Exhibit 99.7(b)
EXECUTION COPY
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FIRST AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT
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XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
FIRST NATIONAL BANK OF NEVADA
Seller
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Dated as of October 1, 2005
Conventional,
Fixed and Adjustable Rate
Residential Mortgage Loans
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................1
SECTION 2. AGREEMENT TO PURCHASE...........................................13
SECTION 3. MORTGAGE SCHEDULES..............................................14
SECTION 4. PURCHASE PRICE; PRINCIPAL PREPAYMENTS...........................14
SECTION 5. EXAMINATION OF MORTGAGE FILES...................................15
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER.............................16
SECTION 7. SERVICING OF THE MORTGAGE LOANS.................................19
SECTION 8. [RESERVED]......................................................19
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH...........................................19
SECTION 10. CLOSING.........................................................39
SECTION 11. CLOSING DOCUMENTS...............................................40
SECTION 12. COSTS...........................................................41
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION.....................41
SECTION 14. THE SELLER......................................................43
SECTION 15. FINANCIAL STATEMENTS............................................45
SECTION 16. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST..................45
SECTION 17. NOTICES.........................................................45
SECTION 18. SEVERABILITY CLAUSE.............................................47
SECTION 19. COUNTERPARTS....................................................47
SECTION 20. INTENTION OF THE PARTIES........................................47
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT........47
SECTION 22. WAIVERS.........................................................48
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SECTION 23. EXHIBITS........................................................48
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES.................................48
SECTION 25. REPRODUCTION OF DOCUMENTS.......................................48
SECTION 26. FURTHER AGREEMENTS..............................................49
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE..........................49
SECTION 28. NO SOLICITATION.................................................49
SECTION 29. WAIVER OF TRIAL BY JURY.........................................50
SECTION 30. GOVERNING LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS.......50
SECTION 31. AMENDMENT.......................................................50
SECTION 32. CONFIDENTIALITY.................................................50
SECTION 33. AVAILABILITY OF INFORMATION.....................................51
SECTION 34. ENTIRE AGREEMENT................................................51
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
EXHIBIT I REPORT PERIOD INFORMATION
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FIRST AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT
This FIRST AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND
WARRANTIES AGREEMENT ("Agreement"), dated as of October 1, 2005, by and
between Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation (the
"Purchaser"), and FIRST NATIONAL BANK OF NEVADA, a national banking
association (the "Seller").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller are parties to that certain
Master Mortgage Loan Purchase and Warranties Agreement, dated as of January
20, 2005 (the "Original Purchase Agreement") and the Seller desires to sell,
from time to time, to the Purchaser, and the Purchaser desires to purchase,
from time to time, from the Seller, certain conventional fixed and adjustable
rate residential first-lien 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, at the present time, the Purchaser and the Seller desire
to amend the Original Purchase Agreement to make certain modifications as set
forth herein with respect to all Mortgage Loans acquired pursuant to this
Agreement or the Original Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser
and the Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms
shall have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices which are in accordance with accepted
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjusted Purchase Price Percentage: With respect to any Mortgage
Loan subject to repurchase in accordance with the terms of this Agreement
during the first twelve months following the related Closing Date, shall be
equal to the Purchase Price Percentage less the product of (i) the excess, if
any, of the Purchase Price Percentage of such Mortgage Loan over par, and
(ii)(A) the number of calendar days completed from (but not including) the
related Closing Date through the repurchase date of such Mortgage Loan,
divided by (B) 365.
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 First Amended and Restated Master 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 which by its original
terms or any modifications thereof provides for amortization beyond its
scheduled maturity date.
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
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incidental cash to the related Mortgagor of more than 1% of the original
principal balance of such Mortgage Loan.
Closing Date: The date or dates on which the Purchaser from time
to time shall purchase, and the Seller from time to time shall sell, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the related Mortgage Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 11.
CLTA: The California Land Title Association.
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.
Custodial Account: The separate trust account created and
maintained pursuant to Subsection 2.04 of the Interim Servicing Agreement
(with respect to each Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention of
the originals of each Mortgage Note, Mortgage, Assignment of Mortgage and
other Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at any given time, all of the individual Custodial Agreements shall
collectively be referred to as the "Custodial Agreement."
Custodian: Deutsche Bank Trust Company Americas, a New York
banking corporation, and its successors in interest, or any successor to the
Custodian under the Custodial Agreement as therein provided.
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Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
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, which is the first day of the month.
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.
Xxxxxxx Mac Transfer: As defined in Section 13.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in accordance with the terms of the related
Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage
Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, or (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
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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).
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.
Interim Servicing Agreement: The agreement to be entered into by
the Purchaser and the Interim Servicer, providing for the Interim Servicer to
service the Mortgage Loans as specified by the Interim Servicing Agreement.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed the
Mortgage Interest Rate at the time of origination of such Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the related
Mortgage Loan Schedule.
Liquidation Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, other than amounts
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received following the acquisition of REO Property, Insurance Proceeds and
Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, as of any
date of determination, the ratio (expressed as a percentage) the numerator of
which is the outstanding principal balance of the Mortgage Loan as of the
related Cut-off Date (unless otherwise indicated), and the denominator of
which is the lesser of (a) the Appraised Value of the Mortgaged Property at
origination and (b) if the Mortgage Loan was made to finance the acquisition
of the related Mortgaged Property, the purchase price of the Mortgaged
Property.
LTV: Loan-to-Value Ratio.
Manufactured Home: A single family residential unit that is
constructed in a factory in sections in accordance with the Federal
Manufactured Home Construction and Safety Standards adopted on June 15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as amended in
2000, which preempts state and local building codes. Each unit is identified
by the presence of a HUD Plate/Compliance Certificate label. The sections are
then transported to the site and joined together and affixed to a pre-built
permanent foundation (which satisfies the manufacturer's requirements and all
state, county, and local building codes and regulations). The manufactured
home is built on a non-removable, permanent frame chassis that supports the
complete unit of walls, floors, and roof. The underneath part of the home may
have running gear (wheels, axles, and brakes) that enable it to be transported
to the permanent site. The wheels and hitch are removed prior to anchoring the
unit to the permanent foundation. The manufactured home must be classified as
real estate and taxed accordingly. The permanent foundation may be on land
owned by the mortgager or may be on leased land.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the Seller, in accordance with MERS Procedures Manual and (b) the
Seller has designated or will designate the Purchaser as the Investor on the
MERS(R) 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(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
MIN: With respect to any MERS Designated Mortgage Loan, the
mortgage identification number (if any) assigned to such MERS Designated
Mortgage Loan by MERS.
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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 hereto and any additional
documents required to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time
in accordance with the provisions of the related Mortgage Note.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set
forth in the related Mortgage Note.
Mortgage Loan: Each mortgage loan sold, assigned and transferred
pursuant to this Agreement and identified on the applicable Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights and all other
rights, benefits, proceeds and obligations arising from or in connection with
such Mortgage Loan, excluding replaced or repurchased mortgage loans.
Mortgage Loan Documents: With respect to any Mortgage Loan, the
documents required to be delivered to the Custodian pursuant to Subsection
6.03.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan in the
related Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the social security number of the
Mortgagor; (4) a code indicating whether the Mortgagor's race and/or ethnicity
is (i) native American or Alaskan native, (ii) Asian/Pacific islander, (iii)
African American, (iv) white, (v) Hispanic or Latino, (vi) other minority,
(vii) not provided by the Mortgagor, (viii) not applicable (if the Mortgagor
is an entity) and (ix) unknown or missing; (5) the street address of the
Mortgaged Property including the city, state and zip code; (6) a code
indicating whether the Mortgagor is self-employed; (7) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or a
second home; (8) a code indicating the number and type of residential units
constituting the Mortgaged Property (e.g., single family residence, two-family
residence, three-family residence, four-family residence, multifamily
residence, condominium, manufactured housing, mixed-use property, raw land and
other non-residential properties, planned unit development or cooperative
stock in a cooperative housing corporation); (9) the original months to
maturity or the remaining months to maturity from the related Cut-off Date, in
any case based on the original amortization schedule and, if
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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) the last payment date on which a
payment was actually applied to the outstanding principal balance; (17) the
schedule of the payment delinquencies in the prior 12 months; (18) [reserved];
(19) the original principal amount of the Mortgage Loan; (20) the principal
balance of the Mortgage Loan as of the close of business on the related
Cut-off Date, after deduction of payments of principal due and collected on or
before the related Cut-off Date; (21) with respect to each Mortgage Loan with
a second lien behind it, the combined principal balance of the Mortgage Loan
and the applicable second lien loan, at origination, (22) a code indicating
whether there is a simultaneous second; (23) with respect to Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (24) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (25) with respect to
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) the loan credit classification (as
described in the Underwriting Guidelines); (32) whether such Mortgage Loan
provides for a Prepayment Penalty; (33) the Prepayment Penalty period of such
Mortgage Loan, if applicable; (34) a description of the Prepayment Penalty, if
applicable; (35) the Mortgage Interest Rate as of origination; (36) the credit
risk score (FICO score); (37) the date of origination; (38) with respect to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment period;
(39) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment percentage; (40) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate floor; (41) the Mortgage Interest Rate
calculation method (i.e., 30/360, simple interest, other); (42) with respect
to Adjustable Rate Mortgage Loans, the Periodic Rate Cap as of the first
Interest Rate Adjustment Date; (43) with respect to each Adjustable Rate
Mortgage Loan, a code indicating whether the Mortgage Loan provides for
negative amortization; (44) a code indicating whether the Mortgage Loan has
negative amortization and the maximum of such negative amortization; (45) a
code indicating whether the Mortgage Loan is a Balloon Mortgage Loan; (46) a
code indicating whether the Mortgage Loan by its original terms or any
modifications thereof provides for amortization beyond its scheduled maturity
date; (47) the original Monthly Payment due; (48) the Appraised Value; (49)
appraisal type; (50) appraisal date; (51) a code indicating whether the
Mortgage Loan is covered by a PMI Policy and, if so, identifying the PMI
Policy provider; (54) the certificate number of the PMI Policy, if applicable;
(52) the amount of coverage of the PMI Policy, if applicable; (53) in
connection with a condominium unit, a code indicating whether the condominium
project where such unit is located is low-rise or high-rise; (54) a code
indicating whether the Mortgaged Property is a leasehold estate; (55) with
respect to the related Mortgagor, the debt-to-income ratio; (56) sales price;
(57) automated valuation model (AVM);
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(58) a code indicating whether the Mortgage Loan is a MERS Designated Mortgage
Loan and the MERS Identification Number, if applicable; and (59) 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.
