Exhibit 99.7
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
dated as of March 27, 2001
between
XXXXXXX XXXXX MORTGAGE CAPITAL INC., Purchaser
and
CENDANT MORTGAGE CORPORATION and
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST
(formerly known as CENDANT RESIDENTIAL MORTGAGE TRUST)
Sellers
ARTICLE I: DEFINITIONS.................................................. 1
Section 1.01 Defined Terms............................................. 1
ARTICLE II: SALE AND CONVEYANCE OF MORTGAGE LOANS;POSSESSION OF MORTGAGE
FILES; BOOKS AND RECORDS; DELIVERY OF MORTGAGE LOAN
DOCUMENTS.................................................... 8
Section 2.01 Sale and Conveyance of Mortgage Loans..................... 8
Section 2.02 Possession of Mortgage Files.............................. 9
Section 2.03 Books and Records......................................... 10
Section 2.04 Defective Documents; Delivery of Mortgage Loan Documents.. 10
Section 2.05 Transfer of Mortgage Loans................................ 11
ARTICLE III: REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REPURCHASE; REVIEW OF MORTGAGE LOANS......................... 12
Section 3.01 Representations and Warranties of each Seller............. 12
Section 3.02 Representations and Warranties of the Servicer............ 13
Section 3.03 Representations and Warranties as to Individual Mortgage
Loans..................................................... 14
Section 3.04 Repurchase................................................ 19
Section 3.05 Certain Covenants of each Seller and the Servicer......... 20
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND
CONDITIONS PRECEDENT TO FUNDING.............................. 21
Section 4.01 Representations and Warranties............................ 21
Section 4.02 Conditions Precedent to Closing........................... 22
ARTICLE V: ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............... 23
Section 5.01 Cendant Mortgage to Act as Servicer; Servicing Standards:
Additional Documents. Consent of the Purchaser............ 23
Section 5.02 Collection of Mortgage Loan Payments...................... 24
Section 5.03 Reports for Specially Serviced Mortgage Loans and
Foreclosure Sales......................................... 25
Section 5.04 Establishment of Collection Account; Deposits in
Collection Account........................................ 25
Section 5.05 Permitted Withdrawals from the Collection Account......... 26
Section 5.06 Establishment of Escrow Accounts: Deposits in Escrow...... 27
Section 5.07 Permitted Withdrawals From Escrow Accounts................ 27
Section 5.08 Payment of Taxes, Insurance and Other Charges: Maintenance
of Primary Insurance Policies; Collections Thereunder..... 27
Section 5.09 Transfer of Accounts...................................... 28
Section 5.10 Maintenance of Hazard Insurance........................... 28
Section 5.11 Maintenance of Mortgage Impairment Insurance Policy....... 29
Section 5.12 Fidelity Bond; Errors and Omissions Insurance............. 29
Section 5.13 Management of REO Properties.............................. 30
Section 5.14 Sale of Specially Serviced Mortgage Loans and REO
Properties................................................ 31
Section 5.15 Realization Upon Specially Serviced Mortgage Loans and REO
Properties................................................ 32
Section 5.16 Investment of Funds in the Collection Account............. 33
ARTICLE VI: REPORTS; REMITTANCES; ADVANCES............................... 34
Section 6.01 Remittances............................................... 34
Section 6.02 Reporting................................................. 34
Section 6.03 Monthly Advances by the Servicer.......................... 34
Section 6.04 Non-recoverable-Advances.................................. 35
Section 6.05 Itemization of Servicing Advances......................... 35
Section 6.06 Officer's Certificate..................................... 35
ARTICLE VII: GENERAL SERVICING PROCEDURE.................................. 35
Section 7.01 Enforcement of Due-on-Sale Clauses, Assumption
Agreements................................................ 35
Section 7.02 Satisfaction of Mortgages and Release of Mortgage Files... 36
Section 7.03 Servicing Compensation.................................... 37
Section 7.04 Annual Statement as to Compliance......................... 37
Section 7.05 Annual Independent Certified Public Accountants' Servicing
Report.................................................... 37
Section 7.06 Purchaser's Right to Examine Servicer Records............. 37
ARTICLE VIII: REPORTS TO BE PREPARED BY THE SERVICER....................... 38
Section 8.01 The Servicer's Reporting Requirements..................... 38
Section 8.02 Financial Statements...................................... 38
ARTICLE IX: THE SELLERS.................................................. 38
Section 9.01 Indemnification; Third Party Claims....................... 39
Section 9.02 Merger or Consolidation of the Seller..................... 39
Section 9.03 Limitation on Liability of the Sellers and Others......... 39
Section 9.04 Servicer Not to Resign.................................... 40
ARTICLE X: DEFAULT...................................................... 40
Section 10.01 Events of Default......................................... 40
ARTICLE XI: TERMINATION.................................................. 41
Section 11.01 Term and Termination...................................... 41
Section 11.02 Survival.................................................. 41
ARTICLE XII: GENERAL PROVISIONS........................................... 42
Section 12.01 Successor to the Servicer................................. 42
Section 12.02 Governing Law............................................. 42
Section 12.03 Notices................................................... 42
Section 12.04 Severability of Provisions................................ 42
Section 12.05 Schedules and Exhibits.................................... 42
Section 12.06 General Interpretive Principles........................... 42
Section 12.07 Waivers and Amendments, Noncontractual Remedies
Preservation of Remedies.................................. 43
Section 12.08 Captions.................................................. 43
Section 12.09 Counterparts; Effectiveness............................... 43
Section 12.10 Entire Agreement; Amendment............................... 43
Section 12.11 Further Assurances........................................ 44
Schedules
A. Mortgage Loan Schedule
B. Content of Mortgage File
B-1 Purchaser's Mortgage File
B-2 Servicer's Mortgage File
B-3 Credit Documents
C. Cendant Guidelines and Restrictions
Exhibits
Exhibit 2.05 Form of Assignment, Assumption and Recognition Agreement
Exhibit 5.03(a) Report P-4DL
Exhibit 5.03(b) Report S-5L2
Exhibit 5.03(c) Form of Notice of Foreclosure
Exhibit 5.041 Form of Collection Account Certification
Exhibit 5.042 Form of Collection Account Letter Agreement
Exhibit 5.06-1 Form of Escrow Account Certification
Exhibit 5.06-2 Form of Escrow Account Letter Agreement
Exhibit 6.02(a) Report P-139 -- Monthly Statement of Mortgage Accounts
Exhibit 6.02(b) Report S-50Y -- Private Pool Detail Report
Exhibit 6.02(c) Report S-213 -- Summary of Curtailments Made Remittance Report
Exhibit 6.02(d) Report S-214 -- Summary of Paid in Full Remittance Report
Exhibit 6.02(e) Report S-215 -- Consolidation of Remittance Report
Exhibit 6.02(f) Report T-62C - Monthly Accounting Report
Exhibit 6.02(g) Report T-62E -- Liquidation Report
Exhibit 8.01 Report P-195 Delinquency Report
Exhibit 9 Form of Officer's Certificate
Exhibit 10 Form of Warranty Xxxx of Sale
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
This Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of
March 27, 2001, is entered into between Xxxxxxx Xxxxx Mortgage Capital Inc., as
the Purchaser ("Purchaser"), Cendant Mortgage Corporation ("Cendant Mortgage")
and Xxxxxx'x Gate Residential Mortgage Trust (formerly known as Cendant
Residential Mortgage Trust) (the "Trust," together with Cendant Mortgage, the
"Sellers" and individually, each a "Seller"), as the Sellers.
PRELIMINARY STATEMENT
(1) Cendant Mortgage is engaged in the business, inter alia, of making loans to
individuals, the repayment of which is secured by a first lien mortgage on
such individuals' residences (each, a "MORTGAGE LOAN"). The Trust is
engaged in the business of purchasing such Mortgage Loans from Cendant
Mortgage and selling same to investors.
(2) Purchaser is engaged in the business, inter alia, of purchasing Mortgage
Loans for its own account.
(3) Cendant Mortgage has established certain terms, conditions and loan
programs, as described in Cendant Mortgage's Program and Underwriting
Guidelines (the "CENDANT GUIDE") and Purchaser is willing to purchase
Mortgage Loans that comply with the terms of such terms, conditions and
loan programs. The applicable provisions of the Cendant Guide are attached
hereto as Schedule C.
(4) Purchaser and Sellers desire to establish a flow program whereby Cendant
Mortgage will make Mortgage Loans which meet the applicable provisions of
the Cendant Guide, and Purchaser will, on a regular basis, purchase such
Mortgage Loans from Cendant Mortgage or the Trust, as applicable, provided
the parties agree on the price, date and other conditions or considerations
as set forth in this Agreement.
(5) Purchaser and Sellers wish to prescribe the terms and manner of purchase by
the Purchaser and sale by the Sellers of the Mortgage Loans, and the
management and servicing of the Mortgage Loans by Cendant Mortgage, as the
Servicer (the "Servicer"), in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth,
the Purchaser and the Sellers agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the following
words and phrases shall have the following meaning specified in this Article:
"Affiliate": When used with reference to a specified Person, any Person
that (i) directly or indirectly controls or is controlled by or is under common
control with the specified Person, (ii) is an officer of, partner in or trustee
of, or serves in a similar capacity with respect to, the specified person or of
which the specified Person is an officer, partner or trustee, or with respect to
which the specified Person serves in a similar capacity, or (iii) directly or
indirectly is the beneficial owner of 10% or more of any class of equity
securities of the specified Person or of which the specified person is directly
or indirectly the owner of 10% or more of any class of equity securities.
"Agreement": This Mortgage Loan Flow Purchase, Sale & Servicing Agreement
between the Purchaser and the Sellers.
"ALTA": The American Land Title Association.
"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 an
appraiser who met the minimum requirements of FNMA and FHLMC; or (ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan; provided that, in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property shall be 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 an
appraiser who met the minimum requirements of FNMA and FHLMC.
"ARM Loan": An "adjustable rate" Mortgage Loan, the Note Rate of which is
subject to periodic adjustment in accordance with the terms of the Mortgage
Note.
"Assignment": An individual assignment of a Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale or transfer of the Mortgage Loan.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (11 U.S.C. Sections
101-1330), as amended, modified, or supplemented from time to time, and any
successor statute, and all rules and regulations issued or promulgated in
connection therewith.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a day
on which the Federal Reserve is closed.
"Cendant Guide": As defined in paragraph 3 of the Preliminary Statement to
this Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The separate trust account or accounts created and
maintained pursuant to Section 5.04 which shall be entitled "Cendant Mortgage
Corporation, as servicer and custodian for the Purchaser of Mortgage Loans under
the Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of March
27, 2001."
"Condemnation Proceeds": All awards or settlements in respect of a taking
of an entire Mortgaged Property or a part thereof by exercise of the power of
eminent domain or condemnation.
"Credit Documents": Those documents, comprising part of the Mortgage File,
required of the Mortgagor, as described in Section 2 (Specific Loan Program
Guidelines) of the Cendant Guide. The Credit Documents are specified on Schedule
B-3 hereto.
"Cut-off Date": The first day of the month in which the respective Funding
Date occurs.
"Defective Mortgage Loan": As defined in Section 3.04(3).
"Determination Date": The 15th day of each calendar month, commencing on
the 15th day of the month following the Funding Date, or, if such 15th day is
not a Business Day, the Business Day immediately preceding such 15th day.
"Due Date": With respect to any Mortgage Loan, the day of the month on
which each Monthly Payment is due thereon, exclusive of any days of grace.
"Eligible Account": One or more accounts (i) that are maintained with a
depository institution the long-term unsecured debt obligations of which have
been rated by each Rating Agency in one of its two highest rating categories at
the time of any deposit therein, (ii) that are trust accounts with any
depository institution held by the depository institution in its capacity as a
corporate trustee, or (iii) the deposits in which are insured by the FDIC (to
the limits established by the FDIC) and the uninsured deposits in which are
otherwise secured such that the
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Purchaser has a claim with respect to the funds in such accounts or a perfected
first security interest against any collateral securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution with which such accounts are maintained. In addition, solely with
respect to Mortgage Loans which are not part of a securitization, "Eligible
Account" shall include any accounts that meet the standards established from
time to time by FNMA for eligible custodial depositories.
"Environmental Assessment": A "Phase I" environmental assessment of a
Mortgaged Property prepared by an Independent Person who regularly conducts
environmental assessments and who has any necessary license(s) required by
applicable law and has five years experience in conducting environmental
assessments.
"Environmental Conditions Precedent to Foreclosure": As defined in Section
5.15.
"Environmental Laws": All federal, state, and local statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or other governmental
restrictions relating to the environment or to emissions, discharges or releases
of pollutants, contaminants or industrial, toxic or hazardous substances or
wastes into the environment, including ambient air, surface water, ground water,
or land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants or industrial, toxic or hazardous substances or wastes or the
cleanup or other remediation thereof.
"Escrow Account": The separate trust account or accounts created and
maintained pursuant to Section 5.06 which shall be entitled "Cendant Mortgage
Corporation, as servicer and custodian for the Purchaser under the Mortgage Loan
Flow Purchase, Sale & and-Servicing Agreement, dated as of March 27, 2001 (as
amended), and various mortgagors."
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to any Mortgage Loan.
"Event of Default": Any one of the conditions or circumstances enumerated
in Section 10.01.
"FDIC": The Federal Deposit Insurance Corporation or any successor
organization.
"FHLMC": The Federal Home Loan Mortgage Corporation (also known as Xxxxxxx
Mac) or any successor organization.
"FHLMC Servicing Guide": The FHLMC/Xxxxxxx Xxx Xxxxxxx' and Servicers'
Guide in effect on and after the Funding Date.
"Fidelity Bond": A fidelity bond to be maintained by the Servicer pursuant
to Section 5.12.
"FNMA": The Federal National Mortgage Association (also known as Xxxxxx
Xxx) or any successor organization.
"FNMA Guide": The FNMA/Xxxxxx Mae Selling Guide and the Servicing Guide,
collectively, in effect on and after the Funding Date.
"Funding Date": Each date (up to four per month) that Purchaser purchases
Mortgage Loans from the Sellers hereunder.
"Gross Margin": With respect to each ARM Loan, the fixed percentage added
to the Index on each Rate Adjustment Date, as specified in each related Mortgage
Note and listed in the Mortgage Loan Schedule.
"Independent": With respect to any specified Person, such Person who: (i)
does not have any direct financial interest or any material indirect financial
interest in the applicable Mortgagor, the Sellers, the Purchaser, or their
Affiliates; and (b) is not connected with the applicable Mortgagor, the Sellers,
the Purchaser, or their
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respective Affiliates as an officer, employee, promoter, underwriter, trustee,
member, partner, shareholder, director, or Person performing similar functions.
