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FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
between
XXXXXX BROTHERS BANK, FSB,
PURCHASER
and
GREENPOINT MORTGAGE FUNDING, INC.,
SELLER
CONVENTIONAL, FIXED AND ADJUSTABLE RATE, RESIDENTIAL MORTGAGE LOANS
Dated as of December 12, 2001
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.....................................................................................1
SECTION 2. CONVEYANCE FROM SELLER TO PURCHASER.............................................................7
SECTION 3. PURCHASE PRICE.................................................................................10
SECTION 4. SERVICING OF THE MORTGAGE LOANS................................................................11
SECTION 5. TRANSFER OF SERVICING..........................................................................11
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER...........................................13
SECTION 7. REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL MORTGAGE LOANS.............................17
SECTION 8. REMEDIES FOR BREACH OF REPRESENTATIONS AND WARRANTIES; ADDITIONAL REPURCHASE
OBLIGATIONS....................................................................................26
SECTION 9. INDEMNIFICATION................................................................................28
SECTION 10. CLOSING........................................................................................29
SECTION 11. CLOSING DOCUMENTS..............................................................................29
SECTION 12. MERGER OR CONSOLIDATION OF THE SELLER..........................................................30
SECTION 13. COSTS..........................................................................................31
SECTION 14. PROTECTION OF CONFIDENTIAL INFORMATION.........................................................31
SECTION 15. NOTICES........................................................................................31
SECTION 16. SEVERABILITY CLAUSE............................................................................31
SECTION 17. COUNTERPARTS...................................................................................32
SECTION 18. PLACE OF DELIVERY AND GOVERNING LAW............................................................32
SECTION 19. FURTHER AGREEMENTS.............................................................................32
SECTION 20. INTENTION OF THE PARTIES.......................................................................32
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SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.......................................33
SECTION 22. WAIVERS; OTHER AGREEMENTS......................................................................33
SECTION 23. EXHIBITS.......................................................................................33
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES................................................................33
SECTION 25. REPRODUCTION OF DOCUMENTS......................................................................34
SECTION 26. RECORDATION OF ASSIGNMENTS OF MORTGAGE.........................................................34
SECTION 27. NO PERSONAL SOLICITATION.......................................................................34
EXHIBITS
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B CONTENTS OF EACH MORTGAGE FILE
EXHIBIT C FLOW INTERIM SERVICING AGREEMENT
EXHIBIT D FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT E FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT H FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT I SELLER'S UNDERWRITING GUIDELINES
EXHIBIT J ASSIGNMENT AND CONVEYANCE
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FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This is a Flow Mortgage Loan Purchase and Warranties Agreement
(the "Agreement"), dated as of December 12, 2001, by and between Xxxxxx Brothers
Bank, FSB, having an office at Three World Financial Center, Eighth Floor, New
York, NY 10285 (the "Purchaser") and Greenpoint Mortgage Funding, Inc. having an
office at 000 Xxxxxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
(the "Seller").
WHEREAS, the Seller desires to sell to the Purchaser from time
to time, and the Purchaser desires to purchase from the Seller from time to
time, certain conventional adjustable and fixed rate residential first and
second mortgage loans (the "Mortgage Loans") on a servicing released basis as
described herein, and which shall be delivered as pools of whole loans (each a
"Mortgage Loan Package");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the related Mortgage Loan
Schedule, which is annexed hereto as Exhibit A; and
WHEREAS, the Purchaser and the Seller wish to prescribe the
manner of the conveyance, servicing and control of the Mortgage Loans.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. DEFINITIONS.
The following terms are defined as follows (except as
otherwise agreed in writing by the parties):
Accepted Servicing Practices: With respect to any Mortgage
Loan, those mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage Loan
in the jurisdiction where the related Mortgaged Property is located.
Agreement: This Flow Mortgage Loan Purchase and Warranties
Agreement and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor
thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Approved Flood Policy Insurer: Any of the following insurers:
Flood Data Services, Inc., Flood Zone, Inc., GEOTrac, or Transamerica Flood
Hazard Certification.
Approved Tax Service Contract Provider: Any of the following
providers: Transamerica or another tax servicer contract provider acceptable to
the Purchaser.
ARM Mortgage Loan: An adjustable rate Mortgage Loan.
Assignment and Conveyance: An Assignment and Conveyance
substantially in the form of Exhibit K hereto.
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.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, or
(ii) a day on which banking and savings and loan institutions in the State of
New York are authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates on which the Purchaser from
time to time shall purchase and the applicable Seller from time to time shall
sell, the Mortgage Loans listed on the related Mortgage Loan Schedule with
respect to the related Mortgage Loan Package. The Closing Date for each Mortgage
Loan Package shall be set forth on the respective Mortgage Loan Schedule or such
date or dates as are mutually agreed upon by the parties.
Combined Loan-to-Value Ratio or CLTV: With respect to any
Second Lien Mortgage Loan, the sum of the original principal balance of such
Mortgage Loan and the outstanding principal balance of any related first lien as
of the date of origination of the Mortgage Loan, divided by the Appraised Value
of the Mortgaged Property as of the origination date.
Condemnation Proceeds: All awards or settlements in respect of
a Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Credit Grade: As defined in the Underwriting Guidelines.
Custodial Account: The separate trust account created and
maintained pursuant to Section 2.04 of the Flow Interim Servicing Agreement.
Custodial Agreement: That certain Custodial Agreement dated as
of July 13, 1999 by and between the Purchaser and LaSalle National Bank, as
amended from time to time.
Custodial Assignment and Assumption Agreement: The Custodial
Assignment and Assumption Agreement, attached hereto as Exhibit L, dated as of
the related Closing Date, between the Purchaser and the Seller, whereby the
Purchaser's rights as initial Servicer under the Custodial Agreement are
assigned to the Seller.
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Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement, as therein provided.
Cut-off Date: With respect to a Mortgage Loan Package, the
date set forth in the related Mortgage Loan Schedule.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased or
substituted with a Qualified Substitute Mortgage Loan by the Seller in
accordance with the terms of this Agreement.
Determination Date: The 7th day of the month (or if such day
is not a Business Day, the first Business Day preceding such 7th day) in which
the related Remittance Date occurs.
Due Date: The day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace. With respect to the
Mortgage Loans for which payment from the Mortgagor is due on a day other than
the first day of the month, such Mortgage Loans will be treated as if the
Monthly Payment is due on the first day of the month following the actual Due
Date.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Escrow Account: The separate account created and maintained
pursuant to Section 2.06 of the Flow Interim Servicing Agreement.
Escrow Payments: With respect to any Mortgage Loan, the
amounts constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Xxxxxx Xxx: Xxxxxx Xxx, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FICO Score: Statistical credit scores obtained by Mortgage
lenders in connection with the loan application to help assess a borrower's
credit worthiness.
Xxxxxxx Mac: Xxxxxxx Mac, or any successor thereto.
Gross Margin: With respect to each Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note.
Index: Six month LIBOR or as set forth on the related Purchase
Price and Terms Letter.
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Insurance Proceeds: With respect to each Mortgage Loan,
proceeds of insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
Interest Rate Adjustment Date: The date on which an adjustment
to the Mortgage Interest Rate with respect to each Mortgage Loan becomes
effective.
Flow Interim Servicing Agreement: The Flow Interim Servicing
Agreement, dated as of the date hereof, by and between the Purchaser and Seller,
providing for the Seller to service the Mortgage Loans for an interim period as
specified by the Flow Interim Servicing Agreement.
Lifetime Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate thereunder.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the ratio of the outstanding principal amount of the Mortgage Loan as of the
related Cut-off Date (unless otherwise indicated) to the lesser of (a) the
Appraised Value of the Mortgaged Property and (b) if the Mortgage Loan was made
to finance the acquisition of the related Mortgaged Property, the purchase price
of the Mortgaged Property, expressed as a percentage.
LPMI Loan: A Mortgage Loan with a LPMI Policy.
LPMI Policy: A policy of primary mortgage guaranty insurance
issued by another Qualified Insurer pursuant to which the related premium is to
be paid by the Servicer of the related Mortgage Loan from payments of interest
made by the Mortgagor in an amount as is set forth in the related Trade
Confirmation Letter and Mortgage Loan Schedule.
LPMI Fee: With respect to each LPMI Loan, the portion of the
Mortgage Interest Rate as set forth on the related Mortgage Loan Schedule (which
shall be payable solely from the interest portion of Monthly Payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds), which, during such
period prior to the required cancellation of the LPMI Policy, shall be used to
pay the premium due on the related LPMI Policy.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on
the MERS System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage
Loan.
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Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument
securing a Mortgage Note, which creates a first or second lien on an
unsubordinated estate in fee simple in real property securing the Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage
Loan referred to in Exhibit B annexed hereto, and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the
subject of this Agreement, each Mortgage Loan originally sold and subject to
this Agreement being identified on the related Mortgage Loan Schedule, which
Mortgage Loan includes without limitation the Mortgage File, the Monthly
Payments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds, Servicing Rights and all other rights, benefits, proceeds
and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The documents contained in the
Mortgage File pertaining to each Mortgage Loan.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
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Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
to each Assignment and Conveyance delivered on each Closing Date, such schedule
setting forth the following information with respect to each Mortgage Loan: (1)
the Seller's Mortgage Loan identifying number; (2) the Mortgagor's and
Co-Mortgagor's (if applicable) names; (3) the street address of the Mortgaged
Property, including the city, state, zip code, lot number, block number and
section number; (4) a code indicating whether the Mortgaged Property is a single
family residence, a 2-4 family residence, a unit in a condominium or, a unit in
a planned unit development; (5) the original months to maturity or the remaining
months to maturity from the related Cut-off Date, in any case based on the
original amortization schedule, and if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (6) the Loan-to-Value
Ratio at origination; (6) the combined Loan-to-Value Ratio at origination; (7)
the Mortgage Interest Rate as of the related Cut-off Date; (8) the Index and
Monthly Payment and Mortgage Interest Rate adjustment frequencies; (9) with
respect to each ARM Mortgage Loan, the initial Mortgage Interest Rate adjustment
date; (10) with respect to each ARM Mortgage Loan, the initial Monthly Payment
adjustment date; (11) with respect to each ARM Mortgage Loan, the next Mortgage
Interest Rate adjustment date; (12) with respect to each ARM Mortgage Loan, the
next Monthly Payment adjustment date; (13) with respect to each ARM Mortgage
Loan, the Gross Margin; (14) with respect to each ARM Mortgage Loan, the minimum
Mortgage Interest Rate under the terms of the Mortgage Note; (15) with respect
to each ARM Mortgage Loan, the maximum Mortgage Interest Rate under the terms of
the Mortgage Note; (16) with respect to each ARM Mortgage Loan, the Mortgage
Interest Rate adjustment cap at the initial Mortgage Interest Rate adjustment
date; (17) with respect to each ARM Mortgage Loan, the Mortgage Interest Rate
adjustment cap at all subsequent Mortgage Interest Rate adjustment dates; (18)
with respect to each ARM Mortgage Loan, the Lifetime Rate Cap; (19) with respect
to each ARM Mortgage Loan, the rounding provisions under the terms of the
Mortgage Note; (20) with respect to each ARM Mortgage Loan, the lookback
provisions (#of days) under the terms of the Mortgage Note; (21) the first Due
Date; (22) the stated maturity date; (23) the amount of the Monthly Payment;
(24) the next Due Date as of the related Cut-off Date; (25) the original
principal amount of the Mortgage Loan; (26) the principal balance of the
Mortgage Loan as of the close of business on the related Cut-off Date; after
deduction of payments of principal actually received on or before the related
Cut-off Date; (27) the loan purpose code; (28) the occupancy code; (29) the
credit documentation code; (30) the debt to income ratio; (31) the Mortgagor's
and Co-Mortgagor's (if applicable) social security numbers; (32) the Mortgagor's
and Co-Mortgagor's (if applicable) FICO score; (33) the Mortgagor's mailing
address if different from Number (3) above; (34) the Mortgagor's home telephone
number; (35) the Mortgagor's business telephone number; (36) the purchase price
of the Mortgaged Property (if a purchase); (37) the Appraised Value of the
Mortgaged Property; (38) the Mortgagor's and Co-Mortgagor's (if applicable)
race; (39) the Mortgagor's and Co-Mortgagor's (if applicable) gender; (40) the
Mortgagor's and Co-Mortgagor's (if applicable) date of birth; (41) the number of
bedrooms; (42) rental income per unit; (43) the combined annual income; (44) the
application date; (45) the broker's name; (46) the broker's firm name; (47) the
appraiser's name; (48) the appraiser's firm name; (49) the settlement agent;
(50) the origination channel (wholesale, retail); (51) flood insurance provider;
(52) tax service provider; (53) number of units; (54) as of date; (55)
amortization term; (56) balloon flag; (57) prepayment penalty flag; (58)
prepayment penalty term; (59) payment history current loan; (60) payment history
previous loan all refinanced loans; (61) PMI or LPMI Policy provider; (62) PMI
or LPMI Policy coverage percentage; (63) PMI or LPMI Policy cost; (64) PMI or
LPMI Policy certificate number; (65) number of Mortgagors; (66) first time home
buyer flag; (67) year home was built; (68) the monthly tax and insurance
payment; (69) the escrow balance as of the related Cut-off Date; and (70) the
MIN number assigned to each Mortgage Loan. With respect to the Mortgage Loans in
the aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; and (4)
the weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of
the Board or the Vice Chairman of the Board or the President or a Vice President
and by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
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Opinion of Counsel: A written opinion of counsel, who may be
an employee of the Seller, reasonably acceptable to the Purchaser.
