Exhibit 99.14(b)
EXECUTION COPY
================================================================================
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
---------------------------
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
OHIO SAVINGS BANK,
Seller
---------------------------
Dated as of December 1, 2005
Conventional,
Fixed and Adjustable Rate
Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS..................................................1
SECTION 2. AGREEMENT TO PURCHASE.......................................14
SECTION 3. MORTGAGE SCHEDULES..........................................14
SECTION 4. PURCHASE PRICE..............................................15
SECTION 5. EXAMINATION OF MORTGAGE FILES...............................15
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER.........................16
SECTION 7. SERVICING OF THE MORTGAGE LOANS.............................20
SECTION 8. [RESERVED]..................................................20
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH....................................20
SECTION 10. CLOSING.....................................................39
SECTION 11. CLOSING DOCUMENTS...........................................40
SECTION 12. COSTS.......................................................41
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION.................41
SECTION 14. COMPLIANCE WITH REGULATION AB...............................43
SECTION 15. THE SELLER..................................................49
SECTION 16. FINANCIAL STATEMENTS........................................50
SECTION 17. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST..............50
SECTION 18. NOTICES.....................................................51
SECTION 19. SEVERABILITY CLAUSE.........................................52
SECTION 20. COUNTERPARTS................................................52
SECTION 21. INTENTION OF THE PARTIES....................................52
SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT....53
-i-
SECTION 23. WAIVERS.....................................................53
SECTION 24. EXHIBITS....................................................53
SECTION 25. GENERAL INTERPRETIVE PRINCIPLES.............................53
SECTION 26. REPRODUCTION OF DOCUMENTS...................................54
SECTION 27. FURTHER AGREEMENTS..........................................54
SECTION 28. RECORDATION OF ASSIGNMENTS OF MORTGAGE......................54
SECTION 29. NO SOLICITATION.............................................54
SECTION 30. WAIVER OF TRIAL BY JURY.....................................55
SECTION 31. GOVERNING LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS...55
SECTION 32. AMENDMENT...................................................55
SECTION 33. CONFIDENTIALITY.............................................56
SECTION 34. ENTIRE AGREEMENT............................................56
EXHIBITS
EXHIBIT A-1 MORTGAGE LOAN DOCUMENTS
EXHIBIT A-2 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G UNDERWRITING GUIDELINES
EXHIBIT H FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
-ii-
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
-----------------------------------------------
This MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
("Agreement"), dated as of December 1, 2005, by and between Xxxxxx Xxxxxxx
Mortgage Capital Inc., a New York corporation (the "Purchaser"), and Ohio
Savings Bank, a federal savings bank (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain conventional fixed and adjustable rate residential first-lien
mortgage loans (the "Mortgage Loans") on a servicing released basis as
described herein, and which shall be delivered in pools of whole loans (each,
a "Mortgage Loan Package") on various dates as provided herein (each, a
"Closing Date");
WHEREAS, 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 Mortgage Loan Schedule
for the related Mortgage Loan Package;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance, servicing by the Interim Servicer and control of the
Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser
and the Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms
shall have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices which are in accordance with accepted
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant
to this Agreement, the Mortgage Interest Rate of which is adjusted from time
to time in accordance with the terms of the related Mortgage Note.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Mortgage Loan Purchase and Warranties Agreement
including all exhibits, schedules, amendments and supplements hereto.
ALTA: The American Land Title Association or any successor
thereto.
Appraised Value: With respect to any Mortgaged Property, the
lesser of (i) the value thereof as determined by an appraisal made for the
originator of the Mortgage Loan at the time of origination of the Mortgage
Loan by a Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage Loan, such value
of the Mortgaged Property is based solely upon the value determined by an
appraisal made for the originator of such Refinanced Mortgage Loan at the time
of origination of such Refinanced Mortgage Loan by a Qualified Appraiser.
Assignment and Conveyance Agreement: As defined in Subsection
6.01.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form and in blank,
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to the
Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan (i) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or
(ii) for which Monthly Payments of principal (not including the payment due on
its stated maturity date) are based on an amortization schedule that would be
insufficient to fully amortize the principal thereof by the stated maturity
date of the Mortgage Loan.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions, in the State of New
York or the State in which the Interim Servicer's servicing operations are
located or (iii) the state in which the Custodian's operations are located,
are authorized or obligated by law or executive order to be closed.
Cash-Out Refinance: A Refinanced Mortgage Loan in which the
proceeds received were in excess of the amount of funds required to repay the
principal balance of any existing first mortgage on the related Mortgaged
Property, pay related closing costs and satisfy any outstanding subordinate
mortgages on the related Mortgaged Property and which provided incidental cash
to the related Mortgagor of more than 1% of the original principal balance of
such Mortgage Loan.
-2-
Closing Date: The date or dates on which the Purchaser from time
to time shall purchase, and the Seller from time to time shall sell, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the related Mortgage Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 11, some or all of which may be delivered by
means of imaged documents or, if mutually agreed to by the Seller and the
Purchaser, in the form of electronic data.
CLTA: The California Land Title Association.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property, whether permanent
or temporary, partial or entire, by exercise of the power of condemnation or
the right of eminent domain, to the extent not required to be released to a
Mortgagor in accordance with the terms of the related Mortgage Loan Documents.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect
to a dwelling unit occupied by the Mortgagor and relating to the stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and a collateral assignment of the related Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Custodial Account: The separate trust account created and
maintained pursuant to Subsection 2.04 of the Interim Servicing Agreement
(with respect to each Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention of
certain Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at any given time, all of the individual Custodial Agreements shall
collectively be referred to as the "Custodial Agreement."
-3-
Custodian: LaSalle Bank, National Association, a national banking
association, and its successors in interest, or any successor to the Custodian
under the Custodial Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or to
be repurchased or replaced or to be replaced with a Qualified Substitute
Mortgage Loan by the Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Determination Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein).
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx
Mae Servicers' Guide, as amended or restated from time to time.
Xxxxxx Xxx Transfer: As defined in Section 13.
FHA: The Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended and in effect from time to time.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
-4-
Xxxxxxx Mac Transfer: As defined in Section 13.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in accordance with the terms of the related
Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage
Interest Rate for such Mortgage Loan, subject to any applicable caps.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans" as that
term was defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004) "high risk home," "predatory" or similar
loan under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans having high interest rates, points and/or fees) or (c) a Mortgage Loan
categorized as High Cost pursuant to Appendix E of Standard & Poor's Glossary.
For avoidance of doubt, the parties agree that this definition shall apply to
any law regardless of whether such law is presently, or in the future becomes,
the subject of judicial review or litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time succeed to the
functions thereof with regard to Mortgage Insurance issued by the FHA. The
term "HUD," for purposes of this Agreement, is also deemed to include
subdivisions thereof such as the FHA and Government National Mortgage
Association.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date, specified in the related Mortgage Note and the
related Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim Funder: With respect to each MERS Designated Mortgage
Loan, the Person named on the MERS System as the interim funder pursuant to
the MERS Procedures Manual.
Interim Servicer: The servicer under the Interim Servicing
Agreement, or its successor in interest, or any successor to the Interim
Servicer under the Interim Servicing Agreement, as therein provided.
-5-
Interim Servicing Agreement: The agreement to be entered into by
the Purchaser and the Interim Servicer, providing for the Interim Servicer to
service the Mortgage Loans as specified by the Interim Servicing Agreement.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum
Mortgage Interest Rate thereunder.
Liquidation Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, other than amounts
received following the sale of REO Property by the Purchaser, Insurance
Proceeds and Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, as of any
date of determination, the ratio (expressed as a percentage) the numerator of
which is the outstanding principal balance of the Mortgage Loan as of the
related Cut-off Date (unless otherwise indicated), and the denominator of
which is the lesser of (a) the Appraised Value of the Mortgaged Property at
origination and (b) if the Mortgage Loan was made to finance the acquisition
of the related Mortgaged Property, the purchase price of the Mortgaged
Property.
LTV: Loan-to-Value Ratio.
Manufactured Home: A single family residential unit that is
constructed in a factory in sections in accordance with the Federal
Manufactured Home Construction and Safety Standards adopted on June 15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as amended in
2000, which preempts state and local building codes. Each unit is identified
by the presence of a HUD Plate/Compliance Certificate label. The sections are
then transported to the site and joined together and affixed to a pre-built
permanent foundation (which satisfies the manufacturer's requirements and all
state, county, and local building codes and regulations). The manufactured
home is built on a non-removable, permanent frame chassis that supports the
complete unit of walls, floors, and roof. The underneath part of the home may
have running gear (wheels, axles, and brakes) that enable it to be transported
to the permanent site. The wheels and hitch are removed prior to anchoring the
unit to the permanent foundation. The manufactured home must be classified as
real estate and taxed accordingly. The permanent foundation may be on land
owned by the mortgager or may be on leased land.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the Seller, in accordance with
-6-
MERS Procedures Manual and (b) the Seller has designated or will designate the
Purchaser as the Investor on the MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: With respect to any Mortgage Loan, the scheduled
payment of principal and interest payable by a Mortgagor under the related
Mortgage Note on each Due Date.
Mortgage: With respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a first lien on the Mortgaged Property. With respect to a
Co-op Loan, the Security Agreement.
Mortgage File: With respect to any Mortgage Loan, the Mortgage
Loan Documents and the items listed in Exhibit A-2.
Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time
in accordance with the provisions of the related Mortgage Note.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set
forth in the related Mortgage Note.
Mortgage Loan: Each mortgage loan sold, assigned and transferred
pursuant to this Agreement and identified on the applicable Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights and all other
rights, benefits, proceeds and obligations arising from or in connection with
such Mortgage Loan, excluding replaced or repurchased mortgage loans.
Mortgage Loan Documents: With respect to any Mortgage Loan, the
documents required to be delivered to the Custodian pursuant to Subsection
6.03.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan in the
related Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the social security number of the
Mortgagor; (4) a code indicating whether the Mortgagor's race and/or ethnicity
is (i) native American or Alaskan native, (ii) Asian/Pacific islander, (iii)
African
-7-
American, (iv) white, (v) Hispanic or Latino, (vi) other minority, (vii) not
provided by the Mortgagor, (viii) not applicable (if the Mortgagor is an
entity) and (ix) unknown or missing; (5) the street address of the Mortgaged
Property including the city, state and zip code; (6) a code indicating whether
the Mortgagor is self-employed; (7) a code indicating whether the Mortgaged
Property is owner-occupied, investment property or a second home; (8) a code
indicating the number and type of residential units constituting the Mortgaged
Property (e.g. single family residence, two-family residence, three-family
residence, four-family residence, multifamily residence, condominium,
manufactured housing, mixed-use property, raw land and other non-residential
properties, planned unit development or cooperative stock in a cooperative
housing corporation); (9) the original months to maturity or the remaining
months to maturity from the related Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (10) the
Loan-to-Value Ratio at origination; (11) the Mortgage Interest Rate as of the
related Cut-off Date; (12) the date on which the first Monthly Payment was due
on the Mortgage Loan and, if such date is not consistent with the Due Date
currently in effect, the Due Date; (13) the stated maturity date; (14) the
amount of the Monthly Payment as of the related Cut-off Date; (15) whether the
Mortgage Loan has Monthly Payments that are interest-only for a period of
time; (16) [Reserved]; (17) [Reserved]; (18) the Servicing Fee Rate; (19) the
original principal amount of the Mortgage Loan; (20) the principal balance of
the Mortgage Loan as of the close of business on the related Cut-off Date,
after deduction of payments of principal due and collected on or before the
related Cut-off Date; (21) with respect to each Mortgage Loan with a second
lien behind it, the principal balance of the Mortgage Loan and the applicable
second lien loan, at origination, (22) a code indicating whether there is a
simultaneous second; (23) with respect to Adjustable Rate Mortgage Loans, the
Interest Rate Adjustment Date; (24) with respect to Adjustable Rate Mortgage
Loans, the Gross Margin; (25) with respect to Adjustable Rate Mortgage Loans,
the Lifetime Rate Cap under the terms of the Mortgage Note; (26) with respect
to Adjustable Rate Mortgage Loans, a code indicating the type of Index,
including the methodology for rounding (e.g. rounded upward, if necessary, to
the nearest ten thousandth (.0001)) and the applicable time frame for
determining the Index; (27) the type of Mortgage Loan (i.e., Fixed Rate,
Adjustable Rate); (28) a code indicating the purpose of the loan (i.e.,
purchase, Rate/Term Refinance or Cash-Out Refinance); (29) a code indicating
the documentation style (i.e. no documents, full, alternative, reduced, no
income/no asset, stated income, no ration, reduced or NIV); (30) asset
verification (Y/N); (31) whether such Mortgage Loan provides for a Prepayment
Penalty; (32) the Prepayment Penalty period of such Mortgage Loan, if
applicable; (33) a description of the Prepayment Penalty, if applicable; (34)
the Mortgage Interest Rate as of origination; (35) the credit risk score (FICO
score); (36) the date of origination; (37) with respect to Adjustable Rate
Mortgage Loans, the Mortgage Interest Rate adjustment period; (38) with
respect to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate
adjustment percentage; (39) with respect to Adjustable Rate Mortgage Loans,
the Mortgage Interest Rate floor; (40) the Mortgage Interest Rate calculation
method (i.e., 30/360, simple interest, other); (41) with respect to Adjustable
Rate Mortgage Loans, the Periodic Rate Cap as of the first Interest Rate
Adjustment Date; (42) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan; (43) the original Monthly Payment due; (44) the Appraised
Value; (45) appraisal type; (46) appraisal date; (47) a code indicating
whether the Mortgage Loan is covered by a PMI Policy and, if so, identifying
the PMI Policy provider; (48) the certificate number of the PMI Policy, if
applicable; (49) the amount of coverage of the PMI Policy, if
-8-
applicable; (50) in connection with a condominium unit, the number of floors
in the condominium project where such unit is located; (51) [Reserved]; (52)
with respect to the related Mortgagor, the debt-to-income ratio; (53) sales
price; (54) a code indicating whether the Mortgage Loan is a MERS Designated
Mortgage Loan and the MERS Identification Number, if applicable; (55) a field
indicating whether such Mortgage Loan is a Home Loan; and (56) the DU or LP
number, if applicable. With respect to the Mortgage Loans in the aggregate,
the related Mortgage Loan Schedule shall set forth the following information,
as of the related Cut-off Date: (1) the number of Mortgage Loans; (2) the
current aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the Mortgage Loans; (5) the average principal
balance of the Mortgage Loans; (6) the applicable Cut-off Date; and (7) the
applicable Closing Date.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property securing repayment of a related
Mortgage Note, consisting of an unsubordinated estate in fee simple or, with
respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice, a
leasehold estate, in a single parcel or multiple parcels of real property
improved by a Residential Dwelling. With respect to a Co-op Loan, the stock
allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of the
Mortgaged Property and the grantor or mortgagor named in the Mortgage and such
grantor's or mortgagor's successors in title to the Mortgaged Property.
