COUNTRYWIDE HOME LOANS, INC., as Seller and GOLDMAN SACHS MORTGAGE COMPANY, as Purchaser MASTER MORTGAGE LOAN PURCHASE AGREEMENT dated as of July 1, 2004 Fixed and Adjustable Rate Residential Mortgage Loans (SERVICING RETAINED)
EXECUTION
COUNTRYWIDE
HOME LOANS, INC.,
as
Seller
and
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Purchaser
________________________________________
dated
as
of July 1, 2004
________________________________________
Fixed
and
Adjustable Rate Residential Mortgage Loans
(SERVICING
RETAINED)
EXECUTION
|
ARTICLE
I.
|
||
|
DEFINITIONS
|
||
|
ARTICLE
II.
|
||
|
PRE-CLOSING
AND CLOSING PROCEDURES
|
|
Section
2.01
|
Books
and Records; Transfers of Mortgage Loans
|
10
|
|
Section
2.02
|
Due
Diligence by the Purchaser.
|
11
|
|
Section
2.03
|
Identification
of Mortgage Loan Package.
|
11
|
|
Section
2.04
|
Credit
Document Deficiencies Identified During Due Diligence.
|
11
|
|
Section
2.05
|
Delivery
of Collateral Files.
|
11
|
|
Section
2.06
|
Purchase
Confirmation.
|
13
|
|
Section
2.07
|
Closing.
|
13
|
|
Section
2.08
|
Payment
of the Purchase Proceeds.
|
14
|
|
Section
2.09
|
Entitlement
to Payments on the Mortgage Loans.
|
14
|
|
Section
2.10
|
Payment
of Costs and Expenses.
|
14
|
|
Section
2.11
|
MERS
Mortgage Loans and the MERS System.
|
14
|
|
ARTICLE
III.
|
||
|
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
|
||
|
Section
3.01
|
Representations
and Warranties Respecting Countrywide.
|
15
|
|
Section
3.02
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
16
|
|
Section
3.03
|
Remedies
for Breach of Representations and Warranties.
|
24
|
|
Section
3.04
|
Accrual
of Cause of Action.
|
25
|
|
Section
3.05
|
Representations
and Warranties Respecting the Purchaser.
|
25
|
|
ARTICLE
IV.
|
||
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
||
|
Section
4.01
|
Countrywide
to Act as Servicer.
|
27
|
|
ARTICLE
V.
|
||
|
COVENANTS
BY COUNTRYWIDE
|
||
|
Section
5.01
|
Indemnification
by Countrywide.
|
27
|
|
Section
5.02
|
Third
Party Claims.
|
28
|
|
Section
5.03
|
Merger
or Consolidation of Countrywide.
|
28
|
|
Section
5.04
|
Limitation
on Liability of Countrywide and Others.
|
28
|
|
Section
5.05
|
No
Transfer of Servicing.
|
29
|
|
ARTICLE
VI.
|
||
|
MISCELLANEOUS
|
||
|
Section
6.01
|
Notices.
|
29
|
|
Section
6.02
|
Sale
Treatment.
|
30
|
i
|
Section
6.03
|
Exhibits.
|
30
|
|
Section
6.04
|
General
Interpretive Principles.
|
30
|
|
Section
6.05
|
Reproduction
of Documents.
|
31
|
|
Section
6.06
|
Further
Agreements.
|
31
|
|
Section
6.07
|
Assignment
of Mortgage Loans by the Purchaser; Pass-Through
Transfers.
|
31
|
|
Section
6.08
|
Conflicts
between Transaction Documents.
|
33
|
|
Section
6.09
|
Governing
Law.
|
33
|
|
Section
6.10
|
Severability
Clause.
|
33
|
|
Section
6.11
|
Successors
and Assigns.
|
33
|
|
Section
6.12
|
Relationship
of Parties.
|
34
|
|
Section
6.13
|
Solicitation
of Mortgagor.
|
34
|
|
Section
6.14
|
Confidentiality.
|
34
|
|
Section
6.15
|
Entire
Agreement.
|
35
|
|
EXHIBITS
|
||
|
|
||
|
Exhibit
A
|
Schedule
of Collateral Documents
|
A-1
|
|
Exhibit
B
|
Form
of Purchase Confirmation
|
B-1
|
|
Exhibit
C
|
Form
of Custodial Agreement
|
C-1
|
|
Exhibit
D
|
Form
of Trade Confirmation
|
D-1
|
EXECUTION
This
Master Mortgage Loan Purchase Agreement is made and entered into as of July
1,
2004 (the “Agreement”), between Countrywide Home Loans, Inc., having an address
at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (“Countrywide”), and Xxxxxxx
Sachs Mortgage Company, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx
00000 the “Purchaser”).
R
E C
I T A L S
The
Purchaser has agreed to purchase from Countrywide and Countrywide has agreed
to
sell from time to time to the Purchaser all of Countrywide’s right, title and
interest, excluding servicing rights, in and to those certain mortgage loans
identified in a Purchase Confirmation (as defined below) executed by Countrywide
and the Purchaser. This Agreement is intended to set forth the terms and
conditions by which Countrywide shall transfer and the Purchaser shall acquire
such mortgage loans.
In
consideration of the promises and mutual agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Countrywide and the Purchaser agree as
follows:
ARTICLE
I.
DEFINITIONS
Unless
the context requires otherwise, all capitalized terms used herein shall have
the
meanings assigned to such terms in this Article I unless defined elsewhere
herein. Any capitalized term used or defined in a Purchase Confirmation that
conflicts with the corresponding definition set forth herein shall supersede
such term.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan in which the related Mortgage Note contains a provision whereby
the Mortgage Interest Rate is adjusted from time to time in accordance with
the
terms of such Mortgage Note.
Agency:
Either
Xxxxxx Xxx or Xxxxxxx Mac.
Agreement:
This
Master Mortgage Loan Purchase Agreement, including all exhibits and supplements
hereto, and all amendments hereof.
Applicable
Law:
All
provisions of statutes, rules and regulations, interpretations and orders of
governmental bodies or regulatory agencies applicable to a Person, and all
orders and decrees of all courts and arbitrators in proceedings or actions
in
which the Person in question is a party.
Appraised
Value:
The
value of the related Mortgaged Property as set forth in an appraisal made in
connection with the origination of a Mortgage Loan or the sale price of the
related Mortgaged Property if the proceeds of such Mortgage Loan were used
to
purchase such Mortgaged Property, whichever is less.
1
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan:
Any
Mortgage Loan wherein the Mortgage Note matures prior to full amortization
and
requires a final and accelerated payment of principal.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in either the State of California, the State of New York,
or the State of Texas are authorized or obligated by law or executive order
to
be closed.
Closing:
The
consummation of the sale and purchase of each Mortgage Loan
Package.
Closing
Date:
The
date on which the purchase and sale of the Mortgage Loans constituting a
Mortgage Loan Package is consummated, as set forth in the Trade Confirmation
or
Purchase Confirmation.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Collateral
Documents:
The
collateral documents pertaining to each Mortgage Loan as set forth in Exhibit
A
hereto.
Collateral
File:
With
respect to each Mortgage Loan, a file containing each of the Collateral
Documents.
Combined
Loan-to-Value Ratio:
As of
any date and as to any Mortgage Loan, the ratio, expressed as a percentage,
of
the (a) sum of (i) the Stated Principal Balance (or the original
principal balance, if so indicated) of such Mortgage Loan and (ii) the
Stated Principal Balance (or the original principal balance, if so indicated)
as
of such date of any mortgage loan or mortgage loans that are senior or equal
in
priority to the Mortgage Loan and which are secured by the same Mortgaged
Property to (b) the Appraised Value of the related Mortgaged Property.
Condemnation
Proceeds:
All
awards or settlements in respect of a taking of an entire Mortgaged Property
by
exercise of the power of eminent domain or condemnation.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Coop Shares and a Proprietary Lease.
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, including
the allocation of individual dwelling units to the holders of the Coop Shares
of
the Cooperative Corporation.
2
Coop
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single family dwelling located in a Cooperative Property.
Countrywide:
Countrywide Home Loans, Inc., or any successor or assign to Countrywide under
this Agreement as provided herein.
Credit
File:
The
file retained by Countrywide that includes the mortgage loan documents
pertaining to a Mortgage Loan including copies of the Collateral Documents
together with the credit documentation relating to the origination of such
Mortgage Loan, which Credit File may be maintained by Countrywide on microfilm
or any other comparable medium.
Custodial
Account:
The
account or accounts created and maintained pursuant to Section 4.4 of the
Servicing Agreement, each of which shall be an Eligible Account.
Custodial
Agreement:
The
letter agreement, substantially in the form of Exhibit C, that governs the
temporary retention of the Collateral Files by the Custodian with respect to
a
Closing Date.
Custodian:
JPMorgan Chase Bank, its successor in interest or assign, or such other
custodian that may be designated by the Purchaser from time to
time.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs or such other
date as may be set forth in the related Trade Confirmation or Purchase
Confirmation.
Cut-off
Date Balance:
The
aggregate scheduled unpaid principal balance of the Mortgage Loans in a Mortgage
Loan Package as of the Cut-off Date, after application of (i) scheduled payments
of principal due on such Mortgage Loans on or before such Cut-off Date, whether
or not collected, and (ii) any Principal Prepayments received from the
Mortgagor prior to the Cut-off Date.
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
Due
Date:
The
first day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Eligible
Account:
An
account or accounts (i) maintained with a depository institution the short
term
debt obligations of which are rated by a nationally recognized statistical
rating agency in its highest rating categories at the time of any deposit
therein [or one of its two highest rating categories for long term debt
obligations], or (ii) the deposits of which are insured up to the maximum
permitted by the FDIC.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to Section
4.6 of the Servicing Agreement, each of which shall be an Eligible
Account.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water rates, mortgage
insurance premiums, fire and hazard insurance premiums, flood insurance
premiums, and other payments required to be escrowed by the Mortgagor with
the
Mortgagee pursuant to any Mortgage Loan.
3
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 7.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Xxxxxx
Xxx:
The
Federal National Mortgage Association or any successor
organization.
First
Lien Mortgage Loan:
Any
Mortgage Loan secured by a first lien on the related Mortgaged
Property.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan wherein the Mortgage Interest Rate set forth in the Mortgage
Note
is fixed for the term of such Mortgage Loan.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation or any successor
organization.
Funding
Deadline:
With
respect to each Closing Date, one o’clock (1:00) p.m. New York time.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note, which amount is added to the index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Adjustment Date, the Mortgage Interest Rate for such Mortgage
Loan.
HUD:
The
Department of Housing and Urban Development or any federal agency or official
thereof which may from time to time succeed to the functions
thereof.
Index:
With
respect to any Adjustable Rate Mortgage Loan on each Interest Adjustment Date
the applicable index as set forth in the related Mortgage Note.
Interest
Adjustment Date:
With
respect to an Adjustable Rate Mortgage Loan, the date on which an adjustment
to
the Mortgage Interest Rate on a Mortgage Note becomes effective.
Lifetime
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the absolute maximum Mortgage
Interest Rate payable, above which the Mortgage Interest Rate shall not be
adjusted, as set forth in the related Mortgage Note and Mortgage Loan Schedule.
Liquidation
Proceeds:
Amounts, other than PMI Proceeds, Condemnation Proceeds and Other Insurance
Proceeds, received by Countrywide in connection with the liquidation of a
defaulted Mortgage Loan through trustee’s sale, foreclosure sale or otherwise,
other than amounts received following the acquisition of an REO Property
pursuant to Section 4.13.
LPMI
Fee:
The
portion of the Mortgage Interest Rate relating to an LPMI Loan, which is set
forth on the related Mortgage Loan Schedule, to be retained by Countrywide
to
pay the premium due on the PMI Policy with respect to such LPMI
Loan.
4
LPMI
Loan:
Any
Mortgage Loan with respect to which Countrywide is responsible for paying the
premium due on the related PMI Policy with the proceeds generated by the LPMI
Fee relating to such Mortgage Loan, as set forth on the related Mortgage Loan
Schedule.
LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of the
Stated Principal Balance (or the original principal balance, if so indicated)
of
such Mortgage Loan as of the date of determination to the Appraised Value of
the
related Mortgaged Property.
MERS:
Mortgage Electronic Registration Systems, Inc. or any successor or assign
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
electronic system of recording transfers of mortgages maintained by
MERS.
MIC:
A
mortgage insurance certificate issued by HUD.
Missing
Credit Documents:
As
defined in Section 2.04 hereof.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
With
respect to a Mortgage Loan that is not a Cooperative Loan, The mortgage, deed
of
trust or other instrument securing a Mortgage Note, which creates a first lien,
in the case of a First Lien Mortgage Loan, on an unsubordinated estate in fee
simple in real property securing the Mortgage Note; except that with respect
to
real property located in jurisdictions in which the use of leasehold estates
for
residential properties is a widely-accepted practice, the mortgage, deed of
trust or other instrument securing the Mortgage Note may secure and create
a
first lien , upon a leasehold estate of the Mortgagor. With respect to a
Cooperative Loan, the security agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Cooperative Loan and the related
Cooperative Lease
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan and, with respect
to
an Adjustable Rate Mortgage Loan, as adjusted from time to time in accordance
with the provisions of the related Mortgage Note..
Mortgage
Loan:
Any
mortgage loan that is sold pursuant to this Agreement, as evidenced by such
mortgage loan’s inclusion on the related Mortgage Loan Schedule, which mortgage
loan includes the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, PMI Proceeds (if applicable), Other Insurance Proceeds,
REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
5
Mortgage
Loan Package:
The
Mortgage Loans sold to the Purchaser pursuant to a Purchase
Confirmation.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the interest rate payable to the Purchaser on
each Remittance Date which shall equal the Mortgage Interest Rate less the
Servicing Fee and the LPMI Fee, if applicable.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed hereto as Exhibit A, such schedule setting
forth the following information with respect to each Mortgage Loan: (1)
Countrywide’s Mortgage Loan number; (2) the address, city, state and zip code of
the Mortgaged Property; (3) a code indicating whether the Mortgaged Property
is
a single family residence, two-family residence, three-family residence, four
family residence or planned unit development; (4) the purpose of the Mortgage
Loan; (5) the Mortgagor’s social security number; (6) a code indicating the
occupancy status of the Mortgaged Property (i.e., owner-occupied, non-owner,
second home); (7) a code indicating whether the Mortgagor was self-employed
at
the time of origination; (8) the Mortgage Interest Rate at origination; (9)
the
current Mortgage Interest Rate; (10) whether the Mortgage Loan has Monthly
Payments that are interest only for a period of time; (11) the Servicing Fee
Rate; (12) the current Monthly Payment; (13) the original term to maturity;
(14)
the remaining term to maturity; (15) the scheduled principal balance of the
Mortgage Loan as of the Cut-off Date; (16) the principal balance of the Mortgage
Loan at origination; (17) the principal balance of the Mortgage Loan as of
the
Cut-off Date after deduction of payments of principal due on or before the
Cut-off Date whether or not collected; (18) the LTV at origination or, if the
Mortgage Loan was secured by a second lien, the combined LTV at origination;
(19) the due date of the Mortgage Loan; (20) a PMI Policy insurer name, percent
and policy number (if applicable); (21) the type of appraisal; (22) a code
indicating whether the Mortgage Loan is a MERS Mortgage Loan; (23) a code
indicating whether the Mortgaged Property has any subordinate financing; (24)
a
code indicating whether the Mortgage Loan is secured by a leasehold interest
in
the related Mortgaged Property; (25) a code indicating whether the Mortgage
Loan
is subject to a prepay penalty; (26) documentation type; (27) a code indicating
whether the Mortgage Loan is a buydown loan; (28) first payment date and (29)
FICO score. With respect to any Adjustable Rate Mortgage Loan, in addition
to
(1) through (29) above: (a) the Gross Margin; (b) the Periodic Rate Cap; (c)
the
Lifetime Rate Cap; (d) the first Interest Adjustment Date and the Interest
Adjustment Date frequency; (e) the Maximum Rate; (f) the Minimum Rate; (g)
the
first Interest Adjustment Date immediately following the Cut-off Date; and
(h)
the Index.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to a Mortgage Loan that is not a Cooperative Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a single parcel
of
real estate considered to be real estate under the laws of the State in which
such real property is located, which may include condominium units and planned
unit developments, improved by a residential dwelling; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely-accepted practice, a leasehold estate
of
the Mortgagor, the term of which is equal to or longer than the term of the
Mortgage. With respect to a Cooperative Loan, the stock allocated to a dwelling
unit in the residential cooperative housing corporation that was pledged to
secure such Cooperative Loan and the related Cooperative Lease.
6
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor:
The
obligor on a Mortgage Note and their successors in title to the Mortgaged
Property.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Other
Insurance Proceeds:
Proceeds of any title policy, hazard policy, pool policy or other insurance
policy covering a Mortgage Loan, other than the PMI Policy, if any, to the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that Countrywide would follow in servicing mortgage loans held for
its own account.
Pass-Through
Transfer:
The
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
trust to be formed as part of a publicly issued or privately placed
mortgage-backed securities transaction.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may increase or decrease on an Adjustment Date above
or
below the Mortgage Interest Rate previously in effect, equal to the rate set
forth on the Mortgage Loan Schedule per adjustment.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, limited liability corporation, unincorporated organization
or
government or any agency or political subdivision thereof.
PMI
Policy:
A
policy of private mortgage guaranty insurance relating to a Mortgage Loan and
issued by a Qualified Insurer.
PMI
Proceeds:
Proceeds of any PMI Policy.
Preliminary
Mortgage Loan Package:
The
mortgage loans identified or described in a Trade Confirmation, which, subject
to the Purchaser’s due diligence as contemplated in Section 2.02, are intended
to be sold under this Agreement as a Mortgage Loan Package.
Preliminary
Mortgage Loans:
The
mortgage loans constituting a Preliminary Mortgage Loan Package.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, excluding any prepayment penalty or premium
thereon (unless the Purchase Confirmation provides otherwise), which is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Coop Shares.
7
Purchase
Confirmation:
A
letter agreement, substantially in the form of Exhibit B hereto, executed by
Countrywide and the Purchaser in connection with the purchase and sale of each
Mortgage Loan Package, which sets forth the terms relating thereto including
a
description of the related Mortgage Loans (including the Mortgage Loan
Schedule), the purchase price for such Mortgage Loans, the Closing Date and
the
Servicing Fee Rate.
Purchase
Proceeds:
The
amount paid on the related Closing Date by the Purchaser to Countrywide in
exchange for the Mortgage Loan Package purchased on such Closing Date as set
forth in the applicable Purchase Confirmation.
Purchaser:
The
Person identified as the “Purchaser” in the preamble to this Agreement or its
successor in interest or any successor or assign to the Purchaser under this
Agreement as herein provided. Any reference to “Purchaser” as used herein shall
be deemed to include any designee of the Purchaser, so long as such designation
was made in accordance with the limitations set forth in Section
6.07.
Qualification
Defect:
With respect to a Mortgage Loan, (a) a materially defective document in the
Mortgage File, (b) the absence of a material document in the Mortgage File,
or
(c) the breach of any material representation, warranty or covenant with
respect to the Mortgage Loan made by Countrywide, but, in each case, only if
the
affected Mortgage Loan would cease to qualify as a “qualified mortgage” for
purposes of the REMIC Provisions.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, which insurer is approved in such capacity by an Agency.
Qualified
Substitute Mortgage Loan:
A
mortgage loan that must, on the date of such substitution, (i) have an unpaid
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or if more than one (1) mortgage loan is being substituted, an
aggregate principal balance), not in excess of the unpaid principal balance
of
the repurchased Mortgage Loan (the amount of any shortfall will be deposited
in
the Custodial Account by Countrywide in the month of substitution); (ii) have
a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining
term to maturity not greater than, and not more than one year less than, the
maturity date of the repurchased Mortgage Loan; (iv) comply with each
representation and warranty (respecting individual Mortgage Loans) set forth
in
Section 3.02 hereof; (v) shall be the same type of Mortgage Loan (i.e., an
Adjustable Rate Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
shall be removed from this Agreement and reconstituted as part of a Pass-Through
Transfer pursuant to Section 6.07 hereof. The Reconstitution Date shall be
such
date which the Purchaser shall designate in writing.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
8
Remittance
Date:
The
eighteenth (18th) day of any month, beginning with the month next following
the
month in which the related Cut-off Date occurs, or if such eighteenth (18th)
day
is not a Business Day, the first Business Day immediately
following.
REO
Disposition:
The
final sale by Countrywide of any REO Property or the transfer of the management
of such REO Property to the Purchaser as set forth in Section 4.13.
REO
Property:
A
Mortgaged Property acquired by Countrywide on behalf of the Purchaser as
described in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of the Mortgage Loan as of the date of repurchase plus (ii) interest on such
Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date
through which interest has been paid and distributed to the Purchaser to the
last day of the month in which the repurchase occurs, less amounts received
or
advanced in respect of such repurchased Mortgage Loan which such amounts are
being held in the Custodial Account for distribution in the month of repurchase
plus (iii) with respect to any Mortgage Loan included in a Pass-Through
Transfer, damages incurred by the Purchaser or its assignee including the trust
in any securitization in connection with any violation by such Mortgage Loan
of
any predatory or abusive lending law.
S&P:
Standard and Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Coop Shares and the originator of the related Mortgage Note that defines the
terms of the security interest in such Coop Shares and the related Proprietary
Lease.
Servicing
Agreement:
The
agreement dated as of July 1, 2004 and signed by the Purchaser and Countrywide
with respect to the administration and servicing of the Mortgage
Loans.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to Countrywide, which shall, for a period of one full month, be equal to
one-twelfth of the product of (i) the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion of such Monthly Payment collected
by
Countrywide, or as otherwise provided herein. Subject to the foregoing, and
with
respect to each Mortgage Loan, Countrywide shall be entitled to receive its
Servicing Fee through the disposition of any related REO Property and the
Servicing Fee payable with respect to any REO Property shall be based on the
Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing
Fee Rate:
With
respect to any Mortgage Loan, the rate per annum set forth in the applicable
Trade Confirmation or Purchase Confirmation.
9
Servicing
LP:
Countrywide Home Loans Servicing LP, a Texas limited partnership, and its
successors and assigns, in its capacity as servicer hereunder.
Stated
Principal Balance:
With
respect to each Mortgage Loan as of any date of determination: (i) the unpaid
principal balance of the Mortgage Loan at the Cut-off Date after giving effect
to payments of principal due on or before such date, whether or not received,
minus (ii) all amounts previously distributed to the Purchaser with respect
to
the related Mortgage Loan representing payments or recoveries of principal
or
advances in lieu thereof.
Trade
Confirmation:
A
letter agreement substantially in the form of Exhibit D hereto executed by
Countrywide and the Purchaser prior to the applicable Closing Date confirming
the terms of a prospective purchase and sale of a Mortgage Loan
Package.
Transaction
Documents:
With
respect to any Mortgage Loan, the related Trade Confirmation, the related
Purchase Confirmation and this Agreement.
Updated
LTV:
With
respect to any Mortgage Loan, the outstanding principal balance of such Mortgage
Loan as of the date of determination divided by the value of the related
Mortgaged Property as determined by a recent appraisal of the Mortgaged
Property.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
third party, which sale or transfer is not a Pass-Through Transfer.
ARTICLE
II.
PRE-CLOSING
AND CLOSING PROCEDURES
Section
2.01 Books
and Records; Transfers of Mortgage Loans
From
and
after the sale of the Mortgage Loans to the Purchaser, all rights arising out
of
the Mortgage Loans including but not limited to all funds received on or in
connection with the Mortgage Loans on account of interest and principal due
after the Cut-off Date, shall be held by the Servicer in trust for the benefit
of the Purchaser as owner of the Mortgage Loans, and the Servicer shall retain
record title to the related Mortgage Loans for the sole purpose of facilitating
the servicing and the supervision of the servicing of the Mortgage
Loans.