Periodic Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum amount by which the Mortgage Interest Rate
therein may increase on an Interest Rate Adjustment Date above the Mortgage
Interest Rate previously in effect.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance
issued by a Qualified Insurer, as required by this Agreement with respect to
certain Mortgage Loans.
Prime Rate: The prime rate announced to be in effect from time
to time, as published as the average rate under the "Money Rates" section of The
Wall Street Journal.
Purchase Price: The price paid on the related Closing Date by
the Purchaser to the Seller in exchange for the Mortgage Loans as calculated in
Section 3 of this Agreement.
Purchase Price and Terms Letter: With respect to each Mortgage
Loan Package purchased by the Purchaser, that certain letter agreement setting
forth the general terms and conditions of the transaction and identifying the
Mortgage Loans to be purchased, by and between the Seller and the Purchaser. The
date of each Purchase Price and Terms Letter to which the purchase of a Mortgage
Loan Package relates shall be set forth on the applicable Mortgage Loan
Schedule.
Purchaser: Xxxxxx Brothers Bank, FSB or its successor in
interest or assigns or any successor to the Purchaser under this Agreement as
herein provided.
Qualified Appraiser: An appraiser, duly appointed by the
Seller, who had no interest, direct or indirect, in the Mortgaged Property or in
any loan made on the security thereof, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Title XI of
the Federal Institutions Reform, Recovery and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Mae or Xxxxxxx Mac.
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Qualified Substitute Mortgage Loan: A mortgage loan eligible
to be substituted by the Seller for a Deleted Mortgage Loan which must, on the
date of such substitution, (i) have an outstanding principal balance, after
deduction of all scheduled payments due in the month of substitution (or in the
case of a substitution of more than one mortgage loan for a Deleted Mortgage
Loan, an aggregate principal balance), not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) have a Mortgage Interest Rate not
less than and not more than 2% greater than the Mortgage Interest Rate of the
Deleted Mortgage Loan; (iii) have a remaining term to maturity not greater than
and not more than one year less than that of the Deleted Mortgage Loan; (iv)
have a Gross Margin not less than that of the Deleted Mortgage Loan; (v) have a
maximum Mortgage Interest Rate Cap not less than that of the Deleted Mortgage
Loan; (vi) have a maximum periodic mortgage Interest Rate Cap not less than that
of the Deleted Mortgage Loan; (vii) have a Credit Grade equal to that of the
Deleted Mortgage Loan; and (viii) comply with each representation and warranty
set forth in Section 6 and 7.
Remittance Date: The 10th day of each month (or if such day is
not a Business Day, the Business Day immediately following such 10th day) and
with respect to the month in which the related Transfer Date occurs, the related
Transfer Date.
REO Disposition Proceeds: All amounts received with respect to
an REO disposition.
Repurchase Price: With respect to any Mortgage Loan, a price
equal to (i) the Stated Principal Balance of the Mortgage Loan plus (ii)
interest on such Stated Principal Balance at the Mortgage Interest Rate from the
date on which interest has last been paid and distributed to the Purchaser to
the date of repurchase, less amounts received, if any, plus amounts advanced, if
any, by any servicer, in respect of such repurchased Mortgage Loan.
Seller: Greenpoint Mortgage Funding, Inc. or its successor in
interest or assigns or any successor to the Seller under this Agreement as
herein provided.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second
priority lien on the related Mortgaged Property.
Servicing File: With respect to each Mortgage Loan the file
retained by the Seller consisting of originals of all documents in the Mortgage
File, which are not delivered to the Purchaser or the Purchaser's designee, and
copies of the Mortgage Loan Documents listed on Exhibit B hereto
Servicing Rights: Any and all of the following: (a) any and
all rights to service the Mortgage Loans; (b) any payments to or monies received
by the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage Loans.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal received on or before such date, 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.
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Texas Home Equity Loan: An extension of credit described in
Section 50(a)(6), Article XVI of the Texas Constitution.
Transfer Date: With respect to each Mortgage Loan, the date on
which the Purchaser, or its designee, shall receive the transfer of servicing
responsibilities and begin to perform the servicing of the Mortgage Loans, and
the Seller shall cease all servicing responsibilities. Such date shall occur on
the day provided in the related Acknowledgement Agreement.
Underwriting Guidelines: With respect to each Mortgage Loan,
the underwriting guidelines of the Seller with respect to the related mortgage
loan product identified on the related Purchase Price and Terms Letter, which
shall be delivered to the Purchaser by the Seller on or before the related
Closing Date.
The parties intend hereby to set forth the terms and
conditions upon which the proposed transactions will be effected, and, in
consideration of the premises and the mutual agreements set forth herein, agree
as follows:
SECTION 2. CONVEYANCE FROM SELLER TO PURCHASER.
(a) Conveyance of Mortgage Loans; Possession of Mortgage
Files.
From time to time, the Seller hereby agrees to sell, transfer,
assign, set over and convey to the Purchaser, on the related Closing Date,
without recourse, but subject to the terms of this Agreement, all rights, title
and interest of the Seller in and to the Mortgage Loans in the related Mortgage
Loan Package, together with the Servicing Rights and Mortgage Files and all
rights and obligations arising under the documents contained therein. Pursuant
to Section 2(c) hereof, on or prior to the related Closing Date, the Seller
shall deliver each Mortgage File to the Purchaser. The contents of each
Servicing File required to be retained by the Seller to service the Mortgage
Loans pursuant to the Flow Interim Servicing Agreement and thus not delivered to
the Purchaser are and shall be held in trust by the Seller for the benefit of
Purchaser as the owner thereof. The Seller's possession of any portion of the
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to the Flow Interim
Servicing Agreement, and such retention and possession by the Seller shall be in
a custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the contents of the Mortgage File and Servicing File is vested in the Purchaser
and the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Seller at the will of the Purchaser in such custodial capacity
only. The Servicing File retained by the Seller pursuant to the Flow Interim
Servicing Agreement shall be segregated from the other books and records of the
Seller and shall be appropriately marked to clearly reflect the sale of the
related Mortgage Loan to the Purchaser. The Seller shall release from its
custody the contents of any Servicing File retained by it only in accordance
with the Flow Interim Servicing Agreement, except when such release is required
in connection with a repurchase of any such Mortgage Loan pursuant to Section 8.
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The Seller, simultaneously with the delivery of the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package to be
purchased on each Closing Date shall execute and deliver an Assignment and
Conveyance in the form attached hereto as Exhibit K.
(b) Books and Records.
Record title to each Mortgage and the related Mortgage Note
shall be in the name of the Purchaser or as Purchaser shall designate. All
rights arising out of the Mortgage Loans including, but not limited to, all
funds received by the Seller after the related Cut-off Date on or in connection
with a Mortgage Loan shall be vested in the Purchaser; provided, however, that
all funds received on or in connection with a Mortgage Loan shall be received
and held by the Seller in trust for the benefit of the Purchaser as the owner of
the Mortgage Loans pursuant to the terms of the Flow Interim Servicing
Agreement.
The sale of each Mortgage Loan shall be reflected on the
Seller's balance sheet and other financial statements as a sale of assets by the
Seller.
(c) Delivery of Mortgage Loan Documents.
At least seven Business Days prior to the related Closing
Date, the Seller shall deliver to the Purchaser, or its designee, each of the
following documents for each Mortgage Loan in the related Mortgage Loan Package:
(i) The original Mortgage Note endorsed, "Pay to the order of
________________, without recourse" and signed in the name of the
Seller by an authorized officer. In the event that the Mortgage Loan
was acquired by the Seller in a merger, the endorsement must be by
"Greenpoint Mortgage Funding, Inc., successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the
endorsement must be by "Greenpoint Mortgage Funding, Inc., formerly
known as [previous name]";
(ii) Original recorded Mortgage, with evidence of recording
information thereon except for any Mortgage which has been forwarded to
the appropriate recorder's office for recordation and which has not
been returned by such recording officer, in which case the Seller shall
deliver and release to Purchaser a certified true copy of any such
Mortgage so certified by the Seller with evidence of such Mortgage's
delivery to the appropriate recorder's office. In addition, the Seller
shall deliver and release to the Purchaser the original recorded
Mortgage within 90 days after the related Closing Date;
(iii) Original Assignment of Mortgage, in blank, which
assignment shall be in form and substance acceptable for recording but
not recorded. In the event that the Mortgage Loan was acquired by the
Seller in a merger, the assignment must be by "Greenpoint Mortgage
Funding, Inc., successor by merger to [name of predecessor]"; and in
the event that the Mortgage Loan was acquired or originated by the
Seller while doing business under another name, the assignment must be
by "Greenpoint Mortgage Funding, Inc., formerly known as [previous
name]";
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(iv) Original policy of title insurance, except for those
Mortgage Loans originated within 60 days before the related Closing
Date, for which Mortgage Loans the Seller shall have delivered and
released to the Purchaser the related binders. In addition, the Seller
shall deliver to the Purchaser the original policy of title insurance
within 90 days after the related Closing Date. The policy must be
properly endorsed, any necessary notices of transfer must be forwarded
and any other action required to be taken must be taken in order to
fully protect, under the terms of the policy and applicable law,
Purchaser's interest as first mortgagee;
(v) Original of all assumption, extensions and modification
agreements;
(vi) If required under Section 7, the original policy of
primary mortgage guaranty insurance, or where such insurance is
provided by a master policy, a certified true copy of the master policy
and the original certificate of insurance;
(vii) Original recorded intermediate assignments of the
Mortgage, including warehousing assignments, if any; and
(viii) The contents of the Mortgage File for each Mortgage
Loan, not expressly stated herein, and as set forth in Exhibit B
hereto, except such documents retained by the Seller pursuant to
Section 2(a) herein.
