transaction, the date on which Seller actually
sells to Purchaser, and Purchaser actually purchases from Seller, the Mortgage
Loans listed on the Final Mortgage Loan Schedule attached to the respective
Warranty Xxxx of Sale.
"Closing Documents": (i) With respect to the Initial Closing Date,
the following documents:
(A) two counterparts of this Agreement;
(B) two counterparts of the Amended and Restated Master Servicing
Agreement;
(C) three counterparts of the Custodial Agreement;
(D) the Certificate of Seller, dated as of the Initial Closing Date;
(E) the Initial Custody Receipt, dated the Initial Closing Date; and
(F) ten (10) counterparts of a power of attorney in the form of Exhibit
A to the Amended and Restated Master Servicing Agreement.
(ii) With respect to the Initial Closing Date and each subsequent Closing Date,
the following documents:
(A) the Final Mortgage Loan Schedule for the related Transaction;
(B) the initial Custody Receipt (as defined in the Custody Agreement)
for the related Transaction, dated the Closing Date, with only such
exceptions noted on Schedule B thereto as shall be acceptable to
Purchaser;
(C) the Warranty Xxxx of Sale with respect to the Mortgage Loans for
the related Transaction, dated the Closing Date:
(D) An original assignment in the form of Exhibit 6 attached hereto of
the Additional Collateral Pledge Agreements with respect to the
Additional Collateral Mortgage Loans; and
-6-
(E) The assignment and notice of transfer by Xxxxxx Xxxxxxx Credit
Corporation of the security interest on the Trading Accounts from
Seller to Purchaser.
"Commission": The United States Securities and Exchange Commission
"Converted Mortgage Loan": A Convertible Mortgage Loan with respect to
which the related Mortgagor has exercised its option to convert the related
Mortgage Note from a Mortgage Note with an adjustable interest rate to a
Mortgage Note with a fixed interest rate.
"Convertible Mortgage Loan": An Adjustable Rate Mortgage Loan with a
Mortgage Note that contains an option of the Mortgagor to convert the related
Mortgage Note from a Mortgage Note with an adjustable interest rate to a
Mortgage Note with a fixed interest rate.
"Cooperative Apartment": A dwelling unit in a multi-dwelling building
owned or leased by a cooperative housing corporation, which unit the Mortgagor
has an exclusive right to occupy pursuant to the terms of a proprietary lease
in accordance with the laws of the state in which the building is located.
"Cooperative Loan": A Mortgage Loan evidenced by a Mortgage Note and
secured by a first lien against (i) shares issued by a cooperative housing
corporation and (ii) the related Mortgagors' leasehold interest in the
Mortgagor's Cooperative Apartment. The security interest created in the
Mortgagor's Cooperative Apartment and the proprietary lease shall include the
following documentation, as required by the applicable laws of the state in
which such Cooperative Apartment is located: (a) a security agreement, (b) the
related UCC-1 Financing Statement, (c) an assignment of the cooperative lease,
(d) the stock certificate evidencing ownership of such Cooperative Apartment,
appropriately endorsed, or an equivalent stock power, (e) a recognition
agreement, and (f) such other documents as are necessary and proper for the
perfection of a lien against such Cooperative Apartment, all as are required
under state law.
"Custodial Account": The separate trust account or accounts created and
maintained pursuant to Section 4.04 of the Amended and Restated Master
Servicing Agreement which shall be entitled "Xxxxxx Xxxxxxx Credit Corporation,
in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc.," or such other title as is
requested by Purchaser.
"Custodial Agreement": The Custodial Agreement, among Seller, Purchaser
and the Custodian for the retention of each Mortgage Note, Mortgage, Assignment
and certain other portions of each Mortgage File, substantially in the form
attached to this Agreement as Exhibit 3, as the same may be amended, modified,
restated or supplemented from time to time.
"Custodian": The Custodian under the Custodial Agreement, or its
successor.
"Cut-off Date": With respect to each Mortgage Loan, the first day of
the month in which the related Closing Date occurs.
-7-
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by
a Qualified Substitute Mortgage Loan.
"Due Date": As to any Mortgage Loan, the day each Monthly Payment is
due on such Mortgage Loan, exclusive of any days of grace.
"Equity Refinanced Mortgage Loan": A Refinanced Mortgage Loan in which
the Mortgagor used less than the entire amount of the proceeds (net of any
closing costs, including discount and origination fees and prepaid items) to
refinance an existing mortgage loan and any junior lien that existed on the
related Mortgaged Property at the date of origination of the Refinanced
Mortgage Loan.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Xxxxxx Xxx": Xxxxxx Xxx, f/k/a the Federal National Mortgage
Association, or any successor organization.
"Xxxxxx Mae Guides": The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide, and all amendments or additions thereto."
"Final Mortgage Loan Schedule": The list of Mortgage Loans for a
Transaction, which list shall set forth the following information with respect
to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property, including city,
state and zip code;
(iv) the Mortgage Interest Rate at origination;
(v) for each Adjustable Rate Mortgage Loan, the first Interest Rate
Adjustment Date and the first Payment Adjustment Date;
(vi) for each Adjustable Rate Mortgage Loan, the Gross Margin;
(vii) for each Adjustable Rate Mortgage Loan, the Lifetime Rate Cap;
(viii) for each Adjustable Rate Mortgage Loan, the Periodic Rate Cap;
(ix) the original term to maturity;
(x) the original principal balance;
(xi) the first payment date;
-8-
(xii) the maturity date;
(xiii) the Monthly Payment in effect as of the related Cut-off Date;
(xiv) the principal balance as of the related Cut-off Date, after
giving effect to all payments of principal due on or before such
date, whether or not received;
(xv) the Loan-to-Value Ratio as of the date origination;
(xvi) a code indicating whether the Mortgaged Property is occupied by
Mortgagor;
(xvii) a code indicating the type of residential dwelling;
(xviii) a code indicating whether the Mortgage Loan is a purchase
mortgage loan, rate/term refinance loan, limited cash-out loan
or cash-out refinance loan;
(xix) a code indicating whether the Mortgage Loan is covered by a
Primary Mortgage Insurance Policy;
(xx) a code indicating whether the Mortgage Loan is a Limited
Documentation Mortgage Loan;
(xxi) a code indicating whether the Mortgage Loan is an Additional
Collateral Mortgage Loan;
(xxii) for each Adjustable Rate Mortgage Loan, a code indicating the
type of Index;
(xxiii) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan;
(xxv) the Servicing Fee Rate applicable to such Mortgage Loan, and if
such Mortgage Loan is an Adjustable Rate Mortgage Loan whose
first Interest Rate Adjustment has not occurred, the
Servicing Fee Rate (if different) prior to the first Interest
Rate Adjustment Date;
(xxvi) a code indicating whether the Mortgage Loan is a Convertible
Mortgage Loan;
(xxvii) a code indicating whether the Mortgagor is self-employed;
(xxviii) a code indicating the value of the Mortgagor's assets at
origination;
(xxix) Appraised Value; and
(xxx) a code indicating the Primary Mortgage Insurance Policy
provider and percent of coverage, if applicable.
-9-
Such schedule shall also set forth the weighted average of the amounts
described under (iv) above for all of the Mortgage Loans. Such list may be in
the form of more than one list, collectively setting forth all of the
information required.
"Fixed Rate Mortgage Loan": A Mortgage Loan that provides for a fixed
Mortgage Interest Rate over the term of the related Mortgage Note.
"Xxxxxxx Mac": Xxxxxxx Mac, f/k/a the Federal Home Loan Mortgage
Corporation, or any successor organization.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan, the
fixed number of basis points set forth in the Final Mortgage Loan Schedule that
is added to the Index on each Interest Rate Adjustment Due Date in accordance
with the terms of the related Mortgage Note to determine the Mortgage Interest
Rate for such Mortgage Loan, subject to any applicable Periodic Rate Cap and
Lifetime Rate Cap.
"High Cost Loan": A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost
home," "threshold," "covered," "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).
"Index": With respect to each Adjustable Rate Mortgage Loan and each
Interest Rate Adjustment Date, the index used to determine the Mortgage
Interest Rate on such Adjustable Rate Mortgage Loan, as specified in the
related Mortgage Note, in each case as available the number of days prior to
any Interest Rate Adjustment Date set forth in the related Mortgage Note, which
index may be (i) the average of the London Interbank Offered Rates for one- or
six-month U.S. dollar deposits, as published in the "Money Rates" table of The
Wall Street Journal or elsewhere (as specified in the related Mortgage Note) on
the date or dates specified in such Mortgage Note for the determination of such
rate, (ii) the weekly average of the closing market bid yields on actively
traded U.S. Treasury securities adjusted to a constant maturity of one year,
(iii) the weekly average or the monthly average of weekly average auction rates
on U.S. Treasury bills with a maturity of six months, as published by the Board
of Governors of the Federal Reserve System in Federal Reserve Statistical
Release H.15. (519), (iv) the weekly average of the closing market bid yields
on U.S. Treasury securities adjusted to a constant maturity of one (1) year, as
published by the Board of Governors of the Federal Reserve System in Federal
Reserve Statistical Release H.15. (519), (v) the weekly average of the closing
market bid yields on U.S. Treasury securities adjusted to a constant maturity
of five (5) years, as published by the Board of Governors of the Federal
Reserve System in Federal Reserve Statistical Release H.15. (519), (vi) the
prime rate specified in the related Mortgage Note, as published in the "Money
Rates" table of The Wall Street Journal, or elsewhere (as specified in such
Mortgage Note), (vii) the monthly weighted average cost of funds of members of
the Federal Home Loan Bank of San Francisco, (viii) such other standard for
determining the change in the interest rate as may be set
-10-
forth in the related Mortgage Note, or (ix) if such index is not so published
or is otherwise unavailable, such comparable alternative index selected by
Seller in accordance with the terms of the Mortgage Notes and in consultation
with Purchaser.
"Initial Closing Date": The first Closing Date to occur.
"Initial Custody Receipt": For each Transaction, the initial Custody
Receipt, executed by the Purchaser or the Custodian with respect to the
Mortgage Loans for such Transaction, substantially in the form of Exhibit One
to the Custodial Agreement.
"Interest Rate Adjustment Date": With respect to each Adjustable Rate
Mortgage Loan, the date on which the Mortgage Interest Rate is adjusted in
accordance with the terms of the related Mortgage Note.
"Lifetime Rate Cap": With respect to each Adjustable Rate Mortgage Loan,
the maximum Mortgage Interest Rate that may be borne thereby, as set forth in
the related Mortgage Note.
"Limited Documentation Mortgage Loan": A Mortgage Loan that was
originated pursuant to a "limited documentation" or "easy qualifier"
underwriting program.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan, as of
any date on which a determination thereof is made, the ratio on such date of
the outstanding principal balance of such Mortgage Loan to the Appraisal Value
of the related Mortgaged Property.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Monthly Payment": The scheduled monthly payment of interest and, when
applicable, principal on a Mortgage Loan which is payable by a Mortgagor from
time to time under the related Mortgage Note on every Due Date.