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 Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Seller, reasonably acceptable to the Purchaser, provided that
any Opinion of Counsel relating to (a) the qualification of any account
required to be maintained pursuant to the Interim Servicing Agreement as an
Eligible Account (as defined in the Interim Servicing Agreement), (b)
qualification of the Mortgage Loans in a REMIC or (c) compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion of Counsel)
an opinion of counsel who (i) is in fact independent of the Seller and any
servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Seller or any servicer of the Mortgage
Loans or in an Affiliate of either and (iii) is not connected with the Seller
or any servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may increase or
decrease on an Interest Rate Adjustment Date
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above or below the Mortgage Interest Rate previously in effect. The Periodic
Rate Cap for each Adjustable Rate Mortgage Loan is the rate set forth as such
on the related Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the amount
of any premium or penalty required to be paid by the Mortgagor if the
Mortgagor prepays such Mortgage Loan as provided in the related Mortgage Note
or Mortgage.
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty thereon, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: 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,
who had no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation was not affected by
the approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of
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Title XI of FIRREA and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated.
Qualified Insurer: An insurance company duly authorized and
licensed where required by law to issue insurance approved as an insurer by
Xxxxxx Mae and Xxxxxxx Mac.
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 Transfer.
Reconstitution Agreements: The agreement or agreements entered
into by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transfer 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 Transfer.
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: As defined in Section 13.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
REO Property: A Mortgaged Property acquired by the Interim
Servicer through foreclosure or deed in lieu of foreclosure.
Report Period: The period beginning with the final Business Day of
the calendar month preceding the current calendar month, and ending on the
final Business Day of the current calendar month.
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Repurchase Price: With respect to any Mortgage Loan, a price equal
to (A) during the first twelve months following the related Closing Date (i)
the Adjusted Purchase Price Percentage multiplied by the Stated Principal
Balance of the Mortgage Loan so repurchased plus (ii) all accrued and unpaid
interest thereon to the day of the month that such repurchase occurs (but not
more than 150 days of accrued and unpaid interest), and (B) thereafter, (i)
the Stated Principal Balance of the Mortgage Loan so repurchased, plus (ii)
all accrued and unpaid interest thereon to the day of the month such
repurchase occurs (but not more than 150 days of accrued and unpaid interest),
plus in the case of either clause (A) or (B) above, any costs and damages
(including costs and expenses incurred in the enforcement of the terms of this
Agreement) incurred by the related trust with respect to any securitization of
the Mortgage Loan in connection with any violation by such Mortgage Loan prior
to the time of such repurchase of any predatory or abusive lending law
actually incurred and paid out of or on behalf of the related trust fund, and
that directly resulted from such violation.
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 federal Securities Act of 1933, as amended.
Securities Exchange Act: The federal Securities Exchange Act of
1934, as amended.
Securitization Transfer: The sale or transfer of some or all of
the Mortgage Loans to a trust or other entity as part of a publicly-offered or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
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.
Servicing Fee: With respect to each Mortgage Loan subject to the
Interim Servicing Agreement, a fee payable monthly equal to twelve dollars
($12) per Mortgage Loan for the first sixty (60) days after the related
Closing Date. In the event the Purchaser requires the Seller to service the
Mortgage Loans beyond such sixty (60) day period, the Purchaser shall pay the
Seller fifteen dollars ($15) per Mortgage Loan for each subsequent sixty (60)
day period; provided, however, that such interim servicing fee shall be paid
monthly, in arrears, and for any partial month, such interim servicing fee
shall be prorated on a per diem basis.
Servicing File: With respect to each Mortgage Loan, the
file retained by the Interim Servicer consisting of originals of all documents
in the Mortgage File which are not
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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.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies Inc., and any successor thereto.
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: As defined in Section 13.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Subsections 9.03 and 14.01.
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: The sale or transfer by Purchaser of some or
all of the Mortgage Loans in a whole loan or participation format pursuant to
a Reconstitution Agreement.
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
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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").
The Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans to be purchased on a particular Closing Date to the
Purchaser at least five (5) Business Days prior to the related Closing Date.
The related Mortgage Loan Schedule shall be the related Preliminary Mortgage
Schedule with those Mortgage Loans which have not been funded prior to the
related Closing Date deleted.
SECTION 4. Purchase Price; Principal Prepayments.
Subsection 4.01 Purchase Price. The Purchase Price for the
Mortgage Loans and Servicing Rights listed on the related Mortgage Loan
Schedule in a Mortgage Loan Package shall be the Purchase Price Percentage,
multiplied by the aggregate actual unpaid principal balance as of the related
Cut-off Date 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. 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 own and be entitled to receive with respect to
each Mortgage Loan purchased, (1) all recoveries of principal collected after
the related Cut-off Date and (2) all payments of interest on the Mortgage
Loans net of the Servicing Fee (minus that portion of any such interest
payment that is allocable to the period prior to the related Cut-off Date).
All payments of principal and interest, Prepayment Charges (other than
Prepayment Charges retained by the Purchaser pursuant to Subsection 4.02
below) and premiums less the applicable Servicing Fee, due on a Due Date
following the related Cut-off Date shall belong to the Purchaser. All payments
of principal and interest, Prepayment Charges (other than Prepayment Charges
retained by the Purchaser pursuant to Subsection 4.02 below) and premiums less
the applicable Servicing Fee, due on a Due Date following the related Cut-off
Date shall belong to the Purchaser.
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Subsection 4.02 Near-term Principal Prepayments. In the event any
Principal Prepayment is made by a Mortgagor on or prior to thirty (30) days
(unless otherwise specified in the related Purchase Price and Terms Agreement)
after the related Closing Date, the Seller shall remit to the Purchaser an
amount, with respect to any Mortgage Loan, equal to the excess, if any, of the
Purchase Price Percentage for such Mortgage Loan over par multiplied by the
amount of such Principal Prepayment ("Premium Recapture Amount"); provided,
however, that such Premium Recapture Amount shall be subject to reduction (the
maximum amount of such reduction limited to the Premium Recapture Amount) to
the extent of any legally enforceable prepayment penalty received by the
Purchaser in connection with such Mortgage Loan. Such remittance shall be made
by the Seller to Purchaser no later than the fifth (5th) Business Day
following receipt of notice of such Principal Prepayment by the Seller. The
Seller shall be entitled to retain any Prepayment Charge collected from the
Mortgagor in connection with a Principal Prepayment in full made during such
thirty (30) day period (unless otherwise specified in the related Purchase
Price and Terms Agreement) and any Prepayment Charges collected from the
Mortgagor in connection with a Principal Prepayment in full after such thirty
(30) day period shall be remitted to, or retained by, the Purchaser. If demand
for payment of any amount described in this paragraph is not made prior to
thirty (30) days after the date of any Principal Prepayment, the Seller shall
have no obligation to pay the amount described in this paragraph.
SECTION 5. Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall either (a) deliver to the Purchaser or its designee in
escrow, for examination with respect to each Mortgage Loan to be purchased,
the related Mortgage File, including a copy of the Assignment of Mortgage,
pertaining to each Mortgage Loan, or (b) make the related Mortgage File
available to the Purchaser for examination at such other location as shall
otherwise be acceptable to the Purchaser. Such examination of the Mortgage
Files may be made by the Purchaser or its designee at any reasonable time
before or after the related Closing Date. If the Purchaser makes such
examination prior to the related Closing Date and determines, in its sole
discretion, that any Mortgage Loans do not conform to any of the requirements
set forth in the Purchase Price and Terms Agreement, or as an Exhibit annexed
thereto, the Mortgage Loan may be rejected for purchase by the Purchaser and
such Mortgage Loans shall be deleted from the related Mortgage Loan Schedule.