The Mortgage Loan Documents listed in (i) - (vii) of this
subsection 2(c) shall be delivered to the Purchaser notwithstanding the
execution of the Flow Interim Servicing Agreement by the Purchaser and the
Seller.
Pursuant to the Custodial Agreement delivered to the Purchaser
contemporaneously with the delivery of this Agreement, the Seller has delivered
and released to the Custodian those Mortgage Loan Documents listed in (i) -
(vii) of this subsection 2(c) and as required by the Custodial Agreement with
respect to each Mortgage Loan a list of which is set forth in the Custodial
Agreement.
The Custodian has certified its receipt of all such Mortgage
Loan Documents required to be delivered pursuant to the Custodial Agreement, as
evidenced by the Initial Certification of the Custodian in the form annexed to
the Custodial Agreement. The Purchaser shall be responsible for maintaining the
Custodial Agreement and shall pay all fees and expenses of the Custodian.
The Seller shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with the Flow Interim Servicing
Agreement within one week of their execution, provided, however, that the Seller
shall provide the Custodian with a certified true copy of any such document
submitted for recordation within one week 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 sixty days of its submission for
recordation.
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On or prior to the date which is four Business Days prior to
the related Closing Date, the Seller shall deliver to the Purchaser the related
Mortgage Loan Schedule.
SECTION 3. PURCHASE PRICE.
(a) With respect to the purchase of each Mortgage Loan
Package, the related Purchase Price shall be the applicable percentage of par as
stated in the Purchase Price and Terms Letter, multiplied by the aggregate
principal balance, as of the related Cut-off Date, of the Mortgage Loans listed
on the related Mortgage Loan Schedule, after application of payments of
principal actually received on or before the related Cut-off Date. The initial
principal amount of the Mortgage Loans shall be the aggregate principal balance
of the Mortgage Loans, so computed as of the related Cut-off Date.
In addition to the Purchase Price as described above, the
Purchaser shall pay to the Seller, at closing, accrued interest on the initial
principal amount of the Mortgage Loans in the related Mortgage Loan Package at
the Mortgage Interest Rate less the servicing fee pursuant to and in accordance
with the Flow Interim Servicing Agreement, (if applicable), from the date
interest was last received on the Mortgage Loan through the day prior to the
related Closing Date, inclusive.
(b) The Purchase Price for a Mortgage Loan Package shall be
paid on the related Closing Date by wire transfer of immediately available
federal funds.
(c) With respect to each Mortgage Loan in a Mortgage Loan
Package, the Purchaser shall be entitled to (1) all principal received after the
related Cut-off Date, (2) all other recoveries of late charges, assumption fees
or other charges collected after the related Cut-off Date, and (3) all payments
of interest on the Mortgage Loans at the Mortgage Interest Rate. The principal
balance of each Mortgage Loan as of the related Cut-off Date is determined after
application of payments of principal received on or before the related Cut-off
Date. All payments of principal and interest (minus interest at the servicing
fee rate, pursuant to the Flow Interim Servicing Agreement) received after the
related Cut-off Date shall belong to the Purchaser.
SECTION 4. SERVICING OF THE MORTGAGE LOANS.
The Mortgage Loans have been sold by the Seller to the
Purchaser on a servicing released basis. Subject to, and upon the terms and
conditions of this Agreement and the Flow Interim Servicing Agreement with
respect to the Mortgage Loans in each Mortgage Loan Package, the Seller hereby
sells, transfers, assigns and delivers to the Purchaser the Servicing Rights.
The Purchaser shall retain the Seller as the contract servicer
of the Mortgage Loans for an interim period pursuant to and in accordance with
the terms and conditions contained in the Flow Interim Servicing Agreement. The
Purchaser and Seller shall execute the Flow Interim Servicing Agreement on the
initial Closing Date in the form attached hereto as Exhibit C.
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Pursuant to the Flow Interim Servicing Agreement, the Seller
shall begin servicing the Mortgage Loans on behalf of the Purchaser and shall be
entitled to all servicing fees due the Seller as set forth in the Flow Interim
Servicing Agreement. The Seller shall conduct such servicing in accordance with
the terms of the Flow Interim Servicing Agreement.
SECTION 5. TRANSFER OF SERVICING.
On the related Transfer Date, the Purchaser, or its designee,
shall assume all servicing responsibilities related to, and the Seller shall
cease all servicing responsibilities related to, the Mortgage Loans transferred
on such date. The Related Transfer Date for each Mortgage Loan shall be the date
set forth in the Acknowledgment Agreement.
On or prior to the Related Transfer Date the Seller shall, at
its sole cost and expense take such steps as may be necessary or appropriate to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Purchaser, or its designee, including but not limited to the
following:
(a) Notice to Mortgagors. The Seller shall mail to the
Mortgagor of each Mortgage a letter advising the Mortgagor of the transfer of
the servicing of the related Mortgage Loan to the Purchaser, or its designee; in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990
provided, however, the content and format of the letter shall have the prior
approval of the Purchaser. The Seller shall provide the Purchaser's designee
with copies of all such notices no later than the Related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The
Seller shall transmit to the applicable applicable tax services, taxing
authorities and insurance companies (including primary mortgage insurance policy
insurers and flood insurance insurers, if applicable) and/or agents,
notification of the transfer of the servicing to the Purchaser or its designee,
or its designee, and instructions to deliver all notices, tax bills and
insurance statements, as the case may be, to the Purchaser of its designee from
and after the Related Transfer Date. The Seller shall provide the Purchaser or
its designee with copies of all such notices no later than the Related Transfer
Date.
(c) Delivery of Servicing Records. The Seller shall forward to
the Purchaser, or its designee, all servicing records and the Servicing File in
the Seller's possession relating to each Mortgage Loan including the information
enumerated in the Flow Interim Servicing Agreement.
(d) Escrow Payments. The Seller shall provide the Purchaser,
or its designee, with immediately available funds by wire transfer in the amount
of the net Escrow Payments and suspense balances and all loss draft balances
associated with the Mortgage Loans. The Seller shall provide the Purchaser or
its designee with an accounting statement of Escrow Payments and suspense
balances and loss draft balances sufficient to enable the Purchaser to reconcile
the amount of such payment with the accounts of the Mortgage Loans.
Additionally, the Seller shall wire transfer to the Purchaser or its designee
the amount of any agency, trustee or prepaid Mortgage Loan payments and all
other similar amounts held by the Seller.
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(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the transferred Mortgage Loans from the related
Cut-off Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior
to the related Transfer Date all payments received by the Seller on each
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The amount
of any Monthly Payments received by the Seller with respect to any transferred
Mortgage Loan after the related Transfer Date shall be forwarded to the
Purchaser by overnight mail on the date of receipt. The Seller shall notify the
Purchaser of the particulars of the payment, which notification requirement
shall be satisfied if the Seller forwards with its payment sufficient
information to permit appropriate processing of the payment by the Purchaser.
The Seller shall assume full responsibility for the necessary and appropriate
legal application of Monthly Payments received by the Seller after the related
Transfer Date with respect to Mortgage Loans then in foreclosure or bankruptcy;
provided, for purposes of this Agreement, necessary and appropriate legal
application of such Monthly Payments shall include, but not be limited to,
endorsement of a Monthly Payment to the Purchaser with the particulars of the
payment such as the account number, dollar amount, date received and any special
Mortgagor application instructions.
(h) Misapplied Payments. Misapplied payments shall be
processed as follows:
(i) All parties shall cooperate in correcting misapplication
errors;
(ii) The party receiving notice of a misapplied payment
occurring prior to the related Transfer Date and discovered after the
related Transfer Date shall immediately notify the other party;
(iii) If a misapplied payment which occurred prior to the
related Transfer Date cannot be identified and said misapplied payment
has resulted in a shortage in a Custodial Account or Escrow Account,
the Seller shall be liable for the amount of such shortage. The Seller
shall reimburse the Purchaser for the amount of such shortage within
thirty (30) days after receipt of written demand therefor from the
Purchaser;
(iv) If a misapplied payment which occurred prior to the
related Transfer Date has created an improper Purchase Price as the
result of an inaccurate outstanding principal balance, a check shall be
issued to the party shorted by the improper payment application within
five (5) Business Days after notice thereof by the other party;
(v) Any check issued under the provisions of this Section 5(h)
shall be accompanied by a statement indicating the corresponding Seller
and/or the Purchaser Mortgage Loan identification number and an
explanation of the allocation of any such payments.
(i) Books and Records. On the related Transfer Date, the
books, records and accounts of the Seller with respect to the transferred
Mortgage Loans shall be in accordance with all applicable Purchaser
requirements.
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(j) Reconciliation. The Seller shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be transferred
between the Seller and the Purchaser as appropriate.
(k) IRS Forms. The Seller shall prepare and file all IRS forms
1098, 1099 and other applicable forms and reports which are required to be filed
with respect to the period prior to the related Transfer Date in relation to the
servicing and ownership of the Mortgage Loans. The Seller shall provide copies
of such forms to the Purchaser upon request and shall reimburse the Purchaser
for any costs or penalties incurred by the Purchaser due to the Seller's failure
to comply with this paragraph. The Purchaser or the Purchaser's designee shall
prepare and file all such reports with respect to any period commencing on or
after the related Transfer Date.
(l) Tax Service Contracts. With respect to each Mortgage Loan
for which there is a tax service contract with an Approved Tax Service Contract
Provider in effect on the related Transfer Date, the Seller shall assign such
Tax Service Contract to the Purchaser or the Purchaser's designee. In the event
that the Seller is unable to assign the Tax Service Contract to the Purchaser or
the Purchaser's designee, the Seller shall purchase a Tax Service Contract and
assign the same to the Purchaser or the Purchaser's designee.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
SELLER.
The Seller, as a condition to the consummation of the
transactions contemplated hereby, hereby makes the following representations and
warranties to the Purchaser as of each Closing Date:
(a) Due Organization and Authority. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the state of California and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Seller, and in any event the Seller is in compliance with the
laws of any such state to the extent necessary to ensure the enforceability of
the related Mortgage Loan in accordance with the terms of this Agreement; the
Seller has the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the Seller;
and all requisite corporate action has been taken by the Seller to make this
Agreement valid and binding upon the Seller in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
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(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the Mortgage Loans by the Seller, the sale of the
Mortgage Loans to the Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Seller's charter or by-laws or any legal restriction or any
agreement or instrument to which the Seller is now a party or by which it is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Seller or its property is subject, or impair the
ability of the Purchaser to realize on the Mortgage Loans, or impair the value
of the Mortgage Loans;
(d) Ability to Perform. The Seller does not believe, nor does
it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Seller is solvent and the sale of the
Mortgage Loans will not cause the Seller to become insolvent. The sale of the
Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any
of the Seller's creditors;
(e) No Litigation Pending. There is no action, suit,
proceeding or investigation pending or threatened against the Seller which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the right or ability of
the Seller to carry on its business substantially as now conducted, or in any
material liability on the part of the Seller, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of the Seller contemplated
herein, or which would be likely to impair materially the ability of the Seller
to perform under the terms of this Agreement;
(f) 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 Seller of or compliance by the Seller
with this Agreement or the Mortgage Loans, the delivery of a portion of the
Mortgage Files to the Custodian or the sale of each Mortgage Loan Package to the
Purchaser or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the related
Closing Date;
(g) Selection Process. The Mortgage Loans were not
intentionally selected in a manner so as to affect adversely the interests of
the Purchaser;
(h) No Untrue Information. Neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of fact or omits to state a fact necessary to make
the statements contained therein not misleading;
(i) Sale Treatment. The Seller has determined that the
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for accounting and tax purposes;
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(j) No Commissions to Third Parties. The Seller has not dealt
with any broker or agent or anyone else who might be entitled to a fee or
commission in connection with this transaction other than the Purchaser;
(k) Pool Characteristics. All pool characteristics set forth
in each Assignment and Conveyance delivered are true and correct;
(l) Financial Statements. The Seller has delivered to the
Purchaser financial statements as to its last three complete fiscal years and
any later quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent results of
operations and changes in financial position at the end of each such period of
the Seller and its subsidiaries and have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as set forth in the notes thereto. In addition, the
Seller has delivered information as to its loan gain and loss experience for the
immediately preceding three-year period, in each case with respect to mortgage
loans owned by it and such mortgage loans serviced for others during such
period, and all such information so delivered is true and correct in all
material respects. There has been no change in the business, operations,
financial condition, properties or assets of the Seller since the date of the
Seller's financial statements that would have a material adverse effect on its
ability to perform its obligations under this Agreement. The Seller has
completed any forms requested by the Purchaser in a timely manner and in
accordance with the provided instructions;
(m) Fair Consideration. The consideration received by the
Seller upon the sale of each Mortgage Loan Package under this Agreement
constitutes fair consideration and reasonably equivalent value for the Mortgage
Loans;
(n) MERS. The Seller is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS;
(o) Seller's Origination. The Seller's decision to originate
any mortgage loan or to deny any mortgage loan application is an independent
decision based upon Seller's Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated.
