MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT MORGAN STANLEY MORTGAGE CAPITAL INC., Purchaser GREENPOINT MORTGAGE FUNDING, INC., Seller Dated as of May 1, 2005 Conventional, Fixed and Adjustable Rate Residential Mortgage Loans
Exhibit
99.10b
EXECUTION
COPY
_________________
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
GREENPOINT
MORTGAGE FUNDING, INC.,
Seller
_________________
Dated
as
of May 1, 2005
Conventional,
Fixed
and
Adjustable Rate
Residential
Mortgage Loans
TABLE
OF
CONTENTS
Page
|
SECTION
1.
|
Definitions.
|
1
|
|
SECTION
2.
|
Agreement
to Purchase.
|
13
|
|
SECTION
3.
|
Mortgage
Schedules.
|
13
|
|
SECTION
4.
|
Purchase
Price.
|
14
|
|
SECTION
5.
|
Examination
of Mortgage Files.
|
14
|
|
SECTION
6.
|
Conveyance
from Seller to Purchaser.
|
15
|
|
SECTION
7.
|
Servicing
of the Mortgage Loans.
|
18
|
|
SECTION
8.
|
[RESERVED].
|
18
|
|
SECTION
9.
|
Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
|
18
|
|
SECTION
10.
|
Closing
|
35
|
|
SECTION
11.
|
Closing
Documents.
|
36
|
|
SECTION
12.
|
Costs.
|
37
|
|
SECTION
13.
|
The
Seller.
|
37
|
|
SECTION
14.
|
Cooperation
of Seller with a Reconstitution.
|
39
|
|
SECTION
15.
|
Financial
Statements.
|
41
|
|
SECTION
16.
|
Mandatory
Delivery; Grant of Security Interest.
|
41
|
|
SECTION
17.
|
Notices.
|
42
|
|
SECTION
18.
|
Severability
Clause.
|
43
|
|
SECTION
19.
|
Counterparts.
|
43
|
|
SECTION
20.
|
Intention
of the Parties.
|
43
|
|
SECTION
21.
|
Successors
and Assigns; Assignment of Purchase Agreement.
|
43
|
|
SECTION
22.
|
Waivers.
|
00
|
-x-
|
XXXXXXX
00.
|
Exhibits.
|
44
|
|
SECTION
24.
|
General
Interpretive Principles.
|
44
|
|
SECTION
25.
|
Reproduction
of Documents.
|
44
|
|
SECTION
26.
|
Further
Agreements.
|
45
|
|
SECTION
27.
|
Recordation
of Assignments of Mortgage.
|
45
|
|
SECTION
28.
|
No
Solicitation.
|
45
|
|
SECTION
29.
|
Waiver
of Trial by Jury.
|
46
|
|
SECTION
30.
|
Governing
Law Jurisdiction; Consent to Service of Process.
|
46
|
|
SECTION
31.
|
Amendment
|
46
|
|
SECTION
32.
|
Confidentiality
|
46
|
|
SECTION
33.
|
Entire
Agreement
|
47
|
EXHIBITS
|
EXHIBIT
A-1
|
MORTGAGE
LOAN DOCUMENTS
|
|
EXHIBIT
A-2
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
B
|
FORM
OF INDEMNIFICATION AND CONTRIBUTION
AGREEMENT
|
|
EXHIBIT
C
|
FORM
OF SELLER’S OFFICER’S CERTIFICATE
|
|
EXHIBIT
D
|
FORM
OF OPINION OF COUNSEL TO THE SELLER
|
|
EXHIBIT
E
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
F
|
FORM
OF SECURITY RELEASE CERTIFICATION
|
|
EXHIBIT
G
|
UNDERWRITING
GUIDELINES
|
|
EXHIBIT
H
|
FORM
OF ASSIGNMENT AND CONVEYANCE
AGREEMENT
|
-ii-
This
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (“Agreement”), dated as
of May 1, 2005, by and between Xxxxxx Xxxxxxx Mortgage Capital Inc., a New
York
corporation (the “Purchaser”), and GreenPoint Mortgage Funding, Inc., a
New York corporation (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional fixed and adjustable rate residential first-lien mortgage loans
(the “Mortgage Loans”) on a servicing released basis as described herein,
and which shall be delivered in pools of whole loans (each, a “Mortgage Loan
Package”) on various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien on a residential dwelling located in the
jurisdiction indicated on the Mortgage Loan Schedule for the related Mortgage
Loan Package;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing by the Interim Servicer and control of the Mortgage Loans;
and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer or a public or private, rated or unrated mortgage
pass-through transaction.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices which are in accordance with accepted mortgage
servicing practices of prudent mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where
the related Mortgaged Property is located.
Act: The
National Housing Act, as amended from time to time.
Adjustable
Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement, the Mortgage Interest Rate of which is adjusted from time to time
in
accordance with the terms of the related Mortgage Note.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agency
Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac
Transfer.
Agreement: This
Mortgage Loan Purchase and Warranties Agreement including all exhibits,
schedules, amendments and supplements hereto.
ALTA: The
American Land Title Association or any successor thereto.
Appraised
Value: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by a
Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage
Loan, such value of the Mortgaged Property is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage
Loan at the time of origination of such Refinanced Mortgage Loan by a Qualified
Appraiser.
Assignment
and Conveyance Agreement: As defined in
Subsection 6.01.
Assignment
of Mortgage: An individual assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form and in blank, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property
is
located to give record notice of the sale of the Mortgage to the
Purchaser.
Business
Day: Any day other than (i) a Saturday or Sunday,
(ii) a day on which banking and savings and loan institutions, in the State
of New York or the State in which the Interim Servicer’s servicing operations
are located or (iii) the state in which the Custodian’s operations are
located, are authorized or obligated by law or executive order to be
closed.
Cash-Out
Refinance: A Refinanced Mortgage Loan in which the proceeds
received were in excess of the amount of funds required to repay the principal
balance of any existing first mortgage on the related Mortgaged Property,
pay
related closing costs and satisfy any outstanding subordinate mortgages on
the
related Mortgaged Property and which provided incidental cash to the related
Mortgagor of more than 1% of the original principal balance of such Mortgage
Loan.
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.
-2-
CLTA: The
California Land Title Association.
Code: The
Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
Condemnation
Proceeds: All awards, compensation and settlements in respect of
a taking of all or part of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of condemnation or the right
of
eminent domain, to the extent not required to be released to a Mortgagor
in
accordance with the terms of the related Mortgage Loan Documents.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and
common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Covered
Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor’s Glossary.
Custodial
Account: The separate trust account created and maintained
pursuant to Subsection 2.04 of the Interim Servicing Agreement (with
respect to each Mortgage Loan, as specified therein).
Custodial
Agreement: The agreement(s) governing the retention of 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.
Cut-off
Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Deleted
Mortgage Loan: A Mortgage Loan that is repurchased or to be
repurchased or replaced or to be replaced with a Qualified Substitute Mortgage
Loan by the Seller in accordance with the terms of this Agreement.
Determination
Date: The date specified in the Interim Servicing Agreement (with
respect to each Mortgage Loan, for an interim period, as specified
therein).
-3-
Due
Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
Xxxxxx
Xxx: The Federal National Mortgage Association, or any successor
thereto.
Xxxxxx
Mae Guides: The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae
Servicers’ Guide, as amended or restated from time to time.
Xxxxxx
Xxx Transfer: As defined in Section 14.
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 14.
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, (b) classified as a “high cost home,”
“threshold,” “covered,” “high
risk home,” “predatory” or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different terminology
under a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates, points
and/or fees) or (c) a Mortgage Loan categorized as High Cost pursuant to
Appendix E of Standard & Poor’s Glossary. For avoidance of
doubt, the parties agree that this definition shall apply to any law regardless
of whether such law is presently, or in the future becomes, the subject of
judicial review or litigation.
-4-
Home
Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor’s Glossary.