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 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 at the price and in the manner specified in Subsection
9.03.
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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.
Subsection 6.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note as of
the related Closing Date shall be in the name of the Seller, an Affiliate of
the Seller, the Purchaser or one or more designees of the Purchaser, as the
Purchaser shall select; provided, however, that if a Mortgage has been
recorded in the name of MERS or its designee, the Seller is shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by
MERS. Notwithstanding the foregoing, ownership of each Mortgage and related
Mortgage Note shall be vested solely in the Purchaser or the appropriate
designee of the Purchaser, as the case may be. All rights arising out of the
Mortgage Loans including, but not limited to, all funds received by the Seller
or the Interim Servicer after the related Cut-off Date on or in connection
with a Mortgage Loan shall be vested in the Purchaser or one or more designees
of the Purchaser; provided, however, that all funds received on or in
connection with a Mortgage Loan shall be received and held by the Seller or
the Interim Servicer in trust for the benefit of the Purchaser or the
appropriate designee of the Purchaser, as the case may be, as the owner of the
Mortgage Loans pursuant to the terms of this Agreement.
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The Seller shall be or shall cause the Interim Servicer to be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Seller
shall or shall cause the Interim Servicer to maintain in its possession,
available for inspection by the Purchaser, and shall deliver to the Purchaser
upon demand, evidence of compliance with all federal, state and local laws,
rules and regulations, and all requirements of the Seller, including but not
limited to documentation as to the method used in determining the
applicability of the provisions of the National Flood Insurance Act of 1968,
as amended, to the Mortgaged Property, documentation evidencing insurance
coverage and periodic inspection reports, as required by the Seller. The
Seller or Interim Servicer shall retain such documents in the form of imaged
copies on microfilm, microfiche or any other imaging or electronic records
retention system so long as such system complies with all of the Seller's or
Interim Servicer's requirements relating to the retention and maintenance of
such documents. In the event the Purchaser is required to submit information
regarding the location or status of the original of such document for
evidentiary purposes in a legal proceeding, the Seller shall cooperate with
all reasonable requests of the Purchaser to provide information regarding
Seller's ordinary course of business practices with respect to such imaged
copies of documents.
It is the express intention of the parties that the transactions
contemplated by this Agreement and the related Purchase Price and Terms
Agreement be, and be construed as, a sale of the Mortgage Loans, and the
Servicing Rights by the Seller and not a pledge of the Mortgage Loans or the
Servicing Rights by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. Consequently, the sale of each Mortgage Loan and the
Servicing Rights shall be reflected as a sale 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 those Mortgage
Loan Documents set forth on Exhibit A-1 hereto as required by the Custodial
Agreement with respect to each Mortgage Loan set forth on the related Mortgage
Loan Schedule.
In connection with the foregoing, the Seller shall indemnify the
Purchaser and its present and former directors, officers, employees and agents
and any Successor Servicer and its present and former directors, officers,
employees and agents, and hold such parties harmless against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and other costs and expenses based on or grounded upon, or
resulting from, the fact that no Mortgage Loan is 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
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evidenced by the Initial Certification of the Custodian in the form annexed to
the Custodial Agreement. The Purchaser shall pay all fees and expenses of the
Custodian.
The Seller shall or shall cause the Interim Servicer to forward to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with this Agreement within two weeks of their execution, provided, however,
that the Seller shall provide the Custodian, or to such other Person as the
Purchaser shall designate in writing, with a certified true copy of any such
document submitted for recordation within two weeks of its execution, and
shall promptly provide the original of any document submitted for recordation
or a copy of such document certified by the appropriate public recording
office to be a true and complete copy of the original within two (2) weeks
following receipt of the original document by the Interim Servicer; provided,
however, that such original recorded document or certified copy thereof shall
be delivered to the Purchaser no later than 180 days following the related
Closing Date, unless there has been a delay at the applicable recording
office.
If the Seller cannot deliver the original recorded Mortgage Loan
Documents on the related Closing Date, the Seller shall, promptly upon receipt
thereof and in any case not later than 120 days from the related Closing Date,
deliver such original documents, including original recorded documents, to the
Purchaser (unless the Seller is delayed in making such delivery by reason of
the fact that such documents shall not have been returned by the appropriate
recording office). If delivery is not completed within 120 days of the related
Closing Date, solely due to delays in making such delivery by reason of the
fact that such documents shall not have been returned by the appropriate
recording office, Seller shall deliver such document to Purchaser within such
time period as specified in an Officer's Certificate or, if delivery is not
made by the expiration of such time period, Seller shall use commercially
reasonable efforts to cause delivery as soon as possible thereafter. In any
case, if the Seller cannot deliver the original recorded Mortgage Loan
Documents within 240 days of the related Closing Date, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by the Seller at
the price and in the manner specified in Subsection 9.03.
For any Mortgage Loan which is not a MERS Mortgage Loan, the
Seller shall prepare the Assignments of Mortgage and, at time of the related
closing date the Purchaser shall deduct $25 for each mortgage loan as
recording fees in transferring all original documents to the Purchaser.
Subsection 6.04 Quality Control Procedures.
The Seller shall, or shall cause the Interim Servicer to, have an
internal quality control program that verifies, on a regular basis, the
existence and accuracy of the legal documents, credit documents, property
appraisals, and underwriting decisions. The program shall include evaluating
and monitoring the overall quality of the Seller loan production and the
servicing activities of the Interim Servicer. The program is to ensure that
the Mortgage Loans are originated in accordance with the Underwriting
Guidelines; guard against dishonest, fraudulent, or negligent acts; and guard
against errors and omissions by officers, employees, or other authorized
persons.
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Subsection 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the Purchaser as the
Investor and the Custodian as custodian, and no Person shall be listed as
Interim Funder on the MERS System. In addition, on or prior to the related
Closing Date, Seller shall provide the Custodian and the Purchaser with a MERS
Report listing the Purchaser as the Investor, the Custodian as custodian and
no Person as Interim Funder with respect to each MERS Designated Mortgage
Loan.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the Purchaser
on a servicing released basis. Subject to and upon the terms and conditions of
this Agreement and the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein), the Seller hereby
sells, transfers, assigns, conveys and delivers to the Purchaser the Servicing
Rights.
The Purchaser shall retain the Interim Servicer as contract
servicer of the Mortgage Loans for an interim period pursuant to and in
accordance with the terms and conditions contained in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein). The Seller shall cause the Interim Servicer to execute the
Interim Servicing Agreement on the initial Closing Date.
The Seller shall cause the Interim Servicer to transfer the
servicing of the Mortgage Loans on each Transfer Date in accordance with the
terms of the Interim Servicing Agreement.
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 national
association duly organized, validly existing and in good standing under the
laws of the United States of America and is and will remain in compliance with
the laws of each state in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and the
servicing of the Mortgage Loan in accordance with the terms of this Agreement.