SECTION 7. REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL
MORTGAGE LOANS.
As to each Mortgage Loan, the Seller hereby represents and
warrants to the Purchaser that as of the related Closing Date:
(a) Mortgage Loans as Described. The information set forth in
the related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to
the related Closing Date for the Mortgage Loan under the terms of the Mortgage
Note have been made and credited. No payment required under the Mortgage Loan is
delinquent nor has any payment under the Mortgage Loan been delinquent for 30
days or more in the 12 months preceding the related Closing Date. The first
Monthly Payment shall be made with respect to the Mortgage Loan on its Due Date
or within the grace period, all in accordance with the terms of the related
Mortgage Note;
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(c) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or an escrow
of funds has been established in an amount sufficient to pay for every such item
which remains unpaid and which has been assessed but is not yet due and payable.
The Seller has not advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is earlier, to the day
which precedes by one month the Due Date of the first installment of principal
and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note
and Mortgage have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to protect
the interests of the Purchaser and which has been delivered to the Purchaser.
The substance of any such waiver, alteration or modification has been approved
by the issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the related Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Purchaser and the terms of which are reflected in the related Mortgage Loan
Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right
of rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated;
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(f) Hazard Insurance. Pursuant to the terms of the Mortgage,
all buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located pursuant to insurance policies conforming to the requirements of
Xxxxxx Xxx and Xxxxxxx Mac. If upon origination of the Mortgage Loan, the
Mortgaged Property was in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards a
life-of-loan flood insurance policy meeting the requirements of the current
guidelines of the Federal Flood Insurance Administration is in effect which
policy conforms to the requirements of Xxxxxx Xxx and Xxxxxxx Mac. Such flood
insurance shall be with an Approved Flood Policy Insurer. All individual
insurance policies contain a standard mortgagee clause naming the Seller and its
successors and assigns as mortgagee, and all premiums thereon have been paid.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Mortgagor's cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering the common facilities of a planned unit development. The hazard
insurance policy is the valid and binding obligation of the insurer, is in full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by this
Agreement. The Seller has not engaged in, and has no knowledge of the
Mortgagor's or any subservicer's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either, including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements
of any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with, and the Seller shall maintain in its possession, available
for the Purchaser's inspection, and shall deliver to the Purchaser on the
related Transfer Date, evidence of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged
Property is a fee simple property located in the state identified in the related
Mortgage Loan Schedule and consists of a single parcel of real property with a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a low-rise condominium project,
or an individual unit in a planned unit development, provided, however, that any
condominium unit or planned unit development shall conform with the applicable
Xxxxxx Mae requirements regarding such dwellings and that no residence or
dwelling is a mobile home or a manufactured dwelling. No portion of the
Mortgaged Property is used for commercial purposes;
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(j) Valid First or Second Lien. The Mortgage is a valid,
subsisting enforceable and perfected first or second lien and first priority
security interest on the Mortgaged Property, including all buildings on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (i) referred to or
to otherwise considered in the appraisal made for the originator of the
Mortgage Loan or (ii) which do not adversely affect the appraised value
of the Mortgaged Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property.
(4) with respect to each Second Lien Mortgage a prior mortgage
lien on the 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 (A) first lien and
first priority security interest with respect to each First Lien Mortgage Loan,
or (B) second lien and second priority security interest with respect to each
Second Lien Mortgage Loan, in either case, on the property described therein and
the Seller has full right to sell and assign the same to the Purchaser. The
Mortgaged Property was not, as of the date of origination of the Mortgage Loan,
subject to a mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Mortgage;
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(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms. All parties to the
Mortgage Note and the Mortgage and any other related agreement had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage and any other related agreement, and the Mortgage Note and
the Mortgage and any other related agreement have been duly and properly
executed by such parties. The documents, instruments and agreements submitted
for loan underwriting were not falsified and contain no untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the information and statements therein not misleading. No
fraud was committed in connection with the origination of the Mortgage Loan. The
Seller has reviewed all of the documents constituting the Servicing File and has
made such inquiries as it deems necessary to make and confirm the accuracy of
the representations set forth herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder, and any and all requirements
as to completion of any on-site or off-site improvement and as to disbursements
of any escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording of
the Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and
holder of the Mortgage Loan. The Mortgage Loan is not assigned or pledged, and
the Seller has good and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan therein to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement;
(n) Doing Business. All parties which have had any interest in
the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (2) organized under
the laws of such state, or (3) qualified to do business in such state, or (4)
federal savings and loan associations or national banks having principal offices
in such state, or (5) not doing business in such state;
(o) LTV, PMI Policy. The Mortgage Loan has an LTV equal to or
less than ___%. Except with respect to those Mortgage Loans identified on
Exhibit C to the applicable Assignment and Conveyance, the LTV of the Mortgage
Loan either is not more than 80% or the excess over 75% of the Appraised Value
is and will be insured as to payment defaults by a PMI Policy until the LTV of
such Mortgage Loan is reduced to 80%. All provisions of such PMI Policy have
been and are being complied with, such policy is in full force and effect, and
all premiums due thereunder have been paid. No action, inaction, or event has
occurred and no state of facts exists that has, or will result in the exclusion
from, denial of, or defense to coverage. Any Mortgage Loan subject to a PMI
Policy obligates the Mortgagor thereunder to maintain the PMI Policy and to pay
all premiums and charges in connection therewith; provided, that, with respect
to LPMI Loans, the related Servicer is obligated thereunder to maintain the LPMI
Policy and to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage Loan
Schedule is net of any such insurance premium;
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy or other generally acceptable form of policy of
insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller, its
successors and assigns, as to the first or second priority lien of the Mortgage
in the original principal amount of the Mortgage Loan , and against any loss by
reason of the invalidity or unenforceability of the lien resulting from the
provisions of the Mortgage providing for adjustment in the Mortgage Interest
Rate and Monthly Payment, subject only to the exceptions contained in and
clauses (1), (2), and (3), and with respect to each Second Lien Mortgage Loan
clause (4) of paragraph (j) of this Section 7. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein. The
Seller is the sole insured of such lender's title insurance policy, and such
lender's title insurance policy is in full force and effect and will be in force
and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder of the Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
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(q) No Defaults. 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 neither the Seller nor its predecessors have waived any
default, breach, violation or event of acceleration. With respect to each Second
Lien Mortgage Loan, (i) the prior mortgage is in full force and effect, (ii)
there is no default, breach, violation or event of acceleration existing under
such prior mortgage or the related mortgage note, (iii) 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
thereunder, and either (A) the prior mortgage contains a provision which allows
or (B) applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to cure any
default by payment in full or otherwise under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
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(t) Origination: Payment Terms. Principal payments on the
Mortgage Loan commenced no more than sixty (60) days after the funds were
disbursed in connection with the Mortgage Loans. 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 savings bank, a commercial bank
or similar banking institution which is supervised and examined by a Federal or
State authority. The Mortgage Interest Rate is (a) with respect to fixed rate
Mortgage Loans, the fixed interest rate set forth in the Mortgage Note, or (b)
with respect to ARM Mortgage Loans, adjusted semi-annually on each Interest Rate
Adjustment Date to equal the Index plus the Gross Margin, rounded up or down to
the nearest 0.125%, subject to the Periodic Rate Cap and the Lifetime Rate Cap.
The Mortgage Note is payable in equal monthly installments of principal and
interest, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an original
term of not more than thirty years from commencement of amortization. No
Mortgage Loan provides for negative amortization;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption;
(v) Conformance with Underwriting Guidelines. The Mortgage
Loan was underwritten in accordance with the related Seller's Underwriting
Guidelines. The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or Xxxxxx Mae;
(w) Occupancy of the Mortgaged Property. As of the related
Closing Date the Mortgaged Property is lawfully occupied under applicable law.
All inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(x) No Additional Collateral. The Mortgage Note is not and has
not been secured by any collateral except the lien of the corresponding Mortgage
and the security interest of any applicable security agreement or chattel
mortgage referred to in (j) above;
(y) Deeds 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;
(z) Acceptable Investment. The Seller has no knowledge of any
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that can reasonably
be expected to cause private institutional investors to regard the Mortgage Loan
as an unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan;
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(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered by the Seller under this Agreement have been delivered to the
Purchaser or the Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit B, except for such documents
the originals of which have been delivered to the Purchaser or the Custodian;
(bb) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimus planned unit development) such condominium or planned unit development
project meets Xxxxxx Xxx eligibility requirements for sale to Xxxxxx Mae or is
located in a condominium or planned unit development project which has received
Xxxxxx Xxx project approval and the representations and warranties required by
Xxxxxx Mae with respect to such condominium or planned unit development have
been made and remain true and correct in all respects;
(cc) Due on Sale. The Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagee thereunder;
(dd) Transfer of Mortgage Loans. 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;
(ee) No Buydown Provisions; No Graduated Payments or
Contingent Interests. The Mortgage Loan does not contain provisions pursuant to
which Monthly Payments are paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor or anyone on behalf of
the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions currently in effect which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(ff) Consolidation of Future Advances. Any future advances
made prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan;
(gg) Mortgaged Property Undamaged. There is no proceeding
pending or threatened for the total or partial condemnation of the Mortgaged
Property. The Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Mortgage Loan
or the use for which the premises were intended;
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(hh) Collection Practices; Escrow Deposits; ARM Adjustments.
The origination and collection practices used with respect to the Mortgage Loan
have been in accordance with Accepted Servicing Practices, in all respects in
compliance with all applicable laws and regulations and in all material respects
proper and prudent in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments (other than with respect to
Second Lien Mortgage Loans for which the mortgagee under the prior mortgage lien
is collecting Escrow Payments), all such payments are in the possession of the
Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law. An
escrow of funds is not prohibited by applicable law and has been established in
an amount sufficient to pay for every item which remains unpaid and which has
been assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Seller have been capitalized under
the Mortgage or the Mortgage Note. With respect to ARM Mortgage Loans, all
Mortgage Interest Rate adjustments have been made in strict compliance with
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. No ARM Mortgage Loan provides for conversion of the Mortgage Loan to a
fixed rate Mortgage Loan;
(ii) Appraisal. The Mortgage File contains an appraisal of the
related Mortgage Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser.