HUD: The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with
regard
to Mortgage Insurance issued by the FHA. The term “HUD,” for purposes
of this Agreement, is also deemed to include subdivisions thereof such as
the
FHA and Government National Mortgage Association.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest
Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim
Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Interim
Servicer: The servicer under the Interim Servicing Agreement, or
its successor in interest, or any successor to the Interim Servicer under
the
Interim Servicing Agreement, as therein provided.
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 terms
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 received following
the
acquisition of REO Property, Insurance Proceeds and Condemnation
Proceeds.
-5-
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.
LPMI
Fee: With respect to each Mortgage Loan which has an LPMI Policy, the
portion of the Mortgage Interest Rate as set forth on the related Mortgage
Loan
Schedule (which shall be payable solely from the interest portion of Monthly
Payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds),
which, during such period prior to the required cancellation of the LPMI
Policy,
shall be used to pay the premium due on the related LPMI Policy.
LPMI
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, pursuant
to which the related premium is to be paid by the Servicer of the related
Mortgage Loan from payments of interest made by the Mortgagor in an amount
as is
set forth in the related Mortgage Loan Schedule.
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 Procedure Manual and (b) the Seller
has designated or will designate the Purchaser as the Investor on the MERS
System.
MERS
Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to
time.
-6-
MERS
Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly
Payment: With respect to any Mortgage Loan, the scheduled payment
of principal and interest payable by a Mortgagor under the related Mortgage
Note
on each Due Date.
Mortgage: With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note, which creates a first lien
on the
Mortgaged Property. With respect to a Co-op Loan, the Security
Agreement.
Mortgage
File: With respect to any Mortgage Loan, the Mortgage Loan
Documents and the items listed in Exhibit A-2 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 street address of the Mortgaged Property including
the city, state and zip code; (4) a code indicating whether the Mortgaged
Property is owner-occupied, investment property or a second home; (5) the
number
and type of residential units constituting the Mortgaged Property
(e.g. single family residence, a two- to four-family dwelling,
condominium, planned unit development or cooperative); (6) the original
months
to maturity or the remaining months to maturity from the related Cut-off
Date,
in any case based on the original amortization schedule and, if different,
the
maturity expressed in the same manner but based on the actual amortization
schedule; (7) the
-7-
Loan-to-Value
Ratio at origination; (8) the Mortgage Interest Rate as of the related Cut-off
Date; (9) 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; (10) the stated maturity date; (11) the amount of the Monthly
Payment as of the related Cut-off Date; (12) the last payment date on which
a
payment was actually applied to the outstanding principal balance; (13) the
original principal amount of the Mortgage Loan; (14) 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; (15) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans,
the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap; (18) with respect to Adjustable Rate Mortgage Loans, a code indicating
the type of Index; (19) the type of Mortgage Loan (i.e., Fixed Rate, Adjustable
Rate); (20) a code indicating the purpose of the loan (i.e., purchase, Rate/Term
Refinance or Cash-Out Refinance); (21) a code indicating the documentation
style
(i.e. no documents, full, alternative, reduced, no income/no asset, stated
income, no ration, reduced or NIV); (22) the loan credit classification (as
described in the Underwriting Guidelines); (23) whether such Mortgage Loan
provides for a Prepayment Penalty; (24) the Prepayment Penalty period of
such
Mortgage Loan, if applicable; (25) a description of the Prepayment Penalty,
if
applicable; (26) the Mortgage Interest Rate as of origination; (27) the credit
risk score (FICO score); (28) the date of origination; (29) with respect
to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment period;
(30) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate
adjustment percentage; (31) with respect to Adjustable Rate Mortgage Loans,
the
Mortgage Interest Rate floor; (32) the Mortgage Interest Rate calculation
method
(i.e., 30/360, simple interest, other); (33) with respect to Adjustable Rate
Mortgage Loans, the Periodic Rate Cap as of the first Interest Rate Adjustment
Date; (34) a code indicating whether the Mortgage Loan by its original terms
or
any modifications thereof provides for amortization beyond its scheduled
maturity date; (35) the original Monthly Payment due; (36) the Appraised
Value;
(37) a code indicating whether the Mortgage Loan is covered by a PMI Policy
and,
if so, identifying the PMI Policy provider; (38) a code indicating whether
the
Mortgage Loan is covered by an LPMI Policy and, if so, identifying the LPMI
Policy provider; (39) in connection with a condominium unit, a code indicating
whether the condominium project where such unit is located is low-rise or
high-rise; (40) a code indicating whether the Mortgaged Property is a leasehold
estate; (41) the MERS Identification Number, if applicable; and (42) a field
indicating whether such Mortgage Loan is a Home Loan. 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
-8-
leasehold
estate, in a single parcel or multiple parcels of real property improved
by a
Residential Dwelling. With respect to a Co-op Loan, the stock
allocated to a dwelling unit in the residential cooperative housing corporation
that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Mortgagee: The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor: The
obligor on a Mortgage Note, who is an owner of the Mortgaged Property and
the
grantor or mortgagor named in the Mortgage and such grantor’s or mortgagor’s
successors in title to the Mortgaged Property.
Nonrecoverable
Advance: Any advance previously made or proposed to be made in
respect of a Mortgage Loan which, in the good faith judgment of the Interim
Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable from related Insurance Proceeds, Liquidation Proceeds
or
otherwise. The determination by the Interim Servicer that it has made
a Nonrecoverable Advance or that any proposed advance of principal and interest,
if made, would constitute a Nonrecoverable Advance, shall be evidenced by
an
Officers’ Certificate delivered to the Purchaser.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or a President or a Vice President and by
the
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.
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 above or below the Mortgage Interest Rate previously
in
effect.
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: An
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
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.
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Premium
Percentage: With respect to any Mortgage Loan, a percentage equal
to the excess of the Purchase Price Percentage over 100%.
Prepayment
Penalty: With respect to each Mortgage Loan, the penalty 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 or premium thereon, 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 Letter: Those certain agreements setting forth
the general terms and conditions of the transactions consummated herein and
identifying the Mortgage Loans to be purchased from time to time hereunder
and
thereunder, 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 Letter.
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 Title
XI
of FIRREA and the regulations promulgated thereunder, all as in effect on
the
date the Mortgage Loan was originated.
Qualified
Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the
date of
such substitution, be approved by the Purchaser and (i) have an unpaid
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage
loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the unpaid principal balance of the Deleted Mortgage Loan (the amount of
any
shortfall will be deposited in the Custodial Account by the Seller in the
month
of substitution); (ii) have a Mortgage Interest Rate not less than and not
more than one percent (1%) greater than the Mortgage Interest Rate of the
Deleted Mortgage Loan; (iii) have a remaining term to maturity not greater
than and not more than one (1) year less than that of the Deleted Mortgage
Loan;
(iv) be of the same type as the Deleted Mortgage Loan (i.e., fixed rate or
adjustable rate with same Mortgage Interest Rate Cap and Index); (v) comply
as of the date of substitution with each representation and warranty set
forth
in Section 9 of this Agreement; (vi) be current in the payment
of principal and interest; (vii) be secured by a Mortgaged Property of the
same type and
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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 14, 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 14.
Refinanced
Mortgage Loan: A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
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.
Repurchase
Price: With respect to any Mortgage Loan for which a breach of a
representation or warranty from the Agreement or the Interim Servicing Agreement
is found, a price equal to the then outstanding principal balance of the
Mortgage Loan to be repurchased, plus accrued interest thereon at the Mortgage
Interest Rate from the date to which interest had last been paid through
the
date of such repurchase, plus the amount of any outstanding advances owed
to any
servicer, and plus all costs and expenses incurred by the Purchaser or any
servicer arising out of or based upon such breach, including without limitation
costs and expenses incurred in the enforcement of the Seller's repurchase
obligation hereunder, and plus, in the event a Mortgage Loan is repurchased
during the first twelve months following the related Closing
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Date,
an
amount equal to the Premium Percentage multiplied by the outstanding principal
balance of such Mortgage Loan as of the date of such repurchase.