"Mortgage": The mortgage, trust deed or other instrument securing the
respective Mortgage Loan, as the same may be amended, modified, restated or
supplemented from time to time.
"Mortgage File": As to any Mortgage Loan, the mortgage, any related
mortgage documents and, if the Mortgaged Property is a Cooperative Apartment,
all documents relating to the security interest in a Cooperative Apartment,
including but not limited to all paper, computer generated and microfiche
records, pertaining to a particular Mortgage Loan which are specified in
Exhibit 1 hereto and any additional documents required to be added to the
Mortgage File pursuant to the Program Documents.
"Mortgage Interest Rate": The annual rate at which interest accrues on
any Mortgage Loan, net of any premium on any related Primary Mortgage Insurance
Policy and any continuing compensation paid to correspondent lenders; provided
that, with respect to any Adjustable Rate
-11-
Mortgage Loan, the term "Mortgage Interest Rate" shall mean the annual rate
applicable thereto as the same may be adjusted on any Interest Rate Adjustment
Date and subject to the limitations on such interest rate imposed by the
Periodic Rate Cap and the Lifetime Rate Cap.
"Mortgage Loan": An individual Mortgage Loan, including but not limited
to all documents included in the Mortgage File, Monthly Payments, principal
prepayments, insurance proceeds, condemnation proceeds, liquidation proceeds,
and any and all rights, benefits, proceeds and obligations arising therefrom or
in connection therewith, and which is the subject of this Agreement. Each
Mortgage Loan set forth on the Final Mortgage Loan schedule attached to a
Warranty Xxxx of Sale will initially be subject to this Agreement, commencing
on the respective Closing Date for the related Transaction.
"Mortgage Loan Documents": With respect to each Mortgage Loan, the
documents specified in Section 3(b) of this Agreement, which documents Seller
shall deliver to the Purchaser or Custodian pursuant thereto.
"Mortgage Loan Payments": With respect to each Mortgage Loan (i) all
scheduled principal due after the related Cut-off-Date, (ii) all other
recoveries of principal collected after the related Cut-off Date and collected
by Seller after the related Cut-off Date, and (iii) all payments of interest on
the Mortgage Loans at the Mortgage Loan Remittance Rate minus that portion of
any such payment that is allocable to the period prior to the related Cut-Off
Date; provided, however, that payments of scheduled principal and interest
prepaid for a due date beyond the related Cut-off Date shall not be applied to
the principal balance as of the related Cut-off Date and that such principal
and such prepaid amounts (minus interest at the Servicing Fee Rate) shall
constitute a part of the Mortgage Loan Payments, which prepaid amounts Seller
shall deposit into the related Custodial Account established for the benefit of
Purchaser for subsequent remittance by Seller to Purchaser pursuant to the
Amended and Restated Master Servicing Agreement.
"Mortgage Loan Remittance Rate": With respect to each Mortgage Loan, the
related Mortgage Interest Rate minus the Servicing Fee Rate.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgaged Property": The underlying real property securing repayment of
a Mortgage Note, consisting of a fee simple or leasehold interest in a single
parcel of real property improved by a residential dwelling or a single
Cooperative Apartment including the stock certificates evidencing ownership in
such Cooperative Apartment, the proprietary lease and all attendant right,
title and interest thereto.
"Mortgagor": The obligor on a Mortgage Note.
"Payment Adjustment Date": With respect to each Adjustable Rate Mortgage
Loan, the first date on which payments thereon may be adjusted and all
subsequent such dates of
-12-
adjustment, as set forth in the related Final Mortgage Loan Schedule and in the
related Mortgage Note.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage Loan
as to which the related Final Mortgage Loan Schedule indicates the existence of
Periodic Rate Cap, the provision of the related Mortgage Note that provides for
a maximum amount by which the Mortgage Interest Rate may increase (or, if so
indicated on such Final Mortgage Loan Schedule, decrease) on an Interest Rate
Adjustment Date above the Mortgage Interest Rate immediately prior to such
Interest Rate Adjustment Date.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Preliminary Mortgage Loan Schedule": The initial list of Mortgage Loans
for a proposed Transaction, which list shall set forth at least the information
with respect to each Mortgage Loan described in items (i), (ii), (iv), (ix),
(xii), (xiii), (xiv), (xvi), (xx), (xxi), (xxii) and (xxiii) of the definition
of "Final Mortgage Loan Schedule". The Preliminary Mortgage Loan Schedule may
be electronically delivered to Purchaser.
"Primary Mortgage Insurance Policy": With respect to each Mortgage Loan,
the policy of primary mortgage insurance, if any, in effect as indicated on the
related Final Mortgage Loan Schedule, or any replacement policy therefor
obtained by Seller pursuant to the Amended and Restated Master Servicing
Agreement.
"Program Documents": With respect to each Transaction, the related
Purchase Price and Terms Letter, the related Warranty Xxxx of Sale, the Amended
and Restated Master Servicing Agreement, the Custodial Agreement, this
Agreement and each other document or instrument executed or delivered by Seller
in connection with any of the foregoing.
"Purchase Price": With respect to each Mortgage Loan listed on the Final
Mortgage Loan Schedule for a Transaction the price paid on the related Closing
Date by Purchaser to Seller in exchange for such Mortgage Loan, which amount
shall equal the sum of (i) the related Purchase Price Percentage multiplied by
the unpaid principal balance of such Mortgage Loan as of the related Cut-off
Date, after application of scheduled payments of principal due on or before
such Cut-off Date whether or not collected, and (ii) interest scheduled to
accrue on the unpaid principal balance of such Mortgage Loan at the Mortgage
Loan Remittance Rate, from the related Cut-off Date to the day prior to the
related Closing Date, inclusive.
"Purchase Price and Terms Letter": with respect to each Transaction, the
letter agreement or agreements setting forth the general terms and conditions
of such Transaction to be consummated as provided herein, with a copy of the
related Preliminary Mortgage Loan Schedule, if requested by Purchaser, by and
between Seller and Purchaser. The related Purchase Price and Terms Letter shall
set forth among other matters, (i) the approximate dollar amount of Mortgage
Loans for the related Transaction, (ii) the related Cut-off Date, (iii) the
proposed
-13-
Closing Date, (iv) the related Purchase Price Percentage, (v) the related
Servicing Fee Rate, and (vi) the characteristics, including the characteristics
set forth in the related Warranty Xxxx of Sale, for the related Mortgage Loans,
both individually and in the aggregate. All of the individual Purchase Price
and Terms Letters shall be referred to, collectively, as the "Purchase Price
and Terms Letter".
"Purchase Price Percentage": With respect to each Mortgage Loan, the
percentage of par set forth in the related Purchase Price and Terms Letter
(subject to adjustment as provided therein) at which Purchaser will purchase
the Mortgage Loan from Seller on the Closing Date.
"Qualified Correspondent": Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Seller within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Seller in origination of mortgage loans of the same type as the
Mortgage Loans for the Seller's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Seller on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Seller; and (iv) the Seller employed, at the time such
Mortgage Loans were acquired by the Seller, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of
a sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller.
"Qualified Substitute Mortgage Loan": A Mortgage Loan substituted by
Seller for a Deleted Mortgage Loan which must, on the date of such substitution
(i) have an outstanding 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 outstanding principal balance of the Deleted
Mortgage Loan (the amount of any shortfall to be deposited into the Custodial
Account by Seller in the month of substitution pursuant to Section 4.04 (vii)
of the Amended and Restated Master Servicing Agreement), (ii) have a Mortgage
Interest Rate which is within one percent (1%) per annum of the Deleted
Mortgage Loan, (iii) have a remaining term to maturity not greater than (and
not more than one year less than) that of the Deleted Mortgage Loan, and (iv)
comply with each representation and warranty set forth Section 5(b) of this
Agreement.
"Reconstitution": Any Securitization Transaction or Whole Loan Transfer.
"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
-14-
(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.
"Refinanced Mortgage Loan": A Mortgage Loan that was made to a Mortgagor
who owned the Mortgaged Property prior to the origination of such Mortgage Loan
and the proceeds of which (net of any closing costs, including discount and
origination fees and prepaid items) were used in whole or part to satisfy an
existing mortgage.
"Securities Act": The Securities Act of 1933, as amended.
"Securitization Transfer": 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.
"Servicing Criteria": The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
"Servicing Fee": With respect to any Mortgage Loan and any Remittance
Date, the fee payable monthly to Seller, as servicer, under Section 7.03 of the
Amended and Restated Master Servicing Agreement.
"Servicing Fee Rate": With respect to each Mortgage Loan, the rate per
annum set forth in the related Final Mortgage Loan Schedule as the "Servicing
Fee Rate".
"Static Pool Information": Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
"Subcontractor": Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or authority
of the Seller or a Subservicer.
"Subsequent Purchaser": Any Person that acquires an interest in a
Mortgage Loan from Purchaser.
"Subservicer": Any Person that services Mortgage Loans on behalf of the
Seller or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Seller under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
-15-
"Surety Bond Issuer": Shall mean AMBAC Assurance Corporation or any
successor thereto.
"Third-Party Originator": Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
"Trading Account": With respect to any Additional Collateral Mortgage
Loan as to which a Additional Collateral Pledge Agreement was made, the account
in which is held the securities and other assets that are subject to such
Additional Collateral Pledge Agreement.
"Transaction": The sale by Seller to Purchaser, and the purchase by
Purchaser from Seller, of one or more Mortgage Loans on a Closing Date, as
evidenced by the execution and delivery by Seller to Xxxxxx Xxxxxxx Mortgage
Capital, Inc. as the initial Purchaser, of the Warranty Xxxx of Sale.
"Underwriting Guide": The Underwriting Guide of Seller attached hereto as
Exhibit 4, as amended, modified, restated or supplemented from time to time.
"Warranty Xxxx of Sale": The warranty xxxx of sale executed and delivered
by Seller to Purchaser on a Closing Date, evidencing the sale of the related
Mortgage Loans by Seller to Purchaser and setting forth certain representations
and warranties of Seller with respect thereto, in the form attached hereto as
Exhibit 8.
"Whole Loan Transfer": Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
Section 2. Purchase of Mortgage Loans.
(a) Sale and Conveyance of Mortgage Loans. From time to xxxx Xxxxxx may
offer to sell to Purchaser, and Purchaser may elect to purchase form Seller,
Mortgage Loans in one or more Transactions pursuant to the terms and conditions
of the Program Documents. The agreement of Seller to sell to Purchaser and of
Purchaser to purchase from Seller, Mortgage Loans on a particular Closing Date
shall be evidenced by the execution of a Purchase Price and Terms Letter. The
obligation of Purchaser to purchase any Mortgage Loan from Seller on any
particular Closing Date shall be subject to the satisfaction of the conditions
precedent to Purchaser's obligation to purchase set forth in Section 2(b). The
sale of each Mortgage Loan shall be reflected in Seller's balance sheet and
other financial statements as a sale of assets by Seller.