(jj) Soldiers' and Sailors' Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Soldiers' and Sailors' Civil Relief Act of
1940;
(kk) Environmental Matters. The Mortgaged Property is free
from any and all toxic or hazardous substances 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
the Seller is aware in which compliance with any environmental law, rule or
regulation is an issue; and to the best of the Seller'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;
(ll) No Construction Loans. No Mortgage Loan was made in
connection with (i) the construction or rehabilitation of a Mortgaged Property
or (ii) facilitating the trade-in or exchange of a Mortgaged Property;
(mm) No Denial of Insurance. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action,
inaction, or event has occurred and no state of fact exists or has existed that
has resulted or will result in the exclusion from, denial of, or defense to
coverage under any applicable pool insurance policy, special hazard insurance
policy, PMI Policy or bankruptcy bond, irrespective of the cause of such failure
of coverage. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be received by the
Seller or any designee of the Seller or any corporation in which the Seller or
any officer, director, or employee had a financial interest at the time of
placement of such insurance;
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(nn) Regarding the Mortgagor. The Mortgagor is one or more
natural persons and/or trustees for an Illinois land trust or a trustee under a
"living trust" and such "living trust" is in compliance with Xxxxxx Xxx
guidelines for such trusts; and
(oo) Mortgagor Acknowledgment. With respect to each ARM
Mortgage Loan, the Mortgagor has executed a statement to the effect that the
Mortgagor has received all disclosure materials required by applicable law with
respect to the making of adjustable rate mortgage loans. The Seller shall
maintain such statement in the Mortgage File.
(pp) Simple Interest Mortgage Loans. None of the Mortgage
Loans are simple interest Mortgage Loans.
(qq) Single Premium Credit Life Insurance. None of the
proceeds of the Mortgage Loan were used to finance single-premium credit life
insurance policies.
(rr) Tax Service Contract The Seller has obtained a life of
loan, transferable real estate Tax Service Contract with an Approved Tax Service
Contract Provider on each Mortgage Loans and such contract is assignable to the
Purchaser without penalty, premium or cost to the Purchaser. Such Tax Service
Contract contains complete and accurate information with respect to the Mortgage
Loan and the Mortgaged Property;
(ss) Flood Certification Contract. The Seller has obtained a
life of loan, transferable flood certification contract for each Mortgage Loan
and such contract is assignable to the Purchaser or the Purchaser's designee
without penalty, premium or cost to the Purchaser. Such flood certification
contract contains complete and accurate information with respect to the Mortgage
Loan and the Mortgaged Property;
(tt) Recordation. Each original Mortgage was recorded and,
except for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(uu) FICO Scores. Each Mortgage Loan has a non-zero FICO
score. No Mortgage Loan has a Mortgagor with a FICO Score of less than ___;
(vv) High Cost Mortgage Loans. The related Mortgagor has been
provided with all disclosure materials required by Section 226.32 of the Federal
Reserve Board Regulation Z with respect to any Mortgage Loans subject to such
Section of the Federal Reserve Board Regulation Z and has complied with the
requirements of any federal, state or local law with respect to `high cost',
`threshold' or `predatory' loans.
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(ww) Texas Home Equity Loans. With respect to any Mortgage
Loan which is a Texas Home Equity Loan, any and all requirements of Section 50,
Article XVI of the Texas Constitution applicable to Texas Home Equity Loans
which were in effect at the time of the origination of the Mortgage Loan have
been complied with. Specifically, without limiting the generality of the
foregoing, any fees paid in connection with such Mortgage Loan in order for the
Mortgagor to receive a reduced interest rate are not required to be included in
the calculation of the aggregate fees pursuant to Section 50(a)(6)(E) of the
Texas Constitution.
(xx) Prepayment Fee. With respect to each Mortgage Loan that
has a prepayment fee feature, each such prepayment fee is enforceable and will
be enforced by the Seller, and each prepayment penalty in permitted pursuant to
federal, state and local law. No Mortgage Loan will impose a prepayment penalty
for a term in excess of five years from the date such Mortgage Loan was
originated. Except as otherwise set forth in the related Mortgage Loan Schedule,
with respect to each Mortgage Loan that contains a prepayment fee, such
prepayment fee is at least equal to the lesser of (A) the maximum amount
permitted under applicable law and (B) six months interest at the related
Mortgage Interest Rate on the amount prepaid in excess of 20% of the original
principal balance of such Mortgage Loan.
(yy) Origination. No error, omission, misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage Loan has
taken place on the part of any person including without limitation the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination of the Mortgage Loan or, in the application of any insurance
in relation to such Mortgage Loan; no predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan.
(zz) Consent. Either (a) no consent for the Second Lien
Mortgage Loan is required by the holder of the related first lien or (b) such
consent has been obtained and is contained in the Mortgage File;
SECTION 8. REMEDIES FOR BREACH OF REPRESENTATIONS AND
WARRANTIES; ADDITIONAL REPURCHASE OBLIGATIONS.
(a) It is understood and agreed that the representations and
warranties set forth in Sections 6 and 7 shall survive each sale of Mortgage
Loans to the Purchaser and the delivery of the Mortgage Loan Documents to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by either the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser or which
materially and adversely affects the interests of Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan (in the case of any of the foregoing, a "Breach"), the
party discovering such Breach shall give prompt written notice to the other.
27
(b) With respect to those representations and warranties which
are made to the best of the Seller's knowledge, if it is discovered by the
Seller or the Purchaser that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value of
the related Mortgage Loan or the interest of the Purchaser (or which materially
and adversely affects the value of a Mortgage Loan or the interests of the
Purchaser in the related Mortgage Loan in the case of a representation and
warranty relating to a particular Mortgage Loan), notwithstanding the Seller's
lack of knowledge with respect to the substance of such representation and
warranty, such inaccuracy shall be deemed a breach of the applicable
representation and warranty.
(c) With respect to those representations and warranties which
are made to the best of the Seller's knowledge, if it is discovered by the
Seller or the Purchaser that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value of
the related Mortgage Loan or the interest of the Purchaser (or which materially
and adversely affects the value of a Mortgage Loan or the interests of the
Purchaser in the related Mortgage Loan in the case of a representation and
warranty relating to a particular Mortgage Loan), notwithstanding the Seller's
lack of knowledge with respect to the substance of such representation and
warranty, such inaccuracy shall be deemed a breach of the applicable
representation and warranty.
Within 60 days of the earlier of either discovery by or notice
to the Seller of any Breach of a representation or warranty, the Seller shall
use its best efforts promptly to cure such Breach in all material respects and,
if such Breach cannot be cured, the Seller shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
Breach shall involve any representation or warranty set forth in Section 6, and
such Breach cannot be cured within 60 days of the earlier of either discovery by
or notice to the Seller of such Breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the Breach shall involve a representation or
warranty set forth in Section 7 and the Seller discovers or receives notice of
any such Breach within 120 days of the related Closing Date, the Seller shall,
at the Purchaser's option and provided that the Seller has a Qualified
Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as provided
above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in
its place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan or
Loans pursuant to the foregoing provisions of this Section 8 shall be
accomplished by either (a) if the Flow Interim Servicing Agreement has been
entered into and is in effect, deposit in the Custodial Account of the amount of
the Repurchase Price for distribution to Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution or (b) if the Flow Interim Servicing Agreement has not
been entered into or is no longer in effect with respect to the applicable
Mortgage Loan, by direct remittance of the Repurchase Price to the Purchaser or
in accordance with the Purchaser's instructions.
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At the time of repurchase or substitution, the Purchaser and
the Seller shall arrange for the reassignment of the Deleted Mortgage Loan to
the Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser and any servicer of the Mortgage Loans that such
repurchase or substitution has taken place, amend the related Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Seller shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to the
Custodian for such Qualified Substitute Mortgage Loan the documents required by
Section 2(c), with the Mortgage Note endorsed as required by Section 2(c). No
substitution will be made in any calendar month after the Determination Date for
such month. The Seller shall deposit in the Custodial Account, or in the event
that the Flow Interim Servicing Agreement has not been entered into , or is no
longer in effect, remit directly to the Purchaser or in accordance with the
Purchaser's instructions, the Monthly Payment less the servicing fee due on such
Qualified Substitute Mortgage Loan or Loans in the month following the date of
such substitution. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution shall be retained by the Seller. For
the month of substitution, distributions to Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and the
Seller shall thereafter be entitled to retain all amounts subsequently received
by the Seller in respect of such Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine
the amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be paid by the Seller directly to the
Purchaser or in accordance with the Purchaser's instructions, within two (2)
Business Days of such substitution.
Any cause of action against the Seller relating to or arising
out of the Breach of any representations and warranties made in Sections 6 and 7
shall accrue as to any Mortgage Loan upon (i) discovery of such Breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failures by the
Seller to cure such Breach or repurchase such Mortgage Loan as specified above,
and (iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
(d) With respect to any Mortgage Loan, if the related
Mortgagor fails to make the Mortgage Loan's first or second Monthly Payment due
to the Purchaser after the related Closing Date within 30 days of the related
Due Date, the Seller shall, upon receipt of notice from the Purchaser, promptly
repurchase such Mortgage Loan from the Purchaser in accordance with Section 8(a)
hereof; provided, that no right to cure set forth therein shall apply.
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(e) From the related Closing Date until the date 30 days after
the related Closing Date, the Purchaser shall have the right to review the
Mortgage Files and obtain BPOs on the Mortgaged Properties relating to the
Mortgage Loans purchased on the related Closing Date, with the results of such
BPO reviews to be communicated to the Seller for a period up to 30 days after
the related Closing Date. In addition, the Purchaser shall have the right to
reject any Mortgage Loan which in the Purchaser's sole determination (i) fails
to conform to Underwriting Guidelines, (ii) the value of the Mortgaged Property
pursuant to any BPO varies by more than plus or minus 15% from the lesser of (A)
the original appraised value of the Mortgaged Property or (B) the purchase price
of the Mortgaged Property as of the date of origination or (iii) was
underwritten without verification of the Mortgagor's income and assets and there
is no FICO Score or credit report. In the event that the Purchaser so rejects
any Mortgage Loan, the Seller shall repurchase the rejected Mortgage Loan at the
Repurchase Price in the manner prescribed in Section 8(a) upon receipt of notice
from the Purchaser of the rejection of such Mortgage Loan. Any rejected Mortgage
Loan shall be removed from the terms of this Agreement. To the extent that
during the course of the Purchaser conducting its initial review, the Purchaser
discovers that the Mortgage Loans do not otherwise meet the Seller's
Underwriting Guidelines or the terms of this Agreement, the Purchaser may
conduct additional due diligence with respect to the Mortgage Loans. The Seller
agrees to pay any expenses incurred by the Purchaser due to any additional due
diligence review mentioned above, over and above the Purchaser's initial review.
Purchaser's decision to increase its due diligence review or obtain additional
BPO's or other property evaluations are at its sole discretion. The additional
review may be for any reason including but not limited to credit quality,
property valuations, and data integrity. The Seller shall make available all
files required by Purchaser in order to complete its review, including all
CRA/HMDA required data fields. Any review performed by the Purchaser prior to
the Closing Date does not limit the Purchaser's rights or the Seller's
obligations under this section.
SECTION 9. INDEMNIFICATION
The Seller agrees to indemnify the Purchaser and hold it
harmless from and against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the Purchaser may sustain in any way related to (i) any act or
omission on the part of the Seller or any other person or entity in the
origination, receiving, processing, funding or servicing any Mortgage Loan prior
to the related Transfer Date or otherwise arising from the transfer of servicing
of the Mortgage Loans provided for in this Agreement, (ii) any assertion based
on, grounded upon resulting from a Breach of any of the Seller's representations
and warranties contained herein, (iii) the Seller's inability to effect or cause
the transfer of the servicing to a successor servicer and (iv) the failure of
the Seller to perform in any way its duties and service the Mortgage Loans in
strict compliance with the terms of this Agreement or the Flow Interim Servicing
Agreement. The Seller shall immediately notify the Purchaser if a claim is made
by a third party with respect to this Agreement or the Mortgage Loans, assume
(with the consent of the Purchaser and with counsel reasonably satisfactory to
the Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim but failure to so notify the Purchaser shall not limit its
obligations hereunder. The Seller agrees that it will not enter into any
settlement of any such claim without the consent of the Purchaser unless such
settlement includes an unconditional release of the Purchaser from all liability
that is the subject matter of such claim. In addition to the obligations of the
Seller set forth in this Section 9, the Purchaser may pursue any and all
remedies otherwise available at law or in equity, including, but not limited to,
the right to seek damages. The provisions of this Section 9 shall survive
termination of this Agreement.