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.
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 this 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 the Servicing Fee Rate
per
outstanding Mortgage Loan. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the
interest portion of such Monthly Payment collected by the Interim Servicer,
or
as otherwise provided under this Agreement.
Servicing
Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
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 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.
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Standard
& Poor’s: Standard & Poor’s Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard
& Poor’s Glossary: The Standard & Poor’s LEVELS®
Glossary, as may be in effect from time to time.
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.
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 13.01.
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
shall be attached as an exhibit to the related Assignment and
Conveyance.
Whole
Loan Transfer: The sale or transfer by the 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 principal balance on
the
related Cut-off Date in an amount as set forth in the related Purchase Price
and
Terms Letter, or in such other amount as agreed by the Purchaser and the
Seller
as evidenced by the actual aggregate 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 Letter
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
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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.
Subject
to the conditions set forth herein, the Purchaser shall pay the Purchase
Price
plus accrued interest on the Stated Principal Balance of each Mortgage Loan
as
of the applicable Cut-off Date at its Mortgage Loan Remittance Rate from
the
related Cut-off Date through the day prior to the related Closing Date, both
inclusive, to the Seller on the related Closing Date. Such payment
shall be made by wire transfer of immediately available funds to the account
designated by the Seller.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans net of applicable Servicing Fees (minus that portion of any
such
payment which is allocable to the period prior to the related Cut-off
Date). The outstanding principal balance of each Mortgage Loan as of
the related Cut-off Date is determined after application of payments of
principal due on or before the related Cut-off Date, to the extent actually
collected, together with any unscheduled principal prepayments collected
prior
to such Cut-off Date; provided, however, that payments of
scheduled principal and interest paid prior to such Cut-off date, but to
be
applied on a Due Date beyond the related Cut-off Date shall not be applied
to
the principal balance as of the related Cut-off Date. Such prepaid
amounts shall be the property of the Purchaser. The Seller shall
deposit any such prepaid amounts into the Custodial Account, which account
is
established for the benefit of the Purchaser for subsequent remittance by
the
Seller to the Purchaser.
SECTION
5. Examination of Mortgage
Files.
At
least
ten (10) Business Days prior to the related Closing Date, the Seller shall
either (a) deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage (for Mortgage
Loans that are not MERS Designated Mortgage Loans), pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination of the Mortgage Files may be made by the
Purchaser or its designee at any reasonable time before or after the related
Closing Date. If the Purchaser makes such examination prior to the
related Closing Date and determines, in its sole discretion, that any Mortgage
Loans do not conform to any of the requirements set forth in the related
Purchase Price and Terms Letter, or as an Exhibit annexed thereto, the Purchaser
may delete such Mortgage Loans from the related Mortgage Loan Schedule, and
such
Deleted Mortgage Loan (or Loans) may be replaced by a Qualified Substitute
Mortgage Loan (or Loans) acceptable to the Purchaser. The Purchaser
may, at its option and without notice to the Seller, purchase some or all
of the
Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has
conducted or has failed to conduct any partial or complete examination of
the
Mortgage Files shall not impair in any way the Purchaser’s (or any of its
successor’s) rights to demand repurchase, substitution or other remedy as
provided in this
-14-
Agreement. In
the event that the Seller fails to deliver the Mortgage File with respect
to any
Mortgage Loan, the Seller shall, upon the request of the Purchaser, repurchase
such Mortgage Loan as the price and in the manner specified in
Subsection 9.03. Upon the consent of the Purchaser, the
Seller shall make available to the Purchaser in digital format on compact
disks
or DVDs, selected Mortgage Loans and the related Mortgage File which shall
include, without limitation, imaged documents required by the Purchaser to
conduct an examination of the Mortgage File.
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
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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.
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 requirements of Xxxxxx Mae or Xxxxxxx Mac, 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 Xxxxxx Mae Guides. To the
extent that original documents are not required for purposes of realization
of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Seller
or the Interim Servicer may be in the form of microfilm or microfiche so
long as
the Seller or the Interim Servicer complies with the requirements of the
Xxxxxx
Xxx Guides.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the related Mortgage Loans by
the
Seller and not a pledge of such Mortgage Loans by the Seller to the Purchaser
to
secure a debt or other obligation of
the
Seller. Consequently, the sale of each Mortgage Loan shall be
reflected as a purchase on the Purchaser’s business records, tax returns and
financial statements, and as a sale of assets on the Seller’s business records,
tax returns and financial statements.
Subsection
6.03 Delivery of Mortgage Loan
Documents.
The
Seller shall deliver and release to the Custodian no later than two (2)
Business Days prior to the related Closing Date (or such other date as may
be
specified on Exhibit A-1), 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
any Mortgage Loan is not covered by an ALTA or CLTA lender’s title insurance
policy. For purposes of the previous sentence, “Purchaser” shall mean
the Person then acting as the Purchaser under this Agreement and any and
all
Persons who previously were “Purchasers” under this Agreement and “Successor
Servicer” shall mean any Person designated as the
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Successor
Servicer pursuant to this Agreement and any and all Persons who previously
were
“Successor Servicers” pursuant to this Agreement.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the Initial Certification of the Custodian in the form
annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian.
The
Seller shall or shall cause the Interim Servicer to forward to the Custodian,
or
to such other Person as the Purchaser shall designate in writing, original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with this Agreement within two
(2)
weeks after 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
original or copy of any document submitted for recordation to the appropriate
public recording office is not delivered to the Purchaser or its designee
within
180 days
following the related Closing Date, the related Mortgage Loan shall, upon
the
request of the Purchaser, be repurchased by the Seller at the price and in
the
manner specified in Subsection 9.03. The foregoing
repurchase obligation shall not apply if the Seller cannot cause the Interim
Servicer to deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a
recording receipt of such recording office or, if such recording receipt
is not
available, an officer’s certificate of a servicing officer of the Seller,
confirming that such document has been accepted for recording, and
(ii) such document is delivered within twelve (12) months of the
related Closing Date.
The
Seller shall pay all initial recording fees, if any, for the Assignments
of
Mortgage and any other fees or costs in transferring all original documents
to
the Custodian or, upon written request of the Purchaser, to the Purchaser
or the
Purchaser’s designee. The Purchaser or the Purchaser’s designee shall
be responsible for recording the Assignments of Mortgage and shall be reimbursed
by the Seller for the costs associated therewith pursuant to the preceding
sentence.
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
-17-
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.
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 Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date or such other date specified
herein:
(a) Mortgage
Loans as Described. The information set forth in the related
Mortgage Loan Schedule is complete, true and correct;
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(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 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 Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and
such
other hazards as are provided for in the Underwriting Guidelines. If
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration as in effect which
policy conforms with the Underwriting Guidelines. All individual
insurance policies contain a standard
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mortgagee
clause naming the Seller and its successors and assigns as mortgagee, and
all
premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and
expense, and on the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been given an opportunity
to choose the carrier of the required hazard insurance, provided the policy
is
not a “master” or “blanket” hazard insurance policy covering a
condominium, or any hazard insurance policy covering the common facilities
of a
planned unit development. The hazard insurance policy is the valid
and binding obligation of the insurer, is in full force and effect, and will
be
in full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement. The
Seller has not engaged in, and has no knowledge of the Mortgagor’s 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 an
individual unit in a residential cooperative housing corporation;
provided, however, that any condominium unit, planned unit
development or residential cooperative housing corporation shall conform
with
the Underwriting Guidelines. No portion of the Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan) is used for
commercial purposes, and since the date of origination, no portion of the
Mortgaged Property has
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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. None of the Mortgaged Properties are Manufactured Homes,
log homes, mobile homes, geodesic domes or other unique property
types;
(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:
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(i)
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the
lien of current real property taxes and assessments not yet due
and
payable;
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(ii)
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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
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(iii)
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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.