The
sale
of each Mortgage Loan shall be reflected on Countrywide’s balance sheet and
other financial statements as a sale of assets by Countrywide. Countrywide
shall
be responsible for maintaining,
and shall maintain, a complete set of books and records for each Mortgage Loan
which shall be marked clearly to reflect the ownership of each Mortgage Loan
by
the Purchaser. In particular, Countrywide shall maintain in its possession,
available for inspection by the Purchaser, or its designee, and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of FNMA or FHLMC, including
but not limited to documentation as to the method used in determining the
applicability of the provisions of the Flood Disaster Protection Act of 1973,
as
amended, to the Mortgaged Property, documentation evidencing insurance coverage
and eligibility of any condominium project for approval by FNMA or FHLMC, and
periodic inspection reports as required by Section 3.15 of the Servicing
Agreement. To the extent that original documents are not required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by Countrywide may be in the form of microfilm or microfiche or
such
other reliable means of recreating original documents, including but not limited
to, optical imagery techniques so long as Countrywide complies with the
requirements of the FNMA or FHLMC Selling and Servicing Guide, as amended from
time to time.
10
Section
2.02 Due
Diligence by the Purchaser.
Review
of Credit File.
Prior
to the Closing Date, Countrywide shall make available to the Purchaser the
Credit File for each Preliminary Mortgage Loan in the related Preliminary
Mortgage Loan Package and shall accommodate reasonable requests by the Purchaser
to provide personnel and documents as necessary to facilitate the review. The
Purchaser shall have the right to review the Credit File for each such
Preliminary Mortgage Loan, at Countrywide’s offices or such other location
agreed upon by the Purchaser and Countrywide, for the purpose of determining
whether each Preliminary Mortgage Loan conforms in all material respects to
the
applicable terms contained in the Transaction Documents, which determination
shall be made in the Purchaser’s reasonable and good faith discretion. In the
event that the Purchaser rejects any Preliminary Mortgage Loan based on such
review, Countrywide shall have the opportunity, at the discretion of the
Purchaser, to substitute replacement Preliminary Mortgage Loans satisfying
the
requirements set forth above, and the Purchaser shall have the right to review
any such replacement Preliminary Mortgage Loan(s) in the manner contemplated
above. Such examination may be made by the Purchaser or its designee, at its
expense, at any reasonable time before the Closing Date. Such underwriting
by
the Purchaser or its designee shall not impair or diminish the rights of the
Purchaser or any of its successors under this Agreement with respect to a breach
of the representations and warranties contained in this Agreement. The fact
that
the Purchaser or its designee has conducted or has failed to conduct any partial
or complete examination of the Mortgage Files shall not affect the Purchaser’s
or any of its successors’ rights to demand repurchase or other relief or remedy
provided for in this Agreement.
Section
2.03 Identification
of Mortgage Loan Package.
At
least
three (3) Business Days prior to the Closing Date, the Purchaser shall identify
those Preliminary Mortgage Loans that the Purchaser intends to be included
in
the Mortgage Loan Package.
Section
2.04 Credit
Document Deficiencies Identified During Due Diligence.
If,
with
respect to a Mortgage Loan Package, the related Purchase Confirmation identifies
any Mortgage Loan for which the related Credit File is missing material
documentation (as used therein, the “Missing Credit Documents”), Countrywide
agrees to use its best efforts to procure each such Missing Credit Document
within sixty (60) days following the related Closing Date. In the event of
a
default by a Mortgagor or any material impairment of the Mortgaged Property,
in
either case directly arising from a breach of Countrywide’s obligation to
deliver the Missing Credit Document within the time specified above, Countrywide
shall repurchase such Mortgage Loan at the Repurchase Price.
Section
2.05 Delivery
of Collateral Files.
Custodial
Agreement.
Countrywide shall, on or before the Business Day prior to the related Closing
Date, pursuant to the Custodial Agreement deliver and release to the Custodian
the Collateral File for each Mortgage Loan in the Mortgage Loan Package and
shall execute, and cause the Custodian to execute, the Custodial
Agreement.
The Custodian has certified its receipt of all such Collateral Documents
required to be delivered pursuant to the Custodial Agreement. Countrywide will
be responsible for the fees and expenses with respect to the delivery and will
be responsible for the fees and expenses related to the recording of the initial
Assignments of Mortgage (including any fees and expenses related to any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to Countrywide or to any prior owners of or mortgagees with
respect to the Mortgage Loans) or Form UCC-3’s for Cooperative Loans. The
Purchaser will be responsible for the Custodian’s fees and expenses with respect
to the initial inventory and maintenance of the Mortgage Loans on or after
the
Closing Date, including the costs associated with clearing
exceptions.
11
Countrywide
shall forward to the Custodian original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into
in
accordance with Section 3.1(c) or 5.1 of the Servicing Agreement within thirty
(30) days of their execution, provided,
however,
that Countrywide shall provide the Custodian with a certified true copy of
any
such document submitted for recordation within ten (10) days of its execution,
and shall provide the original of any document submitted for recordation or
a
copy of such document certified by the appropriate public recording office
to be
a true and complete copy of the original within 120 days of its submission
for
recordation.
In
the event the public recording office is delayed in returning any original
document, Countrywide shall deliver to the Custodian within 360
days of its submission for recordation, a copy of such document and an Officer’s
Certificate, which shall (i) identify the recorded document; (ii) state that
the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. Countrywide will be required to
deliver the document to the Custodian by the date specified in (iv) above.
An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding
the foregoing, if the originals or certified copies required in this Section
2.05 are not delivered as required within 90 days following the Closing Date
or
as otherwise extended as set forth above, the related Mortgage Loan
shall, upon request of the Purchaser, be repurchased by Countrywide in
accordance with Section 3.03 hereof; provided,
however,
that the foregoing repurchase obligation shall not apply in the event
Countrywide cannot deliver such items due to a delay caused by the recording
office in the applicable jurisdiction; provided
that Countrywide shall deliver instead a recording receipt of such recording
office or, if such recording receipt is not available, an Officer’s Certificate
from Countrywide confirming that such documents have been accepted for
recording. Any such document shall be delivered to the Purchaser or its designee
promptly upon receipt thereof from the related recording office.
If
Countrywide, the Purchaser or the Custodian finds any document or documents
constituting a part of a Mortgage File pertaining to a Mortgage Loan to be
defective (or missing) in any material respect, and such defect or missing
document materially and adversely affects the value of the related Mortgage
Loan
or the interests of the Purchaser therein, the party discovering such defect
shall promptly so notify Countrywide. Countywide shall have a period of 90
days
after receipt of such written notice within which to correct or cure any such
defect. Countrywide hereby covenants and agrees that, if any material defect
cannot be corrected or cured, Countrywide will, upon the expiration of the
applicable cure period described above, repurchase the related Mortgage Loan
in
the manner set forth in Section 3.03; provided,
however,
that
with respect to any Mortgage Loan, if such defect constitutes a Qualification
Defect, any such repurchase must take place within 90 days of
the
date such defect is discovered.
12
Notwithstanding
the foregoing, with respect to a Mortgage Loan, if, at the end of such 90-day
period, Countrywide delivers an Officer’s Certificate to the Purchaser
certifying that Countrywide is using good faith efforts to correct or cure
such
defect and identifying progress made, then the Purchaser shall grant Countrywide
an extension to correct or cure such defect. The extension shall not extend
beyond (1) the date that is 90 days after the date the defect is discovered,
or,
(2) if the defect is not a Qualification Defect (as evidenced by an Opinion
of
Counsel), the date that is 30 days beyond the original 90-day cure period.
If
the defect is not a Qualification Defect, additional 30-day extensions may
be
obtained pursuant to the same procedure, as long as Countrywide demonstrates
continued progress toward a correction or cure; provided
that no
extension shall be granted beyond 180 days from the date on which Countrywide
received the original notice of the defect.
Notwithstanding
the foregoing, with respect to a Mortgage Loan, the failure of the Purchaser
to
notify Countrywide of any defective or missing document in a Mortgage File
within such 90-day period, or the failure of the Purchaser to require
Countrywide to cure or repurchase the related Mortgage Loan upon expiration
of
such 90-day period, shall not constitute a waiver of its rights hereunder,
including the rights with respect to a Mortgage Loan, to require Countrywide
to
repurchase the affected Mortgage Loan and the right to indemnification pursuant
to Section 3.03 hereof.
Section
2.06 Purchase
Confirmation.
Upon
confirmation with the Purchaser of a Mortgage Loan Package, Countrywide shall
prepare and deliver to the Purchaser for execution the related Purchase
Confirmation, executed by an authorized signatory of Countrywide.
Section
2.07 Closing.
The
Closing of each Mortgage Loan Package shall take place on the related Closing
Date and shall be subject to the satisfaction of each of the following
conditions, unless otherwise waived by the prejudiced party(ies):
(a) All
of
the representations and warranties of Countrywide under this Agreement shall
be
true and correct as of the Closing Date and no event shall have occurred that,
with notice or the passage of time, would constitute a default under this
Agreement;
(b) All
of
the representations and warranties of the Purchaser under this Agreement shall
be true and correct as of the Closing Date and no event shall have occurred
that, with notice or the passage of time, would constitute a default under
this
Agreement;
(c) Both
parties shall have executed and delivered the related Purchase Confirmation
and
Custodial Agreement;
13
(d) Countrywide
shall have delivered and released to the Custodian all documents required
pursuant to this Agreement and the Custodial Agreement; and
(e) All
other
terms and conditions of this Agreement have been complied with.
Section
2.08 Payment
of the Purchase Proceeds.
Subject
to the conditions set forth in Section 2.07, and in consideration for the
Mortgage Loan Package to be purchased by the Purchaser on the related Closing
Date, the Purchaser shall pay to Countrywide on such Closing Date the Purchase
Proceeds by wire transfer of immediately available funds to the account
designated by Countrywide on or before the Funding Deadline.
Section
2.09 Entitlement
to Payments on the Mortgage Loans.
With
respect to any Mortgage Loan purchased hereunder, the Purchaser shall be
entitled to (a) all scheduled principal due after the related Cut-off Date;
(b)
all other recoveries of principal collected after the related Cut-off Date,
except for (i) recoveries of principal collected after the Cut-off Date and
prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and
(ii) all scheduled payments of principal due on or before the related Cut-off
Date; and (c) all payments of interest on such Mortgage Loan net of interest
at
the Servicing Fee Rate and the LPMI Fee, if applicable (minus that portion
of
any such payment that is allocable to the period prior to the related Cut-off
Date) due after the Cut-off Date.
Section
2.10 Payment
of Costs and Expenses.
The
Purchaser and Countrywide shall each bear its own costs and expenses in
connection with the purchase and sale of the Mortgage Loans including any
commissions due its sales personnel, the legal fees and expenses of its
attorneys and any due diligence expenses. Without limiting the generality of
the
foregoing, any costs and expenses incurred in connection with recording the
Assignment of Mortgage or any subsequent assignment thereof shall be paid for
by
the Purchaser.
Section
2.11 MERS
Mortgage Loans and the MERS System.
(a) Notwithstanding
anything contained in this Agreement to the contrary, with respect to any MERS
Mortgage Loan sold to the Purchaser by Countrywide pursuant to this Agreement,
Countrywide shall cause the registration of such MERS Mortgage Loan to be
changed on the MERS System to reflect the Purchaser as the beneficial owner
of
such MERS Mortgage Loan. The foregoing obligation of Countrywide shall be in
lieu of Countrywide delivering to the Purchaser an Assignment of Mortgage for
such MERS Mortgage Loan. With respect to the Mortgage and intervening
assignments related to any MERS Mortgage Loan, Countrywide shall, in accordance
with Section 2.05, provide the Purchaser with the original Mortgage with
evidence of registration with MERS and, as applicable, the originals of all
intervening assignments of the Mortgage with evidence of recording thereon
prior
to the registration of the Mortgage Loan with the MERS System.