30
SECTION 10. CLOSING.
The closing for the purchase and sale of the Mortgage Loans
shall take place on the related Closing Date. At the Purchaser's option, the
Closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree; or conducted in person, at such place as the parties shall
agree.
The Closing for the purchase of each Mortgage Loan Package on
the related Closing Date shall be subject to each of the following conditions:
(a) all of the representations and warranties of the Seller
under this Agreement and under the Flow Interim Servicing Agreement shall be
true and correct as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute a default under this
Agreement or an Event of Default under the related Flow Interim Servicing
Agreement;
(b) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing Documents as specified in
Section 11 of this Agreement, in such forms as are agreed upon and acceptable to
the Purchaser, duly executed by all signatories other than the Purchaser as
required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the
Custodian pursuant to this Agreement all documents required pursuant to the
related Custodial Agreement; and
(d) all other terms and conditions of this Agreement shall
have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay
to the Seller on the related Closing Date the Purchase Price, plus accrued
interest pursuant to Section 3 of this Agreement, by wire transfer of
immediately available funds to the account designated by the Seller.
SECTION 11. CLOSING DOCUMENTS.
The Closing Documents shall consist of fully executed
originals of the following documents:
(a) on the initial Closing Date:
31
(i) this Agreement;
(ii) each of the documents required to be delivered by the
Seller pursuant to Section 2(c) hereof;
(iii) the Flow Interim Servicing Agreement, dated as of the
initial Cut-off Date, in four counterparts in the form of Exhibit C
hereto;
(iv) the Mortgage Loan Schedule, with one copy to be attached
to each counterpart of this Agreement and the Flow Interim Servicing
Agreement;
(v) Custodial Account Certification or Custodial Account
Letter Agreement as required under the Flow Interim Servicing
Agreement;
(vi) an Escrow Account Certification or Escrow Account Letter
Agreement, as required under the Flow Interim Servicing Agreement;
(vii) an Officer's Certificate, in the form of Exhibit D
hereto, including all attachments thereto; (viii) an Opinion of Counsel
of the Seller, in the form of Exhibit E hereto
(b) on each Closing Date:
(i) an Assignment and Conveyance in the form of Exhibit J
hereto;
(ii) the Custodial Assignment and Assumption Agreement, with
respect to the related Mortgage Loans, dated as of the related Closing
Date,;
(iii) (i) a Security Release Certification, in the form of
Exhibit F hereto (for a Seller which is a member of the Federal Home
Loan Bank System), executed by the applicable regional Federal Home
Loan Bank and, (ii) if applicable, in the form of Exhibit G hereto
executed by any other person, as requested by the Purchaser, if any of
the Mortgage Loans have at any time been subject to any security
interest, pledge or hypothecation for the benefit of such person and
(iii) if applicable a certificate of the Seller and an opinion of
counsel of the Seller stating that the Mortgage Loans are not subject
to any security interest, claim, pledge, hypothecation or lien;
(iv) the initial certification of the Custodian with respect
to the related Mortgage Loan Package;
(v) a Certificate or other evidence of merger or change of
name, signed or stamped by the applicable regulatory authority, if any
of the Mortgage Loans were acquired by the Seller by merger or acquired
or originated by the Seller while conducting business under a name
other than its present name; and
32
(vi) if requested by the Purchaser, an updated Officer's
Certificate, in the form of Exhibit D hereto, including all attachments
thereto and an updated Opinion of Counsel of the Seller, in the form of
Exhibit E hereto.
The Seller shall bear the risk of loss of the Closing
Documents until such time as they are received by the Purchaser or its
attorneys.
SECTION 12. MERGER OR CONSOLIDATION OF THE SELLER.
The Seller shall at all times maintain a minimum net worth of
$25,000,000. The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller shall be a party, or any Person succeeding to
the business of the Seller, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided however, that the successor or surviving Person shall have a net worth
of at least $25,000,000.
SECTION 13. COSTS.
The Purchaser shall pay any commissions due its salesmen and
the legal fees and expenses of its attorneys. The Seller shall pay for the
physical delivery of the Mortgage Loan Documents to a location designated by the
Purchaser, and all the costs and expenses incurred in connection with the
transfer and delivery of the Mortgage Loans, including fees for title policy
endorsements and continuations. The initial recordation fees for the assignments
from the Seller to the Purchaser or Purchaser's designee shall be paid by the
Seller. In addition, in the event of a reconstitution where the subsequent
purchaser is not a MERS subscriber, the Seller shall ensure that the Assignment
of Mortgage for each Mortgage Loan be assigned in blank, in recordable form, at
the expense of the Seller. All fees, costs and expenses associated with the
preparation of the Assignment of Mortgages so as to be in a form acceptable for
recordation, as well as the costs for recording and tracking the Assignments of
Mortgage from the Seller to either the Purchaser or the Purchaser's initial
designee, shall be paid for by the Seller.
SECTION 14. PROTECTION OF CONFIDENTIAL INFORMATION.
The Seller shall keep confidential and shall not divulge to
any party, without the Purchaser's prior written consent, the Purchase Price
paid by the Purchaser for the Mortgage Loans, except to the extent that it is
appropriate for the Seller to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
33
SECTION 15. NOTICES.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address shown on the first page hereof, 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 16. SEVERABILITY CLAUSE.
Any part, provision, representation or warranty of this
Agreement that is prohibited or that 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 that is prohibited or unenforceable
or is held to be void or unenforceable in any jurisdiction shall be ineffective,
as to such jurisdiction, to the extent of such prohibition 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 that prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good-faith, to
develop a structure, the economic effect of which is as close as possible to the
economic effect of this Agreement, without regard to such invalidity.
SECTION 17. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 18. PLACE OF DELIVERY AND GOVERNING LAW.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the laws of the State of New York, except to the extent
preempted by Federal law.
SECTION 19. FURTHER AGREEMENTS.
The Purchaser and the Seller each agree to execute and deliver
to the other such additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
34
Without limiting the generality of the foregoing, the Seller
shall cooperate with the Purchaser in connection with the initial resales of the
Mortgage Loans by the Purchaser. In that connection, the Seller shall provide to
the Purchaser: (i) any and all information and appropriate verification of
information, whether through letters of its auditors and counsel or otherwise,
as the Purchaser shall reasonably request; and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as are
reasonably believed necessary by the Purchaser in connection with such resales.
The requirement of the Seller pursuant to (ii) above shall terminate on the
related Closing Date. Prior to incurring any out-of-pocket expenses pursuant to
this paragraph, the Seller shall notify the Purchaser in writing of the
estimated amount of such expense. The Purchaser shall reimburse the Seller for
any such expense following its receipt of appropriate details thereof.
SECTION 20. INTENTION OF THE PARTIES.
It is the intention of the parties that the Purchaser shall
from time to time purchase is purchasing, and the Seller shall from time to time
sell, 100% ownership interest in the Mortgage Loans and not a debt instrument of
the Seller or another security. Accordingly, the parties hereto each intend to
treat each transaction for Federal income tax purposes as a sale by the Seller,
and a purchase by the Purchaser, of the related Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
Federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective successors and
assigns of the Seller and the Purchaser. This Agreement shall not be assigned,
pledged or hypothecated by Seller to a third party without the prior written
consent of the Purchaser.
The Purchaser may assign all of its rights under this
Agreement with respect to any Mortgage Loans to any affiliate of the Purchaser.
No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person as
Purchaser with respect to this agreement or the Mortgage Loans unless the books
and records show such person as the owner of the Mortgage Loan. The Purchaser
may, subject to the terms of this Agreement, sell and transfer one or more of
the Mortgage Loans, provided, however, that the transferee will not be deemed to
be a Purchaser hereunder binding upon the Seller unless such transferee shall
agree in writing to be bound by the terms of this Agreement and an original
counterpart of the instrument of transfer and an assignment and assumption of
this Agreement in the form of Exhibit H hereto executed by the transferee shall
have been delivered to the Seller. The Purchaser also shall advise the Seller of
the transfer. Upon receipt of notice of the transfer, the Seller shall xxxx its
books and records to reflect the ownership of the Mortgage Loans of such
assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
35
SECTION 22. WAIVERS; OTHER AGREEMENTS.
No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
SECTION 23. EXHIBITS.
The exhibits to this Agreement are hereby incorporated and
made a part hereof and are an integral part of this Agreement.
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(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) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
36
SECTION 25. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26. RECORDATION OF ASSIGNMENTS OF MORTGAGE.
To the extent permitted by applicable law, each of the
Assignments of Mortgage is subject to recordation in all appropriate public
offices for real property records in all the counties or their comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected at the Seller's expense in the event recordation is either
necessary under applicable law or requested by the Purchaser at its sole option.
SECTION 27. NO PERSONAL SOLICITATION.
From and after the initial Closing Date, the Seller 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 on
the Seller's behalf, to personally, by telephone or mail, solicit the borrower
or obligor under any Mortgage Loan for any purpose whatsoever, including to
refinance a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits with respect to the related Mortgage Loans relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant hereto
on the related Closing Date and the Seller shall take no action to undermine
these rights and benefits. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the Seller or any affiliate of the Seller
which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists, and
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 27.
SECTION 28. PASS THROUGH TRANSFER.
The Purchaser may convey the Mortgage Loans to one or more
securitized trust structures ("Pass-Through Transfers"). In each case
temporarily retaining the Seller as the servicer thereof. The date on which any
Mortgage Loans are included in a Pass-Through Transfer shall be a Reconstitution
Date. On any Reconstitution Date, the Mortgage Loans transferred shall cease to
be covered by the Interim Servicing Agreement.
37
The Seller shall cooperate with the Purchaser in connection
with any Pass-Through Transfer contemplated by the Purchaser pursuant to this
Section 28. In that connection, the Seller shall (a) execute any agreements
related to any Pass-Through Transfers ("Reconstitution Agreements") within a
reasonable period of time after receipt of any Reconstitution Agreement which
time shall be sufficient for the Seller and Seller's counsel to review such
Reconstitution Agreement, but such time shall not exceed ten (10) Business Days
after such receipt, and (b) provide to the trustee or a third party purchaser,
as the case may be, subject to any Reconstitution Agreement and/or the
Purchaser: (i) any and all information and appropriate verification of
information which may be reasonably available to the Seller, whether through
letters of its auditors (the reasonable out-of-pocket cost of which will be
borne by the Purchaser) and counsel or otherwise, as the Purchaser shall
reasonably request; (ii) to bring each of the Mortgage Loan representations and
warranties set forth in the Agreement current as of the date the Mortgage Loans
are being transferred pursuant to a Pass-Through Transfer, provided that, such
Mortgage Loan representations and warranties shall be revised, to the extent
allowed or required by the rating agencies and the certificate insurer and
acceptable to the Purchaser, to reflect the actual pool of Mortgage Loans being
securitized; notwithstanding the foregoing, Seller shall, at the time of
reconstitution, be entitled to state certain exceptions to the Mortgage Loan
representations and warranties necessary to make same true and correct as of the
time of the Pass-Through Transfer and (iii) such additional representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are reasonably
believed necessary by the trustee, such third party purchaser, any master
servicer, any rating agency or the Purchaser, as the case may be, in connection
with such transactions; provided, however, that these items shall not be more
onerous than such similar items set forth herein.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to a Reconstitution Date the Seller or its
designee shall prepare an assignment of mortgage in blank from the Seller,
acceptable to the trustee or such third party, as the case may be, for each
Mortgage Loan that is part of a Pass-Through Transfer and shall pay all
preparation and recording costs associated therewith. The Seller shall execute
each assignment of mortgage, track such assignments of mortgage to ensure they
have been recorded and deliver them as required by the trustee or such third
party, as the case may be, upon the Seller's receipt thereof, provided, that the
Seller need not record an assignment of mortgage if, at the sole option of the
Purchaser, the Seller delivers an opinion of counsel in the applicable
jurisdiction that it is not necessary to record the assignment of mortgage to
protect the Purchaser's interest. Additionally, the Seller shall prepare and
execute, at the direction of the Purchaser, any Mortgage Note endorsements in
connection with any and all Reconstitution Agreements.