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Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Seller has full right
to sell
and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related
residential cooperative housing corporation for unpaid assessments representing
the Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security interest intended to be provided by the related
Security Agreement;
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(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 Loan,
except as may be required of the Seller in its Mortgage capacity as Servicer
of
such 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;
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(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. 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, subject to applicable law. 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 PMI Policy insurance
premium or LPMI Fee;
(p) Title
Insurance. With respect to a Mortgage Loan which is not a Co-op
Loan, the Mortgage Loan is covered by an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable under the
Underwriting Guidelines and each such title insurance policy is issued by
a
title insurer acceptable under the Underwriting Guidelines and qualified
to do
business in the jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first priority lien of
the
Mortgage in the original principal amount of the Mortgage Loan (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 paragraph (j) of this
Subsection 9.01, 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 insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force
and
effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including
the
Seller, has done, by act or omission, anything which would impair the coverage
of such lender’s title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
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(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 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. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan by its original terms or any modification
thereof, does not provide for amortization beyond its scheduled maturity
date;
(u) Customary
Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the
proper procedures,
-24-
the
holder of the Mortgage Loan will be able to deliver good and merchantable
title
to the Mortgaged Property. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee’s sale or the right to foreclose the Mortgage,
subject to applicable federal and state laws and judicial precedent with
respect
to bankruptcy and right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines (a copy of which
is
attached to the related Assignment and Conveyance Agreement). The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae
and no representations have been made to a Mortgagor that are inconsistent
with
the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property. As of the related Closing Date the
Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to
the use and occupancy of the same, including but not limited to certificates
of
occupancy and fire underwriting certificates, have been made or obtained
from
the appropriate authorities. Unless otherwise specified on the
related Mortgage Loan Schedule, the Mortgagor
represented at the time of origination of the Mortgage Loan that the Mortgagor
would occupy the Mortgaged Property as the Mortgagor’s primary
residence;
(x) No
Additional Collateral. The Mortgage Note is not and has not been
secured by any collateral except the lien of the corresponding Mortgage and
the
security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds
of Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as
such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser
to
the trustee under the deed of trust, except in connection with a trustee’s sale
after default by the Mortgagor;
(z) Acceptable
Investment. There are no circumstances or conditions with respect
to the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage File
or the
Mortgagor’s credit standing that can reasonably be expected to cause private
institutional investors who invest in prime mortgage loans similar to the
Mortgage Loan to regard the Mortgage Loan as an unacceptable investment cause
the Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan, or cause the Mortgage Loan to prepay
during
any period materially faster or slower than the mortgage loans originated
by the
Seller generally;
(aa) Delivery
of Mortgage Documents. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered under
the Custodial Agreement for each Mortgage Loan have been delivered to the
Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit A attached hereto,
except for such documents the originals of which have been delivered to the
Custodian;
-25-
(bb) Transfer
of Mortgage Loans. The Assignment of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(cc) Due-On-Sale. With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagee
thereunder;
(dd) Assumability. With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests. 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 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
-26-
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. 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, LPMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability
of
the timely payment of the full amount of the loss otherwise due thereunder
to
the insured), irrespective of the cause of such failure of
coverage. The Seller has caused or will cause to be performed any and
all acts required to preserve the rights and remedies of the Purchaser in
any
insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies
or
interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser. In connection with the
placement of any such insurance, no commission, fee, or other compensation
has
been or will be received by the Seller or by any officer, director, or employee
of the Seller or any designee of the Seller or any corporation in which the
Seller or any officer, director, or employee had a financial interest at
the
time of placement of such insurance;
(kk) No
Violation of Environmental Laws. To the best of the Seller’s
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or
regulation with respect to the Mortgage Property; and nothing further remains
to
be done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Servicemembers
Civil Relief Act. The Mortgagor has not notified the Seller, and
the Seller has no knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers Civil Relief Act or other similar state
statute;
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(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 Loan, the
Seller has within the last twelve months (unless such Mortgage was originated
within such twelve month period) analyzed the required Escrow Payments for
each
Mortgage and adjusted the amount of such payments so that, assuming all required
payments are timely made, any deficiency will be eliminated on or before
the
first anniversary of such analysis, or any overage will be refunded to the
Mortgagor, in accordance with RESPA and any other applicable law;
(qq) Credit
Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information furnished
by the Seller to the Purchaser, that Seller has full right and authority
and is
not precluded by law 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 in its capacity as servicer, for each Mortgage Loan, fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g. favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union
Credit Information Company (three of the credit repositories), on a monthly
basis;
(rr) Leaseholds. If
the Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than five years after the maturity date of the Mortgage Loan; (3) the
ground lease does not provide for termination of the lease in the event of
lessee’s default without the Mortgagee being entitled to receive written notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground
lease protects the Mortgagee’s interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the jurisdiction
in
which the Mortgaged Property is located;
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(ss) Prepayment
Penalty. Each Mortgage Loan that is subject to a Prepayment
Penalty as provided in the related Mortgage Note is identified on the related
Mortgage Loan Schedule. With respect to Mortgage Loans originated
prior to October 1, 2002, no such Prepayment Penalty may be imposed for a
term in excess of five (5) years following origination. With respect
to Mortgage Loans originated on or after October 1, 2002, no such
Prepayment Penalty may be imposed for a term in excess of three (3) years
following origination;
(tt) Predatory
Lending Regulations. No Mortgage Loan is a High Cost Loan or
Covered Loan, as applicable. No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in violation
of any comparable 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. No Mortgagor was required to
purchase any single premium credit insurance policy (e.g., life, disability,
property, accident, unemployment or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, disability, property, accident, unemployment,
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 as part of the origination of, or as a
condition to closing, such Mortgage Loan;
(vv) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(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. 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);
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(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) No
Prior Offer. The Mortgage Loan has not previously been offered
for sale;
(ccc) Georgia
Fair Lending Act. There is no Mortgage Loan that was originated
on or after October 1, 2002 and before March 7, 2003 which is secured by
property located in the State of Georgia. There is no Mortgage Loan
that was originated on or after March 7, 2003 that is a “high cost home loan” as
defined under the Georgia Fair Lending Act;
(ddd) No
Arbitration. No Mortgagor with respect to any Mortgage Loan
originated on or after August 1, 2004 agreed to submit to arbitration to
resolve
any dispute arising out of or relating in any way to the mortgage loan
transaction; and
(eee) Flood
Service Contract. Each Mortgage Loan is covered by a paid in
full, life of loan, flood service contract issued by either First American
Flood
Data Services or Fidelity, and such contract is transferable. If no
such flood service contract is in place, or if such flood service contract
is
issued by an insurer other than First American Flood Data Services or Fidelity,
then on the related Closing Date, the Seller shall remit to the Purchaser
a
placement fee of ten dollars ($10.00) for each such Mortgage Loan.