(b) In
connection with the MERS System, Countrywide is hereby authorized and empowered,
in its own name, to register, or change the registration of any MERS Mortgage
Loan to effectuate such registration. Further, Countrywide is authorized to
cause the removal of any MERS Mortgage Loan from such registration, and to
execute and deliver on behalf of itself and the Purchaser, any and all
instruments of assignment and comparable instruments with respect to any
registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
14
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Representations
and Warranties Respecting Countrywide.
Countrywide
represents, warrants and covenants to the Purchaser that, as of each Closing
Date:
(a) Organization
and Standing.
Countrywide is duly organized, validly existing and in good standing under
the
laws of the jurisdiction in which it is organized and is qualified and licensed
to transact business in and is in good standing under the laws of each state
where each Mortgaged Property is located to the extent necessary to ensure
the
enforceability of each Mortgage Loan and the servicing of the Mortgage Loan
in
accordance with the terms of this Agreement. The
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by Countrywide and
the
consummation of the transactions contemplated hereby have been duly and validly
authorized. This Agreement evidences the valid, binding and enforceable
obligation of Countrywide; and all requisite corporate action has been taken
by
Countrywide to make this Agreement valid and binding upon Countrywide in
accordance with its terms;
(b) Due
Authority.
Countrywide has the full power and authority to (i) perform and enter into
and consummate all transactions contemplated by this Agreement and (ii) to
sell
each Mortgage Loan;
(c) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of Countrywide, which is in the business of selling
and servicing loans, and the transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by Countrywide pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect
in
any applicable jurisdiction;
(d) No
Conflict.
Neither
the acquisition or origination of the Mortgage Loans by Countrywide, the sale
of
the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any
of
the terms, conditions or provisions of Countrywide’s certificate of
incorporation or by-laws or result in a material breach of any legal restriction
or any material agreement or instrument to which Countrywide is now a party
or
by which it is bound, or constitute a material default or result in an
acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Countrywide
or its property is subject;
(e) Approved
Seller.
Countrywide is an approved seller/servicer for each Agency in good standing
and
is a mortgagee approved by the Secretary of HUD. No event has occurred,
including a change in insurance coverage, which would make Countrywide unable
to
comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD eligibility
requirements;
15
(f) No
Pending Litigation.
There
is no action, suit, proceeding, investigation or litigation pending or, to
Countrywide’s knowledge, threatened, which either in any one instance or in the
aggregate, if determined adversely to Countrywide would materially and adversely
affect the sale of the Mortgage Loans to the Purchaser, the ability of
Countrywide to service the Mortgage Loans hereunder in accordance with the
terms
hereof, or Countrywide’s ability to perform its obligations under this
Agreement;
(g) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide,
of
or compliance by Countrywide with, this Agreement or the consummation of the
transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date;
(h) Reasonable
Servicing Fee.
Countrywide acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by Countrywide, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement;
(i) Ability
to Perform.
Countrywide does not believe, nor does it have any reason or cause to believe,
that it cannot perform each and every covenant contained in this Agreement.
Countrywide is solvent and the sale of the Mortgage Loans will not cause
Countrywide to become insolvent. The sale of the Mortgage Loans is not
undertaken to hinder, delay or defraud any of Countrywide’s
creditors;
(j) No
Untrue Information.
Neither
this Agreement nor any statement, report or other document prepared and
furnished, or to be furnished pursuant to this Agreement or in connection with
the transactions contemplated hereby, by Countrywide contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading;
(k) Sale
Treatment.
Countrywide has determined that the disposition of the Mortgage Loans pursuant
to this Agreement will be afforded sale treatment for accounting and tax
purposes;
(l) Fair
Credit Report Act.
Servicing LP, in its capacity as servicer for each Mortgage Loan, has fully
furnished (or caused to be furnished), in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories) or their successors and assigns, on a monthly basis;
and
(m) No
Brokers’ Fees.
Countrywide has not dealt with any broker, investment banker, agent or other
Person that may be entitled to any commission or compensation in the connection
with the sale of the Mortgage Loans.
16
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
With
respect to each Mortgage Loan (unless otherwise specified below), Countrywide
represents and warrants to the Purchaser as of the related Closing Date
that:
(a) Mortgage
Loan Schedule.
The
information contained in the Mortgage Loan Schedule is complete, true and
correct in all material respects;
(b) No
Delinquencies or Advances.
All
payments required to be made and credited prior to the related Cut-off Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made;
Countrywide 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; and there has been no delinquency of more than
thirty (30) days in any payment by the Mortgagor thereunder during the last
twelve (12) months;
(c) Taxes,
Assessments, Insurance Premiums and Other Charges.
There
are no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(d) No
Modifications.
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments that have
been
or will be recorded, if necessary to protect the interests of the Purchaser,
and
that have been or will be delivered to the Purchaser, all in accordance with
this Agreement. The substance of any such waiver, alteration or modification
has
been approved by the primary mortgage guaranty insurer, if any, and by the
title
insurer, to the extent required by the related policy and its terms are
reflected on the Mortgage Loan Schedule. No Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement approved
by
the primary mortgage insurer, if any, and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Collateral
File and the terms of which are reflected in the Mortgage Loan Schedule if
executed prior to the Closing Date;
(e) No
Defenses.
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and 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 no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Hazard
and Flood Insurance.
All
buildings upon the Mortgaged Property are insured in an amount which is not
less
than the lesser of (i) the maximum insurable value of the Mortgaged Property
and
(ii) the greater if (a) the outstanding principal balance of the Mortgage Loan,
and (b) an amount that would prevent the Mortgagor from becoming a co-insurer,
by an insurer acceptable to an Agency against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the Mortgaged
Property is located, and such insurer is licensed to do business in the state
where the Mortgaged Property is located. All such insurance policies contain
a
standard mortgagee clause naming Countrywide, its successors and assigns as
mortgagee, and all premiums thereon have been paid. If, upon the origination
of
the Mortgage Loan, the Mortgaged Property was, or was subsequently deemed to
be,
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance
has
been made available), a flood insurance policy that meets the requirements
of
the current guidelines of the Federal Insurance Administration (or any successor
thereto) and conforms to the requirements of an Agency is in effect. The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor’s expense and, upon the failure of the Mortgagor to do so, the
holder of the Mortgage is authorized to maintain such insurance at the
Mortgagor’s expense and to seek reimbursement therefor from the
Mortgagor;
17
(g) Compliance
with Applicable Law.
Each
Mortgage Loan at the time of origination complied in all material respects
with
applicable local, state and federal laws including without limitation usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity,
fair
housing, predatory and abusive lending
and disclosure laws applicable to the Mortgage Loan,
including applicable regulations,
and Countrywide shall maintain in its possession, available for the Purchaser’s
inspection and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements;
(h) No
Release of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated, or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or
rescission;
(i) Enforceability
of Mortgage Documents.
The
Mortgage Note, the Mortgage and any related modifications, assignments and
assumptions are genuine and each is the legal, valid and binding obligation
of
the maker thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws;
(j) Valid
First Lien on Mortgage Loans that are not Cooperative Loans.
Each
related Mortgage is a valid, subsisting and enforceable first lien or a first
priority ownership interest in an estate in fee simple in the Mortgaged
Property, including, for Mortgage Loans that are not Cooperative Loans, all
improvements on the Mortgaged Property, securing the related Mortgage Note,
except that with respect to real property located in jurisdictions in which
the
use of leasehold estates for residential properties is a widely-accepted
practice, the Mortgage may secure and create a first lien upon a leasehold
estate of the Mortgagor. The lien of the Mortgage is subject only
to:
(i) the
lien
of current real property taxes and assessments not yet due and
payable;
(ii) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording that are acceptable to mortgage
lending institutions generally and specifically referred to in the lender’s
title insurance policy delivered to the originator of the Mortgage Loan and
that
do not adversely affect the Appraised Value (as evidenced by an appraisal
referred to in such definition) of the Mortgaged Property set forth in such
appraisal; and
18
(iii) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property;
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein and Countrywide has full right to sell and assign
the same to the Purchaser.
(k) Valid
First Liens on Cooperative Loans:
With
respect to each Cooperative Loan, the related Mortgage is a valid, enforceable
and subsisting first security interest on the related cooperative shares
securing the related cooperative note and lease, subject only to (a) liens
of
the cooperative for unpaid assessments representing the Mortgagor’s pro rata
share of the cooperative’s payments for its blanket mortgage, current and future
real property taxes, insurance premiums, maintenance fees and other assessments
to which like collateral is commonly subject and (b) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in
the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Countrywide’s security interest in such
cooperative shares;
(l) With
respect to each Cooperative Loan, a search for filings of financing statements
has been made by a company competent to make the same, which company is
acceptable to FNMA and qualified to do business in the jurisdiction where the
cooperative unit is located, and such search has not found anything which would
materially and adversely affect the Cooperative Loan;
(m) With
respect to each Cooperative Loan, the related cooperative corporation that
owns
title to the related cooperative apartment building is a “cooperative housing
corporation” within the meaning of Section 216 of the Internal Revenue Code, and
is in material compliance with applicable federal, state and local laws which,
if not complied with, could have a material adverse effect on the Mortgaged
Property;
(n) With
respect to each Cooperative Loan, there is no prohibition against pledging
the
shares of the cooperative corporation or assigning the Cooperative
Lease;
(o) Leasehold
Interests.
With
respect to any ground lease to which a Mortgaged Property may be subject: (i)
the Mortgagor is the owner of a valid and subsisting leasehold interest under
such ground lease: (ii) such ground lease is in full force and effect,
unmodified and not supplemented by any writing or otherwise; (iii) all rent,
additional rent and other charges reserved therein have been fully paid to
the
extent payable as of the Closing Date; (iv) the Mortgagor enjoys the quiet
and
peaceful possession of the leasehold estate, subject to any sublease; (v) the
Mortgagor is not in default under any of the terms of such ground lease, and
there are no circumstances which, with the passage of time or the giving of
notice, or both, would result in a default under such ground lease; (vi) the
lessor under such ground lease is not in default under any of the terms or
provisions of such ground lease on the part of the lessor to be observed or
performed; (vii) the lessor under such ground lease has satisfied any repair
or
construction obligations due as of the Closing Date pursuant to the terms of
such ground lease; and (viii) the execution, delivery and performance of the
Mortgage do not require the consent (other than those consents which have been
obtained and are in full force and effect) under, and will not contravene any
provision of or cause a default under, such ground lease
19
(p) Disbursements
of Proceeds.
The
proceeds of the Mortgage Loan have been fully disbursed, and there is no
requirement for future advances thereunder, and any and all requirements as
to
completion of any on-site or off-site improvement and as to disbursements of
any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and recording the Mortgage
were
paid, and the Mortgagor is not entitled to any refund of any amounts paid or
due
under the Mortgage Note or Mortgage;
(q) Sole
Owner.
Countrywide is the sole owner and holder of the Mortgage Loan. The Mortgage
Loan
is not assigned or pledged, and Countrywide has good and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, participation
interests, charge, claim or security interest not specifically set forth in
the
related Mortgage Loan Schedule and has full right and authority subject to
no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the terms of this Agreement;
(r) Title
Insurance.
Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy included in
the related Servicing File, acceptable to an Agency, issued by a title insurer
acceptable to an Agency and qualified to do business in the jurisdiction where
the related Mortgaged Property is located, insuring (subject to the exceptions
contained in Section 3.02(j)(i), (ii) and (iii) above) Countrywide, its
successors and assigns as to the first priority lien of the Mortgage.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. Countrywide is the sole insured of such lender’s title
insurance policy, and such lender’s title insurance policy is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under
such
lender’s title insurance policy, and no prior holder of the related Mortgage,
including Countrywide, has done, by act or omission, anything which would impair
the coverage of such lender’s title insurance policy;
(s) No
Default.
There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and Countrywide has not
waived any default, breach, violation or event of acceleration;
(t) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such lien) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(u) Origination
and Collection Practices.