(b) Conditions of Closing. On each respective Closing Date (i) Seller
will sell, transfer, assign, set over and convey to purchaser without recourse,
all of the right, title and interest of Seller in and to the Mortgage Loans
included in such Transaction, including all Mortgage Loan Payments, and (ii)
Purchaser shall pay to Seller, by wire transfer of immediately available funds
to the account of Seller, the Purchase Price for each Mortgage Loan included in
-16-
such Transaction, subject to the satisfaction of the following conditions to
Purchaser's obligation to purchase the Mortgage Loans:
(A) All of the representation and warranties of Seller under the
Program Documents shall be true and correct in all material
respects as of the Closing Date, and no event shall have occurred
that, with notice or the passage of time, would constitute a
default under any Program Document, including an Event of Default
under the Amended and Restated Master Servicing Agreement;
(B) Purchaser shall have received, or Purchaser's attorneys shall have
received in escrow, the Closing Documents, in such forms as are
agreed upon and as are acceptable to Purchaser, duly executed by
all signatories other than Purchaser required pursuant to the
respective terms thereof:
(C) Seller shall have delivered and released to Purchaser or the
Custodian all documents required under the Program Documents; and
(D) Seller shall have complied with all other terms and conditions of
this Agreement.
(c) Record Title and Possession of Mortgage Files. From and after the
sale of each Mortgage Loan, the contents of the related Mortgage
File and all rights, benefits, proceeds and obligations arising
therefrom or in connection therewith, shall be transferred to, and
assumed by, Purchaser. All rights, arising out of each Mortgage
Loan, including, but not limited to, all funds received on or in
connection with such Mortgage Loans and all records or documents
with respect to such Mortgage Loan prepared by or which come into
the possession of Seller shall be received and held by Seller in
trust for the benefit of Purchaser as the owner of the Mortgage
Loan. Any portion of the Mortgage File held by Seller for servicing
purposes shall be appropriately marked to clearly reflect ownership
of the Mortgage Loan by Purchaser and Seller shall promptly release
such portion of the Mortgage File to Purchaser, when Seller's
servicing needs no longer necessitate retaining such documents.
Section 3. Delivery Requirements.
(a) Final Mortgage Loan Schedules. On or before the date on which Seller
and Purchaser execute a Purchase Price and Terms Letter, Seller shall provide
Purchaser with the respective Preliminary Mortgage Loan Schedule. Not less than
one (1) Business Day prior to the related Closing Date, Seller either (i) shall
deliver the related Final Mortgage Loan Schedule to Purchaser or (ii) shall
deliver to Purchaser all information with respect to the Mortgage Loans to be
sold to Purchaser on such Closing Date that is necessary to enable Purchaser to
prepare the related Final Mortgage Loan Schedule, which information shall be
delivered on a computer disk on a machine-readable tape or in such other format
as Purchaser may reasonably specify.
(b) Delivery of Mortgage Loan Documents. Seller is currently in
possession of the following original Mortgage Loan Documents for each Mortgage
Loan:
-17-
(A) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse" and
signed in the name of the Seller 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; and
(B) the original Mortgage with evidence of recording thereon. 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 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 Seller to be a true and complete
copy of the original recorded Mortgage;
(D) The original policy of title insurance, if applicable (or a
preliminary title report if the original title insurance policy has not been
received from the title insurance company or if a preliminary title report is
the documentation required by Seller).
(E) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(F) the original Assignment of Mortgage for each Mortgage Loan,
executed in blank and in form and substance acceptable for recording;
(G) the originals of all intervening assignments of mortgage 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 Officers Certificate of the Seller 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
-18-
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 Seller to be a true and complete copy of
the original recorded intervening assignment;
(H) With respect to the Additional Collateral Mortgage Loan, a copy
of any related pledge, security or control agreement, as the case may be.
(I) With respect to the Additional Collateral Mortgage Loan, a copy
of any filed UCC-1 financing statements or, if the UCC-1 has not yet been
returned from the recording office, a copy of such UCC-1 which has been
delivered for recording and an original form UCC-3 assignment, if applicable.
If (1) the original Mortgage was not delivered pursuant to clause
(B) above, (2) any original intervening assignment was not delivered pursuant
to clause (F) above or (3) the original title insurance policy was not
delivered pursuant to clause (C) above, Seller shall use reasonable efforts to
promptly secure the delivery of such originals and shall cause such originals
to be delivered to Purchaser or the Custodian promptly upon receipt thereof. If
any such document is not so delivered to Purchaser or the Custodian within one
hundred eighty (180) days following the Closing Date (or such longer period of
time as may be necessitated solely as a result in delays caused by a party
other than the Seller), the related Mortgage Loan shall, upon the request of
Purchaser, (i) be repurchased by Seller at the price specified in Section 5(c),
or (ii) be replaced by a Qualified Substitute Mortgage Loan (the election of
(i) or (ii) being at the option of Purchaser), provided that the Purchaser
gives the Seller notice within ten (10) days of the expiration of such delivery
period.
No Assignment of Mortgage evidencing the transactions contemplated
hereby shall be recorded by Seller unless required by law. Purchaser may at its
option and expense (including recordation fees) prepare and record any
Assignment of Mortgage.
From and after the related Closing Date, Seller, as bailee (the
"Bailee"), shall continue to hold the Mortgage Files as custodian and bailee
for the Purchaser, the owner of the related Mortgage Loans, and shall issue in
the name of the Purchaser or its designee, a trust receipt in the form of
Exhibit 9 hereto (the "Trust Receipt") evidencing the ownership of the Mortgage
Loans related thereto.
At the Purchaser's request, the Bailee shall issue, within 2
Business Days from such request, a final trust receipt and certification
evidencing the Purchaser's ownership of the related Mortgage Loans in the form
of Exhibit 10 hereto (the "Final Trust Receipt and Certification"), which Final
Trust Receipt and Certification shall have attached thereto a list of document
exceptions, if any, based upon the documents to be contained in the Mortgage
File as listed above.
Upon 3 Business Days prior written notice from the Purchaser to the
Bailee, the Bailee shall deliver or cause to be delivered to the Purchaser or
any party designated in such notice, the Mortgage Files, and shall release them
to the Purchaser or its designee in accordance
-19-
with the directions of the Purchaser. Such delivery date(s) shall herein be
known as release date(s) (each, a "Release Date").
In the event that the Bailee fails to deliver any Mortgage File, or
any component thereof, in connection with the Purchaser's instructions, the
Bailee shall indemnify the Purchaser for and hold the Purchaser harmless
against any and all liability, costs and expenses (including attorneys' fees)
arising out of such failure to deliver any Mortgage File.
From and after the Closing Date and until the applicable Release
Date, the Bailee shall maintain continuous custody and control of the Mortgage
Files as custodian and bailee for the Purchaser.
(c) Purchaser hereby acknowledges that Seller may register the Mortgages
subject to this Agreement with MERS as a nominee for Seller, either through the
recordation of a mortgage or deed of trust which shows MERS as a nominee for
Seller or by the recordation of an Assignment which shows MERS as a nominee for
Seller, for purposes of facilitating the transfer of the Mortgage Loan and/or
Mortgage Loan Documents. Purchaser and Seller hereby acknowledge that MERS will
have no beneficial interest in the Mortgage Loan and that the registration of
the Mortgage Loan with MERS will not in any way affect the rights, title,
interest, obligations or responsibilities of Purchaser and Seller under the
terms of this Agreement. Purchaser and Seller agree to cooperate in all ways
necessary to effectuate the use of MERS for the purpose of facilitating the
transfer of applicable Mortgage Loan Documents, and withstanding any other
provisions in this Agreement to the contrary, agree to accept such
documentation and evidence of transfer provided by MERS under its operating
documents to accomplish the transfer of ownership in the Mortgage Loan.
Section 4. Examination of Mortgage Files.
Prior to the respective Closing Date, Seller, shall make available to
Purchaser, for examination, the Mortgage File pertaining to each related
Mortgage Loan at the offices of Seller, or such other location as Seller and
Purchaser shall mutually designate. Such examination may be made by Purchaser
of the related Mortgage Loan at any time before the related Closing Date and
may be made by Purchaser or any prospective Subsequent Purchaser of such
Mortgagee Loan at any time after such Closing Date. If Purchaser makes such
examination prior to the Closing Date and identifies any Mortgage Loan that
does not conform to the terms of the Purchase Price and Terms Letter, such
Mortgage Loan shall be deleted from the Final Mortgage Loan Schedule and may be
replaced by a substitute Mortgage Loan that conforms to the terms of the
Purchase Price and Terms Letter and that is reasonably acceptable to Purchaser.
Purchaser may, at its option and without notice to Seller, purchase all or part
of the Mortgage Loans for a Transaction without conducting any partial or
complete examination. The failure or omission by Purchaser or any Subsequent
Purchaser of the Mortgage Loans to conduct any partial or complete examination
of the Mortgage Files shall not affect Purchaser's rights to demand repurchase
or other relief as provided under any Program Document.
-20-
Section 5. Representations, Warranties and Agreements of Seller.
(a) Seller represents and warrants to Purchaser that as of the date
hereof and as of each respective Closing Date (or as of such other date or
dates as may be expressly set forth below);
(i) Seller is duly incorporated, validly existing and in good
standing as a corporation under the laws of the State of Delaware. Seller
has full power and authority, corporate and otherwise, to own its
properties and conduct its business as presently conducted by it, and to
enter into and perform its obligations under the Program Documents and to
sell each Mortgage Loan. To the extent material to Purchaser's rights
hereunder, Seller holds all material licenses necessary to carry on its
business as now being conducted and is licensed in, qualified to transact
business in and is in good standing under the laws of each state in which
any Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by Seller, and in any event Seller was and is in compliance
with the laws of any such state to the extent necessary to ensure the
enforceability of each Mortgage Loan.
(ii) This Agreement, the Amended and Restated Master Servicing
Agreement and the Custodial Agreement have been duly authorized, executed
and delivered by Seller, and assuming the due authorization, execution
and delivery thereof by Purchaser and the enforceability thereof against
Purchaser, constitutes the legal, valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
liquidation, moratorium, reorganization or other similar laws affecting
the rights of creditors generally or by general principles of equity,
regardless of whether enforcement is sought in a proceeding in equity or
at law.
(iii) As of the respective Closing Date, the related Purchased
Price and Terms Letter has been duly authorized, executed and delivered
by Seller, and such Purchase Price and Terms letter, assuming the due
authorization, execution and delivery thereof by Purchaser and the
enforceability thereof against Purchaser, constitutes the legal, valid
and binding agreement of Seller, enforceable against Seller in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, liquidation, moratorium, reorganization or other
similar laws affecting the rights of creditors generally or by general
principles of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
(iv) As of the respective Closing Date, the related Warranty Xxxx
of Sale has been duly authorized, executed and delivered by Seller, and
such Warranty Xxxx of Sale constitutes the legal, valid and binding
agreement of Seller, enforceable against Seller in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, liquidation, moratorium, reorganization or other similar laws
-21-
affecting the rights of creditors generally or by general principles of
equity, regardless of whether enforcement is sought in a proceeding in
equity or at law.
(v) the representations and warranties made by Seller under the
Amended and Restated Master Servicing Agreement and the related Warranty
Xxxx of Sale are true and correct in all material respects as of the
respective Closing Date.