The Seller has all licenses necessary to carry out its business as now being
conducted, and is licensed and qualified to transact business in and is in
good standing under the laws of each state in which any Mortgaged Property is
located or is otherwise exempt under applicable law from such licensing or
qualification or is otherwise not required under applicable law to effect such
licensing or qualification, and in any event the Seller is in compliance with
the laws of any such state to the extent necessary to ensure the
enforceability of each Mortgage Loan and the sale of
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the Mortgage Loans and Servicing Rights in accordance with the terms of this
Agreement and the related Purchase Price and Terms Agreement. No licenses or
approvals obtained by the Seller have been suspended or revoked by any court,
administrative agency, arbitrator or governmental body and no proceedings are
pending which might result in such suspension or revocation. The Seller has
the full power and authority and legal right to hold, transfer and convey each
Mortgage Loan (including the Servicing Rights), to sell each Mortgage Loan and
the Servicing Rights, and to execute, deliver and perform, and to enter into
and consummate, all transactions contemplated by this Agreement and the
related Purchase Price and Terms Agreement and to conduct its business as
presently conducted. The Seller has duly authorized the execution, delivery
and performance of this Agreement and any agreements contemplated hereby, has
duly executed and delivered this Agreement, and any agreements contemplated
hereby, and this Agreement and the related Purchase Price and Terms Agreement,
assuming due authorization, execution and delivery by the Purchaser, and each
Assignment of Mortgage and any agreements contemplated hereby, constitutes a
legal, valid and binding obligation of the Seller, enforceable against it in
accordance with its terms and all requisite corporate action has been taken by
the Seller to make this Agreement and all agreements contemplated hereby valid
and binding upon the Seller in accordance with their terms. The Seller is
properly qualified to service the Mortgage Loans and has been servicing the
Mortgage Loans prior to the related Cut-off Date;
(b) No Consent Required. No consent, approval, authorization or order of
any court or governmental agency or body or federal or state regulatory
authority having jurisdiction over the Seller is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller with,
this Agreement or the sale of the Mortgage Loans and Servicing Rights and
delivery of the Mortgage Files to the Purchaser or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior to
the related Closing Date. The Seller is not in violation of, and the execution
and delivery of this Agreement or the related Purchase Price and Terms
Agreement by the Seller and its performance and compliance with the terms of
this Agreement will not constitute a violation with respect to, any order or
decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the Seller or its
assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of
the Seller or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder;
(c) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement and the related Purchase Price and Terms
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes, the Mortgages
and/or the Servicing Rights 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 or
the related Purchase Price and Terms Agreement by the Seller, nor the
origination or purchase of the Mortgage Loans by the Seller, the sale of the
Mortgage Loans or the Servicing Rights to the Purchaser, the consummation of
the transactions contemplated hereby, or the performance of or
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compliance with the terms and conditions of this Agreement or the related
Purchase Price and Terms Agreement will conflict with any of the terms,
conditions or provisions of the Seller's articles of incorporation or by-laws,
or constitute a default under or result in a breach or acceleration of, any
material contract, agreement or other instrument to which the Seller is a
party or which may be applicable to the Seller or its assets, or result in the
material violation of any law, rule, regulation, order, judgment or decree to
which the Seller or its properties are subject, or impair the ability of the
Purchaser to realize on the Mortgage Loans;
(e) No Litigation Pending. There are no actions, suits or
proceedings against, or, to Seller's knowledge, threatened investigations of,
the Seller before any court, administrative or other tribunal that,
individually or in the aggregate, (a) might prohibit its entering into this
Agreement or the related Purchase Price and Terms Agreement, (b) seeks to
prevent the sale of the Mortgage Loans, the sale of the Servicing Rights or
the consummation of the transactions contemplated by this Agreement, (c) might
prohibit or materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, this Agreement or
the Mortgage Loans or (d) is reasonably likely to have a material adverse
effect on the financial condition of the Seller;
(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 or the related Purchase Price and
Terms Agreement. The Seller is solvent and the sale of the Mortgage Loans and
the Servicing Rights will not cause the Seller to become insolvent. The sale
of the Mortgage Loans and Servicing Rights is not undertaken with the intent
to hinder, delay or defraud any of the Seller's creditors;
(g) [Reserved];
(h) [Reserved];
(i) Financial Statements. The Seller has delivered to the
Purchaser financial statements as to its last two 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. In addition, the Seller has
delivered information as to its loan gain and loss experience in respect of
foreclosures and its loan delinquency experience for the immediately preceding
three-year period, in each case with respect to mortgage loans owned by it and
such mortgage loans serviced for others during such period, and all such
information so delivered shall be true and correct in all material respects.
There has been no change in the business, operations, financial condition,
properties or assets of the Seller since the date of the Seller's financial
statements that would have a material adverse effect on its ability to perform
its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(j) [Reserved];
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(k) [Reserved];
(l) [Reserved];
(m) No Brokers. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans
or the Servicing Rights;
(n) Sale Treatment. The Seller will treat the sale of the Mortgage
Loans and the Servicing Rights to the Purchaser as a sale for reporting and
accounting purposes and, to the extent appropriate, for federal income tax
purposes;
(o) [Reserved];
(p) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement and the
Purchase Price and Terms Agreement constitutes fair consideration and
reasonably equivalent value for the Mortgage Loans;
(q) [Reserved]; and
(r) The Seller is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS.
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that,
as to each Mortgage Loan, as of the related Closing Date for such Mortgage
Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage
Note have been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the Mortgage Loan been
30 days or more delinquent at any time since the origination of the Mortgage
Loan;
(c) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or an
escrow of funds has been established in an amount sufficient to pay for every
such item which remains unpaid and which has been assessed but is not yet due
and payable. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the
22
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 with respect
thereto;
(f) Hazard Insurance. Pursuant to the terms of the related
Mortgage, the buildings and improvements upon each Mortgaged Property are
insured by a Qualified Insurer pursuant to a standard, valid and existing
hazard insurance policy acceptable to Xxxxxx Xxx or Xxxxxxx Mac which policy
insures against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the Xxxxxx Mae Guides or Xxxxxxx Mac Guide
representing coverage in an amount not less than the lesser of (a) the maximum
insurable value of the improvements securing such Mortgage Loan and (b) the
outstanding principal balance of the related Mortgage Loan, but in no event an
amount less than an amount that is required to prevent the Mortgagor from
being deemed to be a co-insurer thereunder. If the Mortgaged Property is in an
area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, a flood insurance policy in a form
meeting the requirements of the current guidelines of the Flood Insurance
Administration (which policy conforms to Xxxxxx Mae or Xxxxxxx Mac
requirements) is in effect with respect to such Mortgaged Property with a
Qualified Insurer in an amount representing coverage not less than the least
of (a) the outstanding Stated Principal Balance of the Mortgage Loan, (b) the
maximum insurable value of the improvements securing such Mortgage Loan or (c)
the maximum amount of insurance that is available under federal law. All
individual insurance policies contain a standard mortgagee clause naming the
Seller or the original holder of the Mortgage, and its successors in interest,
as loss payee, and all of the premiums due and payable thereon have been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to
23
obtain and maintain such insurance at the Mortgagor's cost and expense and to
seek reimbursement therefor from the Mortgagor. Neither the Seller (nor any
prior originator or servicer of any of the Mortgage Loans) nor any Mortgagor
has engaged in any act or omission which has impaired or would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either. All such insurance
policies contain a standard mortgagee clause naming Seller, its successors and
assigns as loss payee and contain a clause that the insurer will notify the
named mortgagee at least thirty (30) days prior to any reduction in coverage
or cancellation of the policy. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and effect, and will be in
full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement. The Seller
has not engaged in, and has no knowledge of the Mortgagor's having engaged in,
any act or omission which would impair the coverage of any such policy, the
benefits of the endorsement provided for herein, or the validity and binding
effect of either including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be received, retained or realized by any attorney, firm or other person or
entity, and no such unlawful items have been received, retained or realized by
the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, predatory and abusive lending, equal credit opportunity and
disclosure laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to a Prepayment Penalty have been complied
with, the consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations, and the Seller shall
maintain in its possession, available for the Purchaser's inspection, and
shall deliver to the Purchaser upon demand, evidence of compliance with all
such requirements;
(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. Any condominium
unit or planned unit development is "warrantable" with respect thereto or
"nonwarrantable" if underwritten in accordance with the Underwriting
Guidelines. No portion of the Mortgaged Property (or underlying Mortgaged
Property, in the case of a Co-op Loan) is
24
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. No such residence is a mobile home. None of the
Mortgage Loans are considered agricultural loans. No Mortgaged Property
consists of a log home except as permitted pursuant to the Xxxxxx Mae
guidelines, an earthen home, underground home or a home which is situated on
more than forty acres of property. Any Mortgage Property secured by a
leasehold estate was underwritten in accordance with the Underwriting
Guidelines. None of the Mortgage Loans are made for the purchase of land only;
(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
25
collateral is commonly subject which do not materially interfere with the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms (including, without limitation, any provisions therein relating to
Prepayment Penalties). All parties to the Mortgage Note, the Mortgage and any
other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related parties.
No fraud, error, omission, misrepresentation, negligence or similar occurrence
with respect to a Mortgage Loan has taken place on the part of the Seller in
connection with the origination of the Mortgage Loan or in the application of
any insurance in relation to such Mortgage Loan. The documents, instruments
and agreements submitted for loan underwriting were not falsified and contain
no untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the information and statements
therein not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place on the part of any Person, including without limitation, the Mortgagor,
any appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application for any insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder, and any and all requirements as
to completion of any on-site or off-site improvement and as to disbursements
of any escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording of
the Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and
upon the sale of the Mortgage Loans to the Purchaser, the Seller will retain
the Mortgage Files or any part thereof with respect thereto not delivered to
the Custodian, the Purchaser or the Purchaser's designee, in trust only for
the purpose of servicing and supervising the servicing of each Mortgage Loan.