Nonrecoverable Advance: Any advance previously made or proposed to
be made in respect of a Mortgage Loan which, in the good faith judgment of the
Interim Servicer, will not or, in the case of a proposed advance, would not,
be ultimately recoverable from related Insurance Proceeds, Liquidation
Proceeds or otherwise. The determination by the Interim Servicer that it has
made a Nonrecoverable Advance or that any proposed advance of principal and
interest, if made, would constitute a Nonrecoverable Advance, shall require
the written consent of the Purchaser.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Secretary or one of the Assistant Secretaries of the Seller, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Seller, reasonably satisfactory to the Purchaser and generally
in the form of Exhibit D hereto.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the
-9-
Mortgage Interest Rate therein may increase on an Interest Rate Adjustment
Date above the Mortgage Interest Rate previously in effect. The Periodic Rate
Cap for each Adjustable Rate Mortgage Loan is the rate set forth as such on
the related Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the amount
of any premium or penalty, if any, required to be paid by the Mortgagor if the
Mortgagor prepays such Mortgage Loan as provided in the related Mortgage Note
or Mortgage.
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty thereon, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: That certain agreement setting
forth the general terms and conditions of the purchase and sale of the
Mortgage Loans to be purchased hereunder, between the Seller and the
Purchaser.
Purchase Price Percentage: The percentage of par (expressed as
decimal) set forth in the related Purchase Price and Terms Agreement.
Purchaser: Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York
corporation, and its successors in interest and assigns, or any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller or
the originator of the Mortgage Loan, who had no interest, direct or indirect,
in the Mortgaged Property or in any loan made on the security thereof, and
whose compensation was not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such
-10-
appraiser both satisfied the requirements of Title XI of FIRREA and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller acquired
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that (x) Seller, (y) such Person or (z) contract
underwriters would underwrite mortgage loans from time to time, for
acquisition by the Seller, in accordance with underwriting guidelines
designated by the Seller ("Designated Guidelines") or guidelines that do not
vary materially from such Designated Guidelines; (ii) such Mortgage Loans were
in fact underwritten and acquired pursuant to the agreement described in
clause (i) above and were acquired by the Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time such
Mortgage Loans were originated, used by the Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller's own account or
(y) the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be acquired by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-funding or post-funding quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans acquired
during a particular time period or through particular channels) designed to
ensure that Persons from which it acquired mortgage loans properly applied the
underwriting criteria designated by the Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date
of such substitution, be approved by the Purchaser and (i) have an unpaid
principal balance, after deduction of all scheduled payments due in the month
of substitution (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate principal balance), not in
excess of the unpaid principal balance of the Deleted Mortgage Loan (the
amount of any shortfall will be deposited in the Custodial Account by the
Seller in the month of substitution); (ii) have a Mortgage Interest Rate not
less than and not more than one percent (1%) greater than the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one (1) year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Mortgage Interest Rate Cap and
Index); (v) comply as of the date of substitution with each representation and
warranty set forth in Section 9 of this Agreement; (vi) be current in the
payment of principal and interest; (vii) be secured by a Mortgaged Property of
the same type and occupancy status as secured the Deleted Mortgage Loan; and
(viii) have payment terms that do not vary in any material respect from those
of the Deleted Mortgage Loan.
Rate/Term Refinance: A Refinanced Mortgage Loan, in which the
proceeds received were not in excess of the amount of funds required to repay
the principal balance of any existing first mortgage loan on the related
Mortgaged Property, pay related closing costs and satisfy any outstanding
subordinate mortgages on the related Mortgaged Property and did not provide
incidental cash to the related Mortgagor of more than one percent (1%) of the
original principal balance of such Mortgage Loan.
Reconstitution: A Whole Loan Transfer or a Securitization
Transaction.
-11-
Reconstitution Agreements: The agreement or agreements entered
into by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transaction pursuant to Section 13, including, but not limited
to, a seller's warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to
a Securitization Transaction.
Reconstitution Date: As defined in Section 13.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
REO Property: A Mortgaged Property acquired by the Interim
Servicer through foreclosure or deed in lieu of foreclosure.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to the sum of: (i) the product of (a) par (or, with respect to any Mortgage
Loan required to be repurchased on or prior to the first anniversary of the
related Closing Date, the greater of (x) par and (y) the excess of the
applicable Purchase Price Percentage over par multiplied by a fraction equal
to (1) 360 minus the number of days from but excluding the related Closing
Date, up through and including the date of such repurchase, divided by (2)
360) and (b) the outstanding principal balance of such Mortgage Loan, (ii)
accrued interest thereon at the applicable Mortgage Interest Rate from the
last "interest paid to" date through the date of such repurchase, (iii) the
amount of any outstanding advances owed to any servicer, and (iv) all costs
and expenses incurred by the Purchaser or any servicer arising out of or based
upon such breach, including without limitation costs and expenses incurred in
the enforcement of the Seller's repurchase obligation hereunder.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project or (iv) a one-family
dwelling in a planned unit development, none of which is a co-operative,
mobile or Manufactured Home.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Securities Act: The Securities Act of 1933, as amended.
-12-
Securities Exchange Act: The federal Securities Exchange Act of
1934, as amended.
Securitization Transaction. Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of the Agreement,
together with its successors in interest.
Seller Information: As defined in Subsection 14.04(a).
Servicing Fee: As to each Mortgage Loan Package, the amount of the
fee the Purchaser shall pay to the Seller for servicing the Mortgage Loans in
accordance with the terms of this Agreement, which shall, with respect to each
Mortgage Loan, be equal to $5.00 per calendar month.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Interim Servicer consisting of originals or scanned images, as
applicable, of all documents in the Mortgage File which are not delivered to
the Purchaser or the Custodian and copies of the Mortgage Loan Documents set
forth in Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received
by the Seller for servicing the Mortgage Loans; (c) any late fees, penalties
or similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage
Loans.
Sponsor: The sponsor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and any successor thereto.
-13-
Standard & Poor's Glossary: With respect to any Mortgage Loan, the
Standard & Poor's LEVELS(R) Glossary in effect on the related Closing Date.
Stated Principal Balance: As to each Mortgage Loan on any date of
determination, (i) the principal balance of such Mortgage Loan at the related
Cut-off Date after giving effect to payments of principal due on or before
such date, to the extent actually received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal on such Mortgage Loan.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Subsections 9.03 and 15.01.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transfer Date: In the event the Interim Servicer is terminated as
servicer of a Mortgage Loan pursuant to the Interim Servicing Agreement, the
date on which the Purchaser, or its designee, shall receive the transfer of
servicing responsibilities and begin to perform the servicing of such Mortgage
Loans, and the Interim Servicer shall cease all servicing responsibilities.
Underwriting Guidelines: The underwriting guidelines of the
Seller, a copy of which is attached hereto as Exhibit G and a then-current
copy of which is attached as an exhibit to the related Assignment and
Conveyance.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller agrees to sell from time to time, and the Purchaser
agrees to purchase from time to time, Mortgage Loans having an aggregate
actual unpaid principal balance on the related Cut-off Date in an amount as
set forth in the related Purchase Price and Terms Agreement, or in such other
amount as agreed by the Purchaser and the Seller as evidenced by the actual
aggregate unpaid principal balance of the Mortgage Loans accepted by the
Purchaser on each Closing Date, together with the related Mortgage Files and
all rights and obligations arising under the documents contained therein.
SECTION 3. Mortgage Schedules.
The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the Mortgage Loans
to be purchased on each Closing Date in accordance with the related Purchase
Price and Terms Agreement and this Agreement (each, a "Preliminary Mortgage
Schedule").
-14-
The Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans to be purchased on a particular Closing Date to the
Purchaser at least five (5) Business Days prior to the related Closing Date,
or such other date as is mutually acceptable to the Seller and the Purchaser.
The related Mortgage Loan Schedule shall be the related Preliminary Mortgage
Schedule with those Mortgage Loans which have not been funded prior to the
related Closing Date deleted.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan and the related
Servicing Rights shall be the percentage of par as stated in the related
Purchase Price and Terms Agreement (subject to adjustment as provided
therein), multiplied by the aggregate actual unpaid principal balance, as of
the related Cut-off Date, of the Mortgage Loans listed on the related Mortgage
Loan Schedule, after application of scheduled payments of principal due on or
before the related Cut-off Date, but only to the extent such payments were
actually received. The initial principal amount of the related Mortgage Loans
shall be the aggregate actual unpaid principal balance of the Mortgage Loans,
so computed as of the related Cut-off Date. If so provided in the related
Purchase Price and Terms Agreement, portions of the Mortgage Loans and/or the
Servicing Rights shall be priced and paid for separately.
In addition to the Purchase Price as described above, the
Purchaser shall pay to the Seller, at closing, accrued interest from the last
"interest paid to" date through the day immediately preceding the related
Closing Date, inclusive, on the aggregate actual unpaid principal amount of
the related Mortgage Loans as of the related Cut-off Date at the weighted
average Mortgage Interest Rate of those Mortgage Loans. The Purchase Price
plus accrued interest as set forth in the preceding paragraph shall be paid to
the Seller by wire transfer of immediately available funds to an account
designated by the Seller in writing.
The Purchaser shall be entitled to (1) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal
collected on or after the related Cut-off Date, and (3) all payments of
interest on the Mortgage Loans net of applicable Servicing Fees (minus that
portion of any such payment which is allocable to the period prior to the
related Cut-off Date). The outstanding principal balance of each Mortgage Loan
as of the related Cut-off Date is determined after application of payments of
principal due on or before the related Cut-off Date, to the extent actually
collected, together with any unscheduled principal prepayments collected prior
to such Cut-off Date; provided, however, that payments of scheduled principal
and interest paid prior to such Cut-off date, but to be applied on a Due Date
beyond the related Cut-off Date shall not be applied to the principal balance
as of the related Cut-off Date. Such prepaid amounts shall be the property of
the Purchaser. The Seller shall deposit any such prepaid amounts into the
Custodial Account, which account is established for the benefit of the
Purchaser for subsequent remittance by the Seller to the Purchaser.
SECTION 5. Examination of Mortgage Files.
At least ten (10) Business Days prior to the related Closing Date,
the Seller shall either (a) deliver to the Purchaser or its designee in
escrow, for examination with respect to each Mortgage Loan to be purchased,
the related Mortgage File, including a copy of the Assignment
-15-
of Mortgage, pertaining to each Mortgage Loan, or (b) make the related
Mortgage File available to the Purchaser for examination at such other
location as shall otherwise be acceptable to the Purchaser. Such examination
of the Mortgage Files may be made by the Purchaser or its designee at any
reasonable time before or after the related Closing Date. If the Purchaser
makes such examination prior to the related Closing Date and determines, in
its sole discretion, that any Mortgage Loans do not conform to any of the
requirements set forth in the related Purchase Price and Terms Agreement, or
as an Exhibit annexed thereto, the Purchaser may delete such Mortgage Loans
from the related Mortgage Loan Schedule, and such Deleted Mortgage Loan (or
Loans) may be replaced by a Qualified Substitute Mortgage Loan (or Loans)
acceptable to the Purchaser. The Purchaser may, at its option and without
notice to the Seller, purchase some or all of the Mortgage Loans without
conducting any partial or complete examination. The fact that the Purchaser or
its designee has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not impair in any way the Purchaser's
(or any of its successor's) rights to demand repurchase, substitution or other
relief as provided in this Agreement. In the event that the Seller fails to
deliver the Mortgage File with respect to any Mortgage Loan, the Seller shall,
upon the request of the Purchaser, repurchase such Mortgage Loan as the price
and in the manner specified in Subsection 9.03.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, simultaneously with the delivery of the Mortgage Loan
Schedule with respect to the related Mortgage Loan Package to be purchased on
each Closing Date, shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit H (the "Assignment and
Conveyance Agreement"). The Seller shall ensure that the contents of each
Servicing File, which required to be retained by or delivered to the Interim
Servicer to service the Mortgage Loans pursuant to the Interim Servicing
Agreement and thus not delivered to the Purchaser, or its designee, are and
shall be held in trust by the Interim Servicer for the benefit of the
Purchaser as the owner thereof. The Seller agrees that the Interim Servicer's
possession of any portion of each such Mortgage File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the Mortgage Loans
pursuant to this Agreement, and such retention and possession by the Interim
Servicer shall be in a custodial capacity only. The ownership of each Mortgage
Note, each Mortgage and the contents of each Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Interim Servicer shall immediately vest in the Purchaser and shall be retained
and maintained, in trust, by the Interim Servicer at the will of the Purchaser
in such custodial capacity only. The Seller shall cause the Servicing File
retained by the Interim Servicer pursuant to this Agreement to be
appropriately identified in the Seller's computer system and/or books and
records, as appropriate, to clearly reflect the sale of the related Mortgage
Loan to the Purchaser. The Seller shall cause the Interim Servicer to release
from its custody the contents of any Servicing File retained by it only in
accordance with this Agreement or the Interim Servicing Agreement, except when
such release is required in connection with a repurchase of any such Mortgage
Loan pursuant to Subsection 9.03 or if required under applicable law or court
order.
-16-
Subsection 6.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note as of
the related Closing Date shall be in the name of the Seller, an Affiliate of
the Seller, the Purchaser or one or more designees of the Purchaser, as the
Purchaser shall select; provided, however, that if a Mortgage has been
recorded in the name of MERS or its designee, the Seller is shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by
MERS. Notwithstanding the foregoing, ownership of each Mortgage and related
Mortgage Note shall be vested solely in the Purchaser or the appropriate
designee of the Purchaser, as the case may be. All rights arising out of the
Mortgage Loans including, but not limited to, all funds received by the Seller
or the Interim Servicer after the related Cut-off Date on or in connection
with a related Mortgage Loan shall be vested in the Purchaser or one or more
designees of the Purchaser; provided, however, that all funds received on or
in connection with a Mortgage Loan shall be received and held by the Seller or
the Interim Servicer in trust for the benefit of the Purchaser or the
appropriate designee of the Purchaser, as the case may be, as the owner of the
Mortgage Loans pursuant to the terms of this Agreement.