(vi) Neither the delivery of the Mortgage Loans to Purchaser, nor
the sale of the Mortgage Loans to Purchaser, nor the execution or
delivery of the Program Documents, nor the consummation of any of the
Transactions herein or therein contemplated, nor the fulfillment of the
terms hereof or thereof, will result in the breach of any term or
provision of the certificate of incorporation or by-laws of Seller, or
conflict with, result in a material breach or cause an acceleration of or
constitute a default under any material term of any material indenture or
other material agreement or instrument to which Seller is a party or by
which Seller is bound, or any statute, order or regulation applicable to
Seller of any court, regulatory body, administrative agency, government
body or arbitrator having jurisdiction over Seller.
(vii) There are no actions, proceedings or investigations pending
or, to Seller's knowledge, threatened against Seller that, in Seller's
judgment, if determined adversely to Seller, would prevent the
consummation of any of the Transactions or would materially and aversely
affect the interests of Purchaser in the Mortgage Loans, taken as a
whole, the validity or enforceability of any of the Program Documents or
the ability of Seller to fulfill the terms of any of the Program
Documents.
(viii) Seller has complied with all applicable anti-money
laundering laws and regulations, including without limitation, the USA
Patriot Act of 2001.
(b) Seller hereby represents and warrants to Purchaser, as to each
Mortgage Loan as of each respective Closing Date or such other date as may be
specified below, that:
(i) The information set forth in the Final Mortgage Loan Schedule
is true and correct in all material respects.
(ii) As of the related Closing Date, the Mortgage Loan is not
delinquent in payment more than 29 days and the Mortgage Loan has not
been dishonored; there are no material defaults under the terms of the
Mortgage Loan; Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner
of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan.
(iii) With respect to those Mortgage Loans which are required to
deposit funds into an escrow account for payment of taxes, assessments,
insurance premiums and similar items as they become due, there are no
delinquent taxes, ground rents, water charges, sewer rents, assessments
or other outstanding charges which constitute a lien on
-22-
the related Mortgaged Property, and all escrow deposits have been
collected, are under the control of Seller, and have been applied to the
payment of such items in a timely fashion, in accordance with such
Mortgage. With respect to those Mortgage Loans for which escrow deposits
are not required, to Seller's knowledge, there are no delinquent taxes or
other outstanding charges affecting the related Mortgaged Property which
constitute a lien on the related Mortgaged Property.
(iv) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments contained in the Mortgage File, approved, if necessary, by
the insurer under any Primary Mortgage Insurance Policy and recorded in
all places necessary to maintain the first priority of the lien, the
substance of which waiver, alteration or modification is reflected on the
Final Mortgage Loan Schedule. No Mortgagor has been released, in whole or
in part, except by operation of law or in connection with an assumption
agreement which assumption agreement is part of the Mortgage File and the
terms of which are reflected in the Final Mortgage Loan Schedule.
(v) Neither the Mortgage Note nor the Mortgage is subject to any
right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right thereunder,
render the Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense, including the
defense of usury and, to Seller's knowledge, no such right of rescission,
set-off, counterclaim or defense has been asserted by any Person with
respect thereto.
(vi) All buildings upon the Mortgaged Property are required to be
insured by a generally acceptable insurer against loss by fire, hazards
of extended coverage and such other hazards as are customarily included
in extended coverage in the area where the Mortgaged Property is located,
pursuant to standard property insurance policies in compliance with
Seller's policies as from time to time in effect. To the best knowledge
of Seller, all such property policies are in effect. On the date of
origination, such standard property policies contained a standard
mortgage clause naming Seller or the originator of the Mortgage Loan and
their respective successors in interest as mortgagee and to the best
knowledge of Seller, such clause is still in effect and, to Seller's
knowledge, all premiums due thereon have been paid. If the Mortgaged
Property is located in an area identified by the Federal Emergency
Management Agency as having special flood hazards under the National
Flood Insurance Act of 1994, as amended, such Mortgaged Property is
covered by flood insurance in the amount required under the National
Flood Insurance Act of 1994. The Mortgage obligates the Mortgagor to
maintain such insurance, authorizes the holder of the Mortgage to
maintain such insurance at Mortgagor's cost and expense should the
Mortgagor fail to do so and to seek reimbursement therefor from the
Mortgagor.
(vii) At the time of origination of such Mortgage Loan and
thereafter, all requirements of any federal or state law, including,
without limitation, usury, truth-in-
-23-
lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be complied with
by Seller as the originator of the Mortgage Loan and applicable to the
Mortgage Loan have been complied with in all material respects.
(viii) The Mortgage has not been satisfied as of the Closing Date,
canceled or subordinated, in whole, or rescinded, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or
in part (except for a release that does not materially impair the
security of the Mortgage Loan or release the effect of which is reflected
in the loan-to-value ratio for the Mortgage Loan as set forth in the
Final Mortgage Loan Schedule), nor to Seller's knowledge has any
instrument been executed that would effect any such release,
cancellation, subordination or rescission.
(ix) Ownership of the Mortgaged Property is held in fee simple or
leasehold estate. With respect to Mortgage Loans that are secured by a
leasehold estate, to Seller's knowledge: (i) the lease is valid, in full
force and effect, and conforms to all of Xxxxxx Mae's requirements for
leasehold estates; (ii) all rents and other payments due under the lease
have been paid; (iii) the lessee is not in default under any provision of
the lease; (iv) the term of the lease exceeds the maturity date of the
related Mortgage Loan by at least five (5) years; and (v) the terms of
the lease provide a Mortgagee with an opportunity to cure any defaults.
Except as permitted by the fifth sentence of this paragraph (ix), the
Mortgage is a valid, subsisting and enforceable first lien on the
Mortgaged Property, including all buildings on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note's original principal balance. The
Mortgage and the Mortgage Note do not contain any evidence on their face
of any security interest or other interest or right thereto. Such lien is
free and clear of all adverse claims, liens and encumbrances having
priority over the first lien of the Mortgage subject only to (1) the lien
of non-delinquent current real property taxes and assessments not yet due
and payable, (2) covenants, conditions and restrictions, rights of way,
easements and other matters reflected in the public record as of the date
of recording which are acceptable to mortgage lending institutions
generally, or which are specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and
either (A) which are referred to or otherwise considered in the appraisal
made for the originator of the Mortgage Loan, or (B) which do not in the
aggregate adversely affect the Appraised Value of the Mortgaged Property
as set forth in such appraisal, and (3) other matters to which like
properties are commonly subject which do not in the aggregate materially
interfere with the benefits of the security intended to be provided by
the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, subsisting and enforceable
first lien and first priority security interest on the property described
therein. With respect to each Cooperative Loan, the security instruments
create a valid, enforceable and subsisting first priority security
interest in the Cooperative Apartment
-24-
securing the related Mortgage Note subject only to (a) the lien of the
related cooperative for unpaid assessments representing the Mortgagor's
pro rata share of payments for a blanket mortgage, if any, 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 the collateral is commonly subject which do not
materially interfere with the benefits of the security intended to be
provided; provided, however, that the related proprietary lease for the
Cooperative Apartment may be subordinated or otherwise subject to the
lien of a Mortgage on the cooperative building.
(x) The Mortgage Note is not subject to a third party's security
interest or other rights therein.
(xi) The Mortgage Note and the related Mortgage are genuine and,
to Seller's knowledge, each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms, subject to
bankruptcy, insolvency and other laws of general application affecting
the rights of creditors. To Seller's knowledge, all parties to the
Mortgage Note and the Mortgage had the legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage. To Seller's knowledge, the Mortgage Note and the Mortgage have
been duly and properly executed by such parties. To Seller's knowledge no
fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of
any Person, including without limitation, the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination
of the Mortgage Loan. Seller has reviewed all of the documents
constituting the Mortgage File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set
forth herein. An obligor of the debt evidenced by the Mortgage Note is a
natural person. The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder, and
any and all requirements in the Mortgage as to completion of any on-site
or off-site improvements and as to disbursements of any escrow funds
therefor have been complied with.
(xii) Seller has good title to, and the full right to transfer and
sell, the Mortgage Loan free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest including, to the best
knowledge of Seller, any lien, claim or other interest arising by
operation of law. Seller 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, the Purchaser will own such Mortgage Loan
free and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest.
(xiii) Each Mortgage Loan is covered by an ALTA lender's title
insurance policy or other generally acceptable form of policy or
insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title
insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in paragraph (ix) (1) (2)
and (3) above)
-25-
Seller, its successors and assigns, the first priority lien of the
Mortgage in the original principal amount of the Mortgage Loan. Seller is
the sole insured of such lender's title insurance policy, such title
insurance policy has been duly and validly endorsed to Purchaser or the
assignment to Purchaser of Seller's interest therein does not require the
consent of or notification to the insurer and such lender's title
insurance policy is in full force and effect and will be in full force
and effect upon the consummation of the transactions contemplated by this
Agreement. To Seller's knowledge, no claims have been made under such
lender's title insurance policy, and no prior holder of the related
Mortgage has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy.
(xiv) To Seller's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the
related 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 permitting acceleration,
except for any Mortgage Loan Payment which is not late by more than 30
days, and Seller has not waived any default, breach, violation or event
permitting acceleration.
(xv) To Seller's knowledge, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and,
to Seller's knowledge, no rights are outstanding that under law could
give rise to such lien) affecting the related Mortgaged Property which
are or may be liens prior to, or equal or coordinate with, the lien of
the related Mortgage.
(xvi) To Seller's knowledge, all material improvements subject to
the Mortgage, lie wholly within the boundaries and building restrictions
lines of the Mortgaged Property (and wholly within the project with
respect to a condominium unit) and no improvements on adjoining
properties materially encroach upon the Mortgaged Property, except those
which are insured against by the title insurance policy referred to in
paragraph (xiii) above and all improvements on the property comply with
all applicable zoning and subdivision laws and ordinances.
(xvii) Each Mortgage Loan (except for any Mortgage Loan designated
as originated by others on any Final Mortgage Loan Schedule) was
originated by Seller, and at the time of each such origination of such
Mortgage Loan Seller was (except for any Mortgage Loan designated as
"originated prior to HUD approval" on any Final Mortgage Loan Schedule) a
mortgagee approved by the Secretary of Housing and Urban Development (the
"Secretary") pursuant to Sections 203 and 211 of the National Housing
Act. Each Mortgage Loan was underwritten generally in accordance with the
Underwriting Guide as in effect at the time of origination. The Mortgage
contains the usual and customary provision of Seller, if any, in the
applicable jurisdiction at the time of origination for the acceleration
of the payment of the unpaid principal balance of the Mortgage Loan if
the related Mortgaged Property is sold without the prior consent of the
Mortgagee thereunder.
-26-
(xviii) The Mortgaged Property at origination or acquisition was
and, to Seller's knowledge, is free of material damage and waste and at
origination there was, and to Seller's knowledge there is, no proceeding
pending for the total or partial condemnation thereof.
(xix) The related 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, (1) in the case
of a Mortgage designated as a deed of trust, by trustee's sale or
judicial foreclosure, and (2) otherwise by judicial foreclosure. Seller
has no knowledge of any homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage.