"Index": With respect to each ARM Loan, on each Rate Adjustment Date, the
applicable rate index set forth on the Mortgage Loan Schedule, which shall be an
index described on such Mortgage Loan Schedule.
"Insolvency Proceeding": With respect to any Person: (i) any case, action,
or proceeding with respect to such Person before any court or other governmental
authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up, or relief of debtors; or (ii) any general
assignment for the benefit of creditors, composition, marshaling of assets for
creditors, or other, similar arrangement in respect of the creditors generally
of such Person or any substantial portion of such Person's creditors; in any
case undertaken under federal, state or foreign law, including the Bankruptcy
Code.
"Insurance Proceeds": Proceeds of any Primary Insurance Policy, title
policy, hazard policy or other insurance policy covering a Mortgage Loan, if
any, to the extent such proceeds are not to be applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage loans held for
its own or its Affiliates' account or managed by it for third-party
institutional investors.
"Legal Documents": Those documents, comprising part of the Mortgage File,
set forth in Schedule B-1 of this Agreement.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the Servicer in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property in accordance with the provisions hereof.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan, the
original principal balance of such Mortgage Loan divided by the lesser of the
Appraised Value of the related Mortgaged Property or the purchase price.
"MAI Appraiser": With respect to any real property, a member of the
American Institute of Real Estate Appraisers with a minimum of 5 years of
experience appraising real property of a type similar to the real property being
appraised and located in the same geographical area as the real property being
appraised.
"Monthly Advance": The aggregate amount of the advances made by the
Servicer on any Remittance Date pursuant to and as more fully described in
Section 6.03.
"Monthly Payment": The scheduled monthly payment of principal and interest
on a Mortgage Loan which is payable by a Mortgagor under the related Mortgage
Note.
"Monthly Period": Initially, the period from the Funding Date through to
and including the first Record Date during the term hereof, and, thereafter, the
period commencing on the day after each Record Date during the term hereof and
ending on the next succeeding Record Date during the term hereof (or, if
earlier, the date on which this Agreement terminates).
"Mortgage": The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note.
"Mortgaged Property": With respect to a Mortgage Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a fee simple
estate.
"Mortgage File": With respect to a particular Mortgage Loan, those
origination and servicing documents, escrow documents, and other documents as
are specified on Schedule B-1 and B-3 to this
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Agreement and any additional documents required to be added to the Mortgage File
pursuant to the related Purchase Price and Terms Letter.
"Mortgage Loan": Each individual mortgage loan (including all documents
included in the Mortgage File evidencing the same, all Monthly Payments,
Principal Prepayments, Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, and other proceeds relating thereto, and any and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith) which is
the subject of this Agreement and the related Purchase Price and Terms Letter.
The Mortgage Loans subject to this Agreement shall be identified on Mortgage
Loan Schedules prepared in connection with each Funding Date.
"Mortgage Loan Schedule": The list of Mortgage Loans identified on each
Funding Date that sets forth the information with respect to each Mortgage Loan
that is specified on Schedule A hereto. A Mortgage Loan Schedule will be
prepared for each Funding Date.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgagor": The obligor on a Mortgage Note.
"Negative Amortization": That portion of interest accrued at the Note Rate
in any month which exceeds the Monthly Payment on the related Mortgage Loan for
such month and which, pursuant to the terms of the Mortgage Note, is added to
the principal balance of the Mortgage Loan.
"Note Rate": With respect to any Mortgage Loan at any time any
determination thereof is to be made, the annual rate at which interest accrues
thereon.
"Offering Materials": All documents, tapes, or other materials relating to
the Mortgage Loans provided by Seller to Purchaser prior to Purchaser submitting
its bid to purchase the Mortgage loans.
"Officers' Certificate": A certificate signed by (i) the President or a
Vice President and (ii) the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Servicer, and delivered by the
Servicer to the Purchaser as required by this Agreement.
"Payment Adjustment Date": The date on which Monthly Payments shall be
adjusted. Payment Adjustment Date shall occur on the date which is eleven months
from the first payment date for the Mortgage Loan, unless otherwise specified in
the Mortgage Note, and on each anniversary of such first Payment Adjustment
Date.
"Payoff": With respect to any Mortgage Loan, any payment or recovery
received in advance of the last scheduled Due Date of such Mortgage Loan, which
payment or recovery consists of principal in an amount equal to the outstanding
principal balance of such Mortgage Loan, all accrued and unpaid prepayment
penalties, premiums, and/or interest with respect thereto, and all other unpaid
sums due with respect to such Mortgage Loan.
"Permitted Investments": Investments that mature, unless payable on demand,
not later than the Business Day preceding the related Remittance Date; provided
that such investments shall only consist of the following:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) repurchase obligations (the collateral for which is held by a
third party) with respect to any security described in clause (i) above,
provided that the long-term unsecured obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating Agency in
one of its two highest rating categories;
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(iii) certificates of deposit, time deposits and bankers' acceptances
of any bank or trust company incorporated under the laws of the United
States or any state, provided that the long-term unsecured debt obligations
of such bank or trust company (or, in the case of the principal depository
institution of a depository institution holding company, the long-term
unsecured debt obligations of the depository institution holding company)
at the date of acquisition thereof have been rated by each Rating Agency in
one of its two highest rating categories;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States
or any state thereof which on the date of acquisition has been rated by
each Rating Agency in its highest rating category; and
(v) any other demand, money market or time deposit account or
obligation, or interest-bearing or other security or investment, acceptable
to the Purchaser (such acceptance evidenced in writing);
provided further that "Permitted Investments" shall not include any instrument
described hereunder which evidences either the right to receive (a) only
interest with respect to the obligations underlying such instrument or (b) both
principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield to
maturity at par of the underlying obligations.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Prepaid Monthly Payment": Any Monthly Payment received prior to its
scheduled Due Date and which is intended to be applied to a Mortgage Loan on its
scheduled Due Date.
"Primary Insurance Policy": Each primary policy of mortgage insurance in
effect with respect to a Mortgage Loan and as so indicated on the Mortgage Loan
Schedule, or any replacement policy therefor obtained by the Servicer pursuant
to Section 5.08.
"Principal Prepayment": Any payment or other recovery of principal on a
Mortgage Loan (including a Payoff), other than a Monthly Payment or a Prepaid
Monthly Payment 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 and which is
intended to reduce the principal balance of the Mortgage Loan.
"Purchase Price and Terms Letter": With respect to any pool of Mortgage
Loans purchased and sold on any Funding Date, the letter agreement between the
Purchaser and Seller (including any exhibits, schedules and attachments
thereto), setting forth the terms and conditions of such transaction and
describing the Mortgage Loans to be purchased by the Purchaser on such Funding
Date. A Purchase Price and Terms Letter may relate to more than one pool of
Mortgage Loan to be purchased on one or more Funding Dates hereunder.
"Purchaser": Xxxxxxx Xxxxx Mortgage Capital Inc., or its successor in
interest or any successor under this Agreement appointed as herein provided.
"Purchaser's Account": The account of the Purchaser at a bank or other
entity most recently designated in a written notice by the Purchaser to the
Sellers as the "Purchaser's Account."
"Purchase Price": As to each Mortgage Loan to be sold hereunder, the price
set forth in the Mortgage Loan Schedule and the related Purchase Price and Terms
Letter.
"Qualified Mortgage Insurer": American Guaranty Corporation, Commonwealth
Mortgage Assurance Company, General Electric Mortgage Insurance Companies,
Mortgage Guaranty Insurance Corporation, PMI
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Mortgage Insurance Company, Republic Mortgage Insurance Company or United
Guaranty Residential Insurance Corporation.
"Rate Adjustment Date": With respect to each ARM Loan, the date on which
the Note Rate adjusts.
"Rating Agency": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Xxxxx'x Investors Service, Inc., and Fitch, Inc.
"Record Date": The close of business of the last Business Day of the month
immediately preceding the month of the related Remittance Date.
"Refinanced Mortgage Loan": A Mortgage Loan that was made to a Mortgagor
who owned the Mortgaged Property prior to the origination of such Mortgage Loan
and the proceeds of which were used in whole or part to satisfy an existing
mortgage.
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Internal Revenue Code or any similar tax vehicle providing
for the pooling of assets (such as a Financial Asset Security Investment Trust).
"Remittance Date": The 18th day of each calendar month, commencing on the
18th day of the month following the Funding Date, or, if such 18th day is not a
Business Day, then the next Business Day immediately preceding such 18th day.
"Remittance Rate": With respect to each Mortgage Loan, the related Note
Rate minus the Servicing Fee Rate.
"REO Disposition": The final sale by the Servicer of any REO Property.
"REO Property": A Mortgaged Property acquired by the Servicer on behalf of
the Purchaser as described in Section 5.13.
"Repurchase Price": As to (a) any Defective Mortgage Loan required to be
repurchased hereunder with respect to which a breach occurred or (b) any
Mortgage Loan required to be repurchased pursuant to Section 3.04 and/or Section
7.02, an amount equal to the Unpaid Principal Balance of such Mortgage Loan at
the time of repurchase; plus (2) interest on such Mortgage Loan at the
applicable Note Rate from the last date through which interest has been paid and
distributed to the Purchaser hereunder to the date of repurchase; minus (3) any
amounts received in respect of such Defective Mortgage Loan which are being held
in the Collection Account for future remittance.
"Scheduled Principal Balance": With respect to any Mortgage Loan, (i) the
outstanding principal balance as of the Funding Date after application of
principal payments due on or before such date whether or not received, minus
(ii) all amounts previously remitted to the Purchaser with respect to such
Mortgage Loan representing (a) payments or other recoveries of principal, or (b)
advances of principal made pursuant to Section 6.03.
"Sellers": Cendant Mortgage Corporation, a New Jersey corporation and
Xxxxxx'x Gate Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage Trust), a Delaware business trust, or their successors in interest or
any successor under this Agreement appointed as herein provided.
"Servicer": Cendant Mortgage Corporation, a New Jersey corporation.
"Servicer's Mortgage File": The documents pertaining to a particular
Mortgage Loan which are specified on Exhibit B-2 attached hereto and any
additional documents required to be included or added to the "Servicer's
Mortgage File" pursuant to this Agreement.
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"Servicing Advances": All "out of pocket" costs and expenses that are
customary, reasonable and necessary which are incurred by the Servicer in the
performance of its servicing obligations hereunder, including (without
duplication) (i) reasonable attorneys' fees and (ii) the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the servicing,
management and liquidation of any Specially Serviced Mortgaged Loans and/or any
REO Property, and (d) compliance with the Servicer's obligations under Section
5.08.
"Servicing Event": Any of the following events with respect to any Mortgage
Loan: (i) any Monthly Payment being more than 60 days delinquent; (ii) any
filing of an Insolvency Proceeding by or on behalf of the related Mortgagor, any
consent by or on behalf of the related Mortgagor to the filing of an Insolvency
Proceeding against such Mortgagor, or any admission by or on behalf of such
Mortgagor of its inability to pay such Person's debts generally as the same
become due; (iii) any filing of an Insolvency Proceeding against the related
Mortgagor that remains undismissed or unstayed for a period of 60 days after the
filing thereof; (iv) any issuance of any attachment or execution against, or any
appointment of a conservator, receiver or liquidator with respect to, all or
substantially all of the assets of the related Mortgagor or with respect to any
Mortgaged Property; (v) any receipt by the Servicer of notice of the foreclosure
or proposed foreclosure of any other lien on the related Mortgaged Property;
(vi) any proposal of a material modification (as reasonably determined by the
Seller) to such Mortgage Loan due to a default or imminent default under such
Mortgage Loan; or (vii) in the reasonable judgment of the Servicer, the
occurrence, or likely occurrence within 60 days, of a payment default with
respect to such Mortgage Loan that is likely to remain uncured by the related
Mortgagor within 60 days thereafter.
"Servicing Fee": The annual fee, payable monthly to the Servicer out of the
interest portion of the Monthly Payment actually received on each Mortgage Loan.
The Servicing Fee with respect to each Mortgage Loan for any calendar month (or
a portion thereof) shall be 1/12 of the product of (i) the Scheduled Principal
Balance of the Mortgage Loan and (ii) the Servicing Fee Rate applicable to such
Mortgage Loan.
"Servicing Fee Rate": (i) with respect to any ARM Loan, 0.375% per annum;
provided that, prior to the first Rate Adjustment Date with respect to any such
Mortgage Loan, such rate may be, at the Servicer's option, not less than 0.25%
per annum; and (ii) with respect to any Mortgage Loan other than an ARM Loan,
0.25% per annum.
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a written list of servicing officers furnished by the Servicer
to the Purchaser upon request therefor by the Purchaser, as such list may from
time to time be amended.
"Specially Serviced Mortgage Loan": A Mortgage Loan as to which a Servicing
Event has occurred and is continuing.
"Unpaid Principal Balance": With respect to any Mortgage Loan, at any time,
the actual outstanding principal balance then payable by the Mortgagor under the
terms of the related Mortgage Note including any cumulative Negative
Amortization.
"Warranty Xxxx of Sale": A warranty xxxx of sale with respect to the
Mortgage Loans purchased on a Funding Date in the form annexed hereto as Exhibit
10.
ARTICLE II
SALE AND CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS
AND RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section 2.01 Sale and Conveyance of Mortgage Loans.
Seller agrees to sell and Purchaser agrees to purchase, from time to time,
those certain Mortgage Loans identified in a Mortgage Loan Schedule, at the
price and on the terms set forth herein and in the related Purchase Price and
Terms Letter. Purchaser, on any Funding Date, shall be obligated to purchase
only such Mortgage
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Loans set forth in the applicable Mortgage Loan Schedule, subject to the terms
and conditions of this Agreement and the related Purchase Price and Terms
Letter.
Purchaser will purchase Mortgage Loan(s) from Seller, up to four (4) times
per month on such Funding Dates as may be agreed upon by Purchaser and Seller.
The closing shall, at Purchaser's option 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. On the Funding Date and subject to the terms and
conditions of this Agreement, each Seller will sell, transfer, assign, set over
and convey to the Purchaser, without recourse except as set forth in this
Agreement, and the Purchaser will purchase, all of the right, title and interest
of the applicable Seller in and to the Mortgage Loans being conveyed by it
hereunder, as identified on the Mortgage Loan Schedule.