The Seller shall be or shall cause the Interim Servicer to be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Seller
shall or shall cause the Interim Servicer to maintain in its possession,
available for inspection by the Purchaser, and shall deliver to the Purchaser
upon demand and with reasonable advance notice, evidence of compliance with
all applicable federal, state and local laws, rules and regulations, and
applicable requirements of Xxxxxx Xxx or Xxxxxxx Mac. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Seller or the
Interim Servicer may be in the form of microfilm, scanned images, if mutually
agreed to by the Seller and the Purchaser, electronic data, or microfiche so
long as the Seller or the Interim Servicer complies with the applicable
requirements of the Xxxxxx Mae Guides.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the related
Mortgage Loans by the Seller and not a pledge of such Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
Consequently, the sale of each Mortgage Loan shall be reflected as a purchase
on the Purchaser's business records, tax returns and financial statements, and
as a sale of assets on the Seller's business records, tax returns and
financial statements.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later
than two (2) Business Days prior to the related Closing Date any of those
Mortgage Loan Documents set forth on Exhibit A-2 hereto which are required by
the Custodial Agreement with respect to each Mortgage Loan set forth on the
related Mortgage Loan Schedule.
In connection with the foregoing, the Seller shall indemnify the
Purchaser and its present and former directors, officers, employees and agents
and any Successor Servicer and its
-17-
present and former directors, officers, employees and agents, and hold such
parties harmless against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and other costs and
expenses based on or grounded upon, or resulting from, the fact that a
Mortgage Loan is not covered by an ALTA or CLTA lender's title insurance
policy. For purposes of the previous sentence, "Purchaser" shall mean the
Person then acting as the Purchaser under this Agreement and any and all
Persons who previously were "Purchasers" under this Agreement and "Successor
Servicer" shall mean any Person designated as the Successor Servicer pursuant
to this Agreement and any and all Persons who previously were "Successor
Servicers" pursuant to this Agreement.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the
Custodian in the form annexed to the Custodial Agreement. The Seller shall
comply with the terms of the Custodial Agreement and the Purchaser shall pay
all fees and expenses of the Custodian.
The Seller shall or shall cause the Interim Servicer to forward to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with this Agreement within two weeks of their execution, provided, however,
that the Seller shall provide the Custodian, or to such other Person as the
Purchaser shall designate in writing, with a true copy certified by the Seller
of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within two (2)
weeks following receipt of the original document by the Interim Servicer;
provided, however, that such original recorded document or certified copy
thereof shall be delivered to the Purchaser no later than 360 days following
the related Closing Date, unless there has been a delay at the applicable
recording office.
If the original or copy of a title policy or any document
submitted for recordation to the appropriate public recording office is not
delivered to the Purchaser or its designee within 180 days following the
related Closing Date, the related Mortgage Loan shall, upon the written
request of the Purchaser, be repurchased by the Seller at the price and in the
manner specified in Subsection 9.03. The foregoing repurchase obligation shall
not apply if the Seller cannot cause the Interim Servicer to deliver such
original or copy of a title policy or any document submitted for recordation
to the appropriate public recording office within the specified period due to
a delay caused by the title company or the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not
available, an officer's certificate of a servicing officer of the Seller,
confirming that such document has been submitted for recording, and (ii) such
document is delivered within twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
Assignments of Mortgage and any other fees or costs in transferring all
original documents to the Custodian or, upon written request of the Purchaser,
to the Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's
designee shall be responsible for recording the Assignments of
-18-
Mortgage and shall be reimbursed by the Seller for the recording fees
associated therewith pursuant to the preceding sentence. The Seller shall
indemnify the Purchaser for any loss, cost, damage, expense or other liability
resulting from any act or omission related to the recording or attempted
recording of Assignments of Mortgage, unless due to an act or omission of the
Purchaser or its agents (unless such act or omission was reasonably based upon
information, direction or materials provided by the Seller).
Notwithstanding any other provision of this Agreement or the
Interim Servicing Agreement, any and all documents required to be delivered to
Purchaser or any other Person pursuant to the terms of this Agreement or the
Interim Servicing Agreement (except for the Mortgage Note and any allonges or
endorsements thereof, HUD-1, Right of Rescission (if applicable, in which
case, the Seller shall provide a certified copy of the same), recorded
Mortgage, any applicable recorded assignments of mortgage, the title policy,
and any documents in the Mortgage File for which an original is required by
applicable law to be retained or produced in order to enforce rights, remedies
or obligations thereunder) may be provided solely by means of a computer disk
containing scanned images of such documents, or, if agreed to by the Seller
and the Purchaser, electronic data containing the relevant information. The
Seller shall not be required to retain paper copies of any documents, whether
they are signed originals or photocopies it is permitted to deliver as a
scanned image or electronic data pursuant to the preceding sentence. The
Seller shall indemnify the Purchaser and its present and former directors,
officers, employees and agents and hold such parties harmless against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and other costs and expenses based on or grounded
upon, or resulting from, the fact that the Purchaser does not have an original
paper copy of any document required to be delivered by the Seller to the
Purchaser or another Person pursuant to the terms of this Agreement. For
purposes of this paragraph and the immediately preceding paragraph,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
Subsection 6.04 Quality Control Procedures.
The Seller shall, or shall cause the Interim Servicer to, have an
internal quality control program that complies with any applicable Xxxxxx Xxx
requirements set forth in the Xxxxxx Mae Guides.
Subsection 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the Purchaser as the
Investor and the Custodian as custodian, and no Person shall be listed as
Interim Funder on the MERS System. In addition, on or prior to the related
Closing Date, Seller shall provide the Custodian and the Purchaser with a MERS
Report listing the Purchaser as the Investor, the Custodian as custodian and
no Person as Interim Funder with respect to each MERS Designated Mortgage
Loan.
-19-
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the Purchaser
on a servicing released basis. Subject to and upon the terms and conditions of
this Agreement and the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein), the Seller hereby
sells, transfers, assigns, conveys and delivers to the Purchaser the Servicing
Rights.
The Purchaser shall retain the Interim Servicer as contract
servicer of the Mortgage Loans for an interim period pursuant to and in
accordance with the terms and conditions contained in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein). The Seller shall cause the Interim Servicer to execute the
Interim Servicing Agreement on the initial Closing Date.
The Seller, or Purchaser if Purchaser appoints a successor Interim
Servicer, shall cause the Interim Servicer to transfer the servicing of the
Mortgage Loans on each Transfer Date in accordance with the terms of the
Interim Servicing Agreement.
SECTION 8. [RESERVED].
SECTION 9. Representations, Warranties and Covenants of the
Seller; Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser
that as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a federal
savings bank, validly existing, and in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted. If the applicable laws of any state (taking
into consideration any applicable federal pre-emption) in which a Mortgaged
Property is located require licensing or qualification of the Seller in order
to conduct business of the type conducted by the Seller, the Seller is
licensed, qualified and in good standing in such state. The Seller has
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; the execution, delivery and performance of
this Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the Seller and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement has
been duly executed and delivered and constitutes the valid, legal, binding and
enforceable obligation of the Seller, except as enforceability may be limited
by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights
of creditors and (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law. All requisite corporate action has
been taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental
-20-
agency or body, or federal or state regulatory authority having jurisdiction
over the Seller is required or, if required, such consent, approval,
authorization or order has been or will, prior to the related Closing Date, be
obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of the Seller's charter
or by-laws or any legal restriction or any agreement or instrument to which
the Seller is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which the
Seller or its property is subject, or result in the creation or imposition of
any lien, charge or encumbrance that would have a material adverse effect upon
any of its properties pursuant to the terms of any mortgage, contract, deed of
trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding
or investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe,
nor does it have any reason or cause to believe, that it cannot perform each
and every covenant contained in this Agreement. The Seller is solvent and the
sale of the Mortgage Loans will not cause the Seller to become insolvent. The
sale of the Mortgage Loans is not undertaken with the intent to hinder, delay
or defraud any of Seller's creditors;
(g) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase,
-21-
or not to purchase, or the price Purchaser may offer to pay for, any such
mortgage loan, if originated;
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money
Laundering Laws"); the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has
conducted, or caused to be conducted, due diligence in connection with the
origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor and
the origin of the assets used by the said Mortgagor to purchase the property
in question, and maintains, and will maintain, sufficient information to
identify the applicable Mortgagor for purposes of the Anti-Money Laundering
Laws;
(i) Financial Statements. The Seller, if requested by the
Purchaser, has delivered to the Purchaser financial statements as to its last
three (3) 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
for each of such periods and the financial position at the end of each such
period of the Seller and its subsidiaries and have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as set forth in the notes thereto. 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;
(j) Selection Process. The Mortgage Loans were selected from
among the outstanding one- to four-family mortgage loans in the Seller's
portfolio of mortgage loans of the type set forth on the related Preliminary
Mortgage Loan Schedule at the related Closing Date as to which the
representations and warranties set forth in Subsection 9.02 could be made and
such selection was not made in a manner so as to affect adversely the
interests of the Purchaser;
(k) Delivery to the Custodian. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered
with respect to each Mortgage Loan pursuant to the Custodial Agreement shall
be delivered to the Custodian all in compliance with the specific requirements
of the Custodial Agreement. With respect to each Mortgage Loan, the Seller
will be in possession of a complete Mortgage File in compliance with Exhibit A
hereto, except for such documents as will be delivered to the Custodian;
(l) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the pool
characteristics for the applicable Mortgage Loan Package delivered pursuant to
Section 11 on the related Closing Date in the form attached as Exhibit B to
each related Assignment and Conveyance Agreement;
(m) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby
(including any Securitization Transaction or Whole Loan Transfer)
-22-
contains or will contain any untrue statement of material fact or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein not misleading;
(n) No Brokers. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
(o) Sale Treatment. The Seller expects to be advised by its
independent certified public accountants that under generally accepted
accounting principles the transfer of the Mortgage Loans will be treated as a
sale on the books and records of the Seller;
(p) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans; and
(q) Insured Depository Institution Representations. Seller is an
"insured depository institution" as that term is defined in Section 1813(c)(2)
of Title 12 of the United States Code, as amended, and accordingly, Seller
makes the following additional representations and warranties:
(i) This Agreement between Purchaser and Seller conforms to all
applicable statutory and regulatory requirements; and
(ii) This Agreement is (1) executed contemporaneously with the
agreement reached by Purchaser and Seller, (2) approved by a
corporate or banking association resolution by the Seller's
board of directors, which approval shall be reflected in the
minutes of said board, and (3) an official record of the
Seller. A copy of such resolution, certified by a vice
president or higher officer of Seller has been provided to
Purchaser.
Subsection 9.02 Representations and Warranties Regarding
Individual Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that,
as to each Mortgage Loan, as of the related Closing Date for such Mortgage
Loan:
(a) Mortgage Loans as Described. The information set forth in
the related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage
Note have been made and credited. Except as set forth on the related Mortgage
Loan Schedule, no payment required under the Mortgage Loan is 30 days or more
delinquent, nor has any payment under the Mortgage Loan been 30 days or more
delinquent at any time since the origination of the Mortgage Loan;
(c) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due
-23-
and owing have been paid, or an escrow of funds has been established in an
amount sufficient to pay for every such item which remains unpaid and which
has been assessed but is not yet due and payable. The Seller has not advanced
funds, or induced, solicited or knowingly received any advance of funds by a
party other than the Mortgagor, directly or indirectly, for the payment of any
amount required under the Mortgage Loan, except for interest accruing from the
date of the Mortgage Note or date of disbursement of the Mortgage Loan
proceeds, whichever is earlier, to the day which precedes by one month the
related Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note
and Mortgage have not been impaired, waived, altered or modified in any
respect, from the date of origination except by a written instrument which has
been recorded, if necessary to protect the interests of the Purchaser, and
which has been delivered to the Custodian or to such other Person as the
Purchaser shall designate in writing, and the terms of which are reflected in
the related Mortgage Loan Schedule. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related PMI
Policy and the title insurer, if any, to the extent required by the policy,
and its terms are reflected on the related Mortgage Loan Schedule, if
applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right
of rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any right thereunder, render
either the Mortgage Note or the Mortgage unenforceable, in whole or in part,
or subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted against the
Seller with respect thereto;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are provided for in the Underwriting
Guidelines. If required by the National Flood Insurance Act of 1968, as
amended, each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect which policy conforms with the Underwriting Guidelines. All
individual insurance policies contain a standard mortgagee clause naming the
Seller and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
the hazard insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by applicable state
law or regulation, the Mortgagor has been given an opportunity to choose the
carrier of the required hazard insurance, provided the policy is not a
"master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance
-24-
policy is, as of the related Closing Date, the valid and binding obligation of
the insurer, in full force and effect, and such hazard insurance policy 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 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 applicable
requirements of any federal, state or local law including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer credit
protection, predatory and abusive lending, equal credit opportunity and
disclosure laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to a Prepayment Penalty have been complied
with, the consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations, and the Seller shall,
if required by applicable law, maintain in its possession evidence of
compliance with all such requirements, and shall make available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand,
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) Type of Mortgaged Property. With respect to a Mortgage Loan
that is not a Co-op Loan and is not secured by an interest in a leasehold
estate, the Mortgaged Property is a fee simple estate that consists of a
single parcel of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development (or, with respect to each Co-op Loan, an individual unit in a
residential cooperative housing corporation); provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform with the Underwriting Guidelines. No portion of the
Mortgaged Property (or underlying Mortgaged Property, in the case of a Co-op
Loan) is used for commercial purposes, and since the date of origination, no
portion of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall not be
considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner
repair, maintenance and/or household purposes or as otherwise permitted by
applicable zoning regulations. None of the Mortgaged Properties are
Manufactured Homes, log homes, mobile homes, geodesic domes or other unique
property types;
-25-
(j) Valid First Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
(i) the lien of current real property taxes and assessments not
yet due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the
date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator
of the Mortgage Loan and (a) specifically referred to or
otherwise considered in the appraisal made for the
originator of the Mortgage Loan or (b) which do not
adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(iii) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected first lien and first
priority security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser.