The Mortgage Loan is not assigned or pledged, and the Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement and following the sale of each
Mortgage Loan, 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
26
Loan. After the related Closing Date, the Seller will have no right to modify
or alter the terms of the sale of the Mortgage Loan and the Seller will have
no obligation or right to repurchase the Mortgage Loan or substitute another
Mortgage Loan, except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1)
in compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (2) either (i)
organized under the laws of such state, or (ii) qualified to do business in
such state, or (iii) a federal savings and loan association, a savings bank or
a national bank having a principal office in such state, or (3) not doing
business in such state;
(o) LTV, PMI Policy. Except as specified in the related Purchase
Price and Terms Agreement, no Mortgage Loan has an LTV greater than 100%. Any
Mortgage Loan that had at the time of origination an LTV in excess of 80% is
insured as to payment defaults by a PMI Policy. Any PMI Policy in effect
covers the related Mortgage Loan for the life of such Mortgage Loan. All
provisions of such PMI Policy have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have been
paid. No action, inaction, or event has occurred and no state of facts exists
that has, or will result in the exclusion from, denial of, or defense to
coverage. Any Mortgage Loan subject to a PMI Policy obligates the Mortgagor
thereunder to maintain the PMI Policy and to pay all premiums and charges in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan as set
forth on the related Mortgage Loan Schedule is net of any such insurance
premium if the related PMI Policy is lender-paid;
(p) Title Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy or other equivalent form of policy or insurance acceptable to Xxxxxx
Xxx or Xxxxxxx Mac and each such title insurance policy is issued by a title
insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business
in the jurisdiction where the Mortgaged Property is located, insuring the
Seller, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Mortgage Loan (or to the
extent a Mortgage Note provides for negative amortization, the maximum amount
of negative amortization in accordance with the Mortgage), 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 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
27
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates
nor any of their respective predecessors, have waived any default, breach,
violation or event which would permit acceleration;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of
the Mortgaged Property, and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company or other similar institution which is supervised and examined by a
federal or state authority. Principal payments on the Mortgage Loan commenced
no more than seventy days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate Cap
and the Periodic Rate Floor are 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
28
maturity date; and by its original terms or any modification thereof, does not
provide for amortization beyond its scheduled maturity date;
(u) Enforceable Provisions. The Mortgage contains enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good and merchantable title to the Mortgaged Property. There is no homestead
or other exemption available to a Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or
similar law;
(v) Conformance with Agency and Underwriting Guidelines. The Mortgage
Loan was underwritten in accordance with the Underwriting Guidelines (a copy
of which is attached to the related Assignment and Conveyance Agreement). The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae and no representations have been made to a Mortgagor that are inconsistent
with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. The Mortgaged Property is
lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and occupancy
of the same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities. 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, pledged account or other security other than
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other obligation and no Mortgage
Loan is secured by more than one Mortgaged Property;
(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. The Seller has no knowledge of any
circumstances or conditions with respect to the related Mortgage, Mortgaged
Property, Mortgagor, Mortgage File or the related Mortgagor's credit standing
that can reasonably be expected to cause the Mortgage Loan to be more or less
likely to become delinquent than mortgage loans originated by the Seller
generally. No Mortgaged Property is located in a state,
29
city, county or other local jurisdiction which the Purchaser has determined in
its sole good faith discretion would cause the related Mortgage Loan to be
ineligible for whole loan sale or securitization in a transaction consistent
with the prevailing sale and securitization industry (including, without
limitation, the practice of the rating agencies) with respect to substantially
similar mortgage loans;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered
under the Custodial Agreement for each Mortgage Loan have been delivered to
the Custodian. The Seller is in possession of a complete, true and accurate
Mortgage File in compliance with Exhibit A attached hereto, except for such
documents the originals of which have been delivered to the Custodian;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(cc) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the Mortgagee thereunder, and to the best of the Seller's knowledge, such
provision is enforceable;
(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. 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 threatened for the total or partial condemnation
of the Mortgaged
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Property. The Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Mortgage
Loan or the use for which the premises were intended and each Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and the Seller has no knowledge of any
such proceedings in the future;
(hh) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller and the Interim Servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations, and have been in all respects legal and proper. With respect
to escrow deposits and Escrow Payments, all such payments are in the
possession of, or under the control of, the Seller or the Interim Servicer and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All Escrow Payments
have been collected in full compliance with state and federal law and the
provisions of the related Mortgage Note and Mortgage. An escrow of funds is
not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect
to each Mortgage Note which required a new index to be selected, and such
selection did not conflict with the terms of the related Mortgage Note. The
Seller or the Interim Servicer executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state, federal and
local law has been properly paid and credited;
(ii) Conversion to Fixed Interest Rate. Except as specified in the
related Purchase Price and Terms Agreement, 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
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be received by the Seller or by any officer, director, or employee of the
Seller or any designee of the Seller or any corporation in which the Seller or
any officer, director, or employee had a financial interest at the time of
placement of such insurance;
(kk) No Violation of Environmental Laws. There exists no violation of
any local, state, or federal environmental law, rule or regulation with
respect to the Mortgaged Property. To the best of Seller's knowledge, there is
no pending action or proceeding involving the related Mortgaged Property in
which compliance with any environmental law, rule or regulation is an issue;
and nothing further remains to be done to satisfy in full all requirements of
each such law, rule or regulation constituting a prerequisite to the use and
enjoyment of such Mortgaged Property;
(ll) Servicemembers Civil Relief Act. The Mortgagor has not notified
the Seller, and the Seller has no knowledge of any relief requested or allowed
to the Mortgagor under the Servicemembers Relief Act or other similar state
statute;
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, duly appointed by the Seller, who had no
interest, direct or indirect in the Mortgaged Property or in any loan made on
the security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy the requirements of Xxxxxx Xxx or Xxxxxxx Mac and Title XI of FIRREA
and the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(nn) Disclosure Materials. The Mortgagor has executed a statement to
the effect that the Mortgagor has received all disclosure materials required
by, and the Seller has complied with, all applicable law with respect to the
making of the Mortgage Loans. The Seller shall maintain such statement in the
Mortgage File;
(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,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing the same to any subsequent or prospective purchaser of such
Mortgage. The Seller has and shall
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in its capacity as servicer, for each Mortgage Loan, fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g. favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis. The Seller, as servicer, shall transmit full-file credit reporting data
for each Mortgage Loan and agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-,
60-, 90-days, etc.), foreclosed, or charged-off;
(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. Except as set forth on the related
Mortgage Loan Schedule, no such Prepayment Penalty may be imposed for a term
in excess of five (5) years following origination. With respect to any
Mortgage Loan that contains a provision permitting imposition of a Prepayment
Penalty prior to maturity: (i) prior to the Mortgage Loan's origination, the
Mortgagor agreed to such Prepayment Penalty in exchange for a monetary
benefit, including but not limited to a rate or fee reduction, (ii) prior to
the Mortgage Loan's origination, the Mortgagor was offered the option of
obtaining a mortgage loan that did not require payment of such a Prepayment
Penalty, (iii) the Prepayment Penalty is disclosed to the Mortgagor in the
Mortgage Loan Documents pursuant to applicable state and federal law, and (vi)
notwithstanding any state or federal law to the contrary, the Seller shall not
impose such Prepayment Penalty in any instance when the mortgage debt is
accelerated as the result of the Mortgagor's default in making the loan
payments;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan. No Mortgage Loan is covered by the Home Ownership and Equity Protection
Act of 1994 and no Mortgage Loan is in violation of any comparable state or
local law. The Mortgaged Property is not located in a jurisdiction where a
breach of this representation with respect to the related Mortgage Loan may
result in additional assignee liability to the Purchaser, as determined by
Purchaser in its reasonable discretion;
(uu) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy. No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, disability, accident, unemployment, property or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single premium credit
insurance policy
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(e.g., life, disability, accident, unemployment, property, mortgage, or health
insurance) in connection with the origination of the Mortgage Loan; no
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies or debt cancellation agreements as part of the origination
of, or as a condition to closing, such Mortgage Loan;
(vv) Manufactured Home. If such Mortgage Loan is secured by a
Manufactured Home, such Manufactured Home is either (i) a "single family
residence" within the meaning of Section 25(e)(10) of the Code; or (ii) has a
minimum of 400 square feet of living space, a minimum width in excess of 102
inches and which is of a kind customarily used at a fixed location;
(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 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. On or prior to the date 60 days after the
related Closing Date, the Mortgagor has not filed and will not file a
bankruptcy petition or has not become the subject and will not become the
subject of involuntary bankruptcy proceedings or has not consented to or will
not consent to the filing of a bankruptcy proceeding against it or to a
receiver being appointed in respect of the related Mortgaged Property;
(bbb) [Reserved];
(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;
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(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) No Mortgaged Property is a timeshare. Except as permitted in
the Underwriting Guidelines, none of the Mortgage Loans provide for deferred
interest or negative amortization;
(fff) Except as set forth on the related Purchase Price and Terms
Agreement, each Mortgage Loan has a valid and original FICO of not less than
580;
(ggg) The Mortgage Loan is not subject to any outstanding litigation
for fraud, origination, predatory lending, servicing or closing practices;
(hhh) Each Mortgage Loan originated in the state of Texas pursuant to
Article XVI, Section 50(a)(6) of the Texas Constitution (a "Texas Refinance
Loan") has been originated in compliance with the provisions of Article XVI,
Section 50(a)(6) of the Texas Constitution, Texas Civil Statutes and the Texas
Finance Code. With respect to each Texas Refinance Loan that is a Cash Out
Refinancing, the related Mortgage Loan Documents state that the Mortgagor may
prepay such Texas Refinance Loan in whole or in part without incurring a
Prepayment Charge. The Seller does not collect any such Prepayment Charges in
connection with any such Texas Refinance Loan;
(iii) Except as permitted by the Underwriting Guidelines, the source
of the down payment with respect to each Mortgage Loan has been fully verified
by the Seller;
(jjj) Except as set forth on the related Purchase Price and Terms
Agreement, no Mortgagor is the obligor on more than four Mortgage Notes in any
Mortgage Loan Package;
(kkk) Except as set forth on the related Purchase Price and Terms
Agreement, each Mortgagor has a debt-to-income ratio of less than or equal to
50%;
(lll) With respect to each MERS Designated Mortgage Loan, a MIN has
been assigned by MERS and such MIN is accurately provided on the related
Mortgage Loan Schedule. The related assignment of Mortgage to MERS has been
duly and properly recorded;
(mmm) With respect to each MERS Designated Mortgage Loan, the Seller
has not received any notice of liens or legal actions with respect to such
Mortgage Loan and no such notices have been electronically posted by MERS;
(nnn) Product Selection. No Mortgagor was encouraged or required to
select a Mortgage Loan product offered by the Mortgage Loan's originator which
is a higher cost product designed for less creditworthy Mortgagors, unless at
the time of the Mortgage Loan's origination, such Mortgagor did not qualify
(taking into account credit history and debt to income ratios for a lower cost
credit product then offered by the Mortgage Loan's originator or any affiliate
of the Mortgage Loan's originator). If, at the time of loan application, the
Mortgagor may have qualified for a for a lower cost credit product then
offered by any mortgage
35
lending affiliate of the Mortgage Loan's originator, the Mortgage Loan's
originator referred the Mortgagor's application to such affiliate for
underwriting consideration;
(ooo) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs objective mathematical
principles which related the Mortgagor's income, assets and liabilities to the
proposed payment and/or the Mortgagor's past credit history and such
underwriting methodology does not rely solely on the extent of the Mortgagor's
equity in the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan;
(ppp) Disclosure of Points and Fees. All points and fees related to
each Mortgage Loan were disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulation. Except in the case of a
Mortgage Loan in an original principal amount of less than $60,000 which would
have resulted in an unprofitable origination, no Mortgagor was charged "points
and fees" (whether or not financed) in an amount greater than 5% of the
principal amount of such loan, such 5% limitation is calculated in accordance
with Xxxxxx Mae's anti-predatory lending requirements as set forth in the
Xxxxxx Xxx Selling Guide.