The
origination and collection practices used by Countrywide with respect to each
Mortgage Loan and Mortgage have been in all respects legal, proper, prudent
and
customary in the mortgage origination and servicing business. With respect
to
escrow deposits and Escrow Payments, if any, all such payments are in the
possession of, or under the control of, Countrywide and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due Countrywide have been capitalized under any
Mortgage or the related Mortgage Note. All payments have been collected in
compliance with local, state and federal law and the terms of the related
Mortgage Note. With respect to Adjustable Rate Mortgage Loans, all Mortgage
Interest Rate adjustments have been made in strict compliance with local, state
and federal law and the terms of the related Mortgage Note. Any interest
required to be paid pursuant to state and local law has been properly paid
and
credited;
20
(v) No
Condemnation or Damage.
Each
Mortgaged Property is free of material damage and waste and there is no
proceeding pending or, to the best of Countrywide’s knowledge, threatened for
the total or partial condemnation thereof;
(w) Customary
and Enforceable Provisions.
The
Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby
including (a) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (b) otherwise by judicial foreclosure. There
is no homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(x) Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage;
(y) Appraisal.
Unless
the Mortgage Loan was underwritten pursuant to one of Countrywide’s streamline
documentation programs, the Credit File contains an appraisal of the related
Mortgaged Property signed prior to the approval of the Mortgage Loan application
by an appraiser who meets the minimum requisite qualifications of an Agency
for
appraisers, duly appointed by the originator, that had no interest, direct
or
indirect in the Mortgaged Property, and whose compensation is not affected
by
the approval or disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to an Agency, with such riders as are acceptable to such Agency;
furthermore, the appraisal type for each Mortgage Loan is accurately reflected
on the Mortgage Loan Schedule;
(z) Trustee
for Deed of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(aa) Private
Mortgage Insurance.
Each
Mortgage Loan, with an LTV at origination in excess of eighty percent (80%)
is
and will be subject to a PMI Policy issued by an insurer acceptable to FNMA
or
FHLMC, in at least such amounts as required by FHMA or FHLMC. All provisions
of
such PMI Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. Any Mortgage
subject to any such PMI Policy obligates the Mortgagor thereunder to maintain
such insurance and to pay all premiums and charges in connection therewith
or,
in the case of a lender paid mortgage insurance policy, the premiums and charges
are included in the Mortgage Interest Rate for the Mortgage Loan;
21
(bb) Lawfully
Occupied.
At
origination, the Mortgaged Property was lawfully occupied under applicable
law.
To the best of Countrywide’s knowledge, all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same
including certificates of occupancy, have been made or obtained from the
appropriate authorities. No improvements violate local zoning laws;
(cc) Assignment
of Mortgage.
The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) Form
of Mortgage Note and Mortgage.
The
Mortgage Note and Mortgage are on forms acceptable to an Agency;
(ee) Predatory
Lending Regulations; High Cost Loans.
None
of the Mortgage Loans are classified as (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“predatory” or “covered” loans or “High Cost Home Loans” under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology);
(ff) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
(gg) Location
and Type of Mortgaged Property.
The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of a single parcel (or more than one contiguous parcels)
of real property with a detached single family residence erected thereon, or
a
two- to four-family dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development or a
townhouse;
(hh) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral, pledged account
or other security except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(j) above
(ii) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified Countrywide, and Countrywide has no knowledge of
any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act or any similar state law;
(jj) Payment
Terms.
The
Mortgage Note is payable on the first day of each month in equal monthly
installments of principal and interest (or interest, in the case of any Mortgage
Loan for which monthly payments consist of only interest for a period of time
specified on the Mortgage Loan Schedule), (provided that, the installments
of
interest are subject to change due to the adjustments to the Mortgage Interest
Rate on each Interest Rate Adjustment Date with respect to an Adjustable Rate
Mortgage, and interest is calculated and payable in arrears) providing for
full
amortization by maturity over a scheduled term of no more than 30 years. No
Mortgage Loan converts, pursuant to the terms of the related Mortgage Note,
from
having interest accrue on the principal amount thereof based on an adjustable
rate to having interest accrue based on a fixed rate, and no Mortgage Loan
has a
shared appreciation or other contingent interest feature, or permits negative
amortization. The Mortgage Interest Rate, Lifetime Rate Cap, each applicable
Periodic Rate Cap and each applicable Interest Adjustment Date for each Mortgage
Loan are as set forth for such Mortgage Loan in the Mortgage Loan
Schedule;
22
(kk) Origination.
At the time the Mortgage Loan was originated, the originator was a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act or a savings and loan association,
a
saving bank, a commercial bank or similar banking institution which is
supervised by a Federal or State authority.
(ll) Loan-to-Value
Ratio; Modifications; No Foreclosures.
The
Loan-to-Value Ratio of each Mortgage Loan was no greater than 100% at the time
of its origination or refinancing, as applicable. No Mortgage Loan is subject
to
a written foreclosure agreement or pending foreclosure proceedings;
(mm) Underwriting
Guidelines.
The
Mortgage Loan was underwritten in accordance with Countrywide’s underwriting
guidelines in effect at the time of origination with exceptions thereto
exercised in a reasonable manner;
(nn) Adverse
Selection.
Countrywide used no adverse selection procedures in selecting the Mortgage
Loan
from among the outstanding first-lien residential mortgage loans owned by it
which were available for inclusion in the Mortgage Loan Package;
(oo) Environmental
Matters.
To the
best of Countrywide’s knowledge, the Mortgaged Property is free from any and all
toxic or hazardous standards and there exists no violation of any local, state
or federal environmental law, rule or regulation. There is no pending action
or
proceeding directly involving any Mortgaged Property of which Countrywide is
aware in which compliance with any environmental law, rule or regulation is
an
issue. To the best of Countrywide’s knowledge, nothing further remains to be
done to satisfy in full all requirements of each such law, rule or regulation
consisting a prerequisite to use and enjoyment of said property;
(pp) No
Bankruptcy.
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and as of the Closing
Date, Countrywide has not received notice that any Mortgagor is a debtor under
any state or federal bankruptcy or insolvency proceeding;
(qq) No
Additional Payments.
There is
no obligation on the part of Countrywide or any other party to make payments
in
addition to those made by the Mortgagor;
(rr) Georgia
Fair Lending Act.
None of
the Mortgage Loans is subject to the Georgia Fair Lending Act, as
amended;
23
(ss) No
Credit Insurance Policies.
No
proceeds from any Mortgage Loan were used to purchase single-premium credit
insurance policies as part of the origination of, or as a condition to closing,
such Mortgage Loan;
(tt) Prepayment
Penalty Term.
No
Mortgage Loan will impose a prepayment premium in violation of federal, state
or
local law or regulations; and
(uu) Qualified
Mortgage.
Each Mortgage Loan is a “qualified mortgage” within Section 860G(a)(3) of
the Code.
Section
3.03 Remedies
for Breach of Representations and Warranties.
(a) Notice
of Breach.
The
representations and warranties set forth in Sections 3.01 and 3.02 shall survive
the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit
of the Purchaser, notwithstanding any restrictive or qualified endorsement
on
any Mortgage Note or Assignment of Mortgage or the examination or failure to
examine any Collateral Documents or Credit File. Upon discovery by either
Countrywide or the Purchaser of a breach of any of the foregoing representations
and warranties that materially and adversely affects the value of one or more
of
the related Mortgage Loans, the party discovering such breach shall give prompt
written notice to the other.
(b) Cure
or Repurchase.
Within
ninety (90) days from the earlier of either discovery by or notice to
Countrywide of a breach of a representation or warranty that materially and
adversely affects the value of a Mortgage Loan or the Mortgage Loans,
Countrywide shall use its best efforts to cure such breach in all material
respects, and, if such breach cannot be cured, Countrywide shall, at the
Purchaser’s option, repurchase such Mortgage Loan at the Repurchase Price. In
the event that a breach shall involve any representation or warranty set forth
in Section 3.01 and such breach cannot be cured within ninety (90) days of
the
earlier of either discovery by or notice to Countrywide of such breach, all
of
the Mortgage Loans shall, at the Purchaser’s option, be repurchased by
Countrywide at the Repurchase Price.
(c) Substitution
or Repurchase.
If the
breach shall involve a representation or warranty set forth in Section 3.02,
Countrywide may at the discretion of the Purchaser, rather than repurchase
the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute in
its
place a Qualified Substitute Mortgage Loan or Loans. If Countrywide has no
Qualified Substitute Mortgage Loan, it shall repurchase the deficient Mortgage
Loan. Any repurchase of a Mortgage Loan(s) pursuant to the provisions of this
Section 3.03 shall be accomplished by deposit in the Custodial Account of the
amount of the Repurchase Price for distribution to the Purchaser on the next
scheduled Remittance Date, after deducting therefrom any amount received in
respect of such repurchased Mortgage Loan or Loans and being held in the
Custodial Account for future distribution. At the time of repurchase or
substitution, the Purchaser and Countrywide shall arrange for the reassignment
of such Mortgage Loan and release of the related Collateral File to Countrywide
and the delivery to Countrywide of any documents held by the Purchaser or its
designee relating to such Mortgage Loan. In the event Countrywide is authorized
to substitute a Qualified Substitute Mortgage Loan for a repurchased Mortgage
Loan, Countrywide shall, simultaneously with such reassignment, give written
notice to the Purchaser that substitution has taken place and identify the
Qualified Substitute Mortgage Loan(s). In connection with any such substitution,
Countrywide shall be deemed to have made as to such Qualified Substitute
Mortgage Loan(s) the representations and warranties except that all such
representations and warranties set forth in this Agreement shall be deemed
made
as of the date of such substitution. Countrywide shall effect such substitution
by delivering to the Purchaser the Collateral Documents for such Qualified
Substitute Mortgage Loan(s). Countrywide shall deposit in the Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan(s) in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of
substitution shall be retained by Countrywide. For the month of substitution,
distributions to the Purchaser shall include the Monthly Payment due on any
substituted Mortgage Loan in the month of substitution, and Countrywide shall
thereafter be entitled to retain all amounts subsequently received by
Countrywide in respect of such substituted Mortgage Loan.
24
For
any
month in which Countrywide substitutes a Qualified Substitute Mortgage Loan
for
a repurchased Mortgage Loan, Countrywide shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all substituted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by Countrywide in the month of substitution
pursuant to Section 5.01. Accordingly, on the date of such substitution,
Countrywide shall deposit from its own funds into the Custodial Account an
amount equal to the amount of such shortfall. Notwithstanding the above, in
no
event shall Countrywide substitute a loan that has been placed in a trust with
respect to a securitization.
In
addition to such cure and repurchase obligations, Countrywide shall indemnify
the Purchaser and hold it harmless against any damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion by any third party that is based on or grounded upon, or resulting
from, a breach of Countrywide representations and warranties contained in this
Agreements; provided
however,
indemnification shall not be available for any economic losses of the Purchaser
due to reinvestment losses, loss of investment income or any other special,
indirect or consequential losses or damages.
Section
3.04 Accrual
of Cause of Action.
Any
cause
of action against Countrywide relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 or 3.02 shall accrue as
to
any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice
thereof by Countrywide to the Purchaser, (ii) failure by Countrywide to cure
such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon Countrywide by the Purchaser for compliance with the relevant
provisions of this Agreement.
Section
3.05 Representations
and Warranties Respecting the Purchaser.
The
Purchaser represents, warrants and covenants to Countrywide that, as of each
Closing Date:
(a) Organization
and Standing.
The
Purchaser is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized and is qualified to transact
business in and is in good standing under the laws of each state in which the
nature of the business transacted by it or the character of the properties
owned
or leased by it requires such qualification;
25
(b) Due
Authority.
The
Purchaser has the full power and authority to perform, and to enter into and
consummate, all transactions contemplated by this Agreement; the Purchaser
has
the full power and authority to purchase and hold each Mortgage
Loan;
(c) No
Conflict.
Neither
the acquisition of the Mortgage Loans by the Purchaser pursuant to this
Agreement, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Purchaser’s charter or by-laws or result in a material breach
of any legal restriction or any material agreement or instrument to which the
Purchaser is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result
in
the violation of any material law, rule, regulation, order, judgment or decree
to which the Purchaser or its property is subject;
(d) No
Pending Litigation.