With respect to any Co-op Loan, the related Mortgage is a valid,
subsisting and enforceable first priority security interest on the related
cooperative shares securing the Mortgage Note, subject only to (a) liens of
the related residential cooperative housing corporation for unpaid assessments
representing the Mortgagor's pro rata share of the related residential
cooperative housing corporation's payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security interest intended to be provided by the
related Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms (including, without limitation, any provisions therein relating to
Prepayment Penalties). All parties to the Mortgage Note, the Mortgage and any
other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other
-26-
such related parties. No fraud, error, omission, misrepresentation, negligence
or similar occurrence with respect to a Mortgage Loan has taken place on the
part of the Seller in connection with the origination of the Mortgage Loan or
in the application for any insurance in relation to such Mortgage Loan. The
documents, instruments and agreements submitted for loan underwriting were not
falsified and contain no untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
information and statements therein not misleading. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application for any
insurance in relation to such Mortgage Loan;
(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. Except as set forth on
the related Mortgage Loan Schedule, 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 currently due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder
of the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and
upon the sale of the Mortgage Loans to the Purchaser, the Seller will retain
the Mortgage Files or any part thereof with respect thereto not delivered to
the Custodian, the Purchaser or the Purchaser's designee, in trust only for
the purpose of servicing and supervising the servicing of each Mortgage Loan.
Upon the consummation of the sale of the Mortgage Loan from the Seller to the
Purchaser, the Mortgage Loan is not assigned or pledged. The Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement and following the sale of each
Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except as may be required of the Seller
in its capacity as Interim Servicer of such Mortgage Loan. After the related
Closing Date, the Seller will have no right to modify or alter the terms of
the sale of the Mortgage Loan and the Seller will have no obligation or right
to repurchase the Mortgage Loan or substitute another Mortgage Loan, except as
provided in this Agreement;
(n) Doing Business. All parties which have had any interest in
the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable licensing requirements of the
laws of the state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do business
in such state,
-27-
or (iii) a federal savings and loan association, a savings bank or a national
bank, or (3) not doing business in such state;
(o) LTV, PMI Policy. Except as set forth on the related Mortgage
Loan Schedule, no Mortgage Loan has an LTV greater than 100%. Any Mortgage
Loan that had at the time of origination an LTV in excess of 80% is insured as
to payment defaults by a PMI Policy. Any PMI Policy in effect covers the
related Mortgage Loan for the life of such Mortgage Loan. All provisions of
such PMI Policy have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. No action,
inaction, or event has occurred and no state of facts exists that has, or will
result in the exclusion from, denial of, or defense to coverage. Any Mortgage
Loan subject to a PMI Policy obligates the Mortgagor thereunder to maintain
the PMI Policy and to pay all premiums and charges in connection therewith;
(p) Title Insurance. With respect to a Mortgage Loan which is
not a Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title
insurance policy or other generally acceptable form of policy or insurance
acceptable under the Underwriting Guidelines and each such title insurance
policy is issued by a title insurer acceptable under the Underwriting
Guidelines and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (i) and (ii) of clause (j) of this Subsection 9.02, and
in the case of Adjustable Rate Mortgage Loans, against any loss by reason of
the invalidity or unenforceability of the lien resulting from the provisions
of the Mortgage providing for adjustment to the Mortgage Interest Rate and
Monthly Payment. Where required by applicable state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller, its successor and
assigns, are the sole insured of such lender's title insurance policy, and
such lender's title insurance policy is valid and remains in full force and
effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet 30 days or
more delinquent, except as set forth on the related Mortgage Loan Schedule,
there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration. Neither the Seller nor, to the best of Seller's
knowledge, any of its affiliates nor any of their respective predecessors,
have waived any default, breach, violation or event which would permit
acceleration;
-28-
(r) No Mechanics' Liens. There are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no
rights are outstanding that under law could give rise to such liens) affecting
the related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of
the Mortgaged Property, and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. 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, including a correspondent mortgage banker or
broker having a pre-existing relationship with the Seller that is licensed or
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located which underwrote the Mortgage Loan to the Underwriting
Guidelines and otherwise applied the same standards used by the Seller in
originating Mortgage Loans directly. Principal payments on the Mortgage Loan
commenced no more than seventy days after funds were disbursed in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as, in the case of
an Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate
Cap and the Periodic Rate Floor are as set forth on the related Mortgage Loan
Schedule. The Mortgage Interest Rate is adjusted with respect to Adjustable
Rate Mortgage Loans, on each Interest Rate Adjustment Date to equal the Index
plus the Gross Margin (rounded up or down to the nearest 0.125%), subject to
the Periodic Rate Cap. The Mortgage Note is payable in equal monthly
installments of principal (except for Mortgage Loans that provide for a fixed
period of interest-only payments at the beginning of their term) and interest,
which installments of interest, with respect to Adjustable Rate Mortgage
Loans, are subject to change due to the adjustments to the Mortgage Interest
Rate on each Interest Rate Adjustment Date, with interest calculated and
payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty (30) years
from commencement of amortization. With respect to any Mortgage Loan that
provides for a fixed period of interest-only payments at the beginning of its
term, at the end of such interest-only period, the Monthly Payment will be
recalculated so as to require Monthly Payments sufficient to amortize the
Mortgage Loan fully by its stated maturity date. Unless otherwise specified on
the related Mortgage Loan Schedule, the Mortgage Loan is payable on the first
day of each month, the Mortgage Loan does not require a balloon payment on its
stated maturity date, and by its original terms or any modification thereof,
does not provide for amortization beyond its scheduled maturity date;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
-29-
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good and merchantable title to the Mortgaged Property. There is no homestead
or other exemption available to a Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or
similar law;
(v) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
(a copy of which is attached to the related Assignment and Conveyance
Agreement). The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or Xxxxxx Mae and no representations have been made to a Mortgagor that
are inconsistent with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. As of the origination
date of such Mortgage Loan, the Mortgaged Property was lawfully occupied under
applicable law. All inspections, licenses and certificates required to be made
or issued, as of the date of origination of the Mortgage Loan, with respect to
all occupied portions of the Mortgaged Property and, with respect to the use
and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgagor represented at the time of origination
of the Mortgage Loan that the Mortgagor would occupy the Mortgaged Property as
the Mortgagor's primary residence;
(x) No Additional Collateral. The Mortgage Note is not and has
not been secured by any collateral except the lien of the corresponding
Mortgage and the security interest of any applicable security agreement or
chattel mortgage referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, authorized and duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable by
the Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(z) Acceptable Investment. There are no circumstances or
conditions with respect to the Mortgage, and to the best of Seller's
knowledge, the Mortgaged Property, the Mortgagor, the Mortgage File or the
Mortgagor's credit standing that can reasonably be expected to cause private
institutional investors who invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable investment cause
the Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan, or cause the Mortgage Loan to prepay
during any period materially faster or slower than the mortgage loans
originated by the Seller generally;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under the Custodial Agreement for each Mortgage Loan have been
delivered to the Custodian. The Seller is in possession of a complete, true
and accurate Mortgage File in compliance with Exhibit A-2 hereto, except for
such documents the originals of which have been delivered to the Custodian;
-30-
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage
(except with respect to any Mortgage that has been recorded in the name of
MERS or its designee) with respect to each Mortgage Loan is in recordable form
and is acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(cc) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan,
the Mortgage contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written
consent of the Mortgagee thereunder;
(dd) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first
Interest Rate Adjustment Date, a related Mortgage Loan may only be assumed if
the party assuming such Mortgage Loan meets certain credit requirements stated
in the Mortgage Loan Documents;
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. Except as set forth on the related Mortgage Loan Schedule, 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 which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ff) Consolidation of Future Advances. Any future advances made
to the Mortgagor prior to the applicable Cut-off Date have been consolidated
with the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a title insurance
policy, an endorsement to the policy insuring the Mortgagee's consolidated
interest or by other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx Mac.
The consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or, to the best of Seller's knowledge,
threatened for the total or partial condemnation of the Mortgaged Property. To
the best of Seller's knowledge, the Mortgaged Property is undamaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. Since the origination date of
such Mortgage Loan, there have not been any condemnation proceedings with
respect to the Mortgaged Property;
(hh) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller and the Interim Servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations. With respect to escrow deposits and Escrow Payments, all such
payments are in the possession of, or under the control of, the Seller or the
-31-
Interim Servicer and there exist no deficiencies in connection therewith for
which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with applicable state
and federal law and the provisions of the related Mortgage Note and Mortgage.
An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that remains unpaid
and has been assessed but is not yet due and payable. No escrow deposits or
Escrow Payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate adjustments have been made in strict compliance with applicable state and
federal law and the terms of the related Mortgage and Mortgage Note on the
related Interest Rate Adjustment Date. If, pursuant to the terms of the
Mortgage Note, another index was selected for determining the Mortgage
Interest Rate, the same index was used with respect to each Mortgage Note
which required a new index to be selected, and such selection did not conflict
with the terms of the related Mortgage Note. The Seller or the Interim
Servicer executed and delivered any and all notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and the Monthly Payment adjustments. Any interest
required to be paid pursuant to applicable state, federal and local law has
been properly paid and credited;
(ii) Conversion to Fixed Interest Rate. Except as set forth on
the related Mortgage Loan Schedule, the Mortgage Loan does not contain a
provision whereby the Mortgagor is permitted to convert the Mortgage Interest
Rate from an adjustable rate to a fixed rate;
(jj) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on
or prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability
of the timely payment of the full amount of the loss otherwise due thereunder
to the insured), irrespective of the cause of such failure of coverage. The
Seller has caused or will cause to be performed any and all acts required to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein, and
establishments of coinsured, joint loss payee and mortgagee rights in favor of
the Purchaser. In connection with the placement of any such insurance, no
commission, fee, or other compensation has been or will be received by the
Seller or by any officer, director, or employee of the Seller or any designee
of the Seller or any corporation in which the Seller or any officer, director,
or employee had a financial interest at the time of placement of such
insurance, except for premiums and related amounts received pursuant to
reinsurance agreements with mortgage guaranty insurance companies.
Notwithstanding the above, (i) the approval of the Mortgagor and underwriting
of the related Mortgage Loan was carried out pursuant to the Underwriting
Guidelines of the Seller, and (ii) the financial relationship of the Seller
(or any corporation in which the Seller or any officer, director, or employee
had a financial interest) and any such insurance policy does not and will not
have any material adverse effect on the value of the Mortgage Loans or the
interest of the Purchaser in the Mortgage Loan;
-32-
(kk) No Violation of Environmental Laws. To the best of the
Seller's knowledge (i) there is no pending action or proceeding directly
involving the Mortgaged Property in which compliance with any environmental
law, rule or regulation is an issue, (ii) there is no violation of any
environmental law, rule or regulation with respect to the Mortgage Property,
and (iii) nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite
to use and enjoyment of said property;
(ll) Servicemembers Civil Relief Act. Except as set forth on the
related Mortgage Loan Schedule, the Mortgagor has not notified the Seller, and
the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act or other similar state
statute;
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, duly appointed by the Seller or the
originator of the related Mortgage Loan, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan, and the appraisal and appraiser both satisfy the
requirements of Xxxxxx Xxx or Xxxxxxx Mac and Title XI of FIRREA and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(nn) Disclosure Materials. If required by applicable law, the
Mortgagor has executed a statement to the effect that the Mortgagor has
received all disclosure materials required by, and the Seller has complied
with, all applicable law with respect to the making of the Mortgage Loans. If
such statement must be maintained under applicable law, the Seller shall
maintain such statement in the Mortgage File;
(oo) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow Analysis. If applicable, with respect to each
Mortgage Loan, the Seller has within the last twelve months (unless such
Mortgage was originated within such twelve month period) analyzed the required
Escrow Payments for each Mortgage and adjusted the amount of such payments so
that, assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit Information. As to each consumer report (as defined
in the Fair Credit Reporting Act, Public Law 91-508) or other credit
information furnished by the Seller to the Purchaser, that Seller has full
right and authority and is not precluded by law from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing the same to any subsequent or prospective purchaser of such
Mortgage. The Seller has and shall in its capacity as servicer, for each
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information
-33-
(e.g. favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company (three of the credit
repositories), on a monthly basis;
(rr) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground
lease will not terminate earlier than five years after the maturity date of
the Mortgage Loan; (3) the ground lease does not provide for termination of
the lease in the event of lessee's default without the Mortgagee being
entitled to receive written notice of, and a reasonable opportunity to cure
the default; (4) the ground lease permits the mortgaging of the related
Mortgaged Property; (5) the ground lease protects the Mortgagee's interests in
the event of a property condemnation; (6) all ground lease rents, other
payments, or assessments that have become due have been paid; and (7) the use
of leasehold estates for residential properties is a widely accepted practice
in the jurisdiction in which the Mortgaged Property is located;
(ss) Prepayment Penalty. Each Mortgage Loan that is subject to a
Prepayment Penalty as provided in the related Mortgage Note is identified on
the related Mortgage Loan Schedule. With respect to Mortgage Loans originated
prior to October 1, 2002, no such Prepayment Penalty may be imposed for a term
in excess of five (5) years following origination. With respect to Mortgage
Loans originated on or after October 1, 2002, no such Prepayment Penalty may
be imposed for a term in excess of three (3) years following origination;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable. No Mortgage Loan is covered by the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable applicable state or local law.