The Reconstitution Agreement will require the Seller to
advance principal and interest payments on each Mortgage Loan at the Mortgage
Loan Interest Rate less the Reconstituted Servicing Fee (defined below) on the
remittance date of the Reconstitution Agreement. The Reconstitution Agreement
will also require in connection with any prepayments, in addition to any
prepayment penalties received by the Seller on the prepaid Mortgage Loan, the
Seller shall contribute from its own funds to the extent that such contributions
do not exceed the Reconstituted Servicing Fee, payable to the Seller for such
prior month, any shortfall in the interest component thereof, such that one
month's interest shall be deposited in the Custodial Account, (as defined in the
Interim Servicing Agreement), prior to the remittance date of the Reconstitution
Agreement. The Seller's obligation to remit payments of principal and interest
shall continue through the liquidation of the Mortgaged Property on the related
Mortgage Loan, or until such time that the Seller deems that any future advances
of principal and interest would be otherwise non-recoverable. The Reconstituted
Servicing Fee shall be 0.25% per annum times the outstanding principal balance
of the Mortgage Loans included in the respective Pass-Through Transfer.
38
The Seller shall do all things necessary and required by a
servicer who services Mortgage Loans under a Pass-Through Transfer which is a
REMIC (defined as a "real estate mortgage conduit" within the meaning Section
860D of the Internal Revenue Code of 1986, as it may be amended from time to
time).
All Mortgage Loans not sold or transferred pursuant to a
Pass-Through Transfer and any Mortgage Loans repurchased by the Purchaser, shall
be subject to the Interim Servicing Agreement and shall continue to be serviced
in accordance with the terms of the Interim Servicing Agreement and with respect
thereto the Interim Servicing Agreement shall remain in full force and effect.
39
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX BROTHERS BANK, FSB
(Purchaser)
By: _____________________________________
Name:
Title:
GREENPOINT MORTGAGE FUNDING, INC.
(Seller)
By: _____________________________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____________, 200_ before me, a Notary
Public in and for said State, personally appeared ____________, known to me to
be ______________ of Xxxxxx Brothers Bank, FSB, the corporation that executed
the within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my
office seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
My Commission expires _____________
STATE OF _____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of _______________, 200_ before me, a Notary
Public in and for said State, personally appeared ____________, known to me to
be _____________ of Greenpoint Mortgage Funding, Inc., the corporation that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my
office seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
My Commission expires _____________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
A-1
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, which shall be available for inspection by
the Purchaser and any prospective Purchaser, and which shall be delivered to the
Purchaser pursuant to Section 2 of the Purchase Agreement to which this Exhibit
is attached (the "Agreement"):
1. The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________ without recourse" and signed in
the name of the Seller by an authorized officer.
2. The original of any guarantee executed in connection with the Mortgage
Note.
3. The original Mortgage, with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause
to be delivered the original Mortgage with evidence of recording
thereon on or prior to the related Closing Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost or
because such public recording office retains the original recorded
Mortgage, the Seller shall deliver or cause to be delivered to the
Purchaser, a photocopy of such Mortgage, together with (i) in the case
of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such Mortgage has been
dispatched to the appropriate public recording office for recordation
and that the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and complete
copy of the original recorded Mortgage will be promptly delivered to
the Purchaser upon receipt thereof by the Seller; or (ii) in the case
of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete
copy of the original recorded Mortgage.
4. The originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon.
5. The original Assignment of Mortgage for each Mortgage Loan, in blank,
in form and substance acceptable for recording.
6. Originals of all intervening assignments of the Mortgage with evidence
of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or
if such public recording office retains the original recorded
assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Purchaser, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller stating that such
intervening assignment of mortgage has been dispatched to the
appropriate public recording office for recordation and that such
original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original
recorded intervening assignment of mortgage will be promptly delivered
to the Purchaser upon receipt thereof by the Seller; or (ii) in the
case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by
such public recording office to be a true and complete copy of the
original recorded intervening assignment.
B-1
7. The original mortgagee policy of title insurance.
8. The original PMI Policy, LPMI Policy or certificate of
insurance, where required pursuant to the Agreement.
9. Any security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
10. The original hazard insurance policy and, if required by law,
flood insurance policy, in accordance with Section 7(f) of the
Agreement.
11. Residential loan application.
12. Mortgage Loan closing statement.
13. Verification of employment and income except for Mortgage
Loans originated under a Limited Documentation Program.
14. Verification of acceptable evidence of source and amount of
downpayment.
15. Credit report on the Mortgagor.
16. Residential appraisal report.
17. Photograph of the Mortgaged Property.
18. Survey of the Mortgaged Property, if any.
19. Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the
title policy, i.e., map or plat, restrictions, easements,
sewer agreements, home association declarations, etc.
20. All required disclosure statements.
21. If available, termite report, structural engineer's report,
water potability and septic certification.
B-2
22. Sales contract.
23. Tax receipts, insurance premium receipts, ledger sheets,
payment history from date of origination, insurance claim
files, correspondence, current and historical computerized
data files, and all other processing, underwriting and closing
papers and records which are customarily contained in a
mortgage loan file and which are required to document the
Mortgage Loan or to service the Mortgage Loan.
24. Amortization schedule.
In the event an Officer's Certificate of the Seller is
delivered to the Purchaser because of a delay caused by the public recording
office in returning any recorded document, the Seller shall deliver to the
Purchaser, within 90 days of the related Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused by
the public recording office, (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to Custodian the applicable recorded document by the date specified in
(iv) above. An extension of the date specified in (iv) above may be requested
from the Purchaser, which consent shall not be unreasonably withheld.
B-3
EXHIBIT C
FLOW INTERIM SERVICING AGREEMENT
[Intentionally Omitted]
C-1
EXHIBIT D
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly
elected [Vice] President of Greenpoint Mortgage Funding, Inc., a state chartered
institution organized under the laws of the state of California, (the "Company")
and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the charter of the Company which is in full force and
effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification.
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the bylaws of the Company which are in effect on the
date hereof and which have been in effect without amendment,
waiver, rescission or modification.
3. Attached hereto as Exhibit 3 is an original certificate of
good standing of the Company issued within ten days of the
date hereof, and no event has occurred since the date thereof
which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of
the Company authorizing the Company to execute and deliver
[each of] the Flow Mortgage Loan Purchase and Warranties
Agreement, Group No. 2001-___ dated December 12, 2001 by and
between the Company and Xxxxxx Brothers Bank, FSB (the
"Purchaser") (the "Purchase Agreement") and the Flow Interim
Servicing Agreement, Group No. 2001-___ dated December 12,
2001, by and between the Company and the Purchaser (the "Flow
Interim Servicing Agreement") and to endorse the Mortgage
Notes and execute the Assignments of Mortgages by original [or
facsimile] signature, and such resolutions are in effect on
the date hereof and have been in effect without amendment,
waiver, rescission or modification.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the Company with the Purchase Agreement, the
Flow Interim Servicing Agreement, the sale of the mortgage
loans or the consummation of the transactions contemplated by
the agreements; or (ii) any required consent, approval,
authorization or order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of the Purchase Agreement and
the Flow Interim Servicing Agreement conflicts or will
conflict with or results or will result in a breach of or
constitutes or will constitute a default under the charter or
by-laws of the Company, the terms of any indenture or other
agreement or instrument to which the Company is a party or by
which it is bound or to which it is subject, or any statute or
order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
D-1
7. There is no action, suit, proceeding or investigation pending
or, to the best of my knowledge, threatened against the
Company which, in my judgment, either in any one instance or
in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or
assets of the Company or in any material impairment of the
right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on
the part of the Company or which would draw into question the
validity of the Purchase Agreement and the Flow Interim
Servicing Agreement, or the mortgage loans or of any action
taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair
materially the ability of the Company to perform under the
terms of the Purchase Agreement and the Flow Interim Servicing
Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the
Purchase Agreement, (b) the Flow Interim Servicing Agreement,
and (c) any other document delivered prior hereto or on the
date hereof in connection with any purchase described in the
agreements set forth above was, at the respective times of
such signing and delivery, and is now, a duly elected or
appointed, qualified and acting officer or representative of
the Company, who holds the office set forth opposite his or
her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement and the
Flow Interim Servicing Agreement.
10. The Mortgage Loans are not subject to any security interest,
claim, pledge, hypothecation or lien.
D-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
the seal of the Company.
Dated: By:______________________________
-------------------------------- Name:____________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
Greenpoint Mortgage Funding, Inc., hereby certify that ____________ is the duly
elected, qualified and acting [Vice] President of the Company and that the
signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:______________________________
-------------------------------- Name:____________________________
[Seal] Title: [Vice] President
D-3
EXHIBIT 5 to
Company's Officer's Certificate
Name Title Signature
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
D-4
EXHIBIT E
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxx Brothers Bank, FSB
3 World Financial Center
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to Greenpoint Mortgage Funding, Inc. (the "Company"), with respect to
certain matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Flow Mortgage Loan Purchase and Warranties Agreement by
and between the Company and Xxxxxx Brothers Bank, FSB (the "Purchaser"), Group
No. 2001-___ dated as of December 12, 2001 (the "Purchase Agreement") which sale
is in the form of whole loans, serviced pursuant to an Flow Interim Servicing
Agreement, dated as of December 12, 2001 by and between the Company and the
Purchaser (the "Flow Interim Servicing Agreement", together with the Purchase
Agreement, the "Agreements"). Capitalized terms not otherwise defined herein
have the meanings set forth in the Purchase Agreement and the Flow Interim
Servicing Agreement.
[We] [I] have examined the following documents:
1. the Agreements;
2. the form of Assignment of Mortgage;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we]
[I] have relied upon the representations and warranties of the Company contained
in the Agreements. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
E-1
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the state of California
and is qualified to transact business in, and is in good
standing under, the laws of the state of incorporation.
2. The Company has the power to engage in the transactions
contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver the
Agreements, and to perform and observe the terms and
conditions of such Agreements
3. [Each of] the Agreements has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding
agreement enforceable in accordance with its respective terms
against the Company, subject to bankruptcy laws and other
similar laws of general application affecting rights of
creditors and subject to the application of the rules of
equity, including those respecting the availability of
specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or
with the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Agreements [and by original [or facsimile] signature in
order to execute the endorsements to the Mortgage Notes and
the Assignments of Mortgages, and the original [or facsimile]
signature of the officer at the Company executing the
endorsements to the Mortgage Notes and the Assignments of
Mortgages represents the legal and valid signature of said
officer of the Company].