(qqq) Fees and Charges. All fees and charges (including finance
charges) and whether or not financed, assessed, collected or to be collected
in connection with the origination and servicing of each Mortgage Loan has
been disclosed in writing to the Mortgagor in accordance with applicable state
and federal law and regulation;
(rrr) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(sss) 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 the requisite due diligence in connection with the origination of
each Mortgage Loan for purposes of the Anti-Money Laundering Laws, including
with respect to the legitimacy of the applicable Mortgagor and the origin of
the assets used by the said Mortgagor to purchase the property in question,
and maintains, and will maintain, sufficient information to identify the
applicable Mortgagor for purposes of the Anti-Money Laundering Laws;
(ttt) 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 shall be delivered to the Custodian. 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;
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(uuu) 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;
(vvv) Owner of Record. Immediately prior to the payment of the
related Purchase Price for each Mortgage Loan and the Servicing Rights
thereto, the Seller was the owner of the related Mortgage and the indebtedness
evidenced by the related Mortgage Note and the related Servicing Rights and
upon the payment of the related Purchase Price by the Purchaser, in the event
that the Seller retains record title, the Seller shall retain such record
title to each Mortgage, each related Mortgage Note and the related Mortgage
Files with respect thereto in trust for the Purchaser as the owner thereof and
only for the purpose of interim servicing and supervising the interim
servicing of each Mortgage Loan; and
(www) 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;
Subsection 9.03 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or Assignment of Mortgage or the examination or failure to examine any
Mortgage File. With respect to any representation or warranty contained in
Subsections 9.01 or 9.02 hereof that is made to the Seller's knowledge, if it
is discovered by the Purchaser that the substance of such representation and
warranty was inaccurate as of the related Closing Date and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan, then
notwithstanding the Seller's lack of knowledge with respect to the inaccuracy
at the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty. Upon discovery
by either the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other.
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
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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.
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, the
Purchaser and the Seller shall arrange for the reassignment of the repurchased
Mortgage Loan to the Seller or its designee and the delivery to the Seller of
any documents held by the Custodian relating to the repurchased Mortgage Loan.
In the event of a repurchase, the Seller shall, simultaneously with such
reassignment, give written notice to the Purchaser that such repurchase has
taken place, amend the Mortgage Loan Schedule to reflect the withdrawal of
such Mortgage Loan from this Agreement.
In addition to such repurchase 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 or
repurchase for a defective Mortgage Loan and to indemnify the Purchaser and
Successor Servicer as provided in this Subsection 9.03 and in Subsection 14.01
constitute the sole remedies of the Purchaser and Successor Servicer
respecting a breach of the foregoing representations and warranties. For
purposes of this paragraph "Purchaser" shall mean the Person then acting as
the Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement and "Successor Servicer" shall mean any
Person designated as the Successor Servicer pursuant to this Agreement and any
and all Persons who previously were "Successor Servicers" pursuant to this
Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 9.01 and
9.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure
by the Seller to cure such breach or repurchase such Mortgage Loan as
specified above and (iii) demand upon the Seller by the Purchaser for
compliance with this Agreement.
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Subsection 9.04 Repurchase of Mortgage Loans with First Payment
Defaults.
Except as otherwise specified in the related Purchase Price and Term
Agreement, if the related Mortgagor is delinquent with respect to the Mortgage
Loan's first Monthly Payment either (i) after origination of such Mortgage
Loan, or (ii) after the related Closing Date, the Seller, at the Purchaser's
option, shall repurchase such Mortgage Loan from the Purchaser at a price
equal to the Repurchase Price. The Seller shall repurchase such delinquent
Mortgage Loan within thirty (30) days of such request.
SECTION 10. Closing
The closing for the purchase and sale of each Mortgage Loan Package
shall take place on the related Closing Date. At the Purchaser's option, each
Closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties
shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) at least two Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser a magnetic diskette,
or transmit by modem, a listing on a loan-level basis of the
necessary information to compute the Purchase Price of the
Mortgage Loans delivered on such Closing Date (including
accrued interest), and prepare a Mortgage Loan Schedule;
(ii) all of the representations and warranties of the Seller under
this Agreement and of the Interim Servicer under the Interim
Servicing Agreement (with respect to each Mortgage Loan for an
interim period, as specified therein) shall be true and correct
as of the related Closing Date and no event shall have occurred
which, with notice or the passage of time, would constitute a
default under this Agreement or an Event of Default under the
Interim Servicing Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents
as specified in Section 11 of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement; and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this
39
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
SECTION 11. Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
1. this Agreement (to be executed and delivered only for the
initial Closing Date);
2. with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
3. the related Mortgage Loan Schedule (one copy to be attached to
the Custodian's counterpart of the Custodial Agreement in
connection with the initial Closing Date, and one copy to be
attached to the related Assignment and Conveyance as the
Mortgage Loan Schedule thereto);
4. a Custodian's Certification, as required under the Custodial
Agreement, in the form of Exhibit 2 to the Custodial Agreement;
5. with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit C hereto with respect to
each of 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);
8. a Security Release Certification, in the form of Exhibit E or
F, as applicable, hereto executed by any person, as requested
by the Purchaser, if any of the Mortgage Loans have at any time
been subject to any security interest, pledge or hypothecation
for the benefit of such person;
9. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by merger
or acquired or originated by the Seller while conducting
business under a name other than its present name, if
applicable;
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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 Transfers.
The Seller agrees to execute in connection with any Agency Transfer,
any and all reasonably acceptable pool purchase contracts, and/or agreements
among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the case may
be) and any servicer in connection with a Whole Loan Transfer, a seller's
warranties and servicing agreement or a participation and servicing agreement
in form and substance reasonably acceptable to the parties, and in connection
with a Securitization Transfer, a pooling and servicing agreement in form and
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substance reasonably acceptable to the parties (collectively, the agreements
referred to herein are designated the "Reconstitution Agreements").
With respect to each Whole Loan Transfer and each Securitization
Transfer 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; (3) to
restate the representations and warranties set forth in Subsection 9.01 as of
the settlement or closing date in connection with such Reconstitution and to
restate, to the Purchaser's assignee in such Reconstitution, representations
and warranties set forth in Subsection 9.02 as of the related Closing Date;
(4) to deliver to Purchaser and any prospective purchaser within three (3)
days after request by Purchaser or prospective purchaser, information, in form
and substance satisfactory to Purchaser and such prospective purchaser, with
respect to each originator of the Mortgage Loans (x) reasonably requested by
the Purchaser or (y) required by Item 1110 of Regulation AB under the
Securities Act and the Securities Exchange Act, as such regulation is amended
from time to time (the "Regulation AB"), which as of the date hereof requires,
in certain circumstances specified therein, the following information: (a) the
originator's form of organization; and (b) a description of the originator's
origination program and how long the originator has been engaged in
originating residential mortgage loans, which description must include a
discussion of the originator's experience in originating mortgage loans of the
same type as the Mortgage Loans and information regarding the size and
composition of the originator's origination portfolio as well as information
that may be material, in the good faith judgment of the Purchaser, to an
analysis of the performance of the Mortgage Loans, such as the originators'
credit-granting or underwriting criteria for mortgage loans of the same type
as the Mortgage Loans; and (5) to cooperate in good faith with the Purchaser
to enable the Purchaser and its Affiliates to comply, as reasonably determined
by the Purchaser, with Regulation AB, including, without limitation, the
obligation of the Purchaser or any of its Affiliates to disclose static pool
information, as set forth in Item 1105(a) of Regulation AB ("Static Pool
Information") with respect to those mortgage loans that were originated by the
originator of the Mortgage Loans and which are of the same type as the
Mortgage Loans. 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 counsel or otherwise, as the Purchaser or any such other
participant shall request; (ii) such additional representations, warranties,
covenants, opinions of counsel relating to the organization and capacity of
the Seller, and certificates of public officials or officers of the Seller or
the Interim Servicer as are reasonably believed necessary by the Purchaser or
any such other participant; and (iii) to execute, deliver and satisfy all
conditions set forth in any indemnity agreement required by the Purchaser or
any such participant, including, without limitation, an Indemnification and
Contribution Agreement in substantially the form attached hereto as Exhibit B.