(uu) Single-premium credit life insurance policy. No Mortgagor
was required to purchase any single premium credit insurance policy (e.g.,
life, disability, property, accident, unemployment or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No proceeds from any Mortgage Loan were used to purchase
single premium credit insurance policies or debt cancellation agreements as
part of the origination of, or as a condition to closing, such Mortgage Loan;
(vv) Qualified Mortgage. The Mortgage Loan is a qualified
mortgage under Section 860G(a)(3) of the Code (without regard to sections
(A)(i) and (ii) thereof);
(ww) Tax Service Contract. Each Mortgage Loan is covered by a
paid in full, life of loan, tax service contract issued by First American Real
Estate Tax Service, and such contract is transferable. On the related Closing
Date, the Seller shall remit to the Purchaser a transfer fee of two dollars
($2.00) for each Mortgage Loan covered by such a tax service contract. If such
a tax service contract with First American Real Estate Tax Service is not in
place then a placement fee of seventy two dollars ($72.00) will apply for each
such Mortgage Loan;
(xx) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay
-34-
and the extension of credit which has no apparent benefit to the Mortgagor,
were employed in the origination of the Mortgage Loan;
(yy) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the lien thereof as against creditors
of the Seller, or is in the process of being recorded;
(zz) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, the stock that is pledged as security for the Mortgage Loan is held by a
person as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the Code);
(aaa) Mortgagor Bankruptcy. To the best of Seller's knowledge, the
related Mortgagor has not filed a bankruptcy petition, is not the subject of
an involuntary bankruptcy proceeding and has not consented to the filing of a
bankruptcy proceeding against it or to a receiver being appointed in respect
of the related Mortgaged Property;
(bbb) No Prior Offer. If the Mortgage Loan has previously been
offered for sale, such Mortgage Loan was not rejected from being purchased by
such offeree as a result of the offeree's due diligence, unless such
deficiency has since been cured;
(ccc) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated (or modified) on or after October 1, 2002 and before March 7, 2003
which is secured by property located in the State of Georgia. There is no
Mortgage Loan that was originated on or after March 7, 2003 that is a "high
cost home loan" as defined under the Georgia Fair Lending Act;
(ddd) No Arbitration. No Mortgagor with respect to any Mortgage
Loan originated on or after August 1, 2004 agreed to submit to arbitration to
resolve any dispute arising out of or relating in any way to the mortgage loan
transaction;
(eee) Flood Service Contract. Each Mortgage Loan is covered by a
paid in full, life of loan, flood service contract issued by either First
American Flood Data Services or Fidelity, and such contract is transferable.
If no such flood service contract is in place, or if such flood service
contract is issued by an insurer other than First American Flood Data Services
or Fidelity, then on the related Closing Date, the Seller shall remit to the
Purchaser a placement fee of ten dollars ($10.00) for each such Mortgage Loan;
and
(fff) Negative Amortization. No Mortgage Loan is subject to
negative amortization.
Subsection 9.03 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and
warranties set forth in Subsections 9.01 and 9.02 shall survive the sale of
the Mortgage Loans to the Purchaser and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination or failure to
examine any Mortgage File. With respect to any representation or warranty
contained in Subsections 9.01 or
-35-
9.02 hereof that is made to the Seller's knowledge, in the event that it is
discovered that the circumstances with respect to the Seller or the related
Mortgage Loan would, in the absence of such knowledge qualifier, constitute a
breach then, notwithstanding that such representation or warranty is made to
the Seller's knowledge, the remedies set forth in this Subsection 9.03 shall
apply in the same manner as if a breach had occurred. Upon discovery by either
the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other relevant parties.
Within sixty (60) days after the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty, which
materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser therein (or which materially and adversely affects
the value of the applicable Mortgage Loan or the interest of the Purchaser
therein in the case of a representation and warranty relating to a particular
Mortgage Loan), the Seller shall use its best efforts promptly to cure such
breach in all material respects and, if such breach cannot be cured, the
Seller shall, at the Purchaser's option, repurchase such Mortgage Loan or
Mortgage Loans at the Repurchase Price. Notwithstanding the above sentence,
within sixty (60) days after the earlier of either discovery by, or notice to,
the Seller of any breach of the representations or warranties set forth in
clause (qq), (ss), (tt), (uu), (vv), (ccc) or (ddd) of Subsection 9.02, the
Seller shall repurchase such Mortgage Loan at the Repurchase Price. In the
event that a breach shall involve any representation or warranty set forth in
Subsection 9.01, and such breach cannot be cured within 60 days of the earlier
of either discovery by or notice to the Seller of such breach, all of the
Mortgage Loans affected by such breach shall, at the Purchaser's option, be
repurchased by the Seller at the Repurchase Price. However, if the breach
shall involve a representation or warranty set forth in Subsection 9.02
(except as provided in the second sentence of this paragraph with respect to
certain breaches for which no substitution is permitted) and the Seller
discovers or receives notice of any such breach within 120 days of the related
Closing Date, the Seller shall, at the Purchaser's option and provided that
the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan and substitute
in its place a Qualified Substitute Mortgage Loan or Qualified Substitute
Mortgage Loans, provided, however, that any such substitution shall be
effected within such one hundred twenty (120) days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan at the Repurchase Price. Any repurchase
of a Mortgage Loan pursuant to the foregoing provisions of this Subsection
9.03 shall occur on a date designated by the Purchaser, and acceptable to
Seller, and shall be accomplished by either (a) if the Interim Servicing
Agreement has been entered into and is in effect, deposit in the Custodial
Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and
being held in the Custodial Account for future distribution or (b) if the
Interim Servicing Agreement has not been entered into or is no longer in
effect, by direct remittance of the Repurchase Price to the Purchaser or its
designee in accordance with the Purchaser's instructions.
At the time of repurchase of any deficient Mortgage Loan (or
removal of any Deleted Mortgage Loan), the Purchaser shall reassign the
repurchased Mortgage Loan (or Deleted Mortgage Loan) to the Seller or its
designee and deliver to the Seller any documents held by the Custodian
relating to the repurchased Mortgage Loan (or Deleted Mortgage Loan).
-36-
In the event of a repurchase or substitution, the Seller shall, simultaneously
with such reassignment, give written notice to the Purchaser that such
repurchase or substitution has taken place, amend the Mortgage Loan Schedule
to reflect the withdrawal of the Deleted Mortgage Loan from this Agreement,
and, in the case of substitution, identify a Qualified Substitute Mortgage
Loan and amend the related Mortgage Loan Schedule to reflect the addition of
such Qualified Substitute Mortgage Loan to this Agreement. In connection with
any such substitution, the Seller shall be deemed to have made as to such
Qualified Substitute Mortgage Loan the representations and warranties set
forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to the
Custodian or to such other party as the Purchaser may designate in writing for
such Qualified Substitute Mortgage Loan the documents required by Subsection
6.03 and the Custodial Agreement, with the Mortgage Note endorsed as required
by Subsection 6.03 and the Custodial Agreement. No substitution will be made
in any calendar month after the Determination Date for such month. The Seller
shall cause the Interim Servicer to remit directly to the Purchaser, or its
designee in accordance with the Purchaser's instructions the Monthly Payment
less the Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan
or Loans in the month following the date of such substitution. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of substitution shall be retained by the Seller. For the month of
substitution, distributions to the Purchaser shall include the Monthly Payment
due on any Deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by
the Seller in respect of such Deleted Mortgage Loan. The Seller shall give
written notice to the Purchaser that such substitution has taken place and
shall amend the related Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution of
the Qualified Substitute Mortgage Loan. Upon such substitution, each Qualified
Substitute Mortgage Loan shall be subject to the terms of this Agreement in
all respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan, as of the date of substitution, the
covenants, representations and warranties set forth in Subsections 9.01 and
9.02.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Seller shall determine the amount (if any) by which the aggregate
principal balance of all such Qualified Substitute Mortgage Loans as of the
date of substitution is less than the aggregate Stated Principal Balance of
all such Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Seller directly to the Purchaser or its designee in
accordance with the Purchaser's instructions within two (2) Business Days of
such substitution. Accordingly, on the date of such substitution, the Seller
will remit to the Purchaser from its own funds an amount equal to the amount
of such shortfall plus one month's interest thereon at the applicable Mortgage
Interest Rate minus the related Servicing Fee.
At least five (5) Business Days prior to the repurchase or
substitution of any Mortgage Loan, the Purchaser shall use best efforts to, or
to cause its designee to, provide the Seller a copy of the Servicing File and
all documentation necessary for the Seller or its designee to service such
Mortgage Loan.
-37-
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and its present and former directors,
officers, employees and agents and any Successor Servicer and its present and
former directors, officers, employees and agents and hold such parties
harmless against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Seller representations and warranties
contained in this Agreement or any Reconstitution Agreement. It is understood
and agreed that the obligations of the Seller set forth in this Subsection
9.03 to cure, repurchase or substitute for a defective Mortgage Loan and to
indemnify the Purchaser and Successor Servicer as provided in this Subsection
9.03 and in Subsection 15.01 constitute the sole remedies of the Purchaser and
Successor Servicer respecting a breach of the foregoing representations and
warranties. For purposes of this paragraph "Purchaser" shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement and "Successor Servicer"
shall mean any Person designated as the Successor Servicer pursuant to this
Agreement and any and all Persons who previously were "Successor Servicers"
pursuant to this Agreement.
Any cause of action against the Seller relating to or arising out
of the breach of any representations and warranties made in Subsections 9.01
and 9.02 shall accrue as to any Mortgage Loan upon (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach, substitute a Qualified Substitute
Mortgage Loan, or repurchase such Mortgage Loan as specified above and (iii)
demand upon the Seller by the Purchaser for compliance with this Agreement.
Subsection 9.04 Repurchase of Mortgage Loans with Early Payment
Defaults or Subject to Bankruptcy.
If the related Mortgagor is delinquent with respect to any of the
Mortgage Loan's first three (3) Monthly Payments at any time either (i) after
origination of such Mortgage Loan, or (ii) after the related Closing Date, the
Seller, at the Purchaser's option, shall repurchase such Mortgage Loan from
the Purchaser at a price equal to the Repurchase Price. The Seller shall
repurchase such delinquent Mortgage Loan within thirty (30) days of such
request.
In the event that within sixty (60) days of the related Closing
Date, any Mortgagor files a bankruptcy petition, becomes the subject of an
involuntary bankruptcy proceeding or consents to the filing of a bankruptcy
proceeding against it or to a receiver being appointed in respect of the
related Mortgaged Property, the Seller shall repurchase the related Mortgage
Loan from the Purchaser at a price equal to the Repurchase Price within thirty
(30) days of such event.
Subsection 9.05 Premium Recapture.
With respect to any Mortgage Loan without Prepayment Penalties
that prepays in full during the first three (3) months following the related
Closing Date, and with respect to any Mortgage Loan that is repurchased
pursuant to Subsection 9.04, the Seller shall pay the Purchaser, within three
(3) Business Days after receipt of notice and an invoice for the amount of the
premium recapture, an amount equal to the excess of the Purchase Price
Percentage for such
-38-
Mortgage Loan over par, multiplied by the outstanding principal balance of
such Mortgage Loan as of the related Cut-off Date.
SECTION 10. Closing
The closing for the purchase and sale of each Mortgage Loan
Package shall take place on the related Closing Date. At the Purchaser's
option, each Closing shall be either: by telephone, confirmed by letter or
wire as the parties shall agree, or conducted in person, at such place as the
parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) at least two (2) Business Days prior to the related Closing
Date or such other date as is mutually acceptable to the
Seller and the Purchaser, the Seller shall deliver to the
Purchaser a magnetic diskette, or transmit by modem or by
electronic means, a listing on a loan-level basis of the
necessary information to compute the Purchase Price of the
Mortgage Loans delivered on such Closing Date (including
accrued interest), and prepare a Mortgage Loan Schedule;
(ii) all of the applicable representations and warranties of the
Seller under this Agreement and of the Interim Servicer
under the Interim Servicing Agreement (with respect to each
Mortgage Loan for an interim period, as specified therein)
shall be true and correct as of the related Closing Date and
no event shall have occurred which, with notice or the
passage of time, would constitute a default under this
Agreement or an Event of Default under the Interim Servicing
Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing
documents as specified in Section 11 of this Agreement, in
such forms as are agreed upon and acceptable to the
Purchaser, duly executed by all signatories other than the
Purchaser as required pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the
Custodian all documents required pursuant to the Custodial
Agreement; and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to
the Seller, no later than 4:00 pm Eastern Standard Time (or such other time as
the Purchaser and the Seller shall agree to), on the related Closing Date the
Purchase Price, plus accrued interest pursuant to Section 4 of this Agreement,
by wire transfer of immediately available funds to the account designated by
the Seller.
-39-
SECTION 11. Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on
each Closing Date shall, (unless otherwise specified), consist of fully
executed originals of the following documents:
1. this Agreement (to be executed and delivered only for the
initial Closing Date);
2. with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
3. the related Mortgage Loan Schedule (one copy to be attached
to the Custodian's counterpart of the Custodial Agreement in
connection with the initial Closing Date, and one copy to be
attached to the related Assignment and Conveyance as the
Mortgage Loan Schedule thereto);
4. a Custodian's Certification, as required under the Custodial
Agreement, in the form of Exhibit 2 to the Custodial
Agreement;
5. with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit C hereto with respect to
the Seller, including all attachments thereto; with respect
to subsequent Closing Dates, an Officer's Certificate upon
request of the Purchaser;
6. with respect to the initial Closing Date, an Opinion of
Counsel of the Seller (who may be an employee of the
Seller), generally in the form of Exhibit D hereto ("Opinion
of Counsel of the Seller"); with respect to subsequent
Closing Dates, an Opinion of Counsel of the Seller upon
request of the Purchaser;
7. with respect to the initial Closing Date, an opinion of
counsel of the Custodian (who may be an employee of the
Custodian), in the form of an exhibit to the Custodial
Agreement(s), if required;
8. a Security Release Certification, in the form of Exhibit E
or F (or such other form as shall be acceptable to the
Purchaser, in its sole discretion), as applicable, hereto
executed by any 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;
9. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by
merger or acquired or originated by the Seller while
conducting business under a name other than its present name
or AmTrust Bank, if applicable;
-40-
10. with respect to the initial Closing Date, the Underwriting
Guidelines to be attached hereto as Exhibit G and with
respect to each subsequent Closing Date, the Underwriting
Guidelines to be attached to the related Assignment and
Conveyance;
11. Assignment and Conveyance Agreement in the form of Exhibit H
hereto, and all exhibits thereto; and
12. a MERS Report reflecting the Purchaser as Investor, the
Custodian as custodian and no Person as Interim Funder for
each MERS Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay any commissions due its salesmen and the
legal fees and expenses of its attorneys and custodial fees. All other costs
and expenses incurred in connection with the transfer and delivery of the
Mortgage Loans and the Servicing Rights including recording fees, fees for
title policy endorsements and continuations, fees for recording Assignments of
Mortgage, and the Seller's attorney's fees, shall be paid by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or
all of the Mortgage Loans, after the related Closing Date, on one or more
dates (each, a "Reconstitution Date") at the Purchaser's sole option, the
Purchaser may effect a sale (each, a "Reconstitution") of some or all of the
Mortgage Loans then subject to this Agreement, without recourse, to:
(i) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "Xxxxxx Mae Transfer");
or
(ii) Xxxxxxx Mac (the "Xxxxxxx Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
(iv) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions;
provided that the Purchaser shall not enter into more than two (2)
Reconstitutions of the Mortgage Loans in a Mortgage Loan Package so long as
such Mortgage Loans are being serviced under the related Interim Servicing
Agreement.