Examination of the Mortgage Files may be made by Purchaser or its designee
as follows. No later than 5 Business Days prior to the Funding Date, Seller will
deliver to Purchaser or its custodian, Legal Documents required pursuant to
Schedule B-1. Upon Purchaser's request, Seller shall make the Credit Documents
available to Purchaser for review, at Seller's place of business and during
reasonable business hours. If Purchaser makes such examination prior to the
Funding Date and identifies any Mortgage Loans that do not conform to the
Cendant Guide, such Mortgage Loans will be deleted from the Mortgage Loan
Schedule at Purchaser's discretion. Purchaser may, at its option and without
notice to Seller, purchase all or part of the Mortgage Loans without conducting
any partial or complete examination. The fact that Purchaser has conducted or
has failed to conduct any partial or complete examination of the Mortgage Loan
files shall not affect Purchaser's rights to demand repurchase, substitution or
other relief as provided herein.
On the Funding Date and in accordance with the terms herein, Purchaser will
pay to Seller, by wire transfer of immediately available funds, the Purchase
Price, together with interest, if any accrued but unpaid by the Borrower from
the Cut-off Date through the day immediately preceding the Funding Date,
according to the instructions to be provided, respectively, by Cendant Mortgage
and the Trust. Seller, simultaneously with the payment of the Purchase Price,
shall execute and deliver to Purchaser a Warranty Xxxx of Sale with respect to
the Mortgage Loans in the form annexed hereto as Exhibit 10.
Purchaser shall be entitled to all scheduled principal due after the
Cut-off Date, all other recoveries of principal collected after the Cut-off Date
and all payments of interest on the Mortgage Loans (minus that portion of any
such payment which is allocable to the period prior to the Cut-off Date). The
principal balance of each Mortgage Loan as of the Cut-off Date is determined
after application of payments of principal due on or before the Cut-off Date
whether or not collected. Therefore, payments of scheduled principal and
interest prepaid for a due date beyond the Cut-off Date shall not be applied to
the principal balance as of the Cut-off Date. Such prepaid amounts shall be the
property of Purchaser. Seller shall hold any such prepaid amounts for the
benefit of Purchaser for subsequent remittance by Seller to Purchaser. All
scheduled payments of principal due on or before the Cut-off Date and collected
by Seller after the Cut-off Date shall belong to Seller.
Section 2.02 Possession of Mortgage Files.
Upon the sale of any Mortgage Loan, the ownership of such Mortgage Loan,
including the Mortgage Note, the Mortgage, the contents of the related Mortgage
File and all rights, benefits, payments, proceeds and obligations arising
therefrom or in connection therewith, shall then be vested in the Purchaser, and
the ownership of all records and documents with respect to such Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and, to the extent retained by the Seller, shall be
retained and maintained, in trust, by the Seller at the will of the Purchaser in
a custodial capacity only. The contents of such Mortgage File not delivered to
the Purchaser are and shall be held in trust by the Seller for the benefit of
the Purchaser as the owner thereof and the Sellers' possession of the contents
of each Mortgage File so retained is at the will of the Purchaser for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Seller is in a custodial capacity only. Mortgage Files shall
be maintained separately from the other books and records of the Seller. Each
Seller shall release from its custody of the contents of any Mortgage File only
in accordance with written instructions from the Purchaser, except where such
release is required as incidental to the Servicer's servicing of the Mortgage
Loans or is in connection with a repurchase of any such Mortgage Loan pursuant
to Section 3.04.
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Any documents released to a Seller or the Servicer in connection with the
foreclosure or servicing of any Mortgage Loan shall be held by such Person in
trust for the benefit of the Purchaser in accordance with this Section 2.02.
Such Person shall return to the Purchaser such documents when such Person's need
therefor in connection with such foreclosure or servicing no longer exists
(unless sooner requested by the Purchaser); provided that, if such Mortgage Loan
is liquidated, then, upon the delivery by a Seller or the Servicer to the
Purchaser of a request for the release of such documents and a certificate
certifying as to such liquidation, the Purchaser shall promptly release and, to
the extent necessary, deliver to such Person such documents.
Section 2.03 Books and Records.
The sale of each of its Mortgage Loans shall be reflected on the applicable
Seller's balance sheet and other financial statements as a sale of assets by the
applicable Seller. Each Seller shall be responsible for maintaining, and shall
maintain, a complete set of books and records for the Mortgage Loans it conveyed
to the Purchaser which shall be clearly marked to reflect the sale of each
Mortgage Loan to the Purchaser and the ownership of each Mortgage Loan by the
Purchaser.
Section 2.04 Defective Documents; Delivery of Mortgage Loan Documents.
If, subsequent to the related Funding Date, the Purchaser or either Seller
finds any document or documents constituting a part of a Mortgage File to be
defective or missing in any material respect (in this Section 2.04, a "Defect"),
the party discovering such Defect shall promptly so notify the other parties. If
the Defect pertains to the Mortgage Note or the Mortgage, then the applicable
Seller shall have a period of 45 days within which to correct or cure any such
defect after the earlier of such Seller's discovery of same or such Seller being
notified of same. If such Defect can ultimately be cured but is not reasonably
expected to be cured within such 45 day period, such Seller shall have such
additional time as is reasonably determined by the Purchaser to cure or correct
such Defect provided that such Seller has commenced curing or correcting such
Defect and is diligently pursuing same. If the Defect pertains to any other
document constituting a part of a Mortgage File, then such Seller shall have a
period of 90 days within which to correct or cure any such Defect after the
earlier of such Seller's discovery of same or such Seller being notified of
same. If such Defect can ultimately be cured but is not reasonably expected to
be cured within the 90 day period, then such Seller shall have such additional
time as is reasonably determined by the Purchaser to cure or correct such Defect
provided such Seller has commenced curing or correcting such Defect and is
diligently pursuing same. Cendant Mortgage hereby covenants and agrees that, if
any material Defect cannot be corrected or cured, the related Mortgage Loan
shall automatically constitute, upon the expiration of the applicable cure
period described above and without any further action by any other party, a
Defective Mortgage Loan, whereupon Cendant Mortgage shall repurchase such
Mortgage Loan by paying to the Purchaser the Repurchase Price therefor in
accordance with Section 3.04(3).
The applicable Seller will, with respect to each Mortgage Loan to be
purchased by the Purchaser, deliver and release to the Purchaser the Legal
Documents as set forth in Section 2.01. If the applicable Seller cannot deliver
an original Mortgage with evidence of recording thereon, original assumption,
modification and substitution agreements with evidence of recording thereon or
an original intervening assignment with evidence of recording thereon within the
applicable time periods, then such Seller shall promptly deliver to the
Purchaser such original Mortgages and original intervening assignments with
evidence of recording indicated thereon upon receipt thereof from the public
recording official, except in cases where the original Mortgage or original
intervening assignments are retained permanently by the recording office, in
which case, such Seller shall deliver a copy of such Mortgage or intervening
assignment, as the case may be, certified to be a true and complete copy of the
recorded original thereof.
If the original Mortgage was not delivered pursuant to the preceding
paragraph, then the applicable Seller shall use its best efforts to promptly
secure the delivery of such originals and shall cause such originals to be
delivered to the Purchaser promptly upon receipt thereof. Notwithstanding the
foregoing, if the original Mortgage, original assumption, modification, and
substitution agreements, the original of any intervening assignment or the
original policy of title insurance is not so delivered to the Purchaser within
180 days following the Funding Date, then, upon written notice by the Purchaser
to Cendant Mortgage, the Purchaser may, in its sole discretion, then elect (by
providing written notice to Cendant Mortgage) to treat such Mortgage Loan as a
Defective Mortgage Loan, whereupon Cendant Mortgage shall repurchase such
Mortgage Loan by paying to the Purchaser the Repurchase Price therefor in
accordance with Section 3.04(3). It is understood that from time to
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time certain local recorder offices become backlogged with document volume. It
is agreed that the Seller will provide an Officer's Certificate to document that
the Seller has performed all necessary tasks to insure delivery of the required
documentation within 180 days and the delay beyond 180 is caused by the backlog.
If the delay exceeds 360 days, regardless of the backlog the Purchaser may elect
to collect the documents with its own resources with the reasonable cost and
expense to be borne by the Seller. The fact that the Purchaser has conducted or
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect its right to demand repurchase or any other remedies provided
in this Agreement.
At the Purchaser's request, the Assignments shall be promptly recorded in
the name of the Purchaser or in the name of a Person designated by the Purchaser
in all appropriate public offices for real property records. If any such
Assignment is lost or returned unrecorded because of a defect therein, then the
applicable Seller shall promptly prepare a substitute Assignment to cure such
defect and thereafter cause each such Assignment to be duly recorded. All
recording fees related to such a one-time recordation of the Assignments to or
by a Seller shall be paid by the applicable Seller.
Section 2.05 Transfer of Mortgage Loans.
Subject to the provisions of this Section 2.05, the Purchaser shall have
the right, without the consent of the Sellers, at any time and from time to
time, to assign any of the Mortgage Loans and all or any part of its interest
under this Agreement and designate any person to exercise any rights of the
Purchaser hereunder, and the assignees or designees shall accede to the rights
and obligations hereunder of the Purchaser with respect to such Mortgage Loans.
The Sellers recognize that the Mortgage Loans may be divided into "packages" for
resale ("Mortgage Loan Packages").
All of the provisions of this Agreement shall inure to the benefit of the
Purchaser and any such assignees or designees. All references to the Purchaser
shall be deemed to include its assignees or designees. Utilizing resources
reasonably available to the Seller without incurring any cost except the
Seller's overhead and employees' salaries, the applicable Seller shall cooperate
in any such assignment of the Mortgage Loans and this Agreement; provided that
the Purchaser shall bear all costs associated with any such assignment of the
Mortgage Loans and this Agreement other than such Seller's overhead or
employees' salaries.
The Servicer and the Purchaser acknowledge that the Servicer shall continue
to remit payments to the Purchaser on the Remittance Date after the transfer of
the Mortgage Loans, unless the Servicer was notified in writing of the new
record owner of the Mortgage Loans prior to the immediately preceding Record
Date, in which case, the Servicer shall remit to the new record owner (or
trustee or master servicer, as the case may be) of the Mortgage Loans.
Any prospective assignees of the Purchaser who have entered into a
commitment to purchase any of the Mortgage Loans may review and underwrite the
Servicer's servicing and origination operations, upon reasonable prior notice to
the Servicer, and the Servicer shall cooperate with such review and underwriting
to the extent such prospective assignees request information or documents that
are reasonably available and can be produced without unreasonable expense or
effort. The Servicer shall make the Mortgage Files related to the Mortgage Loans
held by the Servicer available at the Servicer's principal operations center for
review by any such prospective assignees during normal business hours upon
reasonable prior notice to the Servicer (in no event less than 5 Business Days
prior notice). The Servicer may, in its sole discretion, require that such
prospective assignees sign a confidentiality agreement with respect to such
information disclosed to the prospective assignee which is not available to the
public at large and a release agreement with respect to its activities on the
Servicer's premises.
The Servicer shall keep at its servicing office books and records in which,
subject to such reasonable regulations as it may prescribe, the Servicer shall
note transfers of Mortgage Loans. The Purchaser may, subject to the terms of
this Agreement, sell and transfer, in whole or in part, any or all of the
Mortgage Loans; provided that no such sale and transfer shall be binding upon
the Servicer unless such transferee shall agree in writing to an Assignment,
Assumption and Recognition Agreement, in substantially the form of Exhibit 2.05
attached hereto, and an executed copy of such Assignment, Assumption and
Recognition Agreement shall have been delivered to the Servicer. The Servicer
shall evidence its acknowledgment of any transfers of the Mortgage Loans to any
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assignees of the Purchaser by executing such Assignment, Assumption and
Recognition Agreement. The Servicer shall xxxx its books and records to reflect
the ownership of the Mortgage Loans by any such assignees, and the previous
Purchaser shall be released from its obligations hereunder accruing after the
date of transfer to the extent such obligations relate to Mortgage Loans sold by
the Purchaser. This Agreement shall be binding upon and inure to the benefit of
the Purchaser and the Servicer and their permitted successors, assignees and
designees.
ARTICLE III:
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER; REPURCHASE; REVIEW
OF MORTGAGE LOANS
Section 3.01 Representations and Warranties of each Seller.
Each Seller, as to itself, represents, warrants and covenants to the
Purchaser that as of each Funding Date or as of such date specifically provided
herein:
(1) Due Organization. The Seller is an entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization,
and has all licenses necessary to carry on its business now being conducted
and is licensed, qualified and in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise exempt under
applicable law from such qualification or is otherwise not required under
applicable law to effect such qualification; no demand for such
qualification has been made upon the Seller by any state having
jurisdiction and in any event the Seller is or will be in compliance with
the laws of any such state to the extent necessary to enforce each Mortgage
Loan and with respect to Cendant Mortgage, service each Mortgage Loan in
accordance with the terms of this Agreement.
(2) Due Authority. The Seller had the fill power and authority and legal right
to originate the Mortgage Loans that it originated, if any, and to acquire
the Mortgage Loans that it acquired. The Seller has the full power and
authority to hold each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. The Seller has duly authorized
the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a
legal, valid and binding obligation of the Seller, enforceable against it
in accordance with its terms, subject to applicable bankruptcy,
reorganization, receivership, conservatorship, insolvency, moratorium and
other laws relating to or affecting creditors' rights generally or the
rights of creditors of banks and to the general principles of equity
(whether such enforceability is considered in a proceeding in equity or at
law).