(xx) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified if required under applicable law to act as such, has been
properly designated and currently so serves as named in the Mortgage, and
no fees or expenses are or will become payable to the trustee under the
deed of trust, except in connection with a trustee's sale or attempted
sale after default by the Mortgagor.
(xxi) With respect to each Mortgage Loan, there is an appraisal on
a Xxxxxx Xxx or Xxxxxxx Mac approved form (or a narrative residential
appraisal) of the related Mortgaged Property that conforms to the
applicable requirements of the Financial Institutions Reform Recovery and
Enforcement Act and that was signed prior to the origination of such
Mortgage Loan application by a qualified appraiser, appointed by Seller
or the originator of such Mortgage Loan, as appropriate, who has no
interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by
the approval or disapproval of such Mortgage Loan.
(xxii) No Mortgage Loan contains "subsidized buydown" or graduated
payment features.
(xxiii) The Mortgaged Property has a single-family (one to
four-unit) dwelling residence erected thereon, or is an individual
condominium unit in a condominium, or a Cooperative Apartment or an
individual unit in a planned unit development or in a de minimis planned
unit development as defined by Xxxxxx Mae. No such residence is a mobile
home or a manufactured dwelling which is not permanently attached to the
land.
(xxiv) Except as set forth on the Final Mortgage Loan Schedule no
Mortgage Loan is a Converted Mortgage Loan. No Mortgage Loan provides for
negative amortization.
(xxv) No Mortgage Loan has an original term in excess of thirty
(30) years.
-27-
(xxvi) With respect to each Cooperative Loan, (a) there is no
provision in any proprietary lease which requires the Mortgagor to offer
for sale the cooperative shares owned by such Mortgagor first to the
cooperative, (b) there is no prohibition in the proprietary lease against
pledging the cooperative shares or assigning the proprietary lease, (c)
to Seller's knowledge, the Cooperative Apartment is lawfully occupied
under applicable law, and (d) to Seller's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to
all occupied portions of the Cooperative Apartment and the related
project have been made or obtained from the appropriate authorities.
(xxvii) There exists no circumstance or condition with respect to
the Mortgage Loan, the Mortgaged Property or use thereof, the Mortgagor,
the Mortgagor's credit standing or the documentation in the Mortgage File
that can reasonably be expected to cause private institutional investors
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.
(xxviii) No Mortgage Loan is subject to a prepayment penalty;
provided, however, that any Mortgage Loan that is subject to a prepayment
penalty as provided in the related Mortgage Note (i) is identified on the
related Final Mortgage Loan Schedule, (ii) with respect to Mortgage Loans
originated prior to October 1, 2002, no such prepayment penalty may be
imposed for a term in excess of five (5) years following origination and
(iii) with respect to Mortgage Loans originated on or after October 1,
2002, no such prepayment penalty may be imposed for a term in excess of
three (3) years following origination.
(xxix) No Mortgage Loan is a High Cost Loan. 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.
(xxx) The Mortgage Loan is a "qualified mortgage under Section
860G(a)(3) of the Internal Revenue Code of 1986, as amended.
(xxxi) There is no Mortgage Loan that was originated or modified
on or after October 1, 2002 and on or prior to March 7, 2003, which is
secured by property located in the State of Georgia.
(xxxii) Seller has, in its capacity as servicer for each Mortgage
Loan, caused to be fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., 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.
(xxxiii) No Mortgagor was required to purchase any credit life,
disability, accident or health insurance product as a condition of
obtaining the extension of credit.
-28-
No Mortgagor obtained a prepaid single premium credit life, disability,
accident or health insurance policy in connection with the origination of
the Mortgage Loan. In connection with the origination of any Mortgage
Loan, no proceeds from such Mortgage Loan were used to finance or acquire
a single premium credit insurance policy.
(xxxiv) The Mortgagor has not notified Seller, and Seller has no
knowledge, of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act, or other similar state statute.
(xxxv) Each Mortgage Loan is covered by a paid in full, life of
loan, flood service contract issued by either First American Flood Data
Services, Integrated Loan Services or Fidelity, and such contract is
transferable.
(xxxvi) Each Mortgage Loan is covered by a paid in full, life of
loan, tax service contract issued by First American Real Estate Tax
Service or Fidelity, and such contract is transferable.
(c) The representations and warranties set forth in Sections 5(a) and
5(b) shall survive the sale of the Mortgage Loans and the delivery of the
Mortgage Files to Purchaser notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment or the examination of any
Mortgage File. Upon discovery by either Seller or Purchaser of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of Purchaser in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other. Seller shall have a
period of ninety (90) days from its discovery or its receipt of notice of any
such breach within which to correct or cure such breach. If any such breach
cannot be corrected or cured within such ninety-day period, Seller shall, not
later than ninety (90) days following discovery or its receipt of notice of
such breach, repurchase such Mortgage Loan. Notwithstanding the above sentence,
within ninety (90) days of its discovery or its receipt of notice of any breach
of the representations or warranties set forth in clause (xxviii), (xxix),
(xxx), (xxxi), (xxxii) and (xxxiii) of Section 5(b), Seller shall repurchase
such Mortgage Loan. Any such repurchase shall be at a price equal to (i) the
Assumed Principal Balance of the Mortgage Loan plus (ii) accrued interest on
such Assumed Principal Balance at the Mortgage Loan Remittance Rate from the
date to which interest on such Assumed Principal Balance at the Mortgage Loan
Remittance Rate has last been paid and distributed to Purchaser to the date of
repurchase. Any such repurchase shall be accomplished by deposit in the
Custodial Account of the amount of the repurchase price, after deducting
therefrom any amounts received in respect of such repurchased Mortgage Loan and
being held in the Custodial Account for future distribution in accordance with
the Amended and Restated Master Servicing Agreement.
If Seller is required to repurchase any Mortgage Loan pursuant to the
preceding paragraph on or prior to the one hundred and twentieth (120th) day
following the related Closing Date, Seller may, at its option, substitute a
Qualified Substitute Mortgage Loan for such deficient Mortgage Loan within such
one hundred and twenty (120) day period, in lieu of repurchasing such deficient
Mortgage Loan. As to any Deleted Mortgage Loan for which Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, Seller shall effect such
substitution by delivering
-29-
to Purchaser for such Qualified Substitute Mortgage Loan or Loans the Mortgage
Note, the Mortgage, the Assignment and such other documents and agreements as
are required by Section 3(b). Seller shall deposit in the Custodial Account the
Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan or Loans in the month following the date of such substitution.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the
month of substitution will be retained by Seller. For the month of
substitution, distribution to Purchaser will include the Monthly Payment due on
such Deleted Mortgage Loan in the month of substitution, and Seller shall
thereafter be entitled to retain all amounts subsequently received by Seller in
respect of such Deleted Mortgage Loan. Seller shall give written notice to
Purchaser that such substitution has taken place and shall amend the related
Final 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 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 Section 5(a) and 5(b) hereof.
Purchaser shall promptly effect the reconveyance of such Deleted Mortgage Loan
to Seller.
For any month in which Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, Seller will
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 outstanding 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 Seller in
the month of substitution pursuant to Section 6.01 of the Amended and Restated
Master Servicing Agreement. Accordingly, on the date of such substitution,
Seller will deposit from its own funds into the Custodial Account an amount
equal to the amount of such shortfall in accordance with the Amended and
Restated Master Servicing Agreement. Accordingly, on the date of such
substitution, the Seller will remit to the Purchaser from its own funds an
amount equal to the amount of such shortfall plus one month's interest thereon
at the applicable Mortgage Interest Rate minus the related Servicing Fee.
In addition to such cure, repurchase or substation obligation, Seller
shall indemnify Purchaser and hold it harmless against any loss, damages,
penalties, fines, forfeitures, legal fees 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 Seller's
representations and warranties contained in Sections 5(a) and 5(b) hereof.
Seller's obligation to cure a breach, or to repurchase or substitute a
defective Mortgage Loan and to indemnify Purchaser as provided in this Section
5(c), constitute the sole remedies of Purchaser respecting a breach of the
foregoing representations and warranties.
(d) Seller shall repurchase each Converted Mortgage Loan on or before
the first day of the month immediately following the date of such conversion at
a price equal to (i) the Assumed Principal Balance of the Mortgage Loan, plus
(ii) accrued interest on such Assumed Principal Balance at the Mortgage
Interest Rate from the date to which interest has last been paid
-30-
and distributed to Purchaser to the date of repurchase. Any such repurchase
shall be accomplished by deposit into the Custodial Account of the amount set
forth in the preceding sentence.
(e) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
AS TO THE COLLECTABILITY OF THE MORTGAGE LOANS, THE SECURITY THEREFOR OR THE
STATUS OF ANY MORTGAGOR. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER CONCERNING THE MORTGAGE LOANS OR THE MORTGAGE FILES,
INCLUDING, WITHOUT LIMITATION, ANY DOCUMENTS RELATED TO MORTGAGE LOANS OR THE
ORIGINATION OF THE MORTGAGE LOANS. THE MORTGAGE LOANS AND THE RELATED DOCUMENTS
SHALL BE CONSIDERED FOR ALL PURPOSES TO BE PURCHASED BY PURCHASER "AS-IS,
WHERE-IS, WITH ALL FAULTS" AND PURCHASED WITHOUT RECOURSE OF ANY KIND TO
SELLER. ANY PRIOR REPRESENTATION OR STATEMENTS, WHETHER ORAL OR WRITTEN, AS TO
THE MORTGAGE LOANS OR ANY MATTER RELATED THERETO ARE MERGED HEREIN AND ANY SUCH
REPRESENTATIONS OR STATEMENTS NOT SPECIFICALLY INCLUDED IN THIS AGREEMENT ARE
HEREBY WITHDRAWN BY SELLER, AND PURCHASER ACKNOWLEDGES THAT IS NOT RELYING ON
THEM.
Section 6. Representations, Warranties and Agreements of Purchaser.
(a) Purchaser, without conceding that any Mortgage Loans are securities,
hereby make the following representations, warranties and agreements, which
shall have been deemed to have been made as of the respective Closing Date:
(i) Purchaser is acquiring the Mortgage Loans for its own account
only and not for any other Person.
(ii) Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and
risks of investment in the Mortgage Loans.
(iii) Purchaser has been furnished with all information regarding
the Mortgage Loans which it has requested.
(iv) Neither Purchaser nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of any Mortgage
Loan, any interest in any Mortgage Loan or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other
disposition of any Mortgage Loan, any interest in any Mortgage Loan or
any other similar security from, or otherwise approached or negotiated
with respect to any Mortgage Loan, any interest in any Mortgage Loan or
other similar security with, any Person in any manner, or made any
general solicitation by means of general advertising or in any other
manner, or taken any other action that would constitute a distribution of
-31-
the Mortgage Loans under the Securities Act, or that would render the
disposition of any Mortgage Loan a violation of Section 5 of the
Securities Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any Person to act, in such
manner with respect to the Mortgage Loans.