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the Company with the Purchase Agreement, the
Flow Interim Servicing Agreement, or the sale of the Mortgage
Loans or the consummation of the transactions contemplated by
the Agreements; or (ii) any required consent, approval,
authorization or order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Agreements conflicts
or will conflict with or results or will result in a breach of
or constitutes or will constitute a default under the charter
or by-laws of the Company, the terms of any indenture or other
agreement or instrument to which the Company is a party or by
which it is bound or to which it is subject, or violates any
statute or order, rule, regulations, writ, injunction or
decree of any court, governmental authority or regulatory body
to which the Company is subject or by which it is bound.
E-2
7. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against
the Company which, in [our] [my] judgment, either in any one
instance or in the aggregate, may result in any material
adverse change in the business, operations, financial
condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to
carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would
draw into question the validity of the Agreements, or the
Mortgage Loans or of any action taken or to be taken in
connection with the transactions contemplated thereby, or
which would be likely to impair materially the ability of the
Company to perform under the terms of the Agreements.
8. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Agreements is sufficient to fully
transfer to the Purchaser all right, title and interest of the
Company thereto as noteholder and mortgagee.
9. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in the Agreements. The
Assignments of Mortgage are in recordable form, except for the
insertion of the name of the assignee, and upon the name of
the assignee being inserted, are acceptable for recording
under the laws of the state where each related Mortgaged
Property is located. The endorsement of the Mortgage Notes,
the delivery to the Purchaser, or its designee, of the
Assignments of Mortgage, and the delivery of the original
endorsed Mortgage Notes to the Purchaser, or its designee, are
sufficient to permit the Purchaser to avail itself of all
protection available under applicable law against the claims
of any present or future creditors of the Company, and are
sufficient to prevent any other sale, transfer, assignment,
pledge or hypothecation of the Mortgages and the Mortgage
Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no
other person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
----------------------------
[Name]
[Assistant] General Counsel
E-3
EXHIBIT F
SECURITY RELEASE CERTIFICATION
___________________, 200_
Federal Home Loan Bank of
______(the "Association")
-------------------------------------------
-------------------------------------------
-------------------------------------------
Attention:
--------------------------------
-------------------------------------------
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that Greenpoint Mortgage Funding,
Inc. a corporation, organized pursuant to the laws of California (the "Company")
has committed to sell to Xxxxxx Brothers Bank, FSB under a Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of December 12, 2001, certain
mortgage loans originated by the Association. The Company warrants that the
mortgage loans to be sold to Xxxxxx Brothers Bank, FSB are in addition to and
beyond any collateral required to secure advances made by the Association to the
Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxx Brothers Bank, FSB shall not be used as additional or substitute
collateral for advances made by the Association. Xxxxxx Brothers Bank, FSB
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
F-1
Execution of this letter by the Association shall constitute a
full and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxx Brothers
Bank, FSB.
Very truly yours,
GREENPOINT MORTGAGE FUNDING, INC.
By:___________________________________
Name:
Title:
Date:
Acknowledged and approved:
FEDERAL HOME LOAN BANK OF
-------------------------------------------
By:
---------------------------------------
Name:
Title:
Date:
F-2
EXHIBIT G
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any
and all right, title and interest it may have in all Mortgage Loans to be
purchased by Xxxxxx Brothers Bank, FSB from the Company named below pursuant to
that certain Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
December 12, 2001, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company named below or its designees, as of the
date and time of the sale of such Mortgage Loans to Xxxxxx Brothers Bank, FSB.
Name and Address of Financial Institution
-------------------------------------------
(name)
-------------------------------------------
(Address)
By:
----------------------------------------
II. Certification of Release
G-1
The Company named below hereby certifies to Xxxxxx Brothers
Bank, FSB that, as of the date and time of the sale of the above-mentioned
Mortgage Loans to Xxxxxx Brothers Bank, FSB, the security interests in the
Mortgage Loans released by the above-named financial institution comprise all
security interests relating to or affecting any and all such Mortgage Loans. The
Company warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
GREENPOINT MORTGAGE FUNDING, INC.
By: _____________________________________
Name:
Date:
G-2
EXHIBIT H
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated __________ __,
200_, between __________________________________, a ___________________
corporation ("Assignor") and ________________________________, a
__________________ corporation ("Assignee"):
For and in consideration of the sum of TEN DOLLARS ($10.00)
and other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee, as
Purchaser, all of the right, title and interest of Assignor under that certain
Flow Mortgage Loan Purchase and Warranties Agreement, Conventional Residential
Fixed and Adjustable Rate Mortgage Loans, Group 2001-___ (the "Purchase
Agreement"), and that certain Flow Interim Servicing Agreement, Conventional
Residential Fixed and Adjustable Rate Mortgage Loans, Group 2001-___ (the "Flow
Interim Servicing Agreement", collectively, the "Agreements") each dated as of
December 12, 2001, by and between Xxxxxx Brothers Bank, FSB (the "Purchaser"),
and Greenpoint Mortgage Funding, Inc. (the "Seller").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to the
Seller with respect to the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Agreements, including
without limitation, the transfer of the servicing obligations under the Purchase
Agreement. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under, the Agreements; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans 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 Securities Act
of 1933 (the "33 Act") or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the 33 Act or require registration pursuant
thereto.
H=2
3. That Assignee warrants and represents to, and covenants with, the
Assignor and the Seller pursuant to the Agreements that:
a. The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Agreements, the Mortgage Loans, and
from and after the date hereof, the Assignee assumes for the benefit of each of
the Seller and the Assignor all of the Assignor's obligations as Purchaser
thereunder;
b. The Assignee understands that the Mortgage Loans have not
been registered under the 33 Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash remittance of
the full purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
e. The Assignee 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;
f. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or the
Seller;
g. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner which would constitute a distribution of the
Mortgage Loans under the `33 Act or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the `33 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; and
h. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code.
H-2
IN WITNESS WHEREOF, the parties have caused this Assignment
and Assumption Agreement to be executed by their duly authorized officers as of
the date first above written.
----------------------------------- -----------------------------------
Assignor Assignee
By: By:
-------------------------------- --------------------------------
Its: Its:
------------------------------- -------------------------------
Taxpayer Taxpayer
Identification No. Identification No.
----------------- -----------------
H-3
EXHIBIT I
CUSTODIAL AGREEMENT
[Intentionally Omitted]
I-1
EXHIBIT J
SELLER'S UNDERWRITING GUIDELINES
[Intentionally Omitted]
J-1
EXHIBIT K
ASSIGNMENT AND CONVEYANCE
On this _____day of __________, 200_, Greenpoint Mortgage
Funding Inc. (the "Seller") as the Seller under that certain Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of December 12, 2001 (the "Purchase
Agreement") do hereby sell, transfer, assign, set over and convey to Xxxxxx
Brothers Bank, FSB as the Purchaser (the "Purchaser") under the Purchase
Agreement, without recourse, but subject to the terms of the Purchase Agreement,
all right, title and interest of, in and to the Mortgage Loans listed on the
Mortgage Loan Schedule attached hereto as Exhibit A, together with the Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to Section 3(c) of the Purchase Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be purchased.
The contents of each Servicing File required to be retained by the Seller to
service the Mortgage Loans pursuant to the Flow Servicing Agreement and thus not
delivered to the Purchaser are and shall be held in trust by the Seller for the
benefit of the Purchaser as the owner thereof. The Seller's possession of any
portion of the Servicing File is at the will of the Purchaser for the sole
purpose of facilitating servicing of the related Mortgage Loan pursuant to the
Flow Servicing Agreement, and such retention and possession by the Seller shall
be in a custodial capacity only. The ownership of each Mortgage Note, Mortgage,
and the contents of the Mortgage File and Servicing File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in such
custodial capacity only. The Servicing File retained by the Seller pursuant to
the Flow Interim Servicing Agreement shall be segregated from the other books
and records of the Seller and shall be appropriately marked to clearly reflect
the sale of the related Mortgage Loan to the Purchaser. The Seller shall release
from its custody the contents of any Servicing File retained by it only in
accordance with the Flow Interim Servicing Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Section 8.
The Mortgage Loan characteristics of the Mortgage Loan Package
subject hereto are set forth on Exhibit B hereto.
Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Purchase Agreement.
GREENPOINT MORTGAGE FUNDING INC.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Exhibit A to Assignment and Conveyance
MORTGAGE LOAN SCHEDULE
Exhibit B to Assignment and Conveyance
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
THE POOL CHARACTERISTICS OF EACH MORTGAGE LOAN PACKAGE
Pool Characteristics of the Mortgage Loans included in the
Mortgage Loan Package as delivered on the related Closing Date - __________ __,
200_:
Pool Characteristics. With respect to the aggregate unpaid
principal balance of all Mortgage Loans, (a) no more than ____% of the Mortgage
Loans are secured by real property improved by two- to four- family dwellings,
(b) no more than ___% are secured by real property improved by individual
condominium units, (c) no more than ____% are secured by real property improved
by an individual unit in a planned unit development, and (d) at least ____% are
secured by real property with a detached one family residence erected thereon.
The weighted average LTV with respect to all Mortgage Loans is not greater than
____% at origination. No Mortgage Loans had at origination an LTV greater than
____%. With respect to the aggregate unpaid principal balance of the Mortgage
Loans, (a) at least ____% of the Mortgage Loans were originated under the
Seller's full documentation program and (b) no more than ____% of the Mortgage
Loans were originated under the Seller's no income verification documentation
program. With respect to the aggregate unpaid principal balance of the Mortgage
Loans at the time of origination, (a) no more than ____% of the Mortgaged
Properties were owner-occupied second homes, (b) no more than ____% of the
Mortgaged Properties were investor properties and (c) at least ____% of the
Mortgaged Properties were owner-occupied primary residences. With respect to the
aggregate unpaid principal balance of the Mortgage Loans, (a) no more than ____%
are "cash-out" refinance mortgage loans, (b) no more than ____% are rate and
term refinance mortgage loans and (c) at least ____% are purchase mortgage
loans. With respect to the aggregate unpaid principal balance of all the
Mortgage Loans, the Mortgaged Properties are located as follows: (i) no more
than ____% are located in California, (ii) no more than ____% are located in
Washington, and (iii) no other one state contains more than ____% of the
Mortgaged Properties. The Mortgage Loans have a weighted average remaining term
of ___ months. With respect to the aggregate unpaid principal balance of the
Mortgage Loans, the weighted average FICO credit score is ___. With respect to
the aggregate unpaid principal balance of the Mortgage Loans, none of the
Mortgage Loans are balloon loans. The maximum Mortgage Interest Rate on the
Mortgage Loans as of the Cut-off Date was ____%. The minimum Mortgage Interest
Rate on the Mortgage Loans as of the Cut-off Date was ____%. With respect to the
aggregate unpaid principal balance of the Mortgage Loans, the Mortgage Loans
shall have a weighted average Gross Margin of [___%].With respect to the
aggregate unpaid principal balance of the ARM Mortgage Loans, the ARM Mortgage
Loans shall have a weighted average initial Periodic Rate Cap of [__]%, a
weighted average Periodic Rate Cap of [__]%, and a weighted average Lifetime
Rate Cap of [__]%. The maximum Mortgage Interest Rate on the Mortgage Loans as
of the related Cut-off Date was ____%. The minimum Mortgage Interest Rate on the
Mortgage Loans as of the related Cut-off Date was ____%. The Mortgage Loans have
a weighted average remaining term of ___ months. The maximum original principal
balance of the Mortgage Loans is $_______________. The minimum original
principal balance of the Mortgage Loans is $______________. The average original
principal balance of the Mortgage Loans is $ _______________. With respect to
the aggregate unpaid principal balance of the Mortgage Loans, the weighted
average age of the Mortgage Loans is ___ months. No Second Lien Mortgage Loan
has a CLTV in excess of ____%.
J-1