Moreover, the Seller agrees to cooperate with all reasonable requests made by
the Purchaser to effect such Reconstitution Agreements. The Seller shall
indemnify the Purchaser, each affiliate of the Purchaser participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate
and their respective present and former directors, officers, employees and
agents, and hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that each of them may
sustain in any way related to any information provided by or on behalf of the
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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. 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.
In the event the Purchaser has elected to have the Seller or the
Interim Servicer hold record title to the 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. The Seller.
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims.
(a) The Seller shall indemnify any Purchaser and its present and
former directors, officers, employees and agents and the Successor Servicer
and its present and former directors, officers, employees and agents, and hold
such parties harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses (including legal fees and expenses
incurred in connection with the enforcement of the Seller's indemnification
obligation under this Subsection 14.01) and related costs, judgments, and any
other costs, fees and expenses that such parties may sustain in any way
related to the failure of the Seller to perform its duties and the Interim
Servicer to service the Mortgage Loans in strict compliance with the terms of
this Agreement or any Reconstitution Agreement entered into pursuant to
Section 13 or any breach of any of Seller's representations, warranties and
covenants set forth in this Agreement. For purposes of this clause "Purchaser"
shall mean the Person then acting as the Purchaser under this Agreement and
any and all Persons who previously were "Purchasers" under this Agreement and
"Successor Servicer" shall mean any Person designated as the Successor
Servicer pursuant to this Agreement and any and all Persons who previously
were "Successor Servicers" pursuant to this Agreement.
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(b) Promptly after receipt by an indemnified party under this
Subsection 14.01 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Subsection 14.01, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party under this Subsection 14.01, except
to the extent that it has been prejudiced in any material respect, or from any
liability which it may have, otherwise than under this Subsection 14.01. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified
party for expenses incurred by the indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable)), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
Subsection 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller shall be a party, or any Person succeeding
to the business of the Seller, shall be the successor of the Seller hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person shall have a net
worth of at least $25,000,000.
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SECTION 15. Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed two fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at
the end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or
the public at large). The Seller, if it has not already done so, agrees to
furnish promptly to the Purchaser copies of the statements specified above.
The Seller shall also make available information on its servicing performance
with respect to loans serviced for others, including delinquency ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked
by any prospective purchaser regarding recent developments affecting the
Seller or the financial statements of the Seller.
SECTION 16. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the related Closing Date of the Mortgage
Loans described on the related Mortgage Loan Schedule is mandatory from and
after the date of the execution of the related Purchase Price and Terms
Agreement, it being specifically understood and agreed that each Mortgage Loan
is unique and identifiable on the date hereof and that an award of money
damages would be insufficient to compensate the Purchaser for the losses and
damages incurred by the Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller's failure to deliver (i)
each of the related Mortgage Loans or (ii) one or more 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
under the terms of this Agreement and to require another Mortgage Loan to be
substituted therefor, and (b) obligation to pay the Purchase Price for the
Mortgage Loans. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this Agreement or afforded by law or equity and all such rights and remedies
may be exercised concurrently, independently or successively.
SECTION 17. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
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(i) if to the Seller:
First National Bank of Nevada
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Secondary Marketing
Facsimile: (000) 000-0000
with a copy to:
First National Bank of Nevada
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(ii) if to the Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax: 000-000-0000
Email: xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
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
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).
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SECTION 18. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which prohibits or renders void or unenforceable any provision hereof. If the
invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good-faith, to
develop a structure the economic effect of which is nearly as possible the
same as the economic effect of this Agreement without regard to such
invalidity.
SECTION 19. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 20. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to
treat the transaction for federal income tax purposes as a sale by the Seller,
and a purchase by the Purchaser, of the Mortgage Loans. Moreover, the
arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan
Files to determine the characteristics of the Mortgage Loans which shall
affect the federal income tax consequences of owning the Mortgage Loans and
the Seller shall cooperate with all reasonable requests made by the Purchaser
in the course of such review.
SECTION 21. Successors and Assigns; Assignment of Purchase Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by
the Seller to a third party without the prior written consent of the
Purchaser, which consent may be withheld by the Purchaser in its sole
discretion. This Agreement may be assigned, pledged or hypothecated by the
Purchaser in whole or in part, and with respect to one or more of the Mortgage
Loans, without the consent of the Seller. There shall be no limitation on the
number of assignments or transfers allowable by the Purchaser with respect to
the Mortgage Loans and this Agreement. In the event the Purchaser assigns this
Agreement, and the assignee assumes any of the Purchaser's obligations
hereunder, the Seller acknowledges and agrees to look solely to such assignee,
and not to the Purchaser, for performance of the
47
obligations so assumed and the Purchaser shall be relieved from any liability
to the Seller with respect thereto.
SECTION 22. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party
against whom such waiver or modification is sought to be enforced.
SECTION 23. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 24. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires: (
a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which
the reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the terms "include" and "including" shall mean without limitation
by reason of enumeration.
SECTION 25. Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the original itself in any
48
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
SECTION 27. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments of
Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or their comparable jurisdictions in
which any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
SECTION 28. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of
its agents or affiliates, or by any independent contractors on the Seller's
behalf, to personally, by telephone or mail (via electronic means or
otherwise), solicit a Mortgagor under any Mortgage Loan for the purpose of
refinancing a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. Notwithstanding the foregoing, it is understood and
agreed that the Seller, or any of its respective affiliates:
(i) may advertise its availability for handling refinancings of
mortgages in its portfolio, including the promotion of terms it
has available for such refinancings, through the sending of
letters or promotional material, so long as it does not
specifically target Mortgagors and so long as such promotional
material either is sent to the mortgagors for all of the
mortgages in the servicing portfolio of the Seller and any of
its affiliates (those it owns as well as those serviced for
others); and
(ii) may provide pay-off information and otherwise cooperate with
individual mortgagors who contact it about prepaying their
mortgages by advising them of refinancing terms and streamlined
origination arrangements that are available.
Promotions undertaken by the Seller or by any affiliate of the Seller
which are directed to the general public at large (including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 28.
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SECTION 29. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 30. Governing Law Jurisdiction; Consent to Service of
Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER
AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR
PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION
OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF
BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
SECTION 31. Amendment.
This Agreement may be amended from time to time by the Purchaser and
the Seller by written agreement signed by the parties hereto.
SECTION 32. Confidentiality.
Each of the Purchaser and the Seller shall employ proper procedures
and standards designed to maintain the confidential nature of the terms of
this Agreement, except to the extent: (a) the disclosure of which is
reasonably believed by such party to be required in connection with regulatory
requirements or other legal requirements relating to its affairs; (b)
disclosed to any one or more of such party's employees, officers, directors,
agents, attorneys or accountants who would have access to the contents of this
Agreement and such data and information in the normal course of the
performance of such Person's duties for such party, to the extent such party
has procedures in effect to inform such Person of the confidential nature
thereof; (c) that is disclosed in a prospectus, prospectus supplement or
private placement memorandum relating to a securitization of the Mortgage
Loans by the Purchaser (or an affiliate assignee thereof) or to any Person in
connection with the resale or proposed resale of all or a
50
portion of the Mortgage Loans by such party in accordance with the terms of
this Agreement; and (d) that is reasonably believed by such party to be
necessary for the enforcement of such party's rights under this Agreement.
Notwithstanding any other express or implied agreement to the
contrary, each of the Purchaser and the Seller agree and acknowledge that each
of them and each of their employees, representatives, and other agents may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any of them
relating to such tax treatment and tax structure, except to the extent that
confidentiality is reasonably necessary to comply with U.S. federal or state
securities laws. For purposes of this paragraph, the terms "tax treatment" and
"tax structure" have the meanings specified in Treasury Regulation section
1.6011-4(c).
SECTION 33. Availability of Information. The Purchaser agrees to use
reasonable efforts to make available, or to cause any Servicer of the Mortgage
Loans to make available, the information set forth in Exhibit I relating to
the performance of the Mortgage Loans. Such information shall be provided in a
form convenient to Purchaser or Servicer, as the case may be. This
information, in an extractable electronic format, shall be sent by the
Purchaser to xxxx_xxxxxxxxxx@xxxxxxxxxx.xxx on a monthly basis beginning with
the Report Period in which the Transfer Date occurs with respect to such
Mortgage Loans, and ending with the Report Period in which the Purchaser
transfers the Servicing Rights with respect to such Mortgage Loans.