(b) Purchaser represents and warrants to Seller that as of the date
hereof, as of the date of each respective Purchase Price and Terms Letter as of
each respective Closing Date (or as of such other date or dates as may be
expressly set forth below):
(i) Purchaser is duly organized, validly existing and in good
standing as a corporation under the laws of the state of New York.
Purchaser has full power and authority (corporate and otherwise) to enter
into and perform its obligations under the Program Documents.
(ii) This Agreement, the Amended and Restated Master Servicing
Agreement and the Custodial Agreement each has been duly authorized,
executed and delivered by Purchaser, and each constitutes the legal,
valid and binding agreement of Purchaser, enforceable against Purchaser
in accordance with its terms.
(iii) As of the date of respective Purchase Price and Terms Letter
and as of the respective Closing Date, the Purchase Price and Terms
Letter has been duly authorized, executed and delivered by Purchaser, and
the Purchase Price and Terms Letter constitutes the legal, valid and
binding agreement of Purchaser, enforceable against Purchaser in
accordance with its terms.
(iv) Neither the delivery of the related Purchase Price to Seller,
nor the purchase of the Mortgage Loans by Purchaser, nor the execution or
delivery of the related Program Documents, nor the consummation of any of
the transactions herein or therein contemplated, nor the fulfillment of
the terms hereof or thereof, will result in the breach of any term or
provision of the charter or by-laws of Purchaser, or conflict with,
result in a breach, violation or acceleration of or constitute a default
under a material term of any indenture or other agreement or instrument
to which Purchaser is a party or by which Purchaser is bound or any
statute, order or regulation or any court, regulatory body,
administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending
or, to Purchaser's knowledge, threatened against Purchaser that, either
in any one instance or in the aggregate, could draw into question the
validity of any of the Program Documents or prevent the consummation of
any of the Transactions.
(vi) No consent, approval, authorization or order of any court,
regulatory body, administrative agency, governmental body or arbitrator
is required for the execution or delivery by Purchaser of any of the
Program documents, the performance by Purchaser of its obligations
hereunder or the consummation by Purchaser of any of the Transactions.
-32-
(vii) Purchaser has not dealt with any broker, investment banker,
agent or other person, except Seller, who may be entitled to any
commission or compensation in connection with the purchase of the
Mortgage Loans.
Section 7. Compliance with Regulation AB.
Subsection 7.01 Intent of Parties; Reasonableness.
From and after each Closing Date, Seller will service and administer each
Mortgage Loan purchased on such Closing Date pursuant to the terms of the
Amended and Restated Master Servicing Agreement for the benefit of Purchaser,
as the initial "Purchaser" thereof, and such Mortgage Loan will be deemed to be
added to the "MSA Mortgage Loan Schedule" under the Amended and Restated Master
Servicing Agreement.
The Purchaser and the Seller acknowledge and agree that the purpose of
Section 7 of this Agreement is to facilitate compliance by the Purchaser with
the provisions of Regulation AB and related rules and regulations of the
Commission. The Purchaser shall not 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. 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 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), any and all statements, reports, certifications,
records and any other information necessary in the good faith determination of
the Purchaser to permit the Purchaser to comply with the provisions of
Regulation AB, together with such disclosures relating to the Seller, any
Subservicer, any Third-Party Originator and the Mortgage Loans, or the
servicing of the Mortgage Loans, reasonably believed by the Purchaser to be
necessary in order to effect such compliance.
Subsection 7.02 Additional Representations and Warranties of the
Seller
(a) The Seller shall be deemed to represent to the Purchaser, as of the
date on which information is first provided to the Purchaser under Subsection
7.03 that, except as disclosed in writing to the Purchaser 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 Seller
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 Seller as servicer has been disclosed
or reported by the
-33-
Seller; (iv) no material changes to the Seller's policies or procedures with
respect to the servicing function it will perform under this 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 Seller's
financial condition that could have a material adverse effect on the
performance by the Seller of its servicing obligations under this Agreement or
any Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Seller, any
Subservicer or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions relating to the Seller, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction of a type
described in Item 1119 of Regulation AB.
(b) If so requested by the Purchaser on any date following the date on
which information is first provided to the Purchaser under Subsection 7.03, the
Seller shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting party.
Subsection 7.03 Information to Be Provided by the Seller
In connection with any Securitization Transaction the Seller shall (i)
within five Business Days following request by the Purchaser, provide to the
Purchaser (or, as applicable, cause each Third-Party Originator and each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser, the information and materials specified in
paragraphs (a), (b), (c) and (f) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Seller, provide to the
Purchaser (in writing and in form and substance reasonably satisfactory to the
Purchaser) the information specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser, 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, and (iii) as applicable, each Subservicer, 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, to an analysis of the
performance of the Mortgage
-34-
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 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,
each Third-Party Originator and each Subservicer; and
(D) a description of any affiliation or relationship between the
Seller, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser in writing in advance of such
Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser, 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. Such Static Pool Information shall be
prepared 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 shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool Information may be
in a form customarily provided by the Seller, and need not be customized for
the Purchaser. 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.
-35-
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, in the same format in which Static Pool Information was
previously provided to such party by the Seller.
If so requested by the Purchaser, the Seller shall provide (or, as
applicable, cause each Third-Party Originator to provide), at the expense of
the requesting party (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, 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 shall reasonably request. Such statements and letters
shall be addressed to and be for the benefit of such parties as the Purchaser
shall designate, which may include, by way of example, any Sponsor 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.
(c) If so requested by the Purchaser, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a "Servicer"), as is requested for the purpose of compliance with
Items 1108 of Regulation AB. Such information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more detailed
discussion of the Servicer's experience in, and procedures for, the
servicing function it will perform under this Agreement and any
Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer's portfolio of residential mortgage loans of a
type similar to the Mortgage Loans and information on factors related to
the Servicer that may be material, in the good faith judgment of the
Purchaser, to any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable, including, without
limitation:
(1) whether any prior securitizations of mortgage loans of a
type similar to the Mortgage Loans involving the Servicer have
defaulted or experienced an early amortization or other performance
triggering event because of servicing during the three-year period
immediately preceding the related Securitization Transaction;
-36-
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect
to other securitizations of residential mortgage loans involving
the Servicer as a servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has 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; and
(5) such other information as the Purchaser may reasonably
request for the purpose of compliance with Item 1108(b)(2) of
Regulation AB;
(C) a description of any material changes during the three-year
period immediately preceding the related Securitization Transaction to
the Servicer's policies or procedures with respect to the servicing
function it will perform under this Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial condition, to
the extent that there is a material risk that an adverse financial event
or circumstance involving the Servicer could have a material adverse
effect on the performance by the Seller of its servicing obligations
under this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be limited to
a statement by an authorized officer of the Servicer to the effect that
the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement
would not be accurate, information regarding the percentage and type of
advances not made as required, and the reasons for such failure to
advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans or
workouts; and
(H) information as to how the Servicer defines or determines
delinquencies
-37-
and charge-offs, including the effect of any grace period, re-aging,
restructuring, partial payments considered current or other practices
with respect to delinquency and loss experience.
(d) If so requested by the Purchaser 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 Subservicer and
Third-Party Originator to) (i) notify the Purchaser in writing of (A) any
material litigation or governmental proceedings pending against the Seller, any
Subservicer or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller, any Subservicer 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 a
description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Seller or any Subservicer as
servicer or subservicer under this Agreement or any Reconstitution Agreement by
any Person (i) into which the Seller or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Seller or
any Subservicer, the Seller shall provide to the Purchaser, at least fifteen
(15) calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser of such succession or
appointment and (y) in writing and in form and substance reasonably
satisfactory to the Purchaser, all information reasonably requested by the
Purchaser in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to any class of asset-backed securities.
(f) In addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, if so
requested by the Purchaser, the Seller shall provide such information
reasonably available to the Seller regarding the performance or servicing of
the Mortgage Loans as is reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB.
Subsection 7.04 Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in 2007, the
Seller shall deliver to the Purchaser a statement of compliance addressed to
the Purchaser and signed by an authorized officer of the Seller, to the effect
that (i) a review of the Seller's activities during the immediately preceding
calendar year (or applicable portion thereof) and of its performance under this
Agreement and any applicable Reconstitution Agreement during such period has
been made under such officer's supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Seller has fulfilled all of its
obligations under this Agreement and any applicable Reconstitution Agreement in
all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
-38-
Subsection 7.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 1 of each calendar year, commencing in 2007, the
Seller shall:
(i) deliver to the Purchaser a report (in form and substance
reasonably satisfactory to the Purchaser) regarding the Seller's
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be addressed to the Purchaser and signed by an authorized officer
of the Seller, and shall address each of the Servicing Criteria specified
on a certification substantially in the form of Exhibit 12 hereto
delivered to the Purchaser concurrently with the execution of this
Agreement;
(ii) deliver to the Purchaser a report of a registered public
accounting firm reasonably acceptable to the Purchaser that attests to,
and reports on, the assessment of compliance made by the Seller and
delivered pursuant to the preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Seller pursuant to Subsection 7.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser an assessment of compliance and accountants'
attestation as and when provided in paragraphs (a) and (b) of this
Section; and
(iv) deliver to the Purchaser and any other Person that will be
responsible for signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of
an asset-backed issuer with respect to a Securitization Transaction a
certification in the form attached hereto as Exhibit 11.
The Seller acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Seller pursuant to such clause in
signing a Sarbanes Certification and filing such with the Commission.
(b) Each assessment of compliance provided by a Subservicer pursuant to
Subsection 7.05(a)(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit 12 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case of
a Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to Subsection 7.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Seller pursuant to Subsection 7.06.
Subsection 7.06 Use of Subservicers and Subcontractors.
-39-
The Seller shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Seller as servicer under
this Agreement or any Reconstitution Agreement unless the Seller complies with
the provisions of paragraph (a) of this Section. The Seller shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Seller as servicer under this Agreement
or any Reconstitution Agreement unless the Seller complies with the provisions
of paragraph (b) of this Section.
(a) It shall not be necessary for the Seller to seek the consent of the
Purchaser to the utilization of any Subservicer. The Seller shall cause any
Subservicer used by the Seller (or by any Subservicer) for the benefit of the
Purchaser to comply with the provisions of this Section and with Subsections
7.02, 7.03(c) and (e), 7.04, 7.05 and 7.07 of this Agreement to the same extent
as if such Subservicer were the Seller, and to provide the information required
with respect to such Subservicer under Subsection 7.03(d) of this Agreement.
The Seller shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser any servicer compliance statement required to be
delivered by such Subservicer under Subsection 7.04, any assessment of
compliance and attestation required to be delivered by such Subservicer under
Subsection 7.05 and any certification required to be delivered to the Person
that will be responsible for signing the Sarbanes Certification under
Subsection 7.05 as and when required to be delivered.
(b) It shall not be necessary for the Seller to seek the consent of the
Purchaser to the utilization of any Subcontractor. The Seller shall promptly
upon request provide to the Purchaser a written description (in form and
substance satisfactory to the Purchaser) of the role and function of each
Subcontractor utilized by the Seller or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such Subcontractors
are "participating in the servicing function" within the meaning of Item 1122
of Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser to comply with the
provisions of Subsections 7.05 and 7.07 of this Agreement to the same extent as
if such Subcontractor were the Seller. The Seller shall be responsible for
obtaining from each Subcontractor and delivering to the Purchaser any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Subsection 7.05, in each case as and when required to be
delivered.