There
is no action, suit, proceeding, investigation or litigation pending or, to
the
Purchaser’s knowledge, threatened, which either in any one instance or in the
aggregate, if determined adversely to the Purchaser would adversely affect
the
purchase of the Mortgage Loans by the Purchaser hereunder, or the Purchaser’s
ability to perform its obligations under this Agreement; and
(e) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Purchaser
of
or compliance by the Purchaser with this Agreement or the consummation of the
transactions contemplated by this Agreement (including, but not limited to,
any
approval from HUD), or if required, such consent, approval, authorization or
order has been obtained prior to the related Closing Date.
(f) Securities.
Without
conceding that the Mortgage Loans are securities, the Purchaser hereby makes
the
following representations, warranties and agreements, which shall have been
deemed to have been made as of each Closing Date:
(i) the
Purchaser understands that the Mortgage Loans have not been registered under
the
1933 Act or the securities laws of any state;
(ii) the
Purchaser 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) the
Purchaser has been furnished with all information regarding he Mortgage Loans
which it has requested to date from Countrywide; and
(iv) neither
the Purchaser nor anyone acting on its behalf 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 any 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 which would constitute a distribution of the Mortgage
Loans under the 1933 Act or which would render the disposition of any Mortgage
Loan a violation of Section 5 of the 1933 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.
26
Section
3.06 Indemnification
by the Purchaser.
The
Purchaser shall indemnify Countrywide and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary 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 the Purchaser’s representations and warranties contained in Section
3.05 above.
ARTICLE
IV.
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Servicing
LP to Act as Servicer.
Servicing
LP shall service and administer Mortgage Loans sold pursuant to this Agreement
in accordance with the terms of the Servicing Agreement and shall have full
power and authority, acting alone, to do or cause to be done any and all things,
in connection with such servicing and administration, that Servicing LP may
deem
necessary or desirable and consistent with the terms of the Servicing Agreement.
In servicing and administering the Mortgage Loans, Servicing LP shall employ
procedures in accordance with the customary and usual standards of practice
of
prudent mortgage servicers, and
exercise the same care that it customarily employs and exercises in servicing
and administering mortgage loans for its own account.
ARTICLE
V.
COVENANTS
BY COUNTRYWIDE
Section
5.01 Indemnification
by Countrywide; Third Party Claims.
Countrywide
shall indemnify the Purchaser and hold it harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary
attorneys’ 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
Countrywide to perform its obligations hereunder including its obligations
to
service and administer the Mortgage Loans in compliance with the terms of this
Agreement. Notwithstanding the foregoing, the Purchaser shall indemnify
Countrywide 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 Countrywide may
sustain in any way related to (a) actions or inactions of Countrywide which
were
taken or omitted upon the instruction or direction of the Purchaser, or (b)
the
failure of the Purchaser to perform its obligations hereunder.
27
Countrywide
and the Purchaser shall immediately notify the other if a claim is made upon
such party by a third party with respect to this Agreement or the Mortgage
Loans. Upon the prior written consent of the Purchaser, which consent shall
not
be unreasonably withheld, Countrywide shall assume the defense of any such
claim
and pay all expenses in connection therewith, including attorneys’ 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 Countrywide for all costs, fees or expenses advanced by it
pursuant to this paragraph except when the claim in any way results from,
relates to or arises out of any liability, obligation, act or omission of
Countrywide (other than acts or omissions taken or omitted at the direction
of
the Purchaser), including without limitation, Countrywide’s indemnification
obligation hereunder, any repurchase obligation of Countrywide hereunder
including Sections 2.04, 2.05 and 3.03, or the failure of Countrywide to service
and administer the Mortgage Loans and otherwise perform its obligations
hereunder in strict compliance with the terms of this Agreement.
Section
5.02 [Reserved.]
Section
5.03 Merger
or Consolidation of Countrywide.
Countrywide
shall keep in full effect its existence, rights and franchises as a corporation
under the laws of the United States or under the laws of one of the states
thereof, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans, and to perform its duties under this
Agreement.
Notwithstanding
anything to the contrary contained herein, any Person into which Countrywide
may
be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which Countrywide shall be a party, or any Person
succeeding to the business of Countrywide, shall be the successor of Countrywide
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto; provided, however, that the successor
or
surviving Person shall be an institution whose deposits are insured by FDIC
or a
company whose business is the origination and servicing of mortgage loans,
unless otherwise consented to by the Purchaser, which consent shall not be
unreasonably withheld, and shall be qualified to service mortgage loans on
behalf of an Agency.
Section
5.04 Limitation
on Liability of Countrywide and Others.
Neither
Countrywide nor any of the officers, employees or agents of Countrywide shall
be
under any liability to the Purchaser for any action taken, or for refraining
from taking any action, in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect
Countrywide or any such person against any breach of warranties or
representations made herein, or the failure to perform its obligations in
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of any breach of the terms
and conditions of this Agreement. Countrywide and any officer, employee or
agent
of Countrywide may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. Notwithstanding anything to the contrary contained in this Agreement,
unless one or more Event of Default by Countrywide shall occur and shall not
have been remedied within the time limits set forth in Section 7.1 of the
Servicing Agreement, the Purchaser shall not record or cause to be recorded
an
Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice
of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser’s failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it
may
deem necessary or desirable to protect the Purchaser’s interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for
which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses,
costs
and liabilities are subject to Countrywide’s indemnification under Section
5.01.
28
Section
5.05 No
Transfer of Servicing.
Countrywide
acknowledges that the Purchaser acts in reliance upon Countrywide’s independent
status, the adequacy of its servicing facilities, plant, personnel, records
and
procedures, its integrity, reputation and financial standing and the continuance
thereof. Without in any way limiting the generality of this Section, Countrywide
shall not assign this Agreement or the servicing rights hereunder, without
the
prior written approval of the Purchaser, which consent may not be unreasonably
withheld; provided,
however,
that
nothing in this Agreement shall limit the right of Countrywide to assign the
servicing rights hereunder to Servicing LP.
ARTICLE
VI.
MISCELLANEOUS
Section
6.01 Notices.
All
demands, notices and communications required to be provided hereunder shall
be
in writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, postage prepaid, and return receipt requested, or, if by
other means, when received by the other party at the address as
follows:
|
(i)
|
to
Countrywide:
|
Countrywide
Home Loans, Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxxx Xxxxxxx, Executive Vice President
With
copy
to: General Counsel
29
(ii)
the
Purchaser:
To
the
address and contact set forth in the related Purchase Confirmation
or
such
other address as may hereafter be furnished to the other party by like
notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date
noted on
the return receipt).
Section
6.02 Sale
Treatment.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by Countrywide
and not a pledge of the Mortgage Loans by Countrywide to the Purchaser to secure
a debt or other obligation of Countrywide. Consequently, the sale of each
Mortgage Loan shall be reflected as a sale on Countrywide’s business records,
tax returns and financial statements. Accordingly, Countrywide and the Purchaser
shall each treat the transaction for federal income tax purposes as a sale
by
Countrywide, and a purchase by the Purchaser, of the Mortgage Loans.
Section
6.03 Exhibits.
The
Exhibits to this Agreement and each Trade Confirmation and Purchase Confirmation
executed by Countrywide and the Purchaser are hereby incorporated and made
a
part hereof and are an integral part of this Agreement.
Section
6.04 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(f) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
30
(g) reference
to the Transaction Documents or any other document referenced herein shall
include all exhibits, schedules or other supplements thereto.
Section
6.05 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including (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
6.06 Further
Agreements.
Countrywide
shall execute and deliver to the Purchaser and the Purchaser shall be required
to execute and deliver to Countrywide such reasonable and appropriate additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Agreement.
Section
6.07 Assignment
of Mortgage Loans by the Purchaser; Pass-Through Transfers.
(a) The
Purchaser may, subject to the terms of this Agreement, sell and transfer one
or
more of the Mortgage Loans; provided, however, that the transferee will not
be
deemed to be the Purchaser hereunder unless such transferee shall agree in
writing to be bound by the terms of this Agreement and an original counterpart
of the document evidencing such agreement shall have been executed by the
Purchaser and the transferee and delivered to Countrywide. Notwithstanding
the
foregoing, no transfer shall be effective if such transfer would result in
there
being more than four (4) “Purchasers” outstanding hereunder with respect to any
Mortgage Loan Package. Any trust to which Mortgage Loans may be transferred
pursuant to Section 6.07(b) hereunder shall constitute a single Purchaser for
the purposes of the preceding sentence.
(b) The
Purchaser and Countrywide agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, but subject to the limitations set
forth in Section 6.07(a) hereof, may effect Pass-Through Transfers, retaining
Countrywide as the servicer thereof or subservicer if a master servicer is
employed, or as applicable the “seller/servicer.” On the related Reconstitution
Date, the Mortgage Loans transferred shall cease to be covered by this
Agreement; provided, however, that, in the event that any Mortgage Loan
transferred pursuant to this Section 6.07 is rejected by the related transferee,
Countrywide shall continue to service such rejected Mortgage Loan on behalf
of
the Purchaser in accordance with the terms and provisions of this Agreement.
Countrywide shall cooperate with the Purchaser in connection with each
Pass-Through Transfer in accordance with this Section 6.07. In connection
therewith Countrywide shall:
(i) negotiate
in good faith and execute any seller/servicer agreement reasonably required
to
effectuate the Pass-Through Transfer, provided such agreement creates no greater
obligation or cost on the part of Countrywide than otherwise set forth in this
Agreement, and provided further that Countrywide shall be entitled to a
servicing fee under that agreement at a rate per annum no less than the
Servicing Fee Rate; and
31
(ii) provide
as applicable:
(A) information
pertaining to Countrywide of the type and scope customarily included in offering
documents for residential mortgage-backed securities transactions involving
multiple loan originators;
(B) such
opinions of counsel, letters from auditors, and certificates of public officials
or officers of Countrywide as are reasonably believed necessary by the trustee,
any rating agency or the Purchaser, as the case may be, in connection with
such
Pass-Through Transfer. The Purchaser shall pay all third party costs associated
with the preparation of the information described in clause (ii)(A) above and
the delivery of any opinions, letters or certificates described in this clause
(ii)(B). Countrywide shall not be required to execute any seller/servicer
agreement unless a draft of the agreement is provided to Countrywide at least
10
days before the Reconstitution Date; and
(C) certain
additional information with respect to the Mortgage Loans, including but not
limited to (x) payment history and (y) income verification, asset verification
and verification of employment.
(c) In
connection with any Pass-Through Transfer, Countrywide shall make all
representations and warranties with respect to the Mortgage Loans as of the
Closing Date and with respect to Countrywide itself as of the closing date
of
each whole loan transfer or Pass-Through Transfer.
(d) In
connection with any Pass-Through Transfer, Countrywide shall indemnify, defend
and hold harmless the Purchaser from and against any and all losses, claims,
expenses, damages or liabilities to which the Purchaser may be subject to as
a
result of (i) any inaccuracy or omission in information provided to the
Purchaser pursuant to Section 6.07(b)(ii)(C) and (ii) any untrue statement
of
any material fact contained in any information (such information, the
“Countrywide Information”) prepared and furnished to the Purchaser by
Countrywide for inclusion in any related offering document or prospectus
(collectively, “Offering Materials”), or arise out of, or are based upon, any
omission in the Countrywide Information necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse the Purchaser for damages or expenses reasonably
incurred by it; provided, however, that Countrywide shall be liable only insofar
as such untrue statement or omission relates solely to the Countrywide
Information in the Offering Materials furnished to the Purchaser by Countrywide
specifically for inclusion in the Prospectus Supplement. The Purchaser shall
indemnify, defend and hold harmless Countrywide from and against any and all
losses, claims, expenses, damages or liabilities to which Countrywide may be
subject to as a result of any untrue statement of any material fact contained
in
any Offering Materials, or arise out of, or are based upon, any omission in
any
information included in the Offering Materials necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse Countrywide for damages or expenses reasonably
incurred by it; provided, however, that Purchaser shall be liable only insofar
as such untrue statement or omission does not relate to the Countrywide
Information in the Offering Materials furnished to the Purchaser by Countrywide
specifically for inclusion in the Prospectus Supplement; and.