(3) No Conflict. The execution and delivery of this Agreement, the acquisition
or origination, as applicable, of the Mortgage Loans by the Seller, the
sale of the Mortgage Loans, the consummation of the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement, will not conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's
organizational documents and bylaws or any legal restriction or any
agreement or instrument to which the Seller is now a party or by which it
is bound, or constitute a default or result in an acceleration under any of
the foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Seller or its property is subject,
or impair the ability of the Purchaser to realize on the Mortgage Loans;
(4) Ability to Perform. The Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(5) No Material Default. Neither the Seller nor any of its Affiliates is in
material default under any agreement, contract, instrument or indenture of
any nature whatsoever to which the Seller or any of its Affiliates is a
party or by which it (or any of its assets) is bound, which default would
have a material adverse effect on the ability of the Seller to perform
under this Agreement, nor, to the best of the Seller's knowledge, has any
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event occurred which, with notice, lapse of time or both, would constitute
a default under any such agreement, contract, instrument or indenture and
have a material adverse effect on the ability of the Seller to perform its
obligations under this Agreement;
(6) Financial Statements. Cendant Mortgage has delivered to the Purchaser
financial statements as to its fiscal year ended December 31, 1999. Except
as has previously been disclosed to the Purchaser in writing: (a) such
financial statements fairly present the results of operations and changes
in financial position for such period and the financial position at the end
of such period of Cendant Mortgage and its subsidiaries; and (b) such
financial statements are true, correct and complete as of their respective
dates and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto. The Trust has delivered to the
Purchaser financial statements dated as of December 31, 1999 and a copy of
its Offering Circular dated May 21, 1998 (the "Trust Financials") and such
Trust Financials fairly present the results of operations and changes in
financial position for such period and the financial position at the end of
such period of the Trust. Except as has previously been disclosed to the
Purchaser in writing, there has been no change in such Trust Financials
since their date and the Trust is not aware of any errors or omissions
therein;
(7) No Change in Business. There has been no change in the business,
operations, financial condition, properties or assets of the applicable
Seller since (i) in the case of Cendant Mortgage, the date of its financial
statements and (ii) in the case of the Trust, the date of delivery of the
Trust Financials, that would have a material adverse effect on the ability
of the applicable Seller to perform its obligations under this Agreement;
(8) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Seller's knowledge,
threatened, against the Seller, which, either in any one instance or in the
aggregate, if determined adversely to the Seller would adversely affect the
sale of the Mortgage Loans to the Purchaser or the execution, delivery or
enforceability of this Agreement or result in any material liability of the
Seller, or draw into question the validity of this Agreement, or have a
material adverse effect on the financial condition of the Seller;
(9) No Consent Required. No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with
this Agreement, the delivery of the Mortgage Files to the Purchaser, the
sale of the Mortgage Loans to the Purchaser or the consummation of the
transactions contemplated by this Agreement or, if required, such approval
has been obtained prior to the Funding Date;
(10) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement is 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;
(11) No Broker. The Seller has not dealt with any broker or agent or anyone else
who might be entitled to a fee or commission in connection with this
transaction; and
(12) No Untrue Information. Neither this Agreement nor any statement, report or
other agreement, document or instrument famished or to be famished pursuant
to this Agreement contains or will contain any materially untrue statement
of fact or omits or will omit to state a fact necessary to make the
statements contained therein not misleading.
Section 3.02 Representations and Warranties of the Servicer.
The Servicer represents, warrants and covenants to the Purchaser that as of
the Funding Date or as of such date specifically provided herein:
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(1) Ability to Service. The Servicer is an approved seller/servicer for FNMA
and FHLMC in good standing and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Section 203 of the National
Housing Act, with facilities, procedures and experienced personnel
necessary for the servicing of mortgage loans of the same type as the
Mortgage Loans. No event has occurred that would make the Servicer unable
to comply with FNMA or FHLMC eligibility requirements or that would require
notification to either FNMA or FHLMC;
(2) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Servicer's knowledge,
threatened, against the Servicer which, either in any one instance or in
the aggregate, if determined adversely to the Servicer would adversely
affect the ability of the Servicer to service the Mortgage Loans hereunder
in accordance with the terms hereof or have a material adverse effect on
the financial condition of the Servicer; and
(3) Collection Practices. The collection practices used by the Servicer and any
prior servicer with respect to each Mortgage Note and Mortgage have been in
all respects legal, proper and prudent in the mortgage servicing business.
Section 3.03 Representations and Warranties as to Individual Mortgage
Loans.
With respect to each Mortgage Loan, the applicable Seller hereby makes the
following representations and warranties to the Purchaser on which the Purchaser
specifically relies in purchasing such Mortgage Loan. Such representations and
warranties speak as of the Funding Date unless otherwise indicated, but shall
survive any subsequent transfer, assignment or conveyance of such Mortgage
Loans:
(1) Mortgage Loan as Described. Such Mortgage Loan complies with the terms and
conditions set forth herein, and all of the information set forth with
respect thereto on the Mortgage Loan Schedule is true and correct in all
material respects;
(2) Complete Mortgage Files. The instruments and documents specified in Section
2.02 with respect to such Mortgage Loan have been delivered to the
Purchaser in compliance with the requirements of Article II. The Seller is
in possession of a Mortgage File respecting such Mortgage Loan, except for
such documents as have been previously delivered to the Purchaser;
(3) Owner of Record. The Mortgage relating to such Mortgage Loan has been duly
recorded in the appropriate recording office, and the applicable Seller or
Servicer is the owner of record of such Mortgage Loan and the indebtedness
evidenced by the related Mortgage Note;
(4) Payments Current. All payments required to be made up to and including the
Funding Date for such Mortgage Loan under the terms of the Mortgage Note
have been made, such that such Mortgage Loan is not delinquent 30 days or
more on the Funding Date. Unless otherwise disclosed in the Offering
Materials or the Mortgage Loan Schedule, there has been no delinquency,
exclusive of any period of grace, in any payment by the Mortgagor
thereunder during the twelve months preceding the Funding Date;
(5) No Outstanding Charges. There are no delinquent taxes, insurance premiums,
assessments, including assessments payable in future installments, or other
outstanding charges affecting the Mortgaged Property related to such
Mortgage Loan;
(6) Original Terms Unmodified. The terms of the Mortgage Note and the Mortgage
related to such Mortgage Loan have not been impaired, waived, altered or
modified in any material respect, except as specifically set forth in the
related Mortgage Loan Schedule;
(7) No Defenses. The Mortgage Note and the Mortgage related to such Mortgage
Loan are not subject to any right of rescission, set-off or defense,
including the defense of usury, nor will the operation of any of the terms
of such Mortgage Note and such Mortgage, or the exercise of any right
thereunder, render such Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off or defense,
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including the defense of usury and no such right of rescission, set-off or
defense has been asserted with respect thereto;
(8) Hazard Insurance. (a) All buildings upon the Mortgaged Property related to
such Mortgage Loan are insured by an insurer acceptable to FNMA or FHLMC
against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area where such Mortgaged Property is located,
pursuant to insurance policies conforming to the requirements of either
Section 5.10 or Section 5.11. All such insurance policies (collectively,
the "hazard insurance policy") contain a standard mortgagee clause naming
the originator of such Mortgage Loan, its successors and assigns, as
mortgagee. Such policies are the valid and binding obligations of the
insurer, and all premiums thereon due to date have been paid. The related
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at such Mortgagor's cost and expense, and on such Mortgagor's failure to do
so, authorizes the holder of such Mortgage to maintain such insurance at
such Mortgagor's cost and expense and to seek reimbursement therefor from
such Mortgagor; or (b) in the case of a condominium or unit in a planned
unit development ("PUD") project that is not covered by an individual
policy, the condominium or PUD project is covered by a "master" or
"blanket" policy and there exists and is in the Servicer's Mortgage File a
certificate of insurance showing that the individual unit that secures the
first mortgage is covered under such policy. The insurance policy contains
a standard mortgagee clause naming the originator of such Mortgage Loan
(and its successors and assigns), as insured mortgagee. Such policies are
the valid and binding obligations of the insurer, and all premiums thereon
have been paid. The insurance policy provides for advance notice to the
Seller or Servicer if the policy is canceled or not renewed, or if any
other change that adversely affects the Seller's interests is made; the
certificate includes the types and amounts of coverage provided, describes
any endorsements that are part of the "master" policy and would be
acceptable pursuant to the FNMA Guide;
(9) Compliance With Applicable Laws. All requirements of any federal, state or
local law (including usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or
disclosure laws) applicable to the origination and servicing of such
Mortgage Loan have been complied with in all material respects;
(10) No Satisfaction of Mortgage. The Mortgage related to such Mortgage Loan has
not been satisfied, canceled or subordinated, in whole or in part, or
rescinded, and the related Mortgaged Property has not been released from
the lien of such Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such release, cancellation, subordination or
rescission;
(11) Valid First Lien. The Mortgage including any Negative Amortization, related
to such Mortgage Loan is a valid, subsisting and enforceable perfected
first lien on the related Mortgaged Property, including all improvements on
the related Mortgaged Property, which Mortgaged Property is free and clear
of any encumbrances and liens having priority over the first lien of the
Mortgage subject only to (a) the lien of current real estate taxes and
special assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording of such Mortgage which are acceptable to
mortgage lending institutions generally, are referred to in the lender's
title insurance policy and do not adversely affect the market value or
intended use of the related Mortgaged Property, and (c) other matters to
which like properties are commonly subject which do not individually or in
the aggregate materially interfere with the benefits of the security
intended to be provided by such Mortgage or the use, enjoyment, or market
value of the related Mortgaged Property;
(12) Validity of Documents. The Mortgage Note and the Mortgage related to such
Mortgage Loan are genuine and each is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and general equitable principles (regardless
whether such enforcement is considered in a proceeding in equity or at
law);
(13) Valid Execution of Documents. All parties to the Mortgage Note and the
Mortgage related to such Mortgage Loan had legal capacity to enter into
such Mortgage Loan and to execute and deliver the
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related Mortgage Note and the related Mortgage and the related Mortgage
Note and the related Mortgage have been duly and properly executed by such
parties;
(14) Full Disbursement of Proceeds. Such Mortgage Loan has closed and the
proceeds of such Mortgage Loan have been fully disbursed prior to the
Funding Date; provided that, with respect to any Mortgage Loan originated
within the previous 120 days, alterations and repairs with respect to the
related Mortgaged Property or any part thereof may have required an escrow
of funds in an amount sufficient to pay for all outstanding work within 120
days of the origination of such Mortgage Loan, and, if so, such funds are
held in escrow by the Seller, a title company or other escrow agent;
(15) Ownership. The Mortgage Note and the Mortgage related to such Mortgage Loan
have not been assigned, pledged or otherwise transferred by the applicable
Seller, in whole or in part, and the Seller has good and marketable title
thereto, and the Seller is the sole owner thereof and has full right and
authority to transfer and sell such Mortgage Loan, and is transferring such
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien, pledge, charge, claim or security interest;
(16) Doing Business. All parties that have had any interest in such Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the period in which they held and disposed of such interest, were) in
compliance with any and all applicable licensing requirements of the laws
of the state wherein the related Mortgaged Property is located;
(17) Title Insurance. (a) Such Mortgage Loan is covered by an ALTA lender's
title insurance policy or short form title policy acceptable to FNMA and
FHLMC (or, in jurisdictions where ALTA policies are not generally approved
for use, a lender's title insurance policy acceptable to FNMA and FHLMC),
issued by a title insurer acceptable to FNMA and FHLMC and qualified to do
business in the jurisdiction where the related Mortgaged Property is
located, insuring (subject to the exceptions contained in clauses (11)(a)
and (b) above) the Seller or Servicer, its successors and assigns as to the
first priority lien of the related Mortgage in the original principal
amount of such Mortgage Loan including any Negative Amortization and in the
case of ARM Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of such Mortgage
providing for adjustment to the applicable Note Rate and Monthly Payment.
Additionally, either such lender's title insurance policy affirmatively
insures that there is ingress and egress to and from the Mortgaged Property
or the Seller warrants that there is ingress and egress to and from the
Mortgaged Property and the lender's title insurance policy affirmatively
insures against encroachments by or upon the related Mortgaged Property or
any interest therein or any other adverse circumstance that either is
disclosed or would have been disclosed by an accurate survey. The Seller or
Servicer is the sole insured of such lender's title insurance policy, and
such lender's title insurance policy is in full force and effect and will
be in full force and effect upon the consummation of the transactions
contemplated by this Agreement and will inure to the benefit of the
Purchaser without any further act. No claims have been made under such
lender's title insurance policy, no prior holder of the related Mortgage
(including the Seller) has done, by act or omission, anything that would
impair the coverage of such lender's insurance policy, and there is no act,
omission, condition, or information that would impair the coverage of such
lender's insurance policy; (b) The mortgage title insurance policy covering
each unit mortgage in a condominium or PUD project related to such Mortgage
Loan meets all requirements of FNMA and FHLMC;
(18) No Defaults. (a) There is no default, breach, violation or event of
acceleration existing under the Mortgage, the Mortgage Note, or any other
agreements, documents, or instruments related to such Mortgage Loan; (b) to
the best of the Seller's knowledge, there is no event that, with the lapse
of time, the giving of notice, or both, would constitute such a default,
breach, violation or event of acceleration; (c) the Mortgagor(s) with
respect to such Mortgage Loan is (1) not in default under any other
Mortgage Loan or (2) the subject of an Insolvency Proceeding; (d) no event
of acceleration has previously occurred, and no notice of default has been
sent, with respect to such Mortgage Loan; and (e) in no event has the
Seller waived any of its rights or remedies in respect of any default,
breach, violation or event of acceleration under the Mortgage, the Mortgage
Note, or any other agreements, documents, or instruments related to such
Mortgage Loan;
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(19) No Mechanics' Liens. As of the date of origination of such Mortgage Loan,
there were no mechanics' or similar liens, except such liens as are
expressly insured against by a title insurance policy, or claims that have
been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the related Mortgaged
Property that are or may be liens prior to, or equal or coordinate with,
the lien of the related Mortgage;
(20) Location of Improvements: No Encroachments. As of the date of origination
of such Mortgage Loan, all improvements that were considered in determining
the Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of such Mortgaged Property, and
no improvements on adjoining properties encroach upon such Mortgaged
Property except as permitted under the terms of the FNMA Guide and the
FHLMC Selling Guide; no improvement located on or part of any Mortgaged
Property is in violation of any applicable zoning law or regulation, and
all inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of such Mortgaged Property, and with
respect to the use and occupancy of the same, including certificates of
occupancy, have been made or obtained from the appropriate authorities;
(21) Origination; Payment Terms. Principal payments on such Mortgage Loan
commenced or will commence no more than 60 days after funds were disbursed
in connection with such Mortgage Loan. If the interest rate on the related
Mortgage Note is adjustable, the adjustment is based on the Index set forth
on the related Mortgage Loan Schedule. The related Mortgage Note is payable
on the first day of each month in arrears, in accordance with the payment
terms described on the related Mortgage Loan Schedule. With respect to any
Mortgage Loan subject to Negative Amortization the Monthly Payments are
sufficient during the period following each Payment Adjustment Date to
fully amortize the outstanding principal balance as of the last day of such
period (including any Negative Amortization) over the original term thereof
in accordance with the terms and conditions set forth in the Mortgage Note;
(22) Due On Sale. Except as noted otherwise on the Mortgage Loan Schedule, the
related Mortgage contains the usual and customary "due-on-sale" clause or
other similar provision for the acceleration of the payment of the Unpaid
Principal Balance of such Mortgage Loan if the related Mortgaged Property
or any interest therein is sold or transferred without the prior consent of
the mortgagee thereunder;
(23) Prepayment Penalty. Except as noted otherwise on the Mortgage Loan
Schedule, such Mortgage Loan is not subject to any Prepayment Penalty;
(24) Mortgaged Property Undamaged No Condemnation. As of the Funding Date, the
related Mortgaged Property is free of material damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(25) Customary Provisions. The related Mortgage contains customary and
enforceable provisions that render the rights and remedies of the holder
thereof adequate for the realization against the related Mortgaged Property
of the benefits of the security provided thereby, including, (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(b) in the case of a Mortgage, otherwise by judicial foreclosure;
(26) Conformance With Underwriting Standards. Such Mortgage Loan was
underwritten in accordance with the Cendant Guide;
(27) Appraisal. The Mortgage File contains an appraisal of the related Mortgaged
Property on forms and with riders approved by FNMA and FHLMC, signed prior
to the approval of such Mortgage Loan application by an appraiser, duly
appointed by the originator of such Mortgage Loan, whose compensation is
not affected by the approval or disapproval of such Mortgage Loan and who
met the minimum qualifications of FNMA and FHLMC for appraisers. Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989;
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(28) Deeds of Trust. If the related Mortgage constitutes a deed of trust, then a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage,
and no fees or expenses are or will become payable by the Purchaser to the
trustee under such deed of trust, except in connection with a trustee's
sale after default by the related Mortgagor;
(29) LTV; Primary Mortgage Insurance Policy. If such Mortgage Loan had a
Loan-to-Value Ratio of more than 80% at origination, such Mortgage Loan is
and will be subject to a Primary Insurance Policy issued by a Qualified
Mortgage Insurer, which insures the Seller or Servicer, its successors and
assigns and insureds in the amount set forth on the Mortgage Loan Schedule.