Subsection 7.07 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
-40-
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 (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 shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided under this Section 7 by or
on behalf of the Seller, or provided under this Section 7 by or on behalf
of any Subservicer, Subcontractor or 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, any Subservicer, any Subcontractor
or any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Section 7, including any failure by the Seller to identify
pursuant to Subsection 7.06(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB; or
(iii) any breach by the Seller of a representation or warranty set
forth in Subsection 7.02(a) or in a writing furnished pursuant to
Subsection 7.02(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
7.02(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, 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, any Subservicer, any
Subcontractor or any Third-Party Originator.
-41-
(b) (i) Any failure by the Seller, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Section 7, or any breach by the Seller of a representation or
warranty set forth in Subsection 7.02(a) or in a writing furnished
pursuant to Subsection 7.02(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 7.02(b) to the extent made as of a date subsequent to such
closing date, shall, except as provided in clause (ii) of this paragraph,
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,
in its sole discretion to terminate the rights and obligations of the
Seller as servicer under this 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 Seller; 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 Seller as servicer, such
provision shall be given effect.
(ii) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Subsection 7.04 or 7.05,
including any failure by the Seller to identify pursuant to Subsection
7.06(b) any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such
information, report, certification or accountants' letter was required to
be delivered shall constitute an Event of Default with respect to the
Seller under this Agreement and any applicable Reconstitution Agreement,
and shall entitle the Purchaser, in its sole discretion to terminate the
rights and obligations of the Seller as servicer under this Agreement
and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any
compensation to the Seller; 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 Seller as servicer, such
provision shall be given effect.
(iii) The Seller shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer), for all reasonable
expenses incurred by the Purchaser (or such designee), as such are
incurred, in connection with the termination of the Seller as servicer
and the transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser may have under other provisions of this Agreement
and/or any applicable Reconstitution Agreement or otherwise, whether in
equity or at law, such as an action for damages, specific performance or
injunctive relief.
-42-
Section 8. Additional Indemnification by the Seller; Third Party Claims
The Seller shall indemnify the Purchaser and hold it harmless against any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that the Purchaser may sustain in any way related to the failure
of the Seller to perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Seller immediately shall
notify the Purchaser if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Purchaser promptly shall reimburse the Seller for all
amounts advanced by it pursuant to the preceding sentence except when the claim
is in any way related to Seller's indemnification pursuant to Section 5 or the
failure of the Seller to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement.
Section 9. Intention of the Parties.
With respect to each Transaction, it is the intention of the parties that
Purchaser is purchasing, and Seller is selling, interests in the related
Mortgage Loans and not a debt instrument of Seller or any other security.
Accordingly, the parties each intend to treat each Transaction for federal
income tax purposes as a sale by Seller, and a purchase by Purchaser, of the
related Mortgage Loans.
Section 10. Costs.
Seller shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys and those expenses incurred in connection with the
transfer and delivery by Seller of the Mortgage Loans pursuant hereto. The fees
and expenses due under the Amended and Restated Master Servicing Agreement and
those of the Custodian and Purchaser's brokers' and attorneys' fees and
expenses, shall be paid by Purchaser.
Section 11. Further Agreements of Seller.
Seller and Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements, and
take such actions, as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 12. Mandatory Delivery.
The sale and delivery on any Closing Date of the Mortgage Loans described
on the related Final Mortgage Loan Schedule is mandatory from and after the
date of the execution of the related Purchase Price and Terms Letter.
Section 13. Termination.
-43-
Either Seller or Purchaser may terminate this Agreement as to future
Transactions upon notice to the other party, but no such termination shall
affect any Transaction previously consummated or the rights and obligations of
Seller and Purchaser with respect thereto under the Program Documents.
Section 14. Seller's Right of First Refusal
If Purchaser shall elect to sell any Mortgage Loans purchased under this
Agreement to any third party other than an Affiliate of Purchaser, Purchaser
hereby agrees that Seller will have a non-exclusive right to bid to purchase
such Mortgage Loans and, if Purchaser shall elect to seek from one or more
third parties bids to purchase such Mortgage Loans, Seller will have a right to
review such bids and to purchase such Mortgage Loan in the event that Seller
offers Purchaser equivalent or better terms than those actually offered by any
third party as part of a bona fide, independent offer.
Section 15. Severability Clause.
Any part, provision, representation or warranty of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition of 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.
Section 16. 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 17. Survival.
Each party agrees that the representations, warranties and agreements
made by such party herein and in any certificate or other instrument delivered
pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on the other party's behalf.
Section 18. Successor and Assigns: Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable
by Seller and Purchaser and the respective successors and assigns of Seller and
Purchaser; provided that this Agreement cannot be assigned, pledged or
hypothecated by Seller or Purchaser to a third party without the consent of the
other party, which consent shall not be unreasonably withheld or
-44-
delayed; provided, however, that either party may assign this Agreement without
the consent of the other party to any Affiliate; further provided, however,
that no novation shall occur as a result of any such assignment (whether or not
such consent is received). Purchaser acknowledges that the assignment of any or
all of its rights under this Agreement without the consent of the Surety Bond
Issuer may affect, impair or eliminate the insurance provided by the Surety
Bond to the extent set forth therein. No assignment shall relieve the Assignor
from any liability hereunder without the consent of the other party hereto.
Section 19. Notices.
Any notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been duly given if
personally delivered, sent by overnight courier, or mailed by registered mail,
postage prepaid, and return receipt requested, or transmitted by telex or
telegraph and confirmed by a similar mailed writing, or otherwise received, if
to Purchaser, addressed to Purchaser at Xxxxxx Xxxxxxx Mortgage Capital Inc. at
0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Whole Loan Operations Manager, or
to such other address as Purchaser may designate in writing to Seller, and, if
to Seller, addressed to Xxxxxx Xxxxxxx Credit Corporation at 0000 Xxxx Xxxx
Xxxx, Xxxxxxxxxx, XX 00000, Attention: Law Division, with a copy to the Vice
President, Secondary Marketing, at the same address, or to such other address
as Seller may have designated in writing to Purchaser.
Section 20. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall constitute an original, but all of which together shall constitute one
instrument notwithstanding that all parties are not signatories to the same
counterparts.
Section 21. Entire Agreement.
This Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters and transactions contemplated by this
Agreement and supersedes any prior agreement and understandings with respect to
those matters and transactions; provided, however, that this Agreement shall
not be deemed to supersede any other Program Document or any agreement,
instrument or other document executed in connection therewith.
Section 22. Governing Law and Amendments.
This Agreement is to be governed by, and construed in accordance with,
the internal laws (as compared to conflicts of law provisions) of the State of
New York. 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.
Section 23. Exhibits.
-45-
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:
(i) 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;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(iii) references herein to "Articles", "sections", "Subsections",
Paragraphs", and other subdivisions without reference to a document are
to be designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a 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;
(v) 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
(vi) the terms "include" or "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. Attorney-In-Fact.
Purchaser is hereby irrevocably appointed as Seller's attorney in fact
for the limited purpose of completing and recording Assignments of the
Mortgages, and is hereby granted express authority to complete such Assignments
in the name of Purchaser and to record the same
-46-
at Purchaser's expense; provided, however, that no such authority shall exist
with respect to any Mortgage which is repurchased or replaced by a Qualified
Substitute Mortgage Loan in accordance with the terms and conditions of this
Agreement. In the event that Purchaser has already recorded an Assignment with
respect to a Mortgage Loan which is subsequently repurchased or replaced by a
Qualified Substitute Mortgage Loan under this Agreement, Purchaser shall
execute and record an additional Assignment assigning such Mortgage Loan back
to Seller. .
Section 27. Confidentiality.
Purchaser and Seller will consult with each other regarding press
releases or other public announcements related to this Agreement and the
transactions contemplated hereby, and neither Purchaser nor Seller shall issue
any such press release or announcement without the prior written consent of the
other, except as otherwise required by applicable law. Purchaser and Seller
shall hold in confidence and shall not disclose to any Person the amount of the
Purchase Price, the terms of the Purchase Price and Terms Letter or the
Purchase Price Percentage, except (a) to any Governmental Authority with
jurisdiction over Purchaser or Seller or any Affiliate of Purchaser or Seller
or as otherwise required by applicable law, (b) as part of any filing to be
made with any Governmental Authority, (c) in response to any subpoena or other
legal process, (d) to any prospective successor or assign (subject to such
Person entering into a comparable confidentiality agreement in favor of
Purchaser and Seller), or (e) to legal counsel, accountants and financial
advisors of Purchaser or Seller or their Affiliates. Purchaser agrees to treat
all information provided to it by Seller regarding any Mortgagor in a manner
consistent with federal or state laws regulating a customers' right to privacy.
[Signature Page Follows]
-47-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first set forth above.
Xxxxxx Xxxxxxx Mortgage Capital Inc.
By:_______________________________________
Name:
Title:
Xxxxxx Xxxxxxx Credit Corporation
By:_______________________________________
Name:
Title:
EXHIBIT 1
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each
of the following items (in such format as may be agreed upon by both parties):
1. The documents specified in Section 3(b) of the Agreement.
2. Copy of survey of the Mortgaged Property, if any.
3. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, sewer agreements, homes association
declarations, etc.
4. Evidence of property insurance policy and endorsement and, if required
by law, evidence of flood insurance policy and endorsement.
5. Closing statement.
6. Loan application.
7. Verification of acceptable evidence of source and amount of down
payment.
8. Credit report on the Mortgagor.
9. Appraisal report.
10. Photograph of the Mortgaged Property.
11. Executed disclosure statement.
12. All other papers and records received by Seller or to documents the
Mortgage Loan.
In addition to the above, with respect to each Cooperative Loan, the
Mortgage File shall contain each of the following items:
1. a copy of the proprietary lease;
2. a copy of the recognition agreement;
3. a copy of the security agreement;
4. a copy of the assignment of proprietary lease;
5. a copy of the cooperative stock certificate; and
6. a copy of UCC-1 Financing Statements.
-2-
EXHIBIT 2
FORM OF MASTER AMENDED AND RESTATED SERVICING AGREEMENT
EXHIBIT 3
FORM OF CUSTODIAL AGREEMENT
EXHIBIT 4
UNDERWRITING GUIDE OF SELLER
EXHIBIT 5
FORM OF CERTIFICATE OF SELLER
I, Xxxxxx X. Xxxxx, hereby certify that I am the duly elected Secretary
of Xxxxxx Xxxxxxx Credit Corporation, a corporation organized under the laws of
the State of Delaware ("Seller"), and further as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the
certificate of incorporation of Seller which is in full force and effect on the
date hereof. There has been no amendments or modifications to the certificate
of incorporation since April 2, 1993. Attached hereto as Exhibit B is a true
and correct copy of the by-laws of Seller which are in full force and effect on
the date hereof. There have been no amendments or modifications of the by-laws
since June 10, 1993. No event has occurred that has affected the good standing
of Seller under the laws of the State of Delaware.