Subsection
9.02 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 New York, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation or formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in the states where the Mortgaged Property is located if the laws of such
state
require licensing or qualification in order to conduct business of the type
conducted by the Seller. The Seller has corporate power and authority
to execute and deliver this Agreement and to perform its obligations hereunder;
the execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Seller and the consummation of the transactions contemplated hereby have
been
duly and validly authorized; this Agreement has been duly executed and delivered
and constitutes the valid, legal, binding and enforceable obligation of the
Seller, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors and
(ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law. All requisite corporate action has
been taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms;
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(b) No
Consent Required. No consent, approval, authorization or order is
required for the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority having
jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary
Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of
the
Seller, and the transfer, assignment and conveyance of the Mortgage Notes
and
the Mortgages by the Seller pursuant to this Agreement are not subject to
the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No
Conflicts. Neither the execution and delivery of this Agreement,
the acquisition or origination of the Mortgage Loans by the Seller, the sale
of
the Mortgage Loans to the
Purchaser, the consummation of the transactions contemplated hereby, nor
the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions
or
provisions of the Seller’s charter or by-laws or any legal restriction or any
agreement or instrument to which the Seller is now a party or by which it
is
bound, or constitute a default or result in an acceleration under any of
the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Seller or its property is subject, or result
in
the creation or imposition of any lien, charge or encumbrance that would
have an
adverse effect upon any of its properties pursuant to the terms of any mortgage,
contract, deed of trust or other instrument, or impair the ability of the
Purchaser to realize on the Mortgage Loans, impair the value of the Mortgage
Loans, or impair the ability of the Purchaser to realize the full amount
of any
insurance benefits accruing pursuant to this Agreement;
(e) No
Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in
the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on
the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform
under
the terms of this Agreement;
(f) Ability
to Perform; Solvency. The Seller does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Seller is solvent and the
sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) Seller’s
Origination. The Seller’s decision to originate any mortgage loan
or to deny any mortgage loan application is an independent decision based
upon
the Underwriting Guidelines, and is in no way made as a result of Purchaser’s
decision to purchase,
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or
not to
purchase, or the price Purchaser may offer to pay for, any such mortgage
loan,
if originated;
(h) Anti-Money
Laundering Laws. The Seller has complied with all applicable
anti-money laundering laws and regulations, including without limitation
the USA
Patriot Act of 2001 (collectively, the “Anti-Money Laundering Laws”); the
Seller has established an anti-money laundering compliance program as required
by the Anti-Money Laundering Laws, has conducted 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;
(i) Selection
Process. The Mortgage Loans were selected from among the
outstanding one- to four-family mortgage loans in the Seller’s portfolio at the
related Closing Date as to which the criteria set forth in the related Purchase
Price and Terms Letter are satisfied and the representations and warranties
set
forth in Subsection 9.01 could be made and such selection was not made in
a manner so as to affect adversely the interests of the Purchaser;
(j) Delivery
to the Custodian. The Mortgage Note, the Mortgage, the Assignment
of Mortgage and any other documents required to be delivered with respect
to
each Mortgage Loan pursuant to the Custodial Agreement shall be delivered
to the
Custodian all in compliance with the specific requirements of the Custodial
Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit A
hereto, except for such documents as will be delivered to the
Custodian;
(k) 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;
(l) No
Untrue Information. Neither this Agreement nor any information,
statement, tape, diskette, report, form, or other document furnished or to
be
furnished pursuant to this Agreement or any Reconstitution Agreement or in
connection with the transactions contemplated hereby (including any
Securitization Transfer or Whole Loan Transfer) contains or will contain
any
untrue statement of material fact or omits or will omit to state a material
fact
necessary to make the statements contained herein or therein not
misleading;
(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;
(n) Sale
Treatment. The Seller expects to be advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans will be treated as a sale on the books
and
records of the Seller and the Seller has determined that the disposition
of the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for
tax and accounting purposes; and
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(o) Reasonable
Purchase Price. The consideration received by the Seller upon the
sale of the Mortgage Loans under this Agreement constitutes fair consideration
and reasonably equivalent value for the Mortgage Loans.
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. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other relevant parties.
Within
sixty (60) days after the earlier of either discovery by or notice to the
Seller
of any breach of a representation or warranty, which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser
therein
(or which materially and adversely affects the value of the applicable Mortgage
Loan or the interest of the Purchaser therein in the case of a representation
and warranty relating to a particular Mortgage Loan), the Seller shall use
its
best efforts promptly to cure such breach in all material respects and, if
such
breach cannot be cured, the Seller shall 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 (tt), (uu), (vv), (ww), (ccc) or (ddd) of
Subsection 9.01, the Seller shall repurchase such Mortgage Loan at
the Repurchase Price unless, in the case of clause (ww), such breach was
cured. However, the Seller may, at its option and assuming that
Seller has a Qualified Substitute Mortgage Loan, rather than repurchase the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute
in its
place a Qualified Substitute Mortgage Loan or Qualified Substitute Mortgage
Loans; provided, however, that any such substitution shall be effected
not later than ninety (90) days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, it
shall repurchase the deficient Mortgage Loan at the Repurchase
Price. Any repurchase of a Mortgage Loan pursuant to the foregoing
provisions of this Subsection 9.03 shall occur on a date designated
by the Purchaser, and acceptable to Seller, and shall be accomplished by
either
(a) if the Interim Servicing Agreement has been entered into and is in
effect, deposit in the Custodial Account of the amount of the Repurchase
Price
for distribution to the Purchaser on the next scheduled Remittance Date,
after
deducting therefrom any amount received in respect of such repurchased Mortgage
Loan or Loans and being held in the Custodial Account for future distribution
or
(b) if the Interim Servicing Agreement has not been entered into or is no
longer in effect, by direct remittance of the Repurchase Price to the Purchaser
or its designee in accordance with the Purchaser’s instructions.
At
the
time of repurchase of any deficient Mortgage Loan (or removal of any Deleted
Mortgage Loan), the Purchaser and the Seller shall arrange for the reassignment
of the repurchased Mortgage Loan (or Deleted 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 (or Deleted Mortgage
Loan). In the event of a repurchase or substitution, the Seller
shall, simultaneously with such reassignment, give written notice to the
Purchaser that
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such
repurchase or substitution has taken place, amend the Mortgage Loan Schedule
to
reflect the withdrawal of the Deleted Mortgage Loan from this Agreement,
and, in
the case of substitution, identify a Qualified Substitute Mortgage Loan and
amend the related Mortgage Loan Schedule to reflect the addition of such
Qualified Substitute Mortgage Loan to this Agreement. In connection
with any such substitution, the Seller shall be deemed to have made as to
such
Qualified Substitute Mortgage Loan the representations and warranties set
forth
in this Agreement except that all such representations and warranties set
forth
in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering
to the Custodian or to such other party as the Purchaser may designate in
writing for such Qualified Substitute Mortgage Loan the documents required
by
Subsection 6.03 and the Custodial
Agreement, with the Mortgage Note endorsed as required by
Subsection 6.03 and the Custodial Agreement. No
substitution will be made in any calendar month after the Determination Date
for
such month. The Seller shall cause the Interim Servicer to remit
directly to the Purchaser, or its designee in accordance with the Purchaser’s
instructions the Monthly Payment less the Servicing Fee due, if any, on such
Qualified Substitute Mortgage Loan or Loans in the month following the date
of
such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained
by the
Seller. For the month of substitution, distributions to the Purchaser
shall include the Monthly Payment due on any Deleted Mortgage Loan in the
month
of substitution, and the Seller shall thereafter be entitled to retain all
amounts subsequently received by the Seller in respect of such Deleted Mortgage
Loan. The Seller shall give written notice to the Purchaser that such
substitution has taken place and shall amend the related Mortgage Loan Schedule
to reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage
Loan. Upon such substitution, each Qualified Substitute Mortgage Loan
shall be subject to the terms of this Agreement in all respects, and the
Seller
shall be deemed to have made with respect to such Qualified Substitute Mortgage
Loan, as of the date of substitution, the covenants, representations and
warranties set forth in Subsections 9.01 and
9.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine
the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of
substitution). The amount of such shortfall shall be distributed by
the Seller directly to the Purchaser or its designee in accordance with the
Purchaser’s instructions within two (2) Business Days of such
substitution.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and its present and former directors, officers,
employees and agents and any Successor Servicer and its present and former
directors, officers, employees and agents and hold such parties harmless
against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and other costs and expenses resulting from any
claim,
demand, defense or assertion based on or grounded upon, or resulting from,
a
breach of the Seller representations and warranties contained in this Agreement
or any Reconstitution Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection 9.03 to cure,
repurchase or substitute for a defective Mortgage Loan and to
indemnify
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the
Purchaser and Successor Servicer as provided in this Subsection 9.03
and in Subsection 13.01 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.
Subsection
9.04 Repurchase of Mortgage
Loans with First Payment Defaults.
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.