All provisions of such Primary Insurance Policy have been and are being
complied with, such policy is in full force and effect, and all premiums
due thereunder have been paid. Any related Mortgage subject to any such
Primary Insurance Policy obligates the Mortgagor thereunder to maintain
such insurance for the time period required by law and to pay all premiums
and charges in connection therewith. As of the date of origination, the
Loan-to-Value Ratio of such Mortgage Loan is as specified in the applicable
Mortgage Loan Schedule;
(30) Occupancy. As of the date of origination of such Mortgage Loan, and the
Funding Date, the related Mortgaged Property is lawfully occupied under
applicable law and 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, have been made or obtained
from the appropriate authorities;
(31) Supervision and Examination by a Federal or State Authority. Each Mortgage
Loan either was (a) closed in the name of the Cendant Mortgage, or (b)
closed in the name of another entity that is either a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company or an institution which is supervised and examined by a federal or
state authority, or a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing
Act (a "HUD Approved Mortgagee"), and was so at the time such Mortgage Loan
was originated (Cendant Mortgage or such other entity, the "Originator") or
(c) closed in the name of a loan broker under the circumstances described
in the following sentence. If such Mortgage Loan was originated through a
loan broker, such Mortgage Loan met the Originator's underwriting criteria
at the time of origination and was originated in accordance with the
Originator's policies and procedures and the Originator acquired such
Mortgage Loan from the loan broker contemporaneously with the origination
thereof. The Mortgage Loans that the Trust is selling to Purchaser were
originated by or on behalf of Cendant Mortgage and subsequently assigned to
the Trust.
(32) Adjustments. All of the terms of the related Mortgage Note pertaining to
interest rate adjustments, payment adjustments and adjustments of the
outstanding principal balance, if any, are enforceable and such adjustments
will not affect the priority of the lien of the related Mortgage; all such
adjustments on such Mortgage Loan have been made properly and in accordance
with the provisions of such Mortgage Loan;
(33) Insolvency Proceedings: Soldiers' and Sailors' Relief Act. The related
Mortgagor (1) is not the subject of any Insolvency Proceeding; and (2) has
not requested any relief allowed to such Mortgagor under the Soldiers' and
Sailors' Civil Relief Act of 1940;
(34) FNMA/FHLMC Documents. Such Mortgage Loan was closed on standard FNMA or
FHLMC documents or on such documents otherwise acceptable to them;
(35) Unless otherwise disclosed in the Offering Materials or the Mortgage Loan
Schedule, no Mortgage Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or anyone on
behalf of the Mortgagor, (b) paid by any source other than the Mortgagor or
(c) contains 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;
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(36) The Assignment of Mortgage is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged
Property is located;
(37) Any principal advances made to the Mortgagor prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The consolidated principal amount
does not exceed the original principal amount of the Mortgage Loan plus any
Negative Amortization;
(38) Unless otherwise disclosed in the Offering Materials or the Mortgage Loan
Schedule, no Mortgage Loan has a balloon payment feature. With respect to
any Mortgage Loan with a balloon payment feature, the Mortgage Note is
payable in Monthly Payments based on a thirty year amortization schedule
and has a final Monthly Payment substantially greater than the proceeding
Monthly Payment which is sufficient to amortize the remaining principal
balance of the Mortgage Loan;
(39) If the residential dwelling on the Mortgaged Property is a condominium unit
or a unit in a planned unit development (other than a de minimis planned
unit development) such condominium or planned unit development project
meets the eligibility requirements of the Cendant Guide;
(40) No Mortgage Loan is subject to the provisions of the Homeownership and
Equity Protection Act of 1994;
(41) Unless otherwise disclosed in the Offering Materials or the Mortgage Loan
Schedule, no Mortgage Loan was made in connection with (a) the construction
or rehabilitation of a Mortgaged Property or (b) facilitating the trade-in
or exchange of a Mortgaged Property;
(42) The Seller has no knowledge of any circumstances or condition with respect
to the Mortgage, the Mortgage Property, the Mortgagor or the Mortgagor's
credit standing that can reasonably be expected to cause the Mortgage Loan
to be an unacceptable investment, cause the Mortgage Loan to become
delinquent, or adversely affect the value of the Mortgage Loan;
(43) Interest on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months;
(44) To the best of Seller's knowledge, the Mortgaged Property is in material
compliance with all applicable environmental laws pertaining to
environmental hazards including, without limitation, asbestos, and neither
the Seller nor, to the Seller's knowledge, the related Mortgagor, has
received any notice of any violation or potential violation of such law;
and
(45) Unless otherwise disclosed in the Offering Materials or the Mortgage Loan
Schedule, no Mortgage Loan is subject to negative amortization.
Section 3.04 Repurchase.
(1) It is understood and agreed that the representations and warranties set
forth in Sections 3.01, 3.02 and 3.03 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 or the examination of any Mortgage File.
(2) Upon discovery by either of the Sellers or the Purchaser of a breach of any
of the representations and warranties contained in Sections 3.01, 3.02 or
3.03 that materially and adversely affects the interest of the Purchaser
(or that materially and adversely affects the interests of the Purchaser in
the related Mortgage Loan, in the case of a representation or warranty
relating to a particular Mortgage Loan), the party discovering such breach
shall give prompt written notice to the other.
(3) Unless permitted a greater period of time to cure as set forth in Section
2.04, the applicable Seller shall have a period of 60 days from the earlier
of either discovery by or receipt of written notice from the
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Purchaser to the Seller of any breach of any of the representations and
warranties contained in Sections 3.01, 3.02 or 3.03 that materially and
adversely affects the interest of the Purchaser (or that materially and
adversely affects the interests of the Purchaser in the related Mortgage
Loan, in the case of a representation or warranty relating to a particular
Mortgage Loan) (a "Defective Mortgage Loan"; provided that "Defective
Mortgage Loan" shall also include any Mortgage Loan treated or designated
as such in accordance with Section 2.04 and any Mortgage Loan regarding
which the Mortgagor fails to make the first regularly scheduled payment of
principal and interest within which to correct or cure such breach. If such
breach can ultimately be cured but is not reasonably expected to be cured
within the 60-day period, then the applicable Seller shall have such
additional time, if any, as is reasonably determined by the Purchaser to
cure such breach provided that the Seller has commenced curing or
correcting such breach and is diligently pursuing same. Each Seller hereby
covenants and agrees with respect to each Mortgage Loan conveyed by it
that, if any breach relating thereto cannot be corrected or cured within
the applicable cure period or such additional time, if any, as is
reasonably determined by the Purchaser, then such Seller shall, at the
direction of the Purchaser, repurchase the Defective Mortgage Loan at the
applicable Repurchase Price.
(4) Any repurchase of a Defective Mortgage Loan required hereunder shall be
accomplished by payment of the applicable Repurchase Price within 3
Business Days of expiration of the applicable time period referred to above
in paragraph 3.04(3) by wire transfer of immediately available funds
directly to the Purchaser's Account. It is understood and agreed that the
obligations of a Seller (a) set forth in this Section 3.04(4) to cure any
breach of such Seller's representations and warranties contained in
Sections 3.01, 3.02 and 3.03 or to repurchase the Defective Mortgage
Loan(s) and (b) set forth in Section 9.01 to indemnify the Purchaser in
connection with any breach of a Seller's representations and warranties
contained in Sections 3.01, 3.02 and 3.03 shall constitute the sole
remedies of the Purchaser respecting a breach of such representations and
warranties.
(5) The parties further agree that, in recognition of the Trust's rights
against Cendant Mortgage with respect to the Mortgage Loans acquired by it
from Cendant Mortgage and conveyed to the Purchaser hereunder, the
Purchaser shall have the right to cause Cendant Mortgage to repurchase
directly any Defective Mortgage Loan (other than as a result of a breach by
the Trust of Section 3.03 (3) or 3.03(15) hereof, in which case the
Purchaser shall have the right to cause the Trust to repurchase directly
the Defective Mortgage Loan) acquired hereunder by the Purchaser from the
Trust.
Section 3.05 Certain Covenants of each Seller and the Servicer.
Without incurring undue effort or any cost except the Seller's overhead or
employees' salaries, each Seller shall take reasonable steps to assist the
Purchaser, if the Purchaser so requests, in re-selling the Mortgage Loans in a
whole loan sale or in securitizing the Mortgage Loans and selling undivided
interests in such Mortgage Loans in a public offering or private placement or
selling participating interests in such Mortgage Loans, which steps may include,
(a) providing any information relating to the Mortgage Loans reasonably
necessary to assist in the preparation of any disclosure documents, (b)
providing information relating to delinquencies and defaults with respect to the
Servicer's servicing portfolio (or such portion thereof as is similar to the
Mortgage Loans), (c) entering into any other servicing, custodial or other
similar agreements, that are consistent with the provisions of this Agreement,
and which contain such provisions as are customary in securitizations rated
"AAA" (including a securitization involving a REMIC) (a "Securitization"), (d)
providing as of the date of such securitization representations and warranties
as to the Seller and the Mortgage Loans, which are consistent with the
representations and warranties contained in this Agreement, but modified, if
necessary, to reflect changes since the Funding Date, and (e) provide such
opinions of counsel as are customary in such transactions, provided, however,
that any opinion of outside counsel shall be provided at Purchaser's expense and
(f) to indemnify Purchaser and its Affiliates for material misstatements or
omissions contained in the information provided by Seller. In connection with
such a Securitization, the Purchaser may be required to engage a master servicer
or trustee to determine the allocation of payments to and make remittances to
the certificateholders, at the Purchaser's sole cost and expense. In the event
that a master servicer or trustee is requested by the Purchaser to determine the
allocation of payments and to make remittances to the certificateholders, the
Servicer agrees to service the Mortgage Loans in accordance with the reasonable
and customary requirements of such Securitization, which may include the
Servicer's acting as a subservicer in a master servicing arrangement. With
respect to the then owners of the Mortgage Loans, the Servicer shall thereafter
deal solely with such master servicer or trustee, as the case may be with
respect to such Mortgage
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Loans which are subject to the Securitization and shall not be required to deal
with any other party with respect to such Mortgage Loans. The cost of such
securitization shall be borne by the Purchaser, other than the Seller's overhead
or employees' salaries.
ARTICLE IV:
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
AND CONDITIONS PRECEDENT TO FUNDING
Section 4.01 Representations and Warranties.
The Purchaser represents, warrants and covenants to the Seller that as of
each Funding Date or as of such date specifically provided herein:
(1) Due Organization. The Purchaser is an entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all licenses necessary to carry on its business now
being conducted and is licensed, qualified and in good standing under the
laws of each state where a Mortgaged Property is located or is otherwise
exempt under applicable law from such qualification or is otherwise not
required under applicable law to effect such qualification; no demand for
such qualification has been made upon the Purchaser by any state having
jurisdiction and in any event the Purchaser is or will be in compliance
with the laws of any such state to the extent necessary to enforce each
Mortgage Loan;
(2) Due Authority. The Purchaser had the full power and authority and legal
right to acquire the Mortgage Loans that it acquired. The Purchaser has the
full power and authority to hold each Mortgage Loan, to sell each Mortgage
Loan and to execute, deliver and perform, and to enter into and consummate,
all transactions contemplated by this Agreement. The Purchaser has duly
authorized the execution, delivery and performance of this Agreement, has
duly executed and delivered this Agreement, and this Agreement, assuming
due authorization, execution and delivery by the Seller, constitutes a
legal, valid and binding obligation of the Purchaser, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, receivership, conservatorship, insolvency, moratorium and
other laws relating to or affecting creditors' rights generally or the
rights of creditors of banks and to the general principles of equity
(whether such enforceability is considered in a proceeding in equity or at
law);
(3) No Conflict. None of the execution and delivery of this Agreement, the
acquisition or origination, as applicable, of the Mortgage Loans by the
Purchaser, the purchase of the Mortgage Loans, the consummation of the
transactions contemplated hereby, or the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in
a breach of any of the terms, conditions or provisions of the Purchaser's
organizational documents and bylaws or any legal restriction or any
agreement or instrument to which the Purchaser 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 Purchaser or its property is
subject, or impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans;
(4) Ability to Perform. The Purchaser 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;
(5) No Material Default. The Purchaser is not in material default under any
agreement, contract, instrument or indenture of any nature whatsoever to
which the Purchaser is a party or by which it (or any of its assets) is
bound, which default would have a material adverse effect on the ability of
the Purchaser to perform under this Agreement, nor, to the best of the
Purchaser's knowledge, has any event occurred which, with notice, lapse of
time or both) would constitute a default under any such agreement,
contract, instrument or indenture and have a material adverse effect on the
ability of the Purchaser to perform its obligations under this Agreement;
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(6) No Change in Business. There has been no change in the business,
operations, financial condition, properties or assets of the Purchaser
since the date of the Purchaser's financial statements that would have a
material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement;
(7) Litigation Pending. There is no action, suit, proceeding or investigation
pending or, to the best of the Purchaser's knowledge, threatened, against
the Purchaser, which, either in any one instance or in the aggregate, if
determined adversely to the Purchaser would adversely affect the purchase
of the Mortgage Loans or the execution, delivery or enforceability of this
Agreement or result in any material liability of the Purchaser, or draw
into question the validity of this Agreement, or the Mortgage Loans or have
a material adverse effect on the financial condition of the Purchaser;
(8) Broker. The Purchaser has not dealt with any broker or agent or anyone else
who might be entitled to a fee or commission in connection with this
transaction;
(9) No Consent Required. No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser
with this Agreement, the purchase of the Mortgage Loans from the Seller or
the consummation of the transactions contemplated by this Agreement or, if
required, such approval has been obtained prior to the Funding Date;
(10) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of business of the
Purchaser;
(11) Non-Petition Agreement. The Purchaser covenants and agrees that it shall
not, prior to the date which is one year and one day (or if longer, the
applicable preference period then in effect) after the payment in full of
all rated obligations of Xxxxxx'x Gate Residential Mortgage Trust,
acquiesce, petition or otherwise, directly or indirectly, invoke or cause
Xxxxxx'x Gate Residential Mortgage Trust to invoke the process of any
governmental authority for the purpose of commencing or sustaining a case
against Xxxxxx'x Gate Residential Mortgage Trust under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator, or other similar official of
Xxxxxx'x Gate Residential Mortgage Trust. This covenant and agreement shall
be binding upon the Purchaser and any assignee or transferee of the
Purchaser;
(12) No Untrue Information. Neither this Agreement nor any statement, report or
other agreement, document or instrument furnished or to be furnished
pursuant to this Agreement contains or will contain any materially untrue
statement of fact or omits or will omit to state a fact necessary to make
the statements contained therein not misleading; and
(13) Non-solicitation. The Purchaser agrees that it shall not solicit any
Mortgagors (in writing or otherwise) to refinance any of the Mortgage
Loans; provided that mass advertising or mailings (such as placing
advertisements on television, on radio, in magazines or in newspapers or
including messages in billing statements) that are not exclusively directed
towards the Mortgagors shall not constitute solicitation and shall not
violate this covenant.