2. Each person who, as an officer or representative of Seller, signed (a)
the Third Amended and Restated Master Mortgage Loan Purchase Agreement, dated
as of November 1, 2005 between Xxxxxx Xxxxxxx Mortgage Capital Inc.
("Purchaser") and Seller (the "Master Mortgage Loan Purchase Agreement"), (b)
the Amended and Restated Master Servicing Agreement, Seller Flow Delivery
Program, dated as of February 1, 2004 between Seller and Purchaser (the "Master
Servicing Agreement"), (c) any Warranty Xxxx of Sale executed by Seller (a
"Warranty Xxxx of Sale"; the Master Mortgage Loan Purchase Agreement, the
Master Servicing Agreement, and each Warranty Xxxx of Sale are herein referred
to, collectively, as the "Agreements"), (d) any of the Assignments (as defined
in the Master Mortgage Loan Purchase Agreement) or (e) any other document
delivered prior hereto or on the date hereof in connection with the purchase
described in the Agreements, was, at the respective times of such signing and
delivery, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
are their genuine signatures.
3. The sale of the Mortgage Loans and the transactions contemplated by
the Agreements are in the ordinary course of Seller's business.
IN WITNESS WHEREOF, I have hereunto signed my name as of ________________ ___,
200__.
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary of Xxxxxx Xxxxxxx
Credit Corporation
EXHIBIT 6
FORM OF ASSIGNMENT FOR ADDITIONAL COLLATERAL AGREEMENTS
ASSIGNMENT
Reference is made to the Third Amended and Restated Master Mortgage Loan
Purchase Agreement (the "Purchase Agreement") dated as of November 1, 2005,
between Xxxxxx Xxxxxxx Credit Corporation, as seller ("Seller"), and Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser ("Purchaser"), pursuant to which
Seller is selling to Purchaser the Additional Collateral Mortgage Loans listed
on the Final Mortgage Loan Schedule. Capitalized terms used and not defined
shall have the meanings assigned in the Purchase Agreement.
For good and valuable consideration, receipt of which is hereby
acknowledged, Seller hereby sells, transfers, assigns, sets over and conveys to
Purchaser without recourse all of Seller's right, title and interest in and to
each pledge agreement and control agreement securing any Additional Collateral
Mortgage Loan listed on such Final Mortgage Loan Schedule.
IN WITNESS WHEREOF, the undersigned has caused this agreement to be duly
executed this _____ day of ___________________, 200_.
Xxxxxx Xxxxxxx Credit Corporation
By:_______________________________________
Name:
Title:
EXHIBIT 7
FORM OF NOTICE OF ASSIGNMENT TO AND ACKNOWLEDGMENT BY
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
______ __, 2000
TO: Xxxxxx Xxxxxxx Mortgage Capital Inc.
FROM: Xxxxxx Xxxxxxx Credit Corporation
RE: Notice of Assignment
This shall serve as notice that Xxxxxx Xxxxxxx Credit Corporation ("Seller")
has sold, assigned, and transferred certain Additional Collateral Mortgage
Loans designated as such on the attached to Xxxxxx Xxxxxxx Mortgage Capital
Inc. ("Purchaser") pursuant to that certain Third Amended and Restated Master
Loan Purchase Agreement dated as of November 1, 2005, executed by Seller and
Purchaser ("Agreement"). In connection with such sale, Seller has assigned to
Purchaser its security interest in the control agreements and collateral
subject thereto set forth in Schedule A attached hereto.
Xxxxxx Xxxxxxx Credit Corporation
By: ______________________________
Name:
Title:
Acknowledged:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
By: ______________________________
Name:
Title:
EXHIBIT 8
FORM OF WARRANTY XXXX OF SALE
On this ___ day of _______, 200_, Xxxxxx Xxxxxxx Credit Corporation
("Seller") does hereby sell, transfer, assign, set over and convey to Xxxxxx
Xxxxxxx Mortgage Capital Inc. ("Purchaser"), without recourse in accordance
with the terms of that certain Third Amended and Restated Master Mortgage Loan
Purchase Agreement dated as of November 1, 2005, between Seller and Purchaser
(as amended, modified, restated or supplemented from time to time, the
"Purchase Agreement"; all capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Amended and
Restated Master Servicing Agreement), all of the right, title and interest of
Seller in and to each Mortgage Loan set forth on the Final Mortgage Loan
Schedule attached hereto as Schedule I, including all interest and principal
received by Seller on or with respect to each such Mortgage Loan after the
Cut-off Date (other than payments of principal and interest due on such
Mortgage Loan on or before the Cut-off Date), any related Mortgage Loan
Documents and the related Mortgage Files. Each Mortgage Loan set forth on the
attached Final Mortgage Loan Schedule shall be subject to the Amended and
Restated Master Servicing Agreement, dated as of February 1, 2004, between
Seller and Purchaser, from the date hereof, and Seller hereafter shall service
and administer each such Mortgage Loan pursuant thereto for Purchaser as the
"Owner" thereunder.
This Warranty Xxxx of Sale shall be governed by, and construed in
accordance with the internal laws (as compared to conflicts of law provision)
of the State of Illinois.
Xxxxxx Xxxxxxx Credit Corporation
By:_________________________________
Name:
Title:
EXHIBIT 9
TRUST RECEIPT
__________ ___, 200_
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. [Xxxxxxx X. Xxxxxx]
Re: Third Amended and Restated Agreement, dated as of November 1,
2005 (the "Agreement"), between Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the "Purchaser") and Xxxxxx Xxxxxxx Credit
Corporation ("Seller").
Ladies and Gentlemen:
Seller, as bailee pursuant to Section 3(b) of the above-referenced
Agreement, hereby certifies that the Purchaser is the holder of this Trust
Receipt. Pursuant to the Agreement, the Bailee is entitled to possession of the
Mortgage Loan Documents; provided, however, that in the event that the
Purchaser requests release of any Mortgage Loan Documents from the possession
of the Bailee, the related Mortgage Loan shall no longer be subject to or
entitled to the benefits of Section 3(b) of the Agreement.
The Bailee hereby certifies that it has received the Mortgage Loan
Documents with respect to each Mortgage Loan identified on the Mortgage Loan
Schedule attached hereto and is holding all Mortgage Loan Documents as bailee
for the Purchaser.
XXXXXX XXXXXXX CREDIT CORPORATION
By: _________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT 10
FINAL TRUST RECEIPT AND CERTIFICATION
__________ ___, 200_
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. [Xxxxxxx X. Xxxxxx]
Re: Third Amended and Restated Agreement, dated as of November 1,
2005 (the "Agreement"), between Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the "Purchaser") and Xxxxxx Xxxxxxx Credit
Corporation ("Seller").
Ladies and Gentlemen:
In accordance with the provisions of Section 3(b) of the above-referenced
Agreement, the undersigned, as Bailee, hereby certifies that as to each
mortgage loan described in the Final Mortgage Loan Schedule attached to the
Agreement and a copy of which is attached as Exhibit A hereto (other than any
mortgage loan listed as Exhibit B attached hereto), it has reviewed the related
Mortgage Loan Documents and has determined that (i) all documents to be
delivered to the Bailee listed in Section 3(b) of the Agreement are in its
possession, (ii) such documents have been reviewed by it and appear regular on
their face and relate to such mortgage loan, and (iii) based on its
examination, the foregoing documents on their face satisfy the requirements set
forth in Section 3(b) of the Agreement.
The Bailee hereby confirms that it is holding all Mortgage Loan Documents
as agent and bailee for the exclusive use and benefit of the Purchaser pursuant
to the terms of Section 3(b) the Agreement.
All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Agreement.
XXXXXX XXXXXXX CREDIT CORPORATION
By: _________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT 11
FORM OF ANNUAL CERTIFICATION
Re: The Third Amended and Restated Master Mortgage Loan Purchase
Agreement dated as of November 1, 2005 (the "Agreement"), among
Xxxxxx Xxxxxxx Mortgage Capital Inc. and Xxxxxx Xxxxxxx Credit
Corporation
I, ________________________________, the _______________________ of [NAME
OF SELLER], certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Seller
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Seller's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and
15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange
Act") and Item 1122 of Regulation AB (the "Servicing Assessment"), the
registered public accounting firm's attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all
servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans by the Seller during 200[ ] that
were delivered by the Seller to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Seller Servicing Information");
(2) Based on my knowledge, the Seller Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Seller
Servicing Information;
(3) Based on my knowledge, all of the Seller Servicing Information
required to be provided by the Seller under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Seller as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Seller has fulfilled its obligations under
the Agreement; and
(5) The Compliance Statement required to be delivered by the Seller
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be
provided by the Seller and by any Subservicer or Subcontractor pursuant
to the Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: _________________________
By: ________________________________
Name:
Title:
3
EXHIBIT 12
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by Xxxxxx Xxxxxxx Credit
Corporation shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
-----------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------- --------------------------
General Servicing Considerations
-------------------- --------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other
triggers and events of default in accordance with the transaction agreements.
-------------------- --------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and compliance
with such servicing activities.
-------------------- --------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
maintained.
-------------------- --------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of
the transaction agreements.
----------------------- --------------------------
Cash Collection and Administration
----------------------- --------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days
specified in the transaction agreements.
----------------------- --------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor
are made only by authorized personnel.
----------------------- --------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
----------------------- --------------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in
1122(d)(2)(iv) the transaction agreements.
----------------------- --------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect
to a foreign financial institution means a foreign
financial institution that meets the requirements of
Rule 13k-1(b)(1) of the Securities Exchange Act.
----------------------- --------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
----------------------- --------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------- --------------------------
Investor Remittances and Reporting
----------------------- --------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
----------------------- --------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
----------------------- --------------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or
such other number of days specified in the transaction
1122(d)(3)(iii) agreements.
----------------------- --------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment,
or custodial bank statements.
----------------------- --------------------------
Pool Asset Administration
----------------------- --------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained
as required by the transaction agreements or related
mortgage loan documents.
----------------------- --------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as
required by the transaction agreements
----------------------- --------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
agreements.
----------------------- --------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made
in accordance with the related mortgage loan documents
are posted to the Servicer's obligor records maintained
no more than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the
related mortgage loan documents.
----------------------- --------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
obligor's unpaid principal balance.
----------------------- --------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction
agreements and related pool asset documents.
----------------------- --------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by the
transaction agreements.
----------------------- --------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
----------------------- --------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
on the related mortgage loan documents.
5
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------- --------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
days specified in the transaction agreements.
----------------------- --------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
----------------------- --------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
----------------------- --------------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
1122(d)(4)(xiii) days specified in the transaction agreements.
----------------------- --------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements.
----------------------- --------------------------
Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
1122(d)(4)(xv) transaction agreements.
----------------------- --------------------------
-----------------------------------------------------------------------------------------------------------------
XXXXXX XXXXXXX CREDIT CORPORATION
Date: _________________________
By: ________________________________
Name:
Title:
6