The Seller agrees to execute in connection with any Agency
Transfer, any and all reasonably acceptable pool purchase contracts, and/or
agreements among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the
case may be) and any servicer in connection with a
-41-
Whole Loan Transfer, a seller's warranties and servicing agreement or a
participation and servicing agreement in form and substance reasonably
acceptable to the parties, and in connection with a Securitization
Transaction, a pooling and servicing agreement in form and substance
reasonably acceptable to the parties (collectively, the agreements referred to
herein are designated the "Reconstitution Agreements")(provided, however, that
all such Reconstitution Agreements shall be consistent with the terms of this
Agreement and shall not impose any greater duties, liability or obligations
upon the Seller than those set forth in this Agreement, and shall not require
the Seller to change, modify or expand any of its reporting procedures and
provided further that the Seller is given an opportunity to review and
reasonably negotiate in good faith the content of such Reconstitution
Agreement to the extent not specifically provided for in this Agreement),
together with an opinion of in-house counsel with respect thereto only with
regard to corporate existence and authority with respect to the Seller and the
enforceability of each document executed by the Seller in connection with a
Reconstitution.
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; and (3) to
restate the representations and warranties set forth in Subsections 9.01 and
9.02 as of the settlement or closing date (except for the representations and
warranties set forth in Subsections 9.02 (c), (d), (e), (f), (g), (h), (m),
(n), (o), (p), (q), (r), (u), (w), (z), (gg), (hh), (qq) and (yy), which shall
be made as of the Transfer Date) in connection with such Reconstitution,
modified to the extent necessary to accurately reflect the pool statistics of
the Mortgage Loans as of the date of such settlement or closing date, or any
changes in the Mortgage Loans, or make the representations and warranties set
forth in the related selling/servicing guide of the servicer or issuer, as the
case may be (solely to the extent such representations and warranties are
substantially the same as the representations and warranties contained in this
Agreement), or such representations or warranties as may be required by any
rating agency or prospective purchaser of the related securities or such
Mortgage Loans in connection with such Reconstitution (solely to the extent
such representations and warranties are substantially the same as the
representations and warranties contained in this Agreement). The Seller shall
provide to such servicer or issuer, as the case may be, and any other
participants or purchasers in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to the Seller or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; provided, however, that the Person making such request shall
reimburse the Seller for its reasonable, actual out-of-pocket third-party
costs and expenses incurred in obtaining such letters of its auditors and
counsel; (ii) such additional representations, warranties, covenants, opinions
of counsel, letters from auditors, and certificates of public officials or
officers of the Seller or the Interim Servicer as are reasonably necessary by
the Purchaser or any such other participant; and (iii) to execute, deliver and
satisfy all conditions set forth in any indemnity agreement required by the
Purchaser or any such participant, including, without limitation, an
Indemnification and Contribution Agreement in substantially the form attached
hereto as Exhibit B. Moreover, the Seller agrees to cooperate with all
reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. As further provided for in Exhibit B, the Seller shall indemnify
the Purchaser, each affiliate of the Purchaser participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate
and their respective present and former directors, officers,
-42-
employees and agents, and hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that each of
them may sustain in any way related to any material misstatements or material
omissions contained in such information provided by or on behalf of the Seller
regarding the Seller, the Seller's or other originator's Static Pool
Information, the Mortgage Loans or the Underwriting Guidelines set forth in
any offering document prepared in connection with any Reconstitution and
provided pursuant to this Section 13. For purposes of the previous sentence,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
For any Mortgages that are not MERS Designated Mortgage Loans, in
the event the Purchaser has elected to have the Seller or the Interim Servicer
hold record title to such Mortgages, prior to the Reconstitution Date, the
Seller shall prepare an assignment of mortgage in blank or to the prospective
purchaser or trustee, as applicable, from the Seller or the Interim Servicer,
as applicable, acceptable to the prospective purchaser or trustee, as
applicable, for each Mortgage Loan that is part of the Reconstitution and
shall pay all preparation and recording costs associated therewith. In
connection with the Reconstitution, the Seller shall execute or shall cause
the Interim Servicer to execute each assignment of mortgage, track such
Assignments of Mortgage to ensure they have been recorded and deliver them as
required by the prospective purchaser or trustee, as applicable, upon the
Seller's receipt thereof. Additionally, the Seller shall prepare and execute
or shall cause the Interim Servicer to execute, at the direction of the
Purchaser, any note endorsement in connection with any and all seller/servicer
agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if the Interim
Servicing Agreement shall remain in effect with respect to the related
Mortgage Loan Package, shall continue to be serviced in accordance with the
terms of this Agreement and the Interim Servicing Agreement and with respect
thereto this Agreement shall remain in full force and effect.
SECTION 14. Compliance with Regulation AB
Subsection 14.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the
purpose of Section 14 of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is applicable
by its terms only to offerings of asset-backed securities that are registered
under the Securities Act, the Seller acknowledges that investors in privately
offered securities may require that the Purchaser or any Depositor provide
comparable disclosure in unregistered offerings. References in this Agreement
to compliance with Regulation AB include provisions of comparable disclosure
in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right
to request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Securities Exchange Act and the rules and regulations of
the Commission thereunder (or the provision in a private offering of
disclosure comparable to that required under the Securities Act, if determined
to be reasonably
-43-
necessary by the Purchaser or any Depositor). The Seller acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the
Purchaser or any Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate
fully with the Purchaser to deliver to the Purchaser (including any of its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the reasonable
good faith determination of the Purchaser or any Depositor to permit the
Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Seller, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in order
to effect such compliance. For purposes of this Section 14, the term
"material" shall be construed in light of the disclosures required in the
aggregate with respect to the Securitization Transaction.
The Purchaser shall cooperate with the Seller by providing timely
notice of requests for information under this Article XIV and by reasonably
limiting such requests to information necessary, in the Purchaser's reasonable
judgment, to comply with Regulation AB.
Subsection 14.02 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and
to any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 14.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) with
respect to any Securitization Transaction for which 20% or more of the pool
assets (measured by cut-off date principal balance) are Mortgage Loans, there
are no material legal or governmental proceedings pending (or known to be
contemplated) against the Seller or any Third-Party Originator; and (ii) with
respect to any Securitization Transaction for which 10% or more of the pool
assets (measured by cut-off date principal balance) are Mortgage Loans, there
are no affiliations, relationships or transactions relating to the Seller or
any Third-Party Originator with respect to any Securitization Transaction and
any party thereto identified by the related Depositor of a type described in
Item 1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any
date following the date on which information is first provided to the
Purchaser or any Depositor under Subsection 14.03, the Seller shall, within
five Business Days following such request, confirm in writing the accuracy of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date of
such request, provide reasonably adequate disclosure of the pertinent facts,
in writing, to the requesting party.
Subsection 14.03 Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
-44-
information and materials specified in paragraphs (a) and (b) of this Section,
and (ii) as promptly as practicable following notice to or discovery by the
Seller, provide to the Purchaser and any Depositor (in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (c) of this Section.
(a) If so requested by the Purchaser or any Depositor, the
Seller shall provide such information regarding (i) the Seller, as originator
of the Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), or (ii) each Third-Party Originator, as is requested
for the purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119
of Regulation AB. With respect to any Securitization Transaction for which 20%
or more of the pool assets (measured by cut-off date principal balance) are
Mortgage Loans, such information shall include, at a minimum:
A. the originator's form of organization;
B. a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar type
as the Mortgage Loans; information regarding the size and composition of
the originator's origination portfolio; and information that may be
material, in the good faith judgment of the Purchaser or any Depositor,
to an analysis of the performance of the Mortgage Loans, including the
originators' credit-granting or underwriting criteria for mortgage loans
of similar type(s) as the Mortgage Loans (provided, that, in no event
shall the Seller be required to disclose the specifics of any
proprietary credit-granting or underwriting criteria, to the extent such
specifics related to confidential trade secrets protected by law or
contract) and such other information as the Purchaser or any Depositor
may reasonably request for the purpose of compliance with Item
1110(b)(2) of Regulation AB;
C. a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Seller and
each Third-Party Originator; and
D. a description of any affiliation or relationship between the
Seller, each Third-Party Originator and any of the following parties to
a Securitization Transaction, as such parties are identified to the
Seller by the Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
-45-
(b) Except with respect to any Securitization Transaction for which
less than 20% of the pool assets (measured by cut-off date principal balance)
are Mortgage Loans, if so requested by the Purchaser or any Depositor, the
Seller shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the Purchaser
as provided below) originated by (i) the Seller, if the Seller is an
originator of Mortgage Loans (including as an acquirer of Mortgage Loans from
a Qualified Correspondent), and/or (ii) each Third-Party Originator. Such
Static Pool Information shall be prepared in form and substance reasonably
satisfactory to the Purchaser by the Seller (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a) of Regulation AB. To the extent that there is reasonably available to
the Seller (or Third-Party Originator) Static Pool Information with respect to
more than one mortgage loan type, the Purchaser or any Depositor shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in increments no less frequently than quarterly over the life of the mortgage
loans included in the vintage origination year or prior securitized pool. The
most recent periodic increment must be as of a date no later than 135 days
prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that
provides a permanent record of the information provided, such as a portable
document format (pdf) file, or other such electronic format reasonably
required by the Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in
Static Pool Information provided pursuant to the immediately preceding
paragraph (including an omission to include therein information required to be
provided pursuant to such paragraph), the Seller shall provide corrected
Static Pool Information to the Purchaser or any Depositor, as applicable, in
the same format in which Static Pool Information was previously provided to
such party by the Seller.
If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this
Agreement), such agreed-upon procedures letters of certified public
accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1, 2006 or,
in the case of Static Pool Information with respect to the Seller's or
Third-Party Originator's originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form of
a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) With respect to any Securitization Transaction for which 20% or
more of the pool assets (measured by cut-off date principal balance) are
Mortgage Loans, if so requested by the
-46-
Purchaser or any Depositor for the purpose of satisfying its reporting
obligation under the Securities Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of (A)
any material litigation or governmental proceedings pending against the Seller
or any Third-Party Originator and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between the
Seller or any Third-Party Originator and any of the parties specified in
clause (D) of paragraph (a) of this Section (and any other parties identified
in writing by the requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or relationships.
(d) With respect to those Mortgage Loans that were originated by the
Seller (including as an acquirer of Mortgage Loans from a Qualified
Correspondent) and sold to the Purchaser pursuant to this Agreement, the
Purchaser shall, to the extent consistent with then-current industry practice,
cause the servicer (or another party) to be obligated to provide information,
in the form customarily provided by such servicer or other party (which need
not be customized for the Seller) with respect to the Mortgage Loans
reasonably necessary for the Seller to comply with its obligations under this
Section 14, including, without limitation, providing to the Seller Static Pool
Information, as set forth in Item 1105(a)(2), provided in the manner specified
in Item 1105(a)(3) of Regulation AB.
Subsection 14.04 Indemnification; Remedies.
(a) The Seller shall indemnify and hold harmless the Purchaser, each
affiliate of the Purchaser, and each of the following parties participating in
a Securitization Transaction: each sponsor and issuing entity; each Person
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction,
or for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Securities Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act and Section 20 of the Securities Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that any of them may sustain arising out of or
based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided in written or electronic
form under this Section 14 by or on behalf of the Seller, or provided
under this Section 14 by or on behalf of any Third-Party Originator
(collectively, the "Seller Information"), or (B) the omission or alleged
omission to state in the Seller Information a material fact required to
be stated in the Seller Information or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to
the Seller Information and not to any other information communicated in
connection with a sale or purchase of
-47-
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 14; or
(iii) any breach by the Seller of a representation or warranty set
forth in Subsection 14.02(a) or in a writing furnished pursuant to
Subsection 14.02(b) and made as of a date prior to the closing date of
the related Securitization Transaction, to the extent that such breach
is not cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Subsection
14.02(b) to the extent made as of a date subsequent to such closing
date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser,
any Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Securities Exchange Act with respect to such Securitization Transaction, for
all costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' letter or other material not
delivered as required by the Seller or any Third-Party Originator.
(b) Any failure by the Seller or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or other material
when and as required under this Section 14, or any breach by the Seller of a
representation or warranty set forth in Subsection 14.02(a) or in a writing
furnished pursuant to Subsection 14.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any breach by the Seller of
a representation or warranty in a writing furnished pursuant to Subsection
14.02(b) to the extent made as of a date subsequent to such closing date,
shall, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Seller under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Interim Servicer as servicer under the Interim
Servicing Agreement and/or any applicable Reconstitution Agreement without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Interim
Servicer; provided that to the extent that any provision of this Agreement
and/or any applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following termination of the Interim
Servicer as servicer, such provision shall be given effect.
-48-
SECTION 15. The Seller.
Subsection 15.01 Additional Indemnification by the Seller; Third
Party Claims.
(a) The Seller shall indemnify any Purchaser and its present and
former directors, officers, employees and agents and the Successor Servicer
and its present and former directors, officers, employees and agents, and hold
such parties harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses (including legal fees and expenses
incurred in connection with the enforcement of the Seller's indemnification
obligation under this Subsection 15.01) and related costs, judgments, and any
other costs, fees and expenses that such parties may sustain in any way
related to the failure of the Seller to perform its duties and the Interim
Servicer to service the Mortgage Loans in substantial and material compliance
with the terms of this Agreement or any Reconstitution Agreement entered into
pursuant to Section 13 or any breach of any of Seller's representations,
warranties and covenants set forth in this Agreement. For purposes of this
clause "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement and "Successor Servicer" shall mean any Person designated as
the Successor Servicer pursuant to this Agreement and any and all Persons who
previously were "Successor Servicers" pursuant to this Agreement.