Section 4.02 Conditions Precedent to Closing.
Each purchase of Mortgage Loans hereunder shall be subject to each of the
following conditions:
(a) All of the representations and warranties of Seller under the
Cendant Guide, and of Seller and Purchaser under this Agreement
shall be true and correct as of the Funding Date, and no event
shall have occurred which, with notice or the passage of time,
would constitute an Event of Default under this Agreement or
under the Cendant Guide;
(b) Purchaser shall have received, or Purchaser's attorneys shall
have received in escrow, all closing documents as specified
herein, in such forms as are agreed upon and acceptable
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to Purchaser, duly executed by all signatories other than
Purchaser as required pursuant to the respective terns thereof;
(c) All other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, Purchaser shall pay to Seller on each
Funding Date the applicable Purchase Price as provided herein.
ARTICLE V:
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 5.01 Cendant Mortgage to Act as Servicer; Servicing Standards:
Additional Documents Consent of the Purchaser.
(1) The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans and REO Property from and after each Funding
Date in accordance with the terms and provisions of the Mortgage Loans,
applicable law and the terms and provisions of this Agreement for and on
behalf of, and in the best interests of, the Purchaser (without taking into
account any relationship the Servicer may have with any Mortgagor or other
Person, the participation, if any, of the Servicer in any financing
provided in connection with the sale of any Mortgaged Property, or the
Servicer's obligation to advance any expenses or incur any costs in the
performance of its duties hereunder) in accordance with a standard that is
not less than the higher of (a) the same care, skill, prudence and
diligence with which it services similar assets held for its own or its
Affiliates' account and (b) the same care, skill, prudence and diligence
with which it services similar assets for third party institutional
investors, in each case giving due consideration to customary and usual
standards of practice of prudent institutional mortgage loan servicers
utilized with respect to mortgage loans comparable to the Mortgage Loans.
Subject to the foregoing standards, in connection with such servicing and
administration, the Servicer shall seek to maximize the timely recovery of
principal and interest on the Mortgage Notes; provided that nothing
contained herein shall be construed as an express or implied guarantee by
the Servicer of the collectibility of payments on the Mortgage Loans or
shall be construed as impairing or adversely affecting any rights or
benefits specifically provided by this Agreement to the Seller, including
with respect to Servicing Fees.
(2) To the extent consistent with Section 5.01(1) and further subject to any
express limitations set forth in this Agreement, the Servicer (acting alone
or, solely in the circumstances permitted hereunder, acting through a
subservicer) shall have full power and authority to do or cause to be done
any and all things that it may deem necessary or desirable in connection
with such servicing and administration, including the power and authority
(a) to execute and deliver, on behalf of the Purchaser, customary consents
or waivers and other instruments and documents (including estoppel
certificates), (b) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (c) to submit
claims to collect any Insurance Proceeds and Liquidation Proceeds, (d) to
consent to the application of any Insurance Proceeds or Condemnation
Proceeds to the restoration of the applicable Mortgaged Property or
otherwise, (e) to bring an action in a court of law, including an unlawful
detainer action, to enforce rights of the Purchaser with respect to any
Mortgaged Property, (t) to execute and deliver, on behalf of the Purchaser,
documents relating to the management, operation, maintenance, repair,
leasing, marketing and sale of any Mortgaged Property or any REO Property,
and (g) to effectuate foreclosure or other conversion of the ownership of
the Mortgaged Property securing any Mortgage Loan; provided that the
Servicer shall not take any action not provided for in this Agreement that
is materially inconsistent with or materially prejudices the interest of
the Purchaser in any Mortgage Loan or under this Agreement. If reasonably
requested by the Servicer, the Purchaser shall furnish the Servicer with
any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to service and administer the Mortgage
Loans and the REO Properties, including documents relating to the
foreclosure, receivership, management, operation, maintenance, repair,
leasing, marketing and sale (in foreclosure or otherwise) of any Mortgaged
Property or any REO Property. Nothing contained in this Agreement shall
limit the ability of the Servicer to lend money to (whether on a secured or
unsecured basis), and otherwise generally engage in any kind of business or
dealings with, any Mortgagor as though the Servicer were not a party to
this Agreement or to the transactions contemplated hereby.
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(3) Notwithstanding anything to the contrary contained herein:
(a) the Servicer acknowledges that the Purchaser will retain title
to, and ownership of, the Mortgage Loans and the REO Properties
and that the Servicer does not hereby acquire any title to,
security interest in, or other rights of any kind in or to any
Mortgage Loan or REO Property or any portion thereof;
(b) the Servicer shall not file any lien or any other encumbrance on,
exercise any right of setoff against, or attach or assert any
claim in or on any Mortgage Loan or REO Property, unless
authorized pursuant to a judicial or administrative proceeding or
a court order;
(c) the Servicer shall, in servicing the Mortgage Loans, follow and
comply with the servicing guidelines established by FNMA,
provided that the Servicer shall specifically notify the
Purchaser in writing and obtain the Purchaser's written consent
prior to the Servicer taking any of the following actions: (1)
modifying, amending or waiving any of the financial terms of, or
making any other material modifications to, a Mortgage Loan,
except the Servicer may, upon the Mortgagor's request, accept a
principal prepayment and re-amortize the then remaining principal
balance over the then remaining term of the loan (resulting in a
lower scheduled monthly payment but no change in the maturity
date); (2) selling any Specially Serviced Mortgage Loan or REO
Property; (3) making, with respect to any Specially Serviced
Mortgage Loan or REO Property, Servicing Advances provided that
the Servicer shall not be required to so advise the Purchaser to
the extent that each related Servicing Advance as to the related
Mortgaged Property or REO Property is in the best interests of
the Purchaser or other owner of the Mortgage Loan and that are
deemed to be recoverable by the Servicer; (4) forgiving principal
or interest on, or permitting to be satisfied at a discount, any
Mortgage Loan; (5) accepting substitute or additional collateral,
or releasing any collateral, for a Mortgage Loan. If the
Purchaser has not approved or rejected in writing any proposed
action(s) recommended by the Servicer to be taken hereunder
within 20 Business Days of the date such recommendation is made,
then the Purchaser shall be deemed to have rejected such
recommended action(s) and the Servicer shall not take any such
action(s);
(d) the Servicer shall notify the Purchaser of any modification,
waiver or amendment of any term of any Mortgage Loan and the date
thereof and shall deliver to the Purchaser, for deposit in the
related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment promptly
following the execution thereof;
(e) the Servicer shall remain primarily liable for the full
performance of its obligations hereunder notwithstanding any
appointment by the Servicer of a subservicer or subservicers
hereunder; and
(f) the Purchaser may at any time and from time to time, in its sole
discretion, upon 10 Business Days written notice to the Servicer,
terminate the Servicer's servicing obligations hereunder with
respect to (1) any REO Property or (2) any Mortgage Loan that, in
accordance with the Purchaser's internal credit classification
criteria, has been classified as "doubtful" or a "loss." Upon the
effectiveness of any such termination of the Servicer's servicing
obligations with respect to any such REO Property or Mortgage
Loan, the Servicer shall deliver all agreements, documents, and
instruments related thereto to the Purchaser, in accordance with
applicable law.
Section 5.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in fill, the Servicer will proceed diligently to collect
all payments due under each Mortgage Loan when the same shall become due and
payable and shall, to the extent such procedures shall be consistent with this
Agreement and the terms and provisions of any related Primary Insurance Policy,
follow such collection procedures as it follows with respect to
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mortgage loans comparable to the Mortgage Loans, which procedures shall in any
event comply with the servicing standards set forth in Section 5.01.
Furthermore, the Servicer shall ascertain and estimate annual ground rents,
taxes, assessments, fire and hazard insurance premiums, mortgage insurance
premiums, and all other charges that, as provided in the Mortgages, will become
due and payable to the end that the installments payable by the Mortgagors will
be sufficient to pay such charges as and when they become due and payable.
Section 5.03 Reports for Specially Serviced Mortgage Loans and Foreclosure
Sales.
The Servicer shall, within five (5) calendar days following each Record
Date, deliver to the Purchaser monthly reports (substantially in the form of
Exhibit 5.03(a) and Exhibit 5.03(2) attached hereto) with respect to all
Specially Serviced Mortgage Loans. In addition, the Servicer shall, within one
(1) Business Day following the occurrence of any foreclosure sale with respect
to any Mortgaged Property, deliver to the Purchaser a notice of foreclosure sale
substantially in the form of Exhibit 5.03(c) attached hereto.
Section 5.04 Establishment of Collection Account; Deposits in Collection
Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Collection Accounts,
in the form of time deposit or demand accounts. The creation of any Collection
Account shall be evidenced by a certification in the form of Exhibit 5.04-1
attached hereto, in the case of an account established with the Servicer, or a
letter agreement in the form of Exhibit 5.04-2 attached hereto, in the case of
an account held by a depository other than the Servicer. In either case, a copy
of such certification or letter agreement shall be furnished to the Purchaser.
The Servicer shall deposit in the Collection Account on a daily basis,
within two Business Days after receipt (or as otherwise required pursuant to
this Agreement in the case of clauses (7), (8) and (9) of this Section 5.04) and
retain therein the following payments and collections received or made by it
subsequent to each Funding Date, or received by it prior to the Funding Date but
allocable to a period subsequent thereto, other than in respect of principal and
interest on the Mortgage Loans due on or before the Funding Date:
(1) all payments on account of principal, including Principal Prepayments, on
the Mortgage Loans;
(2) all payments on account of interest on the Mortgage Loans;
(3) all Liquidation Proceeds;
(4) all Insurance Proceeds, including amounts required to be deposited pursuant
to Sections 5.10 and 5.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged
Properties or released to the applicable Mortgagors in accordance with the
Servicer's normal servicing procedures, the related Mortgages or applicable
law;
(5) all Condemnation Proceeds affecting any Mortgaged Property which are not
released to a Mortgagor in accordance with the Servicer's normal servicing
procedures, the related Mortgage or applicable law;
(6) any Monthly Advances in accordance with Section 6.03;
(7) any amounts required to be deposited by the Servicer pursuant to Section
5.11 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit to be made from the Servicer's own funds
without reimbursement therefor;
(8) any amounts required to be deposited by the Servicer pursuant to Section
5.16(ii) in connection with any losses on Permitted Investments; and
(9) any amounts required to be deposited in the Collection Account pursuant to
Sections 7.01 or 7.02 or otherwise pursuant to the terms hereof.
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The foregoing requirements for deposit in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 7.01, need not be deposited by the
Servicer in the Collection Account and shall be retained by the Servicer as
additional compensation.
Section 5.05 Permitted Withdrawals from the Collection Account.
The Servicer may, from time to time in accordance with the provisions hereof,
withdraw amounts from the Collection Account for the following purposes (without
duplication):
(1) to reimburse itself for unreimbursed Monthly Advances and Servicing
Advances (other than with respect to REO Properties) that are approved by
the Purchaser as being non-recoverable in accordance with Section 6.04;
(2) to make payments to the Purchaser in the amounts, at the times and in the
manner provided for in Section 6.01;
(3) to reimburse itself for Monthly Advances, the Servicer's right to reimburse
itself pursuant to this Subsection (3) being limited to amounts received on
the related Mortgage Loan which represent late payments of principal and/or
interest with respect to which any such Monthly Advance was made;
(4) to reimburse itself for unreimbursed Servicing Advances (other than with
respect to REO Properties) and for unreimbursed Monthly Advances, the
Servicer's right to reimburse itself pursuant to this Subsection (4) with
respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of such reimbursement,
the Servicer's right thereto shall be prior to the rights of the Purchaser,
except that, where a Seller or the Servicer is required to repurchase a
Mortgage Loan pursuant to Sections 2.04, 3.04 and/or 7.02, the Servicer's
right to such reimbursement shall be subsequent and subordinate to the
payment to the Purchaser of the applicable Repurchase Price and all other
amounts required to be paid to the Purchaser with respect to such Mortgage
Loan;
(5) to pay to itself, solely out of the interest portion of the Monthly Payment
actually received with respect to a Mortgage Loan during the period ending
on the most recent Determination Date, the Servicing Fee with respect to
such Mortgage Loan;
(6) to pay to itself as additional servicing compensation (a) any interest
earned on funds in the Collection Account (all such interest to be
withdrawn monthly not later than each Remittance Date) and (b) any
prepayment penalties or premiums relating to any Principal Prepayments;
provided that no such amounts shall be payable as servicing compensation to
the extent they relate to a Mortgage Loan with respect to which a default,
breach, violation, or event of acceleration exists or would exist but for
the lapse of time, the giving of notice, or both;
(7) to pay to itself with respect to each Mortgage Loan that has been
repurchased pursuant to Sections 2.04, 3.04 and/or 7.02 all amounts
received thereon and not distributed as of the date on which the related
Repurchase Price is determined (except to the extent that such amounts
constitute part of the Repurchase Price to be remitted to the Purchaser);
(8) to remove any amounts deposited into the Collection Account in error; and
(9) to clear and terminate the Collection Account upon the termination of this
Agreement, with any funds contained therein to be distributed in accordance
with the terms of this Agreement.