Subsection
9.05 Premium
Recapture.
With
respect to any Mortgage Loan without prepayment penalties that prepays in
full
on or prior to the related Closing Date or during the first ninety (90) days
following the related Closing Date, the Seller shall pay the Purchaser, within
thirty (30) Business Days after such prepayment in full or repurchase, an
amount
equal to the excess of the Purchase Price Percentage for such Mortgage Loan
over
par, multiplied by the outstanding principal balance of such Mortgage Loan
as of
the related Cut-off Date.
SECTION
10. Closing
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each Closing
shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties
shall
agree.
The
closing for the Mortgage Loans to be purchased on each Closing Date shall
be
subject to each of the following conditions:
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(i)
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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;
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(ii)
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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
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| Purchaser, duly executed by all signatories other than the Purchaser as required pursuant to the terms hereof; |
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(iii)
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the
Seller shall have delivered and released to the Custodian all documents
required pursuant to the Custodial Agreement;
and
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(iv)
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all
other terms and conditions of this Agreement and the related Purchase
Price and Terms Letter shall have been complied
with.
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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 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:
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1.
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this
Agreement (to be executed and delivered only for the initial Closing
Date);
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2.
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with
respect to the initial Closing Date, the Custodial Agreement, dated
as of
the initial Cut-off Date;
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3.
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the
related Mortgage Loan Schedule, segregated by Mortgage Loan Package
(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);
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4.
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a
Custodian’s Certification, as required under the Custodial Agreement, in
the form of Exhibit 2 to the Custodial
Agreement;
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5.
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with
respect to the initial Closing Date, an Officer’s Certificate, in the form
of Exhibit C hereto with respect to the Seller, including all
attachments thereto; with respect to subsequent Closing Dates,
an
Officer’s Certificate upon request of the
Purchaser;
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6.
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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;
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7.
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with
respect to the initial Closing Date, an Opinion of Counsel of the
Custodian (who may be an employee of the Custodian), in the form
of an
exhibit to the Custodial Agreement(s), if
required;
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8.
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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;
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9.
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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.
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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;
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11.
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Assignment
and Conveyance Agreement in the form of Exhibit H hereto, and
all exhibits thereto; and
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12.
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a
MERS Report reflecting the Purchaser as Investor, the Custodian
as
custodian and no Person as Interim Funder for each MERS Designated
Mortgage Loan.
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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. The Seller.
Subsection
13.01 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 13.01) 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
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Section 14
or any breach of any of
Seller’s representations, warranties and covenants set forth in this
Agreement. For purposes of this clause “Purchaser” shall mean the
Person then acting as the Purchaser under this Agreement and any and all
Persons
who previously were “Purchasers” under this Agreement and “Successor Servicer”
shall mean any Person designated as the Successor Servicer pursuant to this
Agreement and any and all Persons who previously were “Successor Servicers”
pursuant to this Agreement.
(b) Promptly
after receipt by an indemnified party under this Subsection 13.01 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 13.01, 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 13.01, 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 13.01. 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
13.02 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.
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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 be an institution whose deposits are insured by FDIC or a
company
whose business is the origination and servicing of mortgage loans, unless
otherwise consented to by the Purchaser, which consent shall not be unreasonably
withheld, shall be qualified to service mortgage loans on behalf of Xxxxxx
Xxx
or Xxxxxxx Mac.
SECTION
14. 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:
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(i)
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Xxxxxx
Mae under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each, a “Xxxxxx Xxx 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.
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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 Mae 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 substance
reasonably acceptable to the parties (collectively, the agreements referred
to
herein are designated the “Reconstitution Agreements”), together with an
opinion of counsel with respect to such 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 reasonably required by the Purchaser; (3) to
restate the representations and warranties set forth in Section 9.02 as of
the
Reconstitution Date; (4) to restate the representations and warranties set
forth
in Section 9.01 as of the Reconstitution Date, modified to the extent necessary
to accurately reflect the pool statistics of the Mortgage Loans as of the
Reconstitution Date and any event or circumstances existing subsequent to
the
related Closing Date and (5) make the representations and warranties set
forth
in the related selling/servicing guide of the servicer or issuer, as the
case
may be, or
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such
representations or warranties as may be required by any rating agency or
prospective purchaser of the related securities or such Mortgage Loans in
connection with such Reconstitution. The Seller shall provide to such
servicer or issuer, as the case may be, and any other participants or purchasers
in such Reconstitution: (i) any and all information and
appropriate verification of information which may be reasonably available
to the
Seller or its affiliates,
whether through letters of its auditors and counsel or otherwise, as the
Purchaser or any such other participant shall request; (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller
or the
Interim Servicer as are reasonably 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 Seller regarding the Seller, 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.
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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
three
fiscal years respecting which such statements are available, as well as a
Consolidated Statement of Condition of the Seller at the end of the last
two
fiscal years covered by such Consolidated Statement of
Operations. The Seller
shall also make available any comparable interim statements to the extent
any
such statements have been prepared by the Seller (and are available upon
request
to members or stockholders of the Seller or the public at large). The
Seller, if it has not already done so, agrees to furnish promptly to the
Purchaser copies of the statements specified above. The Seller shall
also make available information on its servicing performance with respect
to
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 Letter, 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 Qualified Substitute Mortgage Loans or (iii) one
or more Mortgage Loans otherwise acceptable to the Purchaser on or before
the
related Closing Date. The Seller hereby grants to the Purchaser a
lien on and a continuing security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Letter, and the Seller agrees that it shall hold such Mortgage
Loans
in custody for the Purchaser subject to the Purchaser’s (a) right to reject
any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the terms
of
this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (b) obligation to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the
Purchaser under this Agreement are distinct from, and cumulative with, any
other
rights or remedies under this Agreement or afforded by law or equity and
all
such rights and remedies may be exercised concurrently, independently or
successively. Such lien and security interest shall terminate upon
the rejection of such Mortgage Loan by the Purchaser and the failure of the
Purchaser to complete the purchase of such Mortgage Loan and the Seller’s
payment of the Repurchase Price with respect to such Mortgage Loan under
the
terms of this Agreement and the related Purchase Price and Terms
Letter.
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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:
(i) 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
1221
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
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(ii)
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if
to the Seller:
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GreenPoint
Mortgage Funding, Inc.,
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxx
Xxxxx - Secondary Marketing Division
Fax: 000-000-0000
Email: xxxxx.xxxxx@xxxxxxxxxx.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
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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
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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:
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(i)
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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
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(ii)
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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.
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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 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
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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. Entire Agreement. This Agreement
constitutes the entire agreement and understanding relating to the subject
matter hereof between the parties hereto and any prior oral or written
agreements between them shall be deemed to have merged herewith.
[Signature
Page Follows]
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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.
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XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
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By:
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Name:
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Title:
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GREENPOINT
MORTGAGE FUNDING, INC.
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By:
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Name:
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Title:
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EXHIBIT
A-1
MORTGAGE
LOAN DOCUMENTS
With
respect to each Mortgage Loan, the Mortgage Loan Documents shall include
each of
the following items, which shall be available for inspection by the Purchaser
and any prospective Purchaser, and which shall be delivered to the Custodian,
or
to such other Person as the Purchaser shall designate in writing, pursuant
to
Section 6 of the Mortgage Loan Purchase and Warranties Agreement to
which this Exhibit is attached (the “Agreement”):
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of ____________, without recourse” and signed in the name of the last
endorsee (the “Last Endorsee”) by an authorized officer. To
the extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge, if state law
so
allows and the Custodian is so advised by the Seller that state law so
allows. If the Mortgage Loan was acquired by the Seller in a merger,
the endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the endorsement must
be
by “[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage
with
evidence of recording thereon. With respect to any Co-op Loan, an
original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
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;
(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
A-1-1
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
shall
be delivered within 180 days of the Closing Date;
(h) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the
assignment of such Co-op Lease, with all intervening assignments showing
a
complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the
interests of the Mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financial statement filed by the originator as secured party and, if applicable,
a filed UCC-3 assignment of the subject security interest showing a complete
chain of title, together with an executed UCC-3 assignment of such security
interest by the Seller in a form sufficient for filing; and
A-1-2
(j) if
any of the above documents has been executed by a person holding a power
of
attorney, an original or photocopy of such power certified by the Seller
to be a
true and correct copy of the original.