32
(e) All
Mortgage Loans not sold or transferred pursuant to Pass-Through Transfers shall
remain subject to this Agreement and shall continue to be serviced in accordance
with the terms of this Agreement and with respect thereto this Agreement shall
remain in full force and effect.
Section
6.08 Conflicts
between Transaction Documents.
In
the
event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement, the Servicing Agreement, and either the related
Trade Confirmation or the related Purchase Confirmation, the terms of the
related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section
6.09 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York and the State of California applicable to agreements entered
into and wholly performed within that state.
Section
6.10 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to an amendment to this Agreement which
places each party in the same or as economic position as each party would have
been in except for such invalidity.
Section
6.11 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by
Countrywide and the Purchaser and the respective permitted successors and
assigns of Countrywide and the Purchaser.
33
Section
6.12 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of Countrywide shall be
rendered as an independent contractor and not as agent for the
Purchaser.
Section
6.13 Solicitation
of Mortgagor.
From
and
after the Closing Date, Countrywide hereby agrees that it will not take any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors or independent mortgage brokerage
companies on its behalf, to personally, by telephone or mail, solicit the
mortgagor under any Mortgage Loan for the purpose of refinancing such Mortgage
Loan; provided, that Countrywide may solicit any mortgagor from whom it or
its
servicing affiliate has received a request for verification of mortgage, a
request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
(i) concern optional insurance products or other additional projects or (ii)
are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Countrywide
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Countrywide or any affiliate of
Countrywide, shall not be prohibited: (i) solicitations that are directed to
the
general public at large, including, without limitation, mass mailings based
on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Countrywide.
Section
6.14 Confidentiality.
Countrywide,
the Purchaser and their agents shall keep confidential and shall not divulge
to
any person, other than affiliates, without the written consent of the other
party, the terms of this agreement, except (i) to the extent required by law
or
judicial order or to enforce its rights or remedies under this agreement, the
Servicing Agreement, or any applicable agreements, (ii) to the extent such
information enters into the public domain other than through the wrongful act
of
Countrywide or the Purchaser,
as the
case may be, (iii) as is necessary in working with legal counsel, auditors,
rating agencies, agents, taxing authorities or other governmental agencies,
or
(iv) in order to disclose to any and all persons, without limitation of any
kind, the structure and tax aspects of this sale or any transaction and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Purchaser related to such sale, transaction and tax aspects,
all
as contemplated by Section 1.6011-4T(b)(3) (or any successor provision) of
the
Treasury Regulations promulgated under Section 6011 of the Internal Revenue
Code
of 1986.
34
Moreover,
Countrywide understands and agrees that this Agreement, the Servicing Agreement,
any other agreements executed in connection with the sale and servicing
contemplated hereunder,
any
agreements executed in connection with a securitization of the Mortgage Loans,
and any offering circulars or other disclosure documents produced in connection
with such securitization are confidential and proprietary to the Purchaser,
and
Countrywide agrees to hold such documents confidential and not to divulge such
documents to anyone except (a) to the extent required by law or judicial order
or to enforce its rights or remedies under this letter agreement or the
Agreements, (b) to the extent such information enters into the public domain
other than through the wrongful act of Countrywide (c) as is necessary in
working with legal counsel, auditors, agents, taxing authorities or other
governmental agencies, or (d) in order to disclose to any and all persons,
without limitation of any kind, the structure and tax aspects of this sale
or
such securitization and all materials of any kind (including opinions or other
tax analyses) that are provided to the Purchaser related to such sale,
securitization and tax aspects, all as contemplated by Section 1.6011-4T(b)(3)
(or any successor provision) of the Treasury Regulations promulgated under
Section 6011 of the Internal Revenue Code of 1986. The rights and obligations
set forth in this paragraph shall survive the Closing Date and shall not merge
into the closing documents but shall be independently enforceable by the parties
hereto.
Section
6.15 Entire
Agreement.
This
Agreement and the related Trade Confirmation and Purchase Confirmation
constitute the entire understanding between the parties hereto with respect
to
each Mortgage Loan Package and supersede all prior or contemporaneous oral
or
written communications regarding same. Countrywide and the Purchaser understand
and agree that no employee, agent or other representative of Countrywide or
the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within
the
express terms of this Agreement or the related Trade Confirmation or Purchase
Confirmation. Neither this Agreement nor the related Trade Confirmation or
Purchase Confirmation shall be modified, amended or in any way altered except
by
an instrument in writing signed by both parties.
(SIGNATURE
PAGE TO FOLLOW)
35
IN
WITNESS WHEREOF, Countrywide and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
|
COUNTRYWIDE
HOME LOANS, INC.,
the
Seller
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
XXXXXXX
SACHS MORTGAGE
COMPANY,
the
Purchaser
|
||
| |
|
|
| : | By: |
Xxxxxxx
Xxxxx Real Estate Funding Corp.,
its
General Partner
|
| By: | ||
|
Name |
||
| Title: | ||
EXHIBIT
A
COLLATERAL
DOCUMENTS
| 1. |
Mortgage
Note:
The original Mortgage Note (or, if acceptable to the Purchaser, a
lost
note affidavit in a form acceptable to an Agency) bearing all intervening
endorsements, endorsed “Pay to the order of _____________, without
recourse” and signed in the name of the last endorsee by an authorized
officer thereof.
|
| 2. |
Assignment
of Mortgage:
Unless the Mortgage Loan is a MERS Mortgage Loan, the original Assignment
of Mortgage in blank.
|
| 3. |
Guarantee:
The original of any guarantee executed in connection with the Mortgage
Note.
|
| 4. |
Mortgage:
The original Mortgage with evidence of recording thereon or, if such
original Mortgage has not been returned to Countrywide on or prior
to the
Closing Date by the public recording office where such Mortgage has
been
delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage
sent
for recordation.
|
| 5. |
Modifications:
Unless the Mortgage Loan is a MERS Mortgage Loan, the originals of
all
assumption, modification, consolidation or extension agreements,
with
evidence of recording thereon, if
any.
|
| 6. |
Intervening
Assignments:
The originals of all intervening assignments of Mortgage with evidence
of
recording thereon, provided that such originals have been returned
to
Countrywide by the public recording office where such intervening
assignment of Mortgage has been delivered for
recordation.
|
| 7. |
Cooperative
Loans:
With respect to each Cooperative Loan: (i) an original copy of the
Cooperative Lease naming the Mortgagor, as tenant, or an original
copy of
the assignment of the Cooperative Lease to Mortgagor together with
the
original copy of all intervening assignments showing a complete and
unbroken chain of title from the original tenant to Mortgagor and
an
original undated assignment, in blank, of the Cooperative Lease executed
by Mortgagor; (ii) the original stock certificate in the name of
the
Mortgagor together with an undated original stock power relating
to such
stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same
form as
a standard “AZTECH” form and the original assignment thereof from
Countrywide to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of
title
from the originator of the Mortgage Loan to the Purchaser; (iv) copies
of
the UCC-1 financing statement naming the originator of the Cooperative
Loan, as secured party, with evidence of recording thereon and, if
applicable, the executed UCC-3 financing statements (Assignment)
or other
appropriate UCC financing statements required by applicable state
law
evidencing a complete and unbroken chain of title from the originator
of
the Cooperative Loan to Countrywide, with evidence of recording thereon,
(v) an executed UCC-3 financing statement (Assignment), or other
appropriate UCC financing statement required by applicable state
law,
evidencing the assignment by Countrywide to the Purchaser of its
interest
in the Cooperative Loan, with evidence of recording thereon and (vi)
a
consent from the cooperative corporation in connection with the
Mortgagor’s acquisition of the coop
apartment
|
A-1
| 8. |
Power
of Attorney:
Original power of attorney, if applicable.
|
A-2
EXHIBIT
B
FORM
OF PURCHASE CONFIRMATION
[COUNTRYWIDE
LETTERHEAD]
[DATE]
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxx
Re: Purchase
Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies
and Gentlemen:
This
purchase confirmation (the “Purchase Confirmation”) between Countrywide Home
Loans, Inc. (“Countrywide”) and Xxxxxxx Sachs Mortgage Company (“Purchaser”)
sets forth our agreement pursuant to which Purchaser is purchasing, and
Countrywide is selling, on a servicing-retained basis, those certain mortgage
loans identified in Exhibit
A
hereto
and more particularly described herein (the “Mortgage Loans”).
The
purchase, sale and servicing of the Mortgage Loans as contemplated herein shall
be governed by that certain Master Mortgage Loan Purchase Agreement dated as
of
July 1, 2004, between Countrywide and Purchaser (as amended herein and
otherwise, the “Agreement”). By executing this Purchase Confirmation, each of
Countrywide and Purchaser again makes, with respect to itself and each Mortgage
Loan, as applicable, all of the covenants, representations and warranties made
by each such party in the Agreement, except as the same may be amended by this
Purchase Confirmation.
All
exhibits hereto are incorporated herein in their entirety. In the event there
exists any inconsistency between the Agreement and this Purchase Confirmation,
the latter shall be controlling notwithstanding anything contained in the
Agreement to the contrary. All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment
and Conveyance of Mortgage Loans.
Upon
Purchaser’s payment of the Purchase Proceeds in accordance with Section 2.08 of
the Agreement, Countrywide shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and
the
Agreement, all of the right, title and interest of Countrywide in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Countrywide pursuant to the terms of the
Agreement.
2. Defined
Terms.
As used
in the Agreement, the following defined terms shall have meanings set forth
below with respect to the related Mortgage Loan Package.
B-1
a. Closing
Date:
[DATE].
b. Cut-off
Date:
[DATE].
c. Cut-off
Date Balance:
[d.
Index:
On each
Interest Adjustment Date, the applicable index rate shall be a rate per annum
equal to [the weekly average yield on U.S. Treasury securities adjusted to
a
constant maturity of one year, as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15] [the average of
interbank offered rates for six-month U.S. dollar denominated deposits in the
London market (LIBOR), as published [in the Wall Street Journal] [by Xxxxxx
Xxx]
[the 11th District Cost of Funds as made available by the Federal Home Loan
Bank] [the weekly average yield on certificates of deposit adjusted to a
constant maturity of six months as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing
Credit Documents:
As set
forth in Exhibit
[C]
hereto.
Notwithstanding
anything contained in Section 2.04 of the Agreement to the contrary,
Countrywide’s obligation to repurchase from the Purchaser the Mortgage Loan
related to a Missing Credit Document shall occur only in the event of a default
by a Mortgagor or any material impairment of the Mortgaged Property directly
arising a breach of Countrywide’s obligation to deliver the Missing Credit
Document within the time specified in Section 2.04 of the
Agreement.
f. Pending
Mortgage Loans:
As set
forth in Exhibit [C] hereto.]
g. Purchase
Proceeds:
With
respect to [the Mortgage Loans] [each Mortgage Loan], and as set forth in
Exhibit
[A]
and
Exhibit
[B]
hereto,
the sum of (a) the product of (i) the Cut-off Date Balance of [such Mortgage
Loan] [such Mortgage Loans], and (ii) the purchase price percentage set forth
in
Exhibit
[A]
hereto
for such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from the
Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing
Fee Rate:
[0.25%]
[0.375%] [With respect to the period prior to the initial Interest Adjustment
Date, [0.25]% and, thereafter, [0.375]%].
3. Description
of Mortgage Loans.
Each
Mortgage Loan complies with the specifications set forth below in all material
respects.
a. Loan
Type:
Each
Mortgage Loan is a [Adjustable Rate] [Balloon] [Fixed Rate] Mortgage
Loan.
x. Xxxx
Position:
Each
Mortgage Loan is secured by a perfected [first] [second] lien
Mortgage.
c. Underwriting
Criteria:
Each
Mortgage Loan [was underwritten generally in accordance with Countrywide’s
credit underwriting guidelines in effect at the time such Mortgage Loan was
originated] [conforms to the Xxxxxx Xxx or Xxxxxxx Mac mortgage eligibility
criteria (as such criteria applies to Countrywide) and is eligible for sale
to,
and securitization by, Xxxxxx Mae or Xxxxxxx Mac] [at the time of origination
was underwritten to guidelines which are consistent with an institutional
investor-quality mortgage loan].