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(10) The Servicer shall keep and maintain a separate, detailed accounting, on a
Mortgage Loan-by-Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to this Section.
Section 5.06 Establishment of Escrow Accounts: Deposits in Escrow.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts. The creation of any Escrow Account shall be evidenced by a
certification in the form shown on Exhibit 5.06-1 attached hereto, in the case
of an account established with the Servicer, or a letter agreement in the form
shown on Exhibit 5.06-2 attached hereto, in the case of an account held by a
depository other than the Servicer, such depository having been consented to by
the Purchaser. In either case, a copy of such certification or letter agreement
shall be furnished to the Purchaser.
The Servicer shall deposit in each Escrow Account on a daily basis, and
retain therein, (i) all Escrow Payments collected on account of the related
Mortgage Loans for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement, and (ii) all Insurance Proceeds
which are to be applied to the restoration or repair of any Mortgaged Property.
The Servicer shall make withdrawals therefrom only to effect such payments as
are required under Sections 5.07 and/or 5.08. The Servicer shall be entitled to
retain any interest paid on funds deposited in the Escrow Account by the
depository institution other than interest on escrowed funds required by law to
be paid to the Mortgagor and, to the extent required by law, the Servicer shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes, without any right of reimbursement therefor. The Servicer
shall be responsible for ensuring that the administrator of the Escrow Account
complies with all applicable laws, and shall indemnify and hold the Purchaser
harmless with respect to the administration of such Accounts.
Section 5.07 Permitted Withdrawals From Escrow Accounts.
Withdrawals from any Escrow Account may be made by the Servicer only (i) to
effect timely payments of ground rents, taxes, assessments, water rates, hazard
insurance premiums, Primary Insurance Policy premiums, if applicable, and
comparable items constituting Escrow Payments for the related Mortgage, (ii) to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan that represent late payments or collections of Escrow Payments
thereunder, (iii) to refund to the Mortgagor any funds as may be determined to
be overages, (iv) if permitted by applicable law, for transfer to the Collection
Account in accordance with the terms of this Agreement, (v) for application to
the restoration or repair of the Mortgaged Property in accordance with the terms
of the related Mortgage Loan, (vi) to pay to the Servicer, or to the Mortgagor
to the extent required by law, any interest paid on the funds deposited in the
Escrow Account, (vii) to reimburse a Mortgagor in connection with the making of
the Payoff of the related Mortgage Loan or the termination of all or part of the
escrow requirement in connection with the Mortgage Loan, (viii) to remove any
amounts deposited into the Escrow Account in error; or (ix) to clear and
terminate the Escrow Account on the termination of this Agreement.
Section 5.08 Payment of Taxes, Insurance and Other Charges: Maintenance of
Primary Insurance Policies;
Collections Thereunder.
With respect to each Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates
and other charges which are or may become a lien upon the Mortgaged Property and
the status of Primary Insurance Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of such
charges, including renewal premiums, and shall effect payment thereof prior to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Servicer in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage and applicable law. If a Mortgage does not provide for
Escrow Payments, then the Servicer shall require that any such payments be made
by the Mortgagor at the time they first
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become due. The Servicer assumes full responsibility for the timely payment of
all such bills and shall effect timely payments of all such bills irrespective
of the Mortgagor's faithful performance in the payment of same or the making of
the Escrow Payments and shall make advances from its own funds to effect such
payments but shall be entitled to reimbursement thereof in accordance with the
terms of this Agreement.
The Servicer shall maintain in full force and effect a Primary Insurance
Policy, conforming in all respects to the description set forth in Section
3.03(29), issued by an insurer described in that Section, with respect to each
Mortgage Loan for which such coverage is required. Such coverage will be
maintained until the Loan-to-Value Ratio of the related Mortgage Loan is reduced
to 75% or less in the case of a Mortgage Loan having a Loan-to-Value Ratio at
origination in excess of 80% or until such time, if any, as such insurance is
required to be released in accordance with the provisions of applicable law
including, but not limited to, the Homeowners Protection Act of 1998. The
Servicer shall assure that all premiums due under any Primary Insurance Policy
are paid in a timely manner, but, shall be entitled to reimbursement pursuant to
the terms of this Agreement for premiums paid by the Servicer on behalf of any
Mortgagor who is obligated to pay such premiums but fads to do so. The Servicer
shall not cancel or refuse to renew any Primary Insurance Policy in effect on
the Funding Date that is required to be kept in force under this Agreement
unless a replacement Primary Insurance Policy for such canceled or nonrenewed
policy is obtained from and maintained with an insurer that satisfies the
standards set forth in Section 3.03 The Servicer shall not take any action which
would result in noncoverage under any applicable Primary Insurance Policy of any
loss which, but for the actions of the Servicer, would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into pursuant to Section 7.01, the Servicer shall promptly
notify the insurer under the related Primary Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terns of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under the Primary Insurance Policy. If
such Primary Insurance Policy is terminated as a result of such assumption or
substitution of liability, then the Servicer shall obtain, and, except as
otherwise provided above, maintain, a replacement Primary Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Insurance Policy in a timely fashion in accordance
with the terms of such policies and, in this regard, to take such action as
shall be necessary to permit recovery under any Primary Insurance Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 5.04, any amounts
collected by the Servicer under any Primary Insurance Policy shall be deposited
in the Collection Account, subject to withdrawal in accordance with Section
5.05.
Section 5.09 Transfer of Accounts.
The Servicer may transfer the Collection Account or any Escrow Account to a
different depository institution from time to time; provided that (i) no such
transfer shall be made unless all certifications or letter agreements required
under Section 5.04 have been executed and delivered by the parties thereto; and
(ii) concurrently upon any such transfer, the Servicer shall give written notice
thereof to the Purchaser. Notwithstanding anything to the contrary contained
herein, the Collection Account and each Escrow Account shall at all times
constitute Eligible Accounts.
Section 5.10 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount that is at least equal to the lesser
of (a) the maximum insurable value of the improvements securing such Mortgage
Loan and (b) the greater of (1) the Unpaid Principal Balance of such Mortgage
Loan or (2) an amount such that the proceeds thereof shall be sufficient to
prevent the Mortgagor and/or the loss payee from becoming a co-insurer.
If any Mortgaged Property is in an area identified by the Federal Emergency
Management Agency as having special flood hazards and such flood insurance has
been made available, then the Servicer will cause to be maintained a flood
insurance policy meeting the requirements of the current guidelines of the
National Flood Insurance Program with a generally acceptable insurance carrier,
in an amount representing coverage not less than the lesser of (a) the
outstanding principal balance of the related Mortgage Loan or (b) the maximum
amount of insurance which is available under the Flood Disaster Protection Act
of 1973, as amended.
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The Servicer shall also maintain on each REO Property fire, hazard and
liability insurance, and to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance with extended
coverage in an amount which is at least equal to the lesser of (a) the maximum
insurable value of the improvements which are a part of such property and (b)
the outstanding principal balance of the related Mortgage Loan at the time it
became an REO Property plus accrued interest at the Note Rate and related
Servicing Advances.
All such policies shall be endorsed with standard mortgagee clauses with
loss payable to the Servicer, or upon request to the Purchaser, and shall
provide for at least 30 days prior written notice of any cancellation, reduction
in the amount of, or material change in, coverage to the Servicer. The Servicer
shall not interfere with the Mortgagor's freedom of choice in selecting either
his insurance carrier or agent, provided that the Servicer shall not accept any
such insurance policies from insurance companies unless such companies (a)
currently reflect (1) a general policyholder's rating of B+ or better and a
financial size category of III or better in Best's Key Rating Guide, or (2) a
general policyholder's rating of "A" or "A-" or better in Best's Key Rating
Guide, and (b) are licensed to do business in the state wherein the related
Mortgaged Property is located. Notwithstanding the foregoing, the Servicer may
accept a policy underwritten by Lloyd's of London or, if it is the only coverage
available, coverage under a state's Fair Access to Insurance Requirement (FAIR)
Plan. If a hazard policy becomes in danger of being terminated, or the insurer
ceases to have the ratings noted above, the Servicer shall notify the Purchaser
and the related Mortgagor, and shall use its best efforts, as permitted by
applicable law, to obtain from another qualified insurer a replacement hazard
insurance policy substantially and materially similar in all respects to the
original policy. In no event, however, shall a Mortgage Loan be without a hazard
insurance policy at any time, subject only to Section 5.11.
Pursuant to Section 5.04, any amounts collected by the Servicer under any
such policies other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or REO Property,
or released to the Mortgagor in accordance with the Servicer's normal servicing
procedures, shall be deposited in the Collection Account within one Business Day
after receipt, subject to withdrawal in accordance with Section 5.05. Any cost
incurred by the Servicer in maintaining any such insurance shall not, for the
purpose of calculating remittances to the Purchaser, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional
insurance need be required by the Servicer of the Mortgagor or maintained on
property acquired in respect of the Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Section 5.11 Maintenance of Mortgage Impairment Insurance Policy.
If the Servicer obtains and maintains a blanket policy issued by an issuer
that has a Best's Key rating of A+:V insuring against hazard losses on all of
the Mortgage Loans, then, to the extent such policy provides coverage in an
amount equal to the amount required pursuant to Section 5.10 and otherwise
complies with all other requirements of Section 5.10, it shall conclusively be
deemed to have satisfied its obligations as set forth in Section 5.10, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Servicer shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a policy complying with Section 5.10 and
there shall have been one or more losses which would have been covered by such
policy, deposit in the Collection Account the amount not otherwise payable under
the blanket policy because of such deductible clause; provided that the Servicer
shall not be entitled to obtain reimbursement therefor. In connection with its
activities as servicer of the Mortgage Loans, the Servicer agrees to prepare and
present, on behalf of the Purchaser, claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy. Upon request of the
Purchaser, the Servicer shall cause to be delivered to the Purchaser a certified
true copy of such policy and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Purchaser.
Section 5.12 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies that would meet the requirements of FNMA and
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FHLMC on all officers, employees or other Persons acting in any capacity with
regard to the Mortgage Loan to handle funds, money, documents and papers
relating to the Mortgage Loans. The Fidelity Bond and errors and omissions
insurance shall be in the form of the "Mortgage Banker's Blanket Bond" and shall
protect and insure the Servicer against losses, including losses arising by
virtue of any Mortgage Loan not being satisfied in accordance with the
procedures set forth in Section 7.02 and/or losses resulting from or arising in
connection with forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of or by such Persons. Such Fidelity Bond shall also protect and
insure the Servicer against losses in connection with the failure to maintain
any insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 5.12 requiring the
Fidelity Bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by FNMA in the FNMA Guide and by
FHLMC in the FHLMC Servicing Guide. The Servicer shall cause to be delivered to
the Purchaser on or before the Funding Date: (i) a certified true copy of the
Fidelity Bond and insurance policy; (ii) a written statement from the surety and
the insurer that such Fidelity Band or insurance policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Purchaser; and (iii) written evidence reasonably satisfactory to the Purchaser
that such Fidelity Bond or insurance policy provides that the Purchaser is a
beneficiary or loss payee thereunder.
Section 5.13 Management of REO Properties.
If title to any Mortgaged Property is acquired in foreclosure or by deed in
lieu of foreclosure (each, an "REO Property"), the deed or certificate of sale
shall be taken in the name of the Purchaser or the Person (which may be the
Servicer for the benefit of the Purchaser) designated by the Purchaser, or in
the event the Purchaser or such Person is not authorized or permitted to hold
title to real property in the state where the REO Property is located, or would
be adversely affected under the "doing business" or tax laws of such state by so
holding title, the deed or certificate of sale shall be taken in the name of
such Person or Persons as shall be consistent with an opinion of counsel
obtained by the Servicer from an attorney duly licensed to practice law in the
state where the REO Property is located. The Servicer (acting alone or through a
subservicer), on behalf of the Purchaser, shall, subject to Section 5.01(3)(c),
dispose of any REO Property pursuant to Section 5.14. Unless an appraisal
prepared by an MAI Appraiser who is Independent in accordance with the
provisions of 12 C.F.R. 225.65 shall have been obtained in connection with the
acquisition of such REO Property, promptly following any acquisition by the
Purchaser (through the Servicer) of an REO Property, the Servicer shall obtain a
narrative appraisal thereof (at the expense of the Purchaser) in order to
determine the fair market value of such REO Property. The Servicer shall
promptly notify the Purchaser of the results of such appraisal. The Servicer
shall also cause each REO Property to be inspected promptly upon the acquisition
of title thereto and shall cause each REO Property to be inspected at least
annually thereafter, and Servicer shall be entitled to be reimbursed for
expenses in connection therewith in accordance with this Agreement. The Servicer
shall make or cause to be made a written report of each such inspection. Such
reports shall be retained in the Servicer's Mortgage File and copies thereof
shall be forwarded by the Servicer to the Purchaser. The Servicer shall also
furnish to the Purchaser the applicable reports required under Section 8.01.
Notwithstanding anything to the contrary contained herein, if a REMIC
election has been or is to be made with respect to the arrangement under which
the Mortgage Loans and the REO Properties are held, then the Servicer shall
manage, conserve, protect and operate each REO Property in a manner that does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) or any "net income from foreclosure property" within the meaning
of Section 860G(c)(2) of the Code (or comparable provisions of any successor or
similar legislation).
The Servicer shall deposit and hold all revenues and funds collected and
received in connection with the operation of each REO Property in the Collection
Account, and the Servicer shall account separately for revenues and funds
received or expended with respect to each REO Property.
The Servicer shall have full power and authority, subject only to the
specific requirements and prohibitions of this Agreement (and, in particular,
Section 5.01(3)(c)), to do any and all things in connection with
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any REO Property as are consistent with the servicing standards set forth in
Section 5.01. In connection therewith, the Servicer shall deposit or cause to be
deposited on a daily basis in the Collection Account all revenues and
collections received or collected by it with respect to each REO Property,
including all proceeds of any REO Disposition. Subject to Section 5.15, the
Servicer shall withdraw (without duplication) from the Collection Account, but
solely from the revenues and collections received or collected by it with
respect to a specific REO Property, such funds necessary for the proper
operation, management and maintenance of such REO Property, including the
following:
(1) all insurance premiums due and payable in respect of such REO Property;
(2) all real estate taxes and assessments in respect of such REO Property that
may result in the imposition of a lien thereon;
(3) all customary and reasonable costs and expenses necessary to maintain,
repair, appraise, evaluate, manage or operate such REO Property (including
the customary and reasonable costs incurred by any "managing agent"
retained by the Servicer in connection with the maintenance, management or
operation of such REO Property);
(4) all reasonable costs and expenses of restoration improvements, deferred
maintenance and tenant improvements; and
(5) all other reasonable costs and expenses, including reasonable attorneys'
fees, that the Servicer may suffer or incur in connection with its
performance of its obligations under this Section (other than costs and
expenses that the Servicer is expressly obligated to bear pursuant to this
Agreement).