SECTION 34. Entire Agreement. This Agreement constitutes the entire
agreement and understanding with respect to the Mortgage Loans acquired under
this Agreement and the Original Purchase Agreement 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]
\
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
------------------------------------
Name:
Title:
FIRST NATIONAL BANK OF NEVADA
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 First Amended and Restated Master
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 because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
A-1-1
e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser.
If the Assignment of Mortgage is not to be recorded, the Assignment of
Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by the
Seller in a merger, the Assignment of Mortgage must be made by "[Seller],
successor by merger to [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the Assignment of Mortgage must be by "[Seller], formerly known as [previous
name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or
if any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains
the original recorded assignments of mortgage, the Seller shall deliver or
cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such
intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office,
a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder or commitment for title certified to be true and complete by the title
insurance company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease and
the assignment of such Co-op Lease, with all intervening assignments showing a
complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the
interests of the Mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financial statement filed by the originator as secured party
A-1-2
and, if applicable, a filed UCC-3 assignment of the subject security interest
showing a complete chain of title, together with an executed UCC-3 assignment
of such security interest by the Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified
by the holder of the original power of attorney to be a true and correct copy
of the original.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian; provided, however, that any
recorded document shall in no event be delivered later than one year following
the related Closing Date. An extension of the date specified in clause (iv)
above may be requested from the Purchaser, which consent shall not be
unreasonably withheld.
X-0-0
XXXXXXX X-0
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, unless otherwise disclosed to the Purchaser on
the data tape, which shall be available for inspection by the Purchaser and
which shall be retained by the Interim Servicer or delivered to the Purchaser:
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application. (c) Mortgage Loan closing
statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on Mortgagor, in a form acceptable to either Xxxxxx
Mae or Xxxxxxx Mac. (g) Residential appraisal report.
(h) Photograph of the Mortgaged Property and photographs of
comparable properties. (i) Survey of the Mortgaged Property, unless a survey
is not required by the title insurer.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, home owner association declarations,
etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales Contract, if applicable.
(n) Copy of the owner's title insurance policy or attorney's opinion
of title and abstract of title, as applicable.
Evidence of electronic notation of the hazard insurance policy, and,
if required by law, evidence of the flood insurance policy.
A-2-1
EXHIBIT B
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"), dated
as of [_______], 200_, _________ among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Xxxxxx Xxxxxxx Mortgage
Capital Inc., a New York corporation ("Xxxxxx") and [_____________], a
[_______________] (the "Seller").
W I T N E S S E T H:
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus
Supplement"), relating to [________________] Certificates (the "Certificates")
to be issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the "P&S"), among the Depositor, as depositor, ___
[________________], as servicer (the "Servicer"), and [________________], as
trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S, and
[____________________] (the "Underwriter[s]") to enter into the Underwriting
Agreement, dated [____________________] (the "Underwriting Agreement") between
the Depositor and the Underwriter[s], and [_______________] (the "Initial
Purchaser[s]") to enter into the Certificate Purchase Agreement, dated
[____________] (the "Certificate Purchase Agreement") between the Depositor
and the Initial Purchaser[s], Seller has agreed to provide for indemnification
and contribution on the terms and conditions hereinafter set forth;
WHEREAS, Xxxxxx purchased from Seller certain of the Mortgage Loans
underlying the Certificates (the "Mortgage Loans") pursuant to a First Amended
and Restated Master Mortgage Loan Purchase and Warranties Servicing Agreement,
dated as of [DATE] (the "Purchase Agreement"), by and between Xxxxxx and
Seller; and
WHEREAS, pursuant to Section 13 of the Purchase Agreement, the Seller
has agreed to indemnify 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
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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 or in the Comp Materials or any
omission or alleged omission to state in the Prospectus Supplement, the
Offering Circular or in the Comp Materials 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 or the Comp Materials 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 or the
Comp Materials [and static pool information regarding mortgage loans
originated or acquired by the Seller [and included in the Prospectus
Supplement, the Offering Circular or the Comp Materials] [incorporated by
reference from the Seller's website located at ______________].
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, Xxxxx & Xxxxxxxx on behalf of the
Public Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term "Collateral Term
Sheet" as used herein includes any subsequent Collateral Term Sheet that
reflects a substantive change in the information presented. The term
"Computational Materials" has the meaning assigned to it in the May 17, 1994
letter (the "Xxxxxx letter" and, together with the PSA Letter, the "No-Action
Letters") of Xxxxx & Xxxx on behalf of Xxxxxx, Peabody & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994). The term "Comp Materials" as used herein means collectively Collateral
Term Sheets,
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Structural Term Sheet and Computational Materials relating to the
Certificates or the transaction contemplated by the Prospectus Supplement.
"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 claim. No indemnifying party shall be liable
for any settlement of any such action effected
B-3
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for reasonable fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
(c) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party, respectively, in
connection with the statements or omissions that result in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and indemnifying
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
(d) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor,
Xxxxxx, the Underwriter[s], the Initial Purchaser[s] their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, Xxxxxx, the Underwriter[s], the Initial Purchaser[s] or any
such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates or the Private Certificates.
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., 0000 Xxxxxxxx, 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, 1221 Avenue of the
Americas, 0xx 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
OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of ________________[SELLER], a [state] [federally] chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Seller") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Seller 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 Seller 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 Seller 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
Seller authorizing the Seller to execute and deliver (a) the Master
First Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of _______ __, 200_ (the "Purchase Agreement"), by
and between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Purchaser") and
the ________________________ Seller and (b) the Custodial Agreement,
dated as of _______ __, 2004 (the "Custodial Agreement"), by and
________________________ among the Purchaser, the Seller,
_______________ (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 Seller of or compliance by the Seller
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 Seller.
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 Seller, the
terms of any indenture or other agreement or instrument to which the
Seller 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,
C-1
governmental authority or regulatory body to which the Seller 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 Seller 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 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 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 Seller 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 Seller, 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 Seller, 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 Seller 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 Seller.
Dated: _____________________________ By:________________________________
Name:
Title: [Vice] President
[Seal]
I, ________________________, an [Assistant] Secretary of
______________[SELLER], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Seller 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
Seller's Officer's Certificate
NAME TITLE SIGNATURE
---- ----- ---------
______________________ _____________________ ______________________
______________________ _____________________ ______________________
______________________ _____________________ ______________________
______________________ _____________________ ______________________
______________________ _____________________ ______________________
C-4
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General Counsel
to ___________________ (the "Seller"), with respect to certain matters in
connection with the sale by the Seller of the Mortgage Loans pursuant to that
certain First Amended and Restated Master Mortgage Loan Purchase and
Warranties Agreement by and between the Seller and Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the "Purchaser"), dated as of October 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
Seller, ________________________ (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 Seller contained in
the Purchase Agreement. [We] [I] have assumed the authenticity of all
documents submitted to [us] [me] as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Seller 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
D-1
business in, and is in good standing under, the laws of [the
state of incorporation/formation].
2. The Seller 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 Seller, and is a legal, valid and binding
agreement enforceable in accordance with its respective terms
against the Seller, 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 Seller 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 Seller 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 Seller executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Seller.
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 Seller of or
compliance by the Seller with the Agreements and the sale of
the Mortgage Loans by the Seller or the consummation of the
transactions contemplated by the Agreements or (ii) any
required consent, approval, authorization or order has been
obtained by the Seller.
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 Seller, the terms of any indenture or other
agreement or instrument to which the Seller is a party or by
which it is bound or to which it is subject, or violates any
statute or order, rule, regulations, writ, injunction or decree
of any court, governmental authority or regulatory body to
which the Seller is subject or by which it is bound.
D-2
8. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against the
Seller 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 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 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 Seller
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
Seller 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 Seller, and are sufficient to prevent any
other sale, transfer, assignment, pledge or hypothecation of
the Mortgages and the Mortgage Notes by the Seller from being
enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of the date of this
opinion.
Very truly yours,
---------------------------------
[Name]
[Assistant] General Counsel
D-3
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
____________________________
____________________________
____________________________
Attention: _____________________________
_____________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that ________________________[SELLER] a
[type of entity], organized pursuant to the laws of [the State of
incorporation] (the "Seller") has committed to sell to Xxxxxx Xxxxxxx Mortgage
Capital Inc. under a First Amended and Restated Master Mortgage Loan Purchase
and Warranties Agreement, dated as of October 1, 2005, certain mortgage loans
originated by the Association. The Seller 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
Seller.
The Seller 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 Seller'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 seller named on the
next page (the "Seller") pursuant to that certain First Amended and Restated
Master Mortgage Loan Purchase and Warranties Agreement, dated as of October 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 Seller 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 Seller 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 Seller 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 First Amended and
Restated Master Mortgage Loan Purchase and Warranties Agreement, dated as of
_________, 2004 (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]
G-1
[SELLER]
By: _____________________________________
Name:________________________________
Title:_______________________________
Accepted and Agreed:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: ________________________________
Name:
Title:
G-2
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
G-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 [______].
G-4
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
G-5
EXHIBIT I
REPORT PERIOD INFORMATION
H-1
[Seller to provide]
H-2