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 Xxx 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.
(o) 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 GreenPoint
Mortgage Funding, Inc., a New York corporation (the
“Seller”).
W I T N E S S E T H:
WHEREAS,
the Depositor is acting as depositor and registrant with respect to the
Prospectus, dated [________________], and the Prospectus Supplement to the
Prospectus, [________________] (the “Prospectus Supplement”), relating to
[________________] Certificates (the “Certificates”) to be issued
pursuant to a Pooling and Servicing Agreement, dated as of [________________]
(the “P&S”), among the Depositor, as depositor, [________________],
as servicer (the “Servicer”), and [________________], as trustee (the
“Trustee”);
WHEREAS,
as an inducement to the Depositor to enter into the P&S, and
[____________________] (the “Underwriter[s]”) to enter into the
Underwriting Agreement, dated [____________________] (the “Underwriting
Agreement”) between the Depositor and the Underwriter[s], and
[_______________] (the “Initial Purchaser[s]”) to enter into the
Certificate Purchase Agreement, dated [____________] (the “Certificate
Purchase Agreement”) between the Depositor and the Initial Purchaser[s],
Seller has agreed to provide for indemnification and contribution on the
terms
and conditions hereinafter set forth;
WHEREAS,
Xxxxxx purchased from Seller certain of the Mortgage Loans underlying the
Certificates (the “Mortgage Loans”) pursuant to a Mortgage Loan Purchase
and Warranties Servicing Agreement, dated as of May 1, 2005 (the “Purchase
Agreement”), by and between Xxxxxx and Seller; and
WHEREAS,
pursuant to Section 14 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 for certain information.
B-1
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 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.
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
B-2
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, 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
B-3
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 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
B-4
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 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 GreenPoint Mortgage Funding, Inc., 000 Xxxx Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxxxx 00000, Attention: [__________]; 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, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000,
Fax [_____], Email: xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx, and
(ii) Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx – SPG Finance, Xxxxxx Xxxxxxx, 0000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax [_____],
Email: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx; if
to the Depositor, will be mailed, delivered or telegraphed and confirmed
to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
B-5
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 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
[_____________].
|
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[DEPOSITOR]
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By: ________________________________________________ |
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Name:
|
| Title: |
|
|
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
|
|
|
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By: ________________________________________________ |
|
|
Name:
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| Title: |
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GREENPOINT
MORTGAGE FUNDING, INC.
|
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By: ________________________________________________ |
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Name:
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| Title: |
B-7
EXHIBIT
C
FORM
OF
SELLER’S OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected
[Vice] President of GreenPoint Mortgage Funding, Inc., a corporation
organized under the laws of the state of New York (the “Company”) and
further as follows:
1. Attached
hereto as Exhibit 1 is a true, correct and complete copy of the charter
of the Company which is in full force and effect on the date hereof and which
has been in effect without amendment, waiver, rescission or modification
since
___________.
2. Attached
hereto as Exhibit 2 is a true, correct and complete copy of the bylaws of
the Company which are in effect on the date hereof and which have been in
effect
without amendment, waiver, rescission or modification since
___________.
3. Attached
hereto as Exhibit 3 is an original certificate of good standing of the
Company issued within ten days of the date hereof, and no event has occurred
since the date thereof which would impair such standing.
4. Attached
hereto as Exhibit 4 is a true, correct and complete copy of the corporate
resolutions of the Board of Directors of the Company authorizing the Company
to
execute and deliver (a) the Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2005 (the “Purchase Agreement”), by and
between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”) and the
Company and (b) the Custodial Agreement, dated as of _______ __, 200_ (the
“Custodial Agreement”), by and among the Purchaser, the Company,
GreenPoint Mortgage Funding, Inc. (the “Interim Servicer”) and
[CUSTODIAN] (the “Custodian”), [and to endorse the Mortgage Notes and
execute the Assignments of Mortgages by original [or facsimile] signature],
and
such resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification since
____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, the sale of the mortgage loans or the consummation of the
transactions contemplated by the agreements; or (ii) any required consent,
approval, authorization or order has been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the
terms of the Purchase Agreement conflicts or will conflict with or results
or
will result in a breach of or constitutes or will constitute a default under
the
charter or by-laws of the Company, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or
to
which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court,
C-1
governmental
authority or regulatory body to which the Company is subject or by which
it is
bound.
7. To
the best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Purchase Agreement, or the mortgage loans or of any action
taken
or to be taken in connection with the transactions contemplated hereby, or
which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Purchase Agreement.
8. Each
person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Company, signed (a) the Purchase Agreement, and
(b) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the respective
times of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Company, who holds
the
office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement.
C-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
|
Dated:
________________________________________
[Seal]
|
By: __________________________________________
Name:
Title: [Vice]
President
|
I,
________________________, an [Assistant] Secretary of GreenPoint Mortgage
Funding, Inc., hereby certify that ____________ is the duly elected, qualified
and acting [Vice] President of the Company and that the signature appearing
above is [her] [his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
|
Dated:
________________________________________
[Seal]
|
By: __________________________________________
Name:
Title: [Assistant]
Secretary
|
C-3
EXHIBIT
5
to
Company’s
Officer’s Certificate
|
NAME
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TITLE
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SIGNATURE
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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 GreenPoint
Mortgage Funding, Inc. (the “Company”), with respect to certain matters
in connection with the sale by the Company of the Mortgage Loans pursuant
to
that certain Mortgage Loan Purchase and Warranties Agreement by and between
the
Company and Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”), dated
as of May 1, 2005 (the “Purchase Agreement”) which sale is in the form of
whole loans, delivered pursuant to a Custodial Agreement dated as of _____
__,
____ among the Purchaser, the Company, GreenPoint Mortgage Funding, Inc.
(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:
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1.
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the
Purchase Agreement;
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2.
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the
Custodial Agreement;
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3.
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the
form of Assignment of Mortgage;
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4.
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the
form of endorsement of the Mortgage Notes;
and
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5.
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such
other documents, records and papers as we have deemed necessary
and
relevant as a basis for this
opinion.
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To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Purchase
Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of
all
documents.
Based
upon the foregoing, it is [our] [my] opinion that:
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1.
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The
Company is a [type of entity] duly organized, validly existing
and in good
standing under the laws of the [United States] and is qualified
to
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D-1
| transact business in, and is in good standing under, the laws of [the state of incorporation/formation]. |
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2.
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The
Company has the power to engage in the transactions contemplated
by the
Agreements and all requisite power, authority and legal right to
execute
and deliver the Agreements and to perform and observe the terms
and
conditions of the Agreements.
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3.
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Each
of the Agreements has been duly authorized, executed and delivered
by the
Company, and is a legal, valid and binding agreement enforceable
in
accordance with its respective terms against the Company, subject
to
bankruptcy laws and other similar laws of general application affecting
rights of creditors and subject to the application of the rules
of equity,
including those respecting the availability of specific performance,
none
of which will materially interfere with the realization of the
benefits
provided thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
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4.
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The
Company has been duly authorized to allow any of its officers to
execute
any and all documents by original signature in order to complete
the
transactions contemplated by the
Agreements.
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5.
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The
Company has been duly authorized to allow any of its officers to
execute
by original [or facsimile] signature the endorsements to the Mortgage
Notes and the Assignments of Mortgages, and the original
[or facsimile] signature of the officer at the Company executing the
endorsements to the Mortgage Notes and the Assignments of Mortgages
represents the legal and valid signature of said officer of the
Company.
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6.