(b) Promptly after receipt by an indemnified party under this
Subsection 15.01 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Subsection 15.01, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party under this Subsection 15.01, except
to the extent that it has been prejudiced in any material respect, or from any
liability which it may have, otherwise than under this Subsection 15.01. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified
party for expenses incurred by the indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable)), (ii) the
indemnifying party shall not have
-49-
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
Subsection 15.02 Merger or Consolidation of the Seller.
For so long as the Seller has obligations under this Agreement,
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. In the event the Seller fails to satisfy the
requirements of the preceding sentence, the Seller shall promptly take such
actions as are necessary to transfer the servicing of the Mortgage Loans to an
entity that satisfies the requirements of this Agreement and the Interim
Servicing 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 16. Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at
the end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or
the public at large). The Seller, if it has not already done so, agrees to
furnish promptly to the Purchaser copies of the statements specified above.
The Seller shall also make available information on its servicing performance
with respect to the Mortgage Loans.
The Seller also agrees to allow reasonable access to a
knowledgeable financial or accounting officer for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller or the financial statements of the Seller.
SECTION 17. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the related Closing Date of the Mortgage
Loans described on the related Mortgage Loan Schedule is mandatory from and
after the date of the execution of the related Purchase Price and Terms
Agreement, it being specifically understood
-50-
and agreed that each Mortgage Loan is unique and identifiable on the date
hereof and that an award of money damages would be insufficient to compensate
the Purchaser for the losses and damages incurred by the Purchaser (including
damages to prospective purchasers of the Mortgage Loans) in the event of the
Seller's failure to deliver (i) each of the related Mortgage Loans or (ii) one
or more Qualified Substitute Mortgage Loans or (iii) one or more Mortgage
Loans otherwise acceptable to the Purchaser on or before the related Closing
Date. The Seller hereby grants to the Purchaser a lien on and a continuing
security interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance by the Seller of
its obligations under the related Purchase Price and Terms Agreement, and the
Seller agrees that it shall hold such Mortgage Loans in custody for the
Purchaser subject to the Purchaser's (a) right to reject any Mortgage Loan (or
Qualified Substitute Mortgage Loan) under the terms of this Agreement and to
require another Mortgage Loan (or Qualified Substitute Mortgage Loan) to be
substituted therefor, and (b) obligation to pay the Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this Agreement or afforded by law or equity and all such rights and remedies
may be exercised concurrently, independently or successively.
SECTION 18. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, return receipt requested, or, if by other means, when
received by the other party at the address as follows:
(i) if to the Seller:
Ohio Savings Bank
0000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: VP of Trading
Fax: (000) 000-0000
Email: xxxxxxxxxxx@xxxxxxxxxxx.xxx
(ii) if to the Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
-51-
with copies to:
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx - Servicing Oversight
0000 X-Xxx Xxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Email: xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx - RFPG
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 19. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which prohibits or renders void or unenforceable any provision hereof.
SECTION 20. 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 21. Intention of the Parties.
It is the intention of the parties that the Purchaser is
purchasing, and the Seller is selling the Mortgage Loans and not a debt
instrument of the Seller or another security. Accordingly, the parties hereto
each intend to treat the transaction for federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the Mortgage Loans. 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.
-52-
SECTION 22. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by
the Seller to a third party without the prior written consent of the
Purchaser, which consent may be withheld by the Purchaser in its sole
discretion. Subject to the provisions of Section 13 of this Agreement, this
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole
or in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. In the event the Purchaser assigns this Agreement, and
the assignee assumes any of the Purchaser's obligations hereunder, the Seller
acknowledges and agrees to look solely to such assignee, and not to the
Purchaser, for performance of the obligations so assumed and the Purchaser
shall be relieved from any liability to the Seller with respect thereto.
SECTION 23. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party
against whom such waiver or modification is sought to be enforced.
SECTION 24. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 25. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the
other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
-53-
(f) the terms "include" and "including" shall mean without
limitation by reason of enumeration; and
(g) headings of the Sections in this Agreement are for reference
purposes only and shall not be deemed to have any substantive effect.
SECTION 26. 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 27. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable additional documents, instruments or agreements as
may be necessary to effectuate the purposes of this Agreement.
SECTION 28. 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 29. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of
its agents or affiliates, or by any independent contractors on the Seller's
behalf, to personally, by telephone or mail (via electronic means or
otherwise), solicit a Mortgagor under any Mortgage Loan for the purpose of
refinancing a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. Notwithstanding the foregoing, it is understood and
agreed that the Seller, or any of its respective affiliates:
(i) may advertise its availability for handling refinancings of
mortgages in its portfolio, including the promotion of terms
it has available for such refinancings, through the sending
of letters or promotional material, so long as it does not
specifically target Mortgagors and so long as such
-54-
promotional material either is sent to the mortgagors for
all of the mortgages in the servicing portfolio of the
Seller and any of its affiliates (those it owns as well as
those serviced for others); and
(ii) may provide pay-off information and otherwise cooperate with
individual mortgagors who contact it about prepaying their
mortgages by advising them of refinancing terms and
streamlined origination arrangements that are available.
Promotions undertaken by or on behalf of the Seller or any
affiliate of the Seller which are directed to the general public at large or a
portion thereof, including, without limitation, mass mailings, newspaper,
radio, internet and television advertisements shall not constitute
solicitation under this Section 29.
SECTION 30. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 31. Governing Law Jurisdiction; Consent to Service of
Process. THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER
AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATES OF NEW YORK AND OHIO AND THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE NORTHERN
DISTRICT OF OHIO FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF
AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III)
AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO
SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
SECTION 32. Amendment. This Agreement may be amended from time to
time by the Purchaser and the Seller by written agreement signed by the
parties hereto.
-55-
SECTION 33. Confidentiality. Each of the Purchaser and the Seller
shall employ proper procedures and standards designed to maintain the
confidential nature of the terms of this Agreement, except to the extent: (a)
the disclosure of which is reasonably believed by such party to be required in
connection with regulatory requirements or other legal requirements relating
to its affairs; (b) disclosed to any one or more of such party's employees,
officers, directors, agents, attorneys or accountants who would have access to
the contents of this Agreement and such data and information in the normal
course of the performance of such Person's duties for such party, to the
extent such party has procedures in effect to inform such Person of the
confidential nature thereof; (c) that is disclosed in a prospectus, prospectus
supplement or private placement memorandum relating to a securitization of the
Mortgage Loans by the Purchaser (or an affiliate assignee thereof) or to any
Person in connection with the resale or proposed resale of all or a portion of
the Mortgage Loans by such party in accordance with the terms of this
Agreement; and (d) that is reasonably believed by such party to be necessary
for the enforcement of such party's rights under this Agreement.
Notwithstanding any other express or implied agreement to the
contrary, each of the Purchaser and the Seller agree and acknowledge that each
of them and each of their employees, representatives, and other agents may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any of them
relating to such tax treatment and tax structure, except to the extent that
confidentiality is reasonably necessary to comply with U.S. federal or state
securities laws. For purposes of this paragraph, the terms "tax treatment" and
"tax structure" have the meanings specified in Treasury Regulation section
1.6011-4(c).
SECTION 34. Entire Agreement. This Agreement constitutes the
entire agreement and understanding relating to the subject matter hereof
between the parties hereto and any prior oral or written agreements between
them shall be deemed to have merged herewith.
[Signature Page Follows]
-56-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:____________________________________
Name:
Title:
OHIO SAVINGS BANK
By:____________________________________
Name:
Title:
EXHIBIT A-1
MORTGAGE LOAN DOCUMENTS
-----------------------
With respect to each Mortgage Loan, the Mortgage Loan Documents
shall include each of the following items, which shall be available for
inspection by the Purchaser and any prospective Purchaser, and which shall be
delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, pursuant to Section 6 of the Mortgage Loan Purchase and
Warranties Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse" and
signed in the name of the last endorsee (the "Last Endorsee") by an authorized
officer. To the extent that there is no room on the face of the Mortgage Notes
for endorsements, the endorsement may be contained on an allonge, if state law
so allows and the Custodian is so advised by the Seller that state law so
allows. If the Mortgage Loan was acquired by the Seller in a merger, the
endorsement must be by "[Last Endorsee], successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be by
"[Last Endorsee], formerly known as [previous name]";
(b) the original of any guarantee executed in connection with
the Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any
Co-op Loan, an original or copy of the Security Agreement. If in connection
with any Mortgage Loan, the Seller cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
Closing Date (i) in the case of a delay caused by the public recording office
where such Mortgage has been delivered for recordation, the Seller shall
deliver or cause to be delivered to the Custodian, a copy of such Mortgage
certified by the Seller to be a true and complete copy of such Mortgage and
shall forward to the Custodian such original recorded Mortgage within ten (10)
Business Days following the Seller's receipt of such original recorded
Mortgage from the applicable public recording office; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
A-1-1
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser.
If the Assignment of Mortgage is not to be recorded, the Assignment of
Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the
Seller in a merger, the Assignment of Mortgage must be made by "[Seller],
successor by merger to [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the Assignment of Mortgage must be by "[Seller], formerly known as [previous
name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or
if any such intervening assignment has not been returned from the applicable
recording office for any reason, the Seller shall deliver or cause to be
delivered to the Custodian, a copy of such intervening assignment of mortgage
certified by the Seller to be a true and complete copy of such intervening
assignment of mortgage and shall forward to the Custodian such original
intervening assignment of mortgage within ten (10) Business Days following the
Company's receipt of such original intervening assignment of mortgage from the
applicable public recording office; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder or commitment for title certified to be true and complete by the title
insurance company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op
Lease and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii)
the stock certificate together with an undated stock power relating to such
stock certificate executed in blank; (iii) the recognition agreement of the
interests of the Mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financial statement filed by the originator as secured party and, if
applicable, a filed UCC-3 assignment of the subject security interest showing
a complete chain of title, together with an executed UCC-3 assignment of such
security interest by the Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified
by the Seller to be a true and correct copy of the original.
In the event an Officer's Certificate of the Seller is delivered
to the Purchaser because of a delay caused by the public recording office or
title company in returning any
A-1-2
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 or title company, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian; provided, however, that any
recorded document shall in no event be delivered later than one year following
the related Closing Date. An extension of the date specified in clause (iv)
above may be requested from the Purchaser, which consent shall not be
unreasonably withheld.
X-0-0
XXXXXXX X-0
CONTENTS OF EACH MORTGAGE FILE
------------------------------
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, unless otherwise disclosed to the
Purchaser on the data tape, which shall be available for inspection by the
Purchaser and which shall be retained by the Interim Servicer or delivered to
the Purchaser in accordance with Section 6 of the Mortgage Loan Purchase and
Warranties Agreement:
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on Mortgagor, in a form acceptable to either
Xxxxxx Mae or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property and photographs of
comparable properties.
(i) Survey of the Mortgaged Property, unless a survey is not
required by the title insurer.
(j) Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, home owner association
declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales Contract, if applicable.
(n) Copy of the owner's title insurance policy or attorney's
opinion of title and abstract of title, as applicable.
Evidence of electronic notation of the hazard insurance policy,
and, if required by law, evidence of the flood insurance policy.
A-2-1
EXHIBIT B
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"),
dated as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Xxxxxx Xxxxxxx Mortgage
Capital Inc., a New York corporation ("Xxxxxx") and [_____________], a
[_______________] (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus
Supplement"), relating to [________________] Certificates (the "Certificates")
to be issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the "P&S"), among the Depositor, as depositor,
[________________], as servicer (the "Servicer"), and [________________], as
trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] (the "Underwriter[s]") to enter into the
Underwriting Agreement, dated [____________________] (the "Underwriting
Agreement") between the Depositor and the Underwriter[s], and
[_______________] (the "Initial Purchaser[s]") to enter into the Certificate
Purchase Agreement, dated [____________] (the "Certificate Purchase
Agreement") between the Depositor and the Initial Purchaser[s], Seller has
agreed to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
WHEREAS, Xxxxxx purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") pursuant to a
Mortgage Loan Purchase and Warranties Servicing Agreement, dated as of
December 1, 2005 (the "Purchase Agreement"), by and between Xxxxxx and Seller;
and
WHEREAS, pursuant to Section 13 of the Purchase Agreement, the
Seller has agreed to indemnify the Depositor, Xxxxxx, the Underwriter[s], the
Initial Purchaser[s] and their respective affiliates, present and former
directors, officers, employees and agents.
NOW THEREFORE, in consideration of the agreements contained
herein, and other valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the Depositor, Xxxxxx and the Seller agree as
follows:
1. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless the
Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s] and their
respective affiliates and their respective
B-1
present and former directors, officers, employees and agents and each person,
if any, who controls the Depositor, Xxxxxx, the Underwriter[s] , the Initial
Purchaser[s] or such affiliate within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Material or in the Free Writing Prospectus or any omission or
alleged omission to state in the Prospectus Supplement, the Offering Circular,
the ABS Informational and Computational Material or in the Free Writing
Prospectus a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any such untrue statement or omission or alleged untrue
statement or alleged omission made in any amendment of or supplement to the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Material or the Free Writing Prospectus and agrees to reimburse
the Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s] or such
affiliates and each such officer, director, employee, agent and controlling
person promptly upon demand for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that Seller shall be liable
in any such case only to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with the Seller Information. The foregoing indemnity
agreement is in addition to any liability which Seller may otherwise have to
the Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s] their
affiliates or any such director, officer, employee, agent or controlling
person of the Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s]
or their respective affiliates.
As used herein:
"Seller Information" means any information relating to Seller, the
Mortgage Loans and/or the underwriting guidelines relating to the Mortgage
Loans set forth in the Prospectus Supplement, the Offering Circular, the ABS
Informational and Computational Material or the Free Writing Prospectus and
static pool information regarding mortgage loans originated or acquired by the
Seller and included in the Prospectus Supplement, the Offering Circular, the
ABS Informational and Computational Material or the Free Writing Prospectus
[incorporated by reference from the Seller's website located at
______________] and in any case, provided by, or authorized in writing by the
Seller for use in, the Prospectus Supplement, the Offering Circular, ABS
Informational and Computational Material or the Free Writing Prospectus.
"Free Writing Prospectus" means any written communication that
constitutes a "free writing prospectus," as defined in Rule 405 under the 1933
Act.
B-2
"ABS Informational and Computational Material" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act
and the 1934 Act, as amended from time to time.
"Offering Circular" means the offering circular, dated
[__________] relating to the private offering of the [_______________]
Certificates.