B-2
Kindly
acknowledge your agreement to the terms of this Purchase Confirmation by signing
in the appropriate space below and returning this Purchase Confirmation to
the
undersigned. Telecopy signatures shall be deemed valid and binding to the same
extent as the original.
| Sincerely, |
Agreed
to and Accepted by:
|
|||
| COUNTRYWIDE HOME LOANS, INC. |
XXXXXXX
SACHS MORTGAGE
COMPANY
|
|||
|
By:
|
By:
|
|||
|
Name: Xxxxx Xxxxxxx |
Name: |
|||
| Title: Executive Vice President | Title: | |||
B-3
EXHIBIT
A
to
PURCHASE
CONFIRMATION
MORTGAGE
LOAN SCHEDULE
(attached)
B-A-1
EXHIBIT
B
to
PURCHASE
CONFIRMATION
CALCULATION
OF PURCHASE PROCEEDS
(attached)
B-B-1
EXHIBIT
C
to
PURCHASE
CONFIRMATION
MISSING
CREDIT DOCUMENTS
|
LOAN
COUNT
|
LOAN
NUMBER
|
DOCUMENT
|
|
1.
|
||
|
2.
|
||
|
3.
|
||
|
4.
|
||
|
5.
|
B-C-1
EXHIBIT
D
to
PURCHASE
CONFIRMATION
PENDING
MORTGAGE LOANS
|
LOAN
COUNT
|
LOAN
NUMBER
|
DOCUMENT
|
|
1.
|
||
|
2.
|
||
|
3.
|
||
|
4.
|
||
|
5.
|
B-D-1
EXHIBIT
C
FORM
OF CUSTODIAL AGREEMENT
[CUSTODIAN’S
LETTERHEAD]
_______________,
(YEAR)
Xxxxxx
Xxxxxxxxx
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Xxxxxxx
Executive
Vice President
Countrywide
Home Loans Inc.
0000
Xxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
RE: Sale
of
Mortgage Loans pursuant to that certain Master Mortgage Loan Purchase Agreement,
dated July 1, 2004, (YEAR) and Purchase Confirmation dated ____________, (YEAR),
(collectively the “Agreement”) between Countrywide Home Loans Inc. (“SELLER”)
and Xxxxxxx Sachs Mortgage Company (“PURCHASER”).
Ladies
and Gentlemen:
Treasury
Bank, National Association, a nationally chartered bank and an affiliate of
SELLER (“TREASURY BANK”), has been advised of an impending sale by SELLER to
PURCHASER, of certain mortgage loans described on Exhibit “A” attached hereto
(the “Mortgage Loans”), which sale is expected to occur on [SALE DATE], (YEAR).
The Mortgage Loans are currently held by TREASURY BANK as custodian for SELLER.
SELLER has requested that upon TREASURY BANK’s receipt of written confirmation
from SELLER that it has received the Purchase Price, TREASURY BANK (i) hold
such
Mortgage Loans in custody for the exclusive benefit of PURCHASER; (ii) by its
execution hereof, certify to PURCHASER its possession of the Mortgage Note,
Assignment of Mortgage and a certified copy of the Mortgage for each Mortgage
Loan except as TREASURY BANK may separately notify PURCHASER in writing; (iii)
segregate and maintain continuous custody of all Mortgage Files in secure and
fire-resistant facilities in accordance with customary standards for such
custody: and (iv) ship the Mortgage Loans to such address as PURCHASER may
instruct TREASURY BANK in writing upon consummation of the sale. Except as
specifically required to be stated herein, TREASURY BANK makes no representation
or warranty with respect to any of the Mortgage Loans or Mortgage Files. This
is
to advise SELLER and PURCHASER that TREASURY BANK hereby agrees to perform
the
services stated in the immediately preceding sentence, subject to the terms
and
conditions set forth herein. All capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Agreement.
TREASURY
BANK shall charge such fees for its custodial services under this letter
agreement as are set forth in a separate agreement between TREASURY BANK and
SELLER, the payment of which fees, together with TREASURY BANK’s expenses in
connection herewith, shall be solely the obligation of SELLER.
C-1
The
sole
obligation of TREASURY BANK with respect to the Mortgage Loans shall be to
perform the services expressly described herein, there being no implied duties
hereunder. It is expressly agreed that in no event shall TREASURY BANK have
any
(i) responsibility for documents which it has delivered to a shipper in
accordance with the terms hereof while such documents are not in its possession
or (ii) liability for any losses or damages to any person, including without
limitation SELLER or PURCHASER, arising out of action taken by TREASURY BANK
consistent with instructions given hereunder (including without limitation,
losses or damages arising out of non-performance or faulty performance by a
shipper). SELLER agrees to reimburse, indemnify and hold harmless TREASURY
BANK,
its directors, officers, employees and agents from and against any and all
liability, loss, cost and expense, including reasonable fees and expenses of
counsel arising from or connected with TREASURY BANK’s execution and performance
of this letter agreement, including but not limited to claims of any third
parties, including PURCHASER, except in the case of loss, liability or expense
resulting from gross negligence or willful misconduct on the part of TREASURY
BANK. TREASURY BANK agrees to reimburse, indemnify and hold harmless PURCHASER,
its directors, officers, employees, and agents from and against any and all
liability, loss, cost and expense, including reasonable fees and expenses of
counsel arising from or connected with PURCHASER’s execution of this letter
agreement, including but not limited to, claims of any third parties resulting
from gross negligence or willful misconduct on the part of TREASURY BANK. In
no
event shall TREASURY BANK, its directors, officers, employees or agents be
liable for any indirect, special or consequential damages, even if such party
has been advised of the possibility of such damages.
For
the
purpose of facilitating the execution of this letter agreement, this letter
agreement may be executed simultaneously in any number of counterparts, each
of
which counterpart shall be deemed to be an original and all of which shall
constitute one and the same instrument. By execution of this letter agreement,
TREASURY BANK represents and warrants that as of the consummation of the
referenced transaction it holds and thereafter during the existence of this
letter agreement shall hold, no adverse interest, by way of security or
otherwise, in any Mortgage Loan and hereby waives and releases any such interest
which it may have in any Mortgage Loan as of the consummation of the referenced
transaction. All notices and communications hereunder shall be in writing and
shall be deemed to have been duly given when received by the recipient party
at
the address shown in this letter. This letter agreement shall inure to the
benefit of the successors and assigns of the parties hereto. TREASURY BANK
agrees that its rights and obligations hereunder shall not be assigned without
the prior written consent of PURCHASER. PURCHASER, shall provide written
instructions as to the method of shipment and shippers TREASURY BANK is to
utilize in connection with the transmission the Mortgage Files and Loan
Documents. Each individual executing this letter agreement is authorized to
give
and receive notices and is authorized to execute this letter agreement on behalf
of and bind the respective party. This letter agreement may be amended from
time
to time by written agreement only signed by PURCHASER, TREASURY BANK and
SELLER.
C-2
This
letter agreement shall (i) become effective as of the date hereof upon execution
by SELLER, PURCHASER, and TREASURY BANK and (ii) will expire on [EXPIRATION
DATE], (YEAR), if the sale described herein is not consummated by such date,
unless the parties otherwise agree in writing.
Very
truly yours,
TREASURY
BANK, NATIONAL ASSOCIATION
Xxxxx
Xxxxxx
Officer
0000
X.
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxxxx, Xxxxxxxxxx 00000
|
Accepted
and Agreed
|
Acknowledge:
|
|||
| COUNTRYWIDE HOME LOANS, INC. |
XXXXXXX
SACHS MORTGAGE
COMPANY
|
|||
|
By:
|
By:
|
|||
|
Name: Xxxxx Xxxxxxx |
Name: |
|||
| Title: Executive Vice President | Title: | |||
C-3
EXHIBIT
D
FORM
OF TRADE CONFIRMATION
[COUNTRYWIDE
LETTERHEAD]
[DATE]
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxx
|
|
Re:
|
Sale
of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx Sachs
Mortgage
Company
(Deal
No. yrmm-xxx)
|
Ladies
and Gentlemen:
This
Trade Confirmation confirms the agreement between Xxxxxxx Xxxxx Mortgage Company
(“Purchaser”) and Countrywide Home Loans, Inc. (“Countrywide”) pursuant to which
Purchaser has agreed to purchase, and Countrywide has agreed to sell, those
certain mortgage loans [identified] [summarized]
in Exhibit A hereto (the “Mortgage Loans”), subject to the terms set forth
herein.
Closing
Date: _________
__, [year] [,
provided, however, that the parties shall use their best efforts to consummate
the transaction prior to [DATE].
Commitment
Amount:
$______________.
Purchase
Price:
$______________.
Percentage: ____%,
subject to adjustment as set forth in Exhibit A. [Loan-level pricing as set
forth in Exhibit A.]
Product: [Jumbo] [“A”] [“A-”] [“Alt
A”]
[Sub-prime] [Conforming] [fixed] [(x/1) Index adjustable] rate
mortgage loans]. (undefined terms should not be capitalized)
Underwriting
Criteria:
Servicing
Rights: RETAINED:
Retained by Countrywide and serviced on a [scheduled/scheduled] [actual/actual]
[scheduled][actual] basis for the servicing fee rate [equal to FEE% per
annum][set forth in Exhibit A [for each Mortgage Loan]]. [ With respect to
the
period prior to the initial Interest Adjustment Date, 0.25% and, thereafter,
0.375%].
Prepayment
Penalties: [Countrywide]
[Purchaser] shall be entitled to any penalties resulting from the prepayment
of
any Mortgage Loans by the related mortgagor(s).
D-1
Documentation:
[Assignment
of a [type of agreement]] [Industry standard purchase and servicing
agreement.]
Conditions: [Review
of Mortgage Loans by Purchaser to confirm conformance with this Trade
Confirmation. Countrywide may, at its option, elect to substitute comparable
mortgage loans for any Mortgage Loans rejected by Purchaser pursuant to the
preceding sentence.]
[Countrywide’s
sale of the Mortgage Loans is expressly subject to (a) the review of the
Mortgage Loans by Purchaser to confirm conformance with the Trade Confirmation,
and (b) purchase of the Mortgage Loans by Countrywide on or before the Closing
Date from the current owner of the Mortgage Loans (the “Current Owner”). If
either of the foregoing conditions are not satisfied, Countrywide shall have
no
liability to Purchaser.]
Non-Circumvent: Countrywide
and Purchaser understand and agree that Countrywide may introduce the owner
of
the Mortgage Loans to Purchaser, that the Current Owner is a customer of
Countrywide and that such relationship of Countrywide is confidential. Purchaser
agrees, with respect to the Current Owner, Purchaser will not, for the purpose
of purchasing other mortgage loans [for a period of one year from the Closing
Date], communicate with or purchase such other mortgage loans from the Current
Owner unless the Current Owner has had previous business dealings (other than
any transactions involving Countrywide) with the Current Owner in a similar
context.
D-2
Please
acknowledge your agreement to the terms and conditions of this Trade
Confirmation by signing in the appropriate space below and returning a copy
of
the same to the undersigned. Telecopy signatures shall be deemed valid and
binding to the same extent as the original.
|
Sincerely,
|
Agreed
to and Accepted by:
|
|||
| COUNTRYWIDE HOME LOANS, INC. |
XXXXXXX
SACHS MORTGAGE
COMPANY
|
|||
|
By:
|
||||
|
Name: |
||||
|
By:
|
|
Title: | ||
|
Name: Xxxxx Xxxxxxx |
||||
| Title: Executive Vice President | ||||
D-3
EXECUTION
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE AND PRICING INFORMATION
(attached)
X-X-0
XXXXXXX
X
XXXXXXXXXXXX
XXXXXXXXXX
(xxxxxxxx)
X-X-0