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Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with
the
Agreements and the sale of the Mortgage Loans by the Company or
the
consummation of the transactions contemplated by the Agreements
or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
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7.
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Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of, the Agreements conflicts or will conflict with
or results
or will result in a breach of or constitutes or will constitute
a default
under the charter or by-laws of the Company, the terms of any indenture
or
other agreement or instrument to which the Company is a party or
by which
it is bound or to which it is subject, or violates any statute
or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or
by which
it is bound.
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D-2
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8.
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There
is no action, suit, proceeding or investigation pending or, to
the best of
[our] [my] knowledge, threatened against the Company which, in
[our] [my]
judgment, either in any one instance or in the aggregate, may result
in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its
business
substantially as now conducted or in any material liability on
the part of
the Company or which would draw into question the validity of the
Agreements or the Mortgage Loans or of any action taken or to be
taken in
connection with the transactions contemplated thereby, or which
would be
likely to impair materially the ability of the Company to perform
under
the terms of the Agreements.
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9.
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The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Agreements is sufficient to fully transfer to the Purchaser
all
right, title and interest of the Company thereto as noteholder
and
mortgagee.
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10.
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The
Mortgages have been duly assigned and the Mortgage Notes have been
duly
endorsed as provided in the Custodial Agreement. The
Assignments of Mortgage are in recordable form, except for the
insertion
of the name of the assignee, and upon the name of the assignee
being
inserted, are acceptable for recording under the laws of the state
where
each related Mortgaged Property is located. The endorsement of
the Mortgage Notes, the delivery to the Purchaser, or its designee,
of the
Assignments of Mortgage, and the delivery of the original endorsed
Mortgage Notes to the Purchaser, or its designee, are sufficient
to permit
the Purchaser to avail itself of all protection available under
applicable
law against the claims of any present or future creditors of the
Company,
and are sufficient to prevent any other sale, transfer, assignment,
pledge
or hypothecation of the Mortgages and the Mortgage Notes by the
Company
from being enforceable.
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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,
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______________________________ |
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[Name]
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[Assistant]
General Counsel
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D-3
EXHIBIT
E
FORM
OF
SECURITY RELEASE CERTIFICATION
___________________,
200__
______________________
______________________
______________________
______________________
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Attention:
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______________________
______________________
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Re:
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Notice
of Sale and Release of
Collateral
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Dear
Sirs:
This
letter serves as notice that GreenPoint Mortgage Funding, Inc. a corporation,
organized pursuant to the laws of the State of New York (the “Company”)
has committed to sell to Xxxxxx Xxxxxxx Mortgage Capital Inc. under a Mortgage
Loan Purchase and Warranties Agreement, dated as of May 1, 2005, certain
mortgage loans originated by the Company. The Company warrants that
the mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital Inc. are
in
addition to and beyond any collateral required to secure advances made by
you to
the Company.
The
Company acknowledges that the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc. shall not be used as additional or substitute collateral
for advances made by [__________]. Xxxxxx Xxxxxxx Mortgage Capital
Inc. understands that the balance of the Company’s mortgage loan portfolio may
be used as collateral or additional collateral for advances made by [_________],
and confirms that it has no interest therein.
Execution
of this letter by [_________] shall constitute a full and complete release
of
any security interest, claim, or lien which [_________] 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:
__________________________
By: ___________________________
Name: _________________________
Title: __________________________
Date: __________________________
E-2
EXHIBIT
F
FORM
OF
SECURITY RELEASE CERTIFICATION
I.
Release of Security Interest
The
financial institution named below hereby relinquishes any and all right,
title,
interest, lien or claim of any kind it may have in all mortgage loans described
on the attached Schedule A (the “Mortgage Loans”), to be purchased
by Xxxxxx Xxxxxxx Mortgage Capital Inc. from the company named on the next
page
(the “Company”) pursuant to that certain Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2005, and certifies that all notes,
mortgages, assignments and other documents in its possession relating to
such
Mortgage Loans have been delivered and released to the Company or its designees,
as of the date and time of the sale of such Mortgage Loans to Xxxxxx Xxxxxxx
Mortgage Capital Inc. Such release shall be effective automatically
without any further action by any party upon payment in one or more
installments, in immediately available funds, of $_____________, in accordance
with the wire instructions set forth below.
Name,
Address and Wire Instructions of Financial Institution
______________________________
(Name)
(Name)
______________________________
(Address)
(Address)
______________________________
______________________________
______________________________
______________________________
______________________________
By: ________________________________
F-1
II.
Certification of Release
The
Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage Capital Inc.
that, as of the date and time of the sale of the above-mentioned Mortgage
Loans
to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in the Mortgage
Loans released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage
Loans. The Company warrants that, as of such time, there are and will
be no other security interests affecting any or all of such Mortgage
Loans.
__________________________
By: ___________________________
Title: __________________________
Date: __________________________
F-2
EXHIBIT
G
UNDERWRITING
GUIDELINES
G-1
EXHIBIT
H
FORM
OF
ASSIGNMENT AND CONVEYANCE AGREEMENT
On
this
___ day of _______, 200_, GreenPoint Mortgage Funding, Inc. (“Seller”),
as the Seller under (i) that certain Purchase Price and Terms Letter, dated
as of _________, 200__ (the “PPTA”), and (ii) that certain Mortgage
Loan Purchase and Warranties Agreement, dated as of May 1, 2005 (the
“Purchase Agreement”), does hereby sell, transfer, assign, set over and
convey to Xxxxxx Xxxxxxx Mortgage Capital, Inc. (“Purchaser”) as the
Purchaser under the Agreements (as defined below) without recourse, but subject
to the terms of the Agreements, all right, title and interest of, in and
to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as
Exhibit A (the “Mortgage Loans”), together with the Mortgage
Files and the related Servicing Rights and all rights and obligations arising
under the documents contained therein. Each Mortgage Loan subject to
the Agreements was underwritten in accordance with, and conforms to, the
Underwriting Guidelines attached hereto as
Exhibit C. Pursuant to Section 6 of the
Purchase Agreement, the Seller has delivered to the Custodian the documents
for
each Mortgage Loan to be purchased as set forth in the Purchase
Agreement. The contents of each Servicing File required to be
retained by the Interim Servicer to service the Mortgage Loans pursuant to
the
Interim Servicing Agreement and thus not delivered to the Purchaser are and
shall be held in trust by the Interim Servicer in its capacity as Interim
Servicer for the benefit of the Purchaser as the owner thereof. The
Interim Servicer’s possession of any portion of the Servicing File is at the
will of the Purchaser for the sole purpose of facilitating servicing of the
related Mortgage Loan pursuant to the Interim Servicing Agreement, and such
retention and possession by the Interim Servicer shall be in a custodial
capacity only. The ownership of each Mortgage Note, Mortgage and the
contents of the Mortgage File and Servicing File is vested in the Purchaser
and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be retained and maintained, in
trust, by the Seller at the will of the Purchaser in a custodial capacity
only. The PPTA and the Purchase Agreement shall collectively be
referred to as the “Agreements” herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit B hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser
accepts the Mortgage Loans listed on Exhibit A attached
hereto. Notwithstanding the foregoing the Purchaser does not waive
any rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
H-1
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GREENPOINT
MORTGAGE FUNDING, INC.
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By: ________________________________________________ |
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Name:
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| Title: |
Accepted
and Agreed:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
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By:
____________________________________________
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Name:
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Title:
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H-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
H-3
EXHIBIT
B
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF EACH MORTGAGE
LOAN
PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related
Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less
than $_____; (2) an origination date earlier than __ months prior to the
related Cut-off Date; (3) an LTV of greater than ____%; (4) a FICO
Score of less than ___; or (5) a debt-to-income ratio of more than
___%. Each Mortgage Loan has a Mortgage Interest Rate of at least
___% per annum and an outstanding principal balance of less than
$______. Each Adjustable Rate Mortgage Loan has an Index of
[______].
H-4
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
H-5