(b) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however,
that the failure to notify any indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 1.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except as
provided in the following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 1 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate
counsel; or (iii) the indemnifying party has failed to assume the defense of
such action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, it
being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to local counsel) at any time for
all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in
the defense of any such action or
B-3
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be
a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel pursuant to the
right to do so hereunder, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
(c) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party, respectively, in
connection with the statements or omissions that result in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and indemnifying
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(d) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor,
Xxxxxx, the Underwriter[s], the Initial Purchaser[s] their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s] or any
such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates or the Private Certificates.
2. Representations and Warranties. Seller represents and
warrants that:
(i) Seller is validly existing and in good standing under the
laws of its jurisdiction of formation or incorporation, as applicable,
and has full power and authority to own its assets and to transact the
business in which it is currently engaged. Seller is duly qualified to
do business and is in good standing in each jurisdiction in which the
character of the business transacted by it or any properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of Seller;
(ii) Seller is not required to obtain the consent of any other
person or any consent, license, approval or authorization from, or
registration or declaration with, any
B-4
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement;
(iii) the execution, delivery and performance of this Agreement by
Seller will not violate any provision of any existing law or regulation
or any order decree of any court applicable to Seller or any provision
of the charter or bylaws of Seller, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which Seller is
a party or by which it may be bound;
(iv) (a) no proceeding of or before any court, tribunal or
governmental body is currently pending or, (b) to the knowledge of
Seller, threatened against Seller or any of its properties or with
respect to this Agreement or the Offered Certificates, in either case,
which would have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of Seller;
(v) Seller has full power and authority to make, execute,
deliver and perform this Agreement and all of the transactions
contemplated hereunder, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement.
When executed and delivered, this Agreement will constitute the legal,
valid and binding obligation of each of Seller enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution thereunder;
and
(vi) this Agreement has been duly executed and delivered by
Seller.
3. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Seller, will be mailed, delivered
or faxed or emailed and confirmed by mail [______________________]; if sent to
Xxxxxx, xxxx be mailed, delivered or faxed or emailed and confirmed by mail to
Xxxxxx Xxxxxxx Mortgage Capital Inc., 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx - Whole Loans Operations
Manager, Fax: [_______], Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx, with
copies to (i) Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx - Legal Counsel, Securities,
Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax
[_____], Email: xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx, and (ii) Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxx - SPG Finance, Xxxxxx Xxxxxxx, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Fax [_____], Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if
to the Depositor, will be mailed, delivered or telegraphed and confirmed to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
4. Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to the conflict of laws provisions thereof. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their successors
and assigns and the controlling persons referred to herein, and no
B-5
other person shall have any right or obligation hereunder. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. This
Agreement may be executed in counterparts, each of which when so executed and
delivered shall be considered an original, and all such counterparts shall
constitute one and the same instrument. Capitalized terms used but not defined
herein shall have the meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
B-6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized,
this __th day of [_____________].
[DEPOSITOR]
By: _____________________________________
Name:
Title:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: _____________________________________
Name:
Title:
[SELLER]
By: _____________________________________
Name:
Title:
B-7
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
[to be revised]
I, ____________________, hereby certify that I am the duly elected
[Vice] President of ________________[COMPANY], a [state] [federally] chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the charter of the Company which is in full force and effect on
the date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the bylaws of the Company which are in effect on the date hereof
and which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of
good standing of the Company issued within ten days of the date hereof,
and no event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of the
Company authorizing the Company to execute and deliver (a) the Mortgage
Loan Purchase and Warranties Agreement, dated as of December 1, 2005
(the "Purchase Agreement"), by and between Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the "Purchaser") and the Company and (b) the Custodial
Agreement, dated as of _______ __, 200_ (the "Custodial Agreement"), by
and among the Purchaser, the Company, _________________ (the "Interim
Servicer") and [CUSTODIAN] (the "Custodian"), [and to endorse the
Mortgage Notes and execute the Assignments of Mortgages by original [or
facsimile] signature], and such resolutions are in effect on the date
hereof and have been in effect without amendment, waiver, rescission or
modification since ____________.
5. Either (i) no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Purchase Agreement, [the sale of the mortgage loans] or the
consummation of the transactions contemplated by the agreements; or (ii)
any required consent, approval, authorization or order has been obtained
by the Company.
6. Neither the consummation of the transactions contemplated
by, nor the fulfillment of the terms of the Purchase Agreement conflicts
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
C-1
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.
7. To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Company
which, in my judgment, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to carry on
its business substantially as now conducted or in any material liability
on the part of the Company or which would draw into question the
validity of the Purchase Agreement, or the mortgage loans or of any
action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the Purchase
Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Purchase
Agreement, and (b) any other document delivered or on the date hereof in
connection with any purchase described in the agreements set forth above
was, at the respective times of such signing and delivery, and is now, a
duly elected or appointed, qualified and acting officer or
representative of the Company, who holds the office set forth opposite
his or her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
C-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated: ______________________________ By:______________________________________
Name:
Title: [Vice] President
[Seal]
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ______________________________ By:______________________________________
Name:
Title: [Assistant] Secretary
[Seal]
C-3
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
__________________________ __________________________ __________________________
__________________________ __________________________ __________________________
__________________________ __________________________ __________________________
__________________________ __________________________ __________________________
__________________________ __________________________ __________________________
__________________________ __________________________ __________________________
__________________________ __________________________ __________________________
C-4
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
----------------------------------------
[to be revised]
(date)
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to ___________________ (the "Company"), with respect to certain
matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Mortgage Loan Purchase and Warranties Agreement by
and between the Company and Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
"Purchaser"), dated as of December 1, 2005 (the "Purchase Agreement") which
sale is in the form of whole loans, delivered pursuant to a Custodial
Agreement dated as of _____ __, ____ among the Purchaser, the Company,
________________________ (the "Interim Servicer") and
______________________[CUSTODIAN] (the "Custodial Agreement", and collectively
with the Purchase Agreement, the "Agreements"). Capitalized terms not
otherwise defined herein have the meanings set forth in the Purchase
Agreement.
[We] [I] have examined the following documents:
1. the Purchase Agreement;
2. the Custodial Agreement;
3. the form of Assignment of Mortgage;
4. the form of endorsement of the Mortgage Notes; and
5. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained
in the Purchase Agreement. [We] [I] have assumed the authenticity of all
documents submitted to [us] [me] as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all documents.
D-1
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly
existing and in good standing under the laws of the [United
States] and is qualified to transact business in, and is in
good standing under, the laws of [the state of
incorporation/formation].
2. The Company has the power to engage in the transactions
contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver the
Agreements and to perform and observe the terms and
conditions of the Agreements.
3. Each of the Agreements has been duly authorized, executed
and delivered by the Company, and is a legal, valid and
binding agreement enforceable in accordance with its
respective terms against the Company, subject to bankruptcy
laws and other similar laws of general application affecting
rights of creditors and subject to the application of the
rules of equity, including those respecting the availability
of specific performance, none of which will materially
interfere with the realization of the benefits provided
thereunder or with the Purchaser's ownership of the Mortgage
Loans.
4. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Agreements.
5. The Company has been duly authorized to allow any of its
officers to execute by original [or facsimile] signature the
endorsements to the Mortgage Notes and the Assignments of
Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents
the legal and valid signature of said officer of the
Company.
6. Either (i) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the Company with the Agreements and the sale
of the Mortgage Loans by the Company or the consummation of
the transactions contemplated by the Agreements or (ii) any
required consent, approval, authorization or order has been
obtained by the Company.
7. Neither the consummation of the transactions contemplated
by, nor the fulfillment of the terms of, the Agreements
conflicts or will conflict with or results or will result in
a breach of or constitutes or will constitute a default
under the charter or by-laws of the Company, the terms of
any indenture or other agreement or instrument to which the
Company is a party or by which it is bound or to which it is
subject, or violates any statute or order, rule, regulations,
writ, injunction or decree of any court,
D-2
governmental authority or regulatory body to which the
Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation
pending or, to the best of [our] [my] knowledge, threatened
against the Company which, in [our] [my] judgment, either in
any one instance or in the aggregate, may result in any
material adverse change in the business, operations,
financial condition, properties or assets of the Company or
in any material impairment of the right or ability of the
Company to carry on its business substantially as now
conducted or in any material liability on the part of the
Company or which would draw into question the validity of
the Agreements or the Mortgage Loans or of any action taken
or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair
materially the ability of the Company to perform under the
terms of the Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Agreements is sufficient to fully
transfer to the Purchaser all right, title and interest of
the Company thereto as noteholder and mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in the Custodial
Agreement. The Assignments of Mortgage are in recordable
form, except for the insertion of the name of the assignee,
and upon the name of the assignee being inserted, are
acceptable for recording under the laws of the state where
each related Mortgaged Property is located. The endorsement
of the Mortgage Notes, the delivery to the Purchaser, or its
designee, of the Assignments of Mortgage, and the delivery
of the original endorsed Mortgage Notes to the Purchaser, or
its designee, are sufficient to permit the Purchaser to
avail itself of all protection available under applicable
law against the claims of any present or future creditors of
the Company, and are sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the
Mortgages and the Mortgage Notes by the Company from being
enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of the date of this
opinion.
D-3
Very truly yours,
________________________________________
[Name]
[Assistant] General Counsel
D-4
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
__________________________
__________________________
__________________________
Attention: ___________________________________
___________________________________
Re: Notice of Sale and Release of Collateral
----------------------------------------
Dear Sirs:
This letter serves as notice that __________________________________
[COMPANY] a [type of entity], organized pursuant to the laws of [the State of
incorporation] (the "Company") has committed to sell to Xxxxxx Xxxxxxx
Mortgage Capital Inc. under a Mortgage Loan Purchase and Warranties Agreement,
dated as of December 1, 2005, certain mortgage loans originated by the
Association. The Company warrants that the mortgage loans to be sold to Xxxxxx
Xxxxxxx Mortgage Capital Inc. are in addition to and beyond any collateral
required to secure advances made by the Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxx Xxxxxxx Mortgage Capital Inc. shall not be used as additional or
substitute collateral for advances made by the Association. Xxxxxx Xxxxxxx
Mortgage Capital Inc. understands that the balance of the Company's mortgage
loan portfolio may be used as collateral or additional collateral for advances
made by the Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a
full and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc.
E-1
Very truly yours,
____________________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
___________________________
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
Date:________________________________________________
E-2
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the company named on
the next page (the "Company") pursuant to that certain Mortgage Loan Purchase
and Warranties Agreement, dated as of December 1, 2005, and certifies that all
notes, mortgages, assignments and other documents in its possession relating
to such Mortgage Loans have been delivered and released to the Company or its
designees, as of the date and time of the sale of such Mortgage Loans to
Xxxxxx Xxxxxxx Mortgage Capital Inc. Such release shall be effective
automatically without any further action by any party upon payment in one or
more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
_________________________________________________
(Name)
_________________________________________________
(Address)
_________________________________________________
_________________________________________________
_________________________________________________
By: ______________________________________________
F-1
II. Certification of Release
------------------------
The Company named below hereby certifies to Xxxxxx Xxxxxxx
Mortgage Capital Inc. that, as of the date and time of the sale of the
above-mentioned Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc. the
security interests in the Mortgage Loans released by the above-named financial
institution comprise all security interests relating to or affecting any and
all such Mortgage Loans. The Company warrants that, as of such time, there are
and will be no other security interests affecting any or all of such Mortgage
Loans.
________________________________________
By:_____________________________________
Title:__________________________________
Date:___________________________________
F-2
EXHIBIT G
UNDERWRITING GUIDELINES
-----------------------
G-1
EXHIBIT H
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
-------------------------------------------
On this ___ day of _______, 200_, [____________] ("Seller"), as
the Seller under (i) that certain Purchase Price and Terms Agreement, dated as
of _________, 200__ (the "PPTA"), and (ii) that certain Mortgage Loan Purchase
and Warranties Agreement, dated as of December 1, 2005 (the "Purchase
Agreement"), does hereby sell, transfer, assign, set over and convey to Xxxxxx
Xxxxxxx Mortgage Capital, Inc. ("Purchaser") as the Purchaser under the
Agreements (as defined below) without recourse, but subject to the terms of
the Agreements, all right, title and interest of, in and to the Mortgage Loans
listed on the Mortgage Loan Schedule attached hereto as Exhibit A (the
"Mortgage Loans"), together with the Mortgage Files and the related Servicing
Rights and all rights and obligations arising under the documents contained
therein. Each Mortgage Loan subject to the Agreements was underwritten in
accordance with, and conforms to, the Underwriting Guidelines attached hereto
as Exhibit C. Pursuant to Section 6 of the Purchase Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be
purchased as set forth in the Purchase Agreement. The contents of each
Servicing File required to be retained by the Interim Servicer to service the
Mortgage Loans pursuant to the Interim Servicing Agreement and thus not
delivered to the Purchaser are and shall be held in trust by the Interim
Servicer in its capacity as Interim Servicer for the benefit of the Purchaser
as the owner thereof. The Interim Servicer's possession of any portion of the
Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to the Interim
Servicing Agreement, and such retention and possession by the Interim Servicer
shall be in a custodial capacity only. The ownership of each Mortgage Note,
Mortgage and the contents of the Mortgage File and Servicing File is vested in
the Purchaser and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in a
custodial capacity only. The PPTA and the Purchase Agreement shall
collectively be referred to as the "Agreements" herein.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B hereto.
In accordance with Section 6 of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
H-1
[SELLER]
By: ____________________________________
Name:_______________________________
Title:______________________________
Accepted and Agreed:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: ________________________________
Name:
Title:
H-2
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
------------------
H-3
EXHIBIT B
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
-------------------------------------------------------
CHARACTERISTICS OF EACH MORTGAGE LOAN PACKAGE
---------------------------------------------
Pool Characteristics of the Mortgage Loan Package as delivered on the related
Closing Date:
No Mortgage Loan has: (1) an outstanding principal balance less than $_____;
(2) an origination date earlier than __ months prior to the related Cut-off
Date; (3) an LTV of greater than ____%; (4) a FICO Score of less than ___; or
(5) a debt-to-income ratio of more than ___%. Each Mortgage Loan has a
Mortgage Interest Rate of at least ___% per annum and an outstanding principal
balance of less than $______. Each Adjustable Rate Mortgage Loan has an Index
of [______].
H-4
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
H-5