To the extent that amounts on deposit in the Collection Account are
insufficient for the purposes set forth in clauses (1) through (5) above, the
Servicer shall, subject to Section 6.04, advance the amount of funds required to
cover the shortfall with respect thereto. The Servicer shall promptly notify the
Purchaser in writing of any failure by the Servicer to make a Servicing Advance
of the type specified in clauses (1) or (2) above (irrespective of whether such
Servicing Advance is claimed to be non-recoverable by the Servicer pursuant to
Section 6.04).
Following the consummation of an REO Disposition, the Servicer shall remit
to the Purchaser, in accordance with Section 6.01, any proceeds from such REO
Disposition in the Collection Account following the payment of all expenses and
Servicing Advances relating to the subject REO Property.
Section 5.14 Sale of Specially Serviced Mortgage Loans and REO Properties.
Subject to Section 5.01 (and, specifically, Section 5.01(3)(c)) and Section
5.15, the Servicer shall offer to sell any REO Property in the manner that is in
the best interests of the Purchaser or other owner of the REO, but no later than
the time determined by the Servicer to be sufficient to result in the sale of
such REO Property on or prior to the time specified in Section 5.15. In
accordance with the servicing standards set forth in Section 5.01, the Servicer
shall solicit bids and offers from Persons for the purchase of any Specially
Serviced Mortgage Loan or REO Property and, upon receipt thereof, promptly (but
in any event within 3 Business Days) present such bids and offers to the
Purchaser. The Servicer shall not accept any bid or offer for any Specially
Serviced Mortgage Loan or REO Property except in compliance with Section
5.01(3)(c). The Purchaser may reject any bid or offer if the Purchaser
determines the rejection of such bid or offer would be in the best interests of
the Purchaser. If the Purchaser rejects any bid or offer, the Servicer shall, if
appropriate, seek an extension of the 2 year period referred to in Section 5.15.
Subject to Section 5.01 (and, specifically, Section 5.01(3)(c)) and Section
5.15, the Servicer shall act on behalf of the Purchaser in negotiating and
taking any other action necessary or appropriate in connection with the sale of
any Specially Serviced Mortgage Loan or REO Property, including the collection
of all amounts payable in connection therewith. The terms of sale of any
Specially Serviced Mortgage Loan or REO Property shall be in the sole discretion
of the Purchaser. Any sale of a Specially Serviced Mortgage Loan or any REO
Disposition shall be without recourse to, or representation or warranty by, the
Purchaser or the Servicer, and, if consummated
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in accordance with the terms of this Agreement, then the Servicer shall have no
liability to the Purchaser with respect to the purchase price therefor accepted
by the Purchaser. The proceeds of any sale after deduction of the expenses of
such sale incurred in connection therewith shall be promptly deposited in (a) if
such sale is an REO Disposition, in the Collection Account in accordance with
Section 5.13 and (b) in any other circumstance, the Collection Account in
accordance with Section 5.04.
Section 5.15 Realization Upon Specially Serviced Mortgage Loans and REO
Properties.
Subject to Section 5.01(5)(c), the Servicer shall foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Specially Serviced Mortgage Loans as come into and continue in default and as to
which (a) in the reasonable judgment of the Servicer, no satisfactory
arrangements can, in accordance with prudent lending practices, be made for
collection of delinquent payments pursuant to Section 5.01 and (b) such
foreclosure or other conversion is otherwise in accordance with Section 5.01.
The Servicer shall not be required to expend its own funds in connection with
any foreclosure or towards the restoration, repair, protection or maintenance of
any property unless it shall determine that such expenses will be recoverable to
it as Servicing Advances either through Liquidation Proceeds or through
Insurance Proceeds (in accordance with Section 5.05) or from any other source
relating to the Specially Serviced Mortgage Loan. The Servicer shall be required
to advance funds for all other costs and expenses incurred by it in any such
foreclosure proceedings; provided that it shall be entitled to reimbursement
thereof from the proceeds of liquidation of the related Mortgaged Property, as
contemplated by Section 5.05.
Upon any Mortgaged Property becoming an REO Property, the Servicer shall
promptly notify the Purchaser thereof, specifying the date on which such
Mortgaged Property became an REO Property. Pursuant to its efforts to sell such
REO Property, the Servicer shall, either itself or through an agent selected by
it, protect and conserve such REO Property in accordance with the servicing
standards set forth in Section 5.01 and may, subject to Section 5.01(3)(c) and
incident to its conservation and protection of the interests of the Purchaser,
rent the same, or any part thereof, for the period to the sale of such REO
Property.
Notwithstanding anything to the contrary contained herein, the Purchaser
shall not, and the Servicer shall not on the Purchaser's behalf, acquire any
real property (or personal property incident to such real property) except in
connection with a default or a default that is imminent on a Mortgage Loan. If
the Purchaser acquires any real property (or personal property incident to such
real property) in connection with such a default, then such property shall be
disposed of by the Servicer in accordance with this Section and Section 5.14 as
soon as possible but in no event later than 2 years after its acquisition by the
Servicer on behalf of the Purchaser, unless the Servicer obtains, at the expense
of the Purchaser, in a timely fashion an extension from the Internal Revenue
Service for an additional specified period.
Any recommendation of the Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Servicer that the proceeds of
such foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the management of any REO Property, net of
reimbursement to the Servicer for Servicing Advances and fees for work-out
compensation in accordance with the FHLMC Servicing Guide, incurred with respect
to such REO Property under Section 5.13, shall be applied to the payment of the
costs and expenses set forth in Section 5.13(4), with any remaining amounts to
be promptly deposited in the Collection Account in accordance with Section 5.13.
If, in the exercise of its servicing obligations with respect to any
Mortgaged Property hereunder, the Servicer deems it is necessary or advisable to
obtain an Environmental Assessment, then the Servicer shall so obtain an
Environmental Assessment, it being understood that all reasonable costs and
expenses incurred by the Servicer in connection with any such Environmental
Assessment (including the cost thereof) shall be deemed to be Servicing Advances
recoverable by the Servicer pursuant to Section 5.13(4). Such Environmental
Assessment shall (a) assess whether (1) such Mortgaged Property is in material
violation of applicable Environmental Laws or (2) after consultation with an
environmental expert, taking the actions necessary to comply with applicable
Environmental Laws is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions, and (b) identify whether (1)
any circumstances are present at such Mortgaged Property relating to the use,
management or disposal of any hazardous materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or regulation, or (2) if such
circumstances exist,
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after consultation with an environmental expert, taking such actions is
reasonably likely to produce a greater recovery on a present value basis than
not taking such actions. (The conditions described in the immediately preceding
clauses (a) and (b) shall be referred to herein as "Environmental Conditions
Precedent to Foreclosure.") If any such Environmental Assessment so warrants,
the Servicer is hereby authorized to and shall perform such additional
environmental testing as it deems necessary and prudent to establish the
satisfaction of the foregoing Environmental Conditions Precedent to Foreclosure
or to proceed as set forth below (such additional testing thereafter being
included in the term "Environmental Assessment").
If an Environmental Assessment deemed necessary or advisable by the
Servicer in accordance with this Section 5.15 establishes that any of the
Environmental Conditions Precedent to Foreclosure is not satisfied with respect
to any Mortgaged Property, but the Servicer in good faith reasonably believes
that it is in the best economic interest of the Purchaser to proceed against
such Mortgaged Property and, if title thereto is acquired, to take such
remedial, corrective or other action with respect to the unsatisfied condition
or conditions as may be prescribed by applicable law to satisfy such condition
or conditions, then the Servicer shall so notify the Purchaser. If, pursuant to
Section 5.01(3)(c), the Purchaser has notified the Servicer in writing to
proceed against such Mortgaged Property, then the Servicer shall so proceed. The
cost of any remedial, corrective or other action contemplated by the preceding
sentence in respect of any of the Environmental Conditions Precedent to
Foreclosure that is not satisfied shall not be an expense of the Servicer and
the Servicer shall not be required to expend or risk its own funds or otherwise
incur any financial liability in connection with any such action.
If an Environmental Assessment deemed necessary or advisable by the
Servicer in accordance with this Section 5.15 establishes that any of the
Environmental Conditions Precedent to Foreclosure is not satisfied with respect
to any Mortgaged Property and, in accordance with Section 5.01(3)(c), the
Purchaser elects or is deemed to have elected not to proceed against such
Mortgaged Property, then the Servicer shall, subject to Section 5.01(3)(c), take
such action as it deems to be in the best economic interest of the Purchaser
(other than proceeding against the Mortgaged Property or directly or indirectly
becoming the owner or operator thereof) as determined in accordance with the
servicing standard set forth in Section 5.01 and is hereby authorized at such
time as it deems appropriate to release such Mortgaged Property from the lien of
the related Mortgage.
Prior to the Servicer taking any action with respect to the use, management
or disposal of any hazardous materials on any Mortgaged Property, the Servicer
shall request the approval of the Purchaser in accordance with Section
5.01(3)(c) and, if such action is approved by the Purchaser, (a) keep the
Purchaser apprised of the progress of such action; and (b) take such action in
compliance with all applicable Environmental Laws.
Section 5.16 Investment of Funds in the Collection Account.
The Servicer may direct any depository institution which holds the
Collection Account to invest the funds in the Collection Account in one or more
Permitted Investments bearing interest. All such Permitted Investments shall be
held to maturity, unless payable on demand. In the event amounts on deposit in
the Collection Account are at any time invested in a Permitted Investment
payable on demand, the Servicer shall:
(a) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder
and (2) the amount required to be withdrawn on such date; and
(b) (b) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or notice from the Purchaser that
such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Collection Account.
All income and gain realized from investment of funds deposited in the
Collection Account shall be for the benefit of the Servicer and shall be subject
to its withdrawal in accordance with Section 5.05. The Servicer shall deposit in
the Collection Account the amount of any loss incurred in respect of any
Permitted Investment immediately upon realization of such loss.
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Except as otherwise expressly provided in this Agreement, if any default
occurs in the making of a payment due under any Permitted Investment, or if a
default occurs in any other performance required under any Permitted Investment,
the Purchaser may elect to take such action, or instruct the Servicer to take
such action, as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings, at the
expense of the Servicer.
ARTICLE VI:
REPORTS; REMITTANCES; ADVANCES
Section 6.01 Remittances.
(1) On each Remittance Date, the Servicer shall remit to the Purchaser (a) all
amounts credited to the Collection Account as of the close of business on
the preceding Determination Date (including (1) the amount of any Payoff,
together with interest thereon at the related Remittance Rate to the end of
the month in which prepayment of the related Mortgage Loan occurs and (2)
all proceeds of any REO Disposition net of amounts payable to the Servicer
pursuant to Section 5.13), net of charges against or withdrawals from the
Collection Account in accordance with Section 5.05, which charges against
or withdrawals from the Collection Account the Servicer shall make solely
on such Remittance Date, plus (b) all Monthly Advances, if any, which the
Servicer is obligated to remit pursuant to Section 6.03; provided that the
Servicer shall not be required to remit, until the next following
Remittance Date, any amounts attributable to Monthly Payments collected but
due on a Due Date or Dates subsequent to the preceding Determination Date.
(2) All remittances made to the Purchaser on each Remittance Date will be made
to the Purchaser by wire transfer of immediately available funds
accordingly to the instructions that will be provided by Purchaser to the
Servicer.
(3) With respect to any remittance received by the Purchaser after the Business
Day on which such payment was due, the Servicer shall pay to the Purchaser
interest on any such late payment at an annual rate equal to One-month
LIBOR (as published in the Wall Street Journal) plus 200 basis points, but
in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by the Servicer to the Purchaser on the date
such late payment is made and shall cover the period commencing with the
Business Day on which such payment was due and ending with the Business Day
on which such payment is made, both inclusive. Such interest shall be
remitted along with such late payment. Neither the payment by the Servicer
nor the acceptance by the Purchaser of any such interest shall be deemed an
extension of time for payment or a waiver by the Purchaser of any Event of
Default.
Section 6.02 Reporting.
On or before the 5th calendar day (or, if such day is not a Business Day,
on the immediately succeeding Business Day) of each month during the term
hereof, the Servicer shall deliver to the Purchaser monthly accounting reports
in the form of Exhibits 6.02(a) through 6.02(g) attached hereto with respect to
the most recently ended Monthly Period. Such monthly accounting reports shall
include information as to the aggregate Unpaid Principal Balance of all Mortgage
Loans, the scheduled amortization of all Mortgage Loans, any delinquencies and
the amount of any Principal Prepayments as of the most recently ended Record
Date. The Purchaser may assess penalty fees in accordance with FNMA guidelines
for late or incorrect reporting.
The Servicer shall provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to time.
Section 6.03 Monthly Advances by the Servicer.
(1) Not later than the close of business on the Business Day immediately
preceding each Remittance Date, the Servicer shall deposit in the
Collection Account an amount equal to all Monthly Payments not previously
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advanced by the Servicer (with interest adjusted to the Remittance Rate)
that were due on a Mortgage Loan and delinquent at the close of business on
the related Determination Date. The Servicer may reduce the total amount to
be deposited in the Collection Account as required by the foregoing
sentence by the amount of funds in the Collection Account which represent
Prepaid Monthly Payments.
(2) The Servicer's obligations to make Monthly Advances as to any Mortgage Loan
will continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or through the Remittance Date prior to the
Remittance Date for the remittance of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds or Condemnation
Proceeds) with respect to the Mortgage Loan; provided that such obligation
shall cease if the Servicer furnishes to the Purchaser an Officers'
Certificate evidencing the determination by the Servicer in accordance with
Section 6.04 that advances with respect to such Mortgage Loan are not
recoverable.
Section 6.04 Non-recoverable-Advances.
The determination by the Servicer that any Monthly Advance or Servicing
Advance, if made, would constitute a non-recoverable advance shall be evidenced
by an Officers' Certificate delivered to the Purchaser detailing the reasons for
such determination, with copies of a relevant appraisal by an MAI Appraiser who
is Independent and, if such reports are to be used to determine that any Monthly
Advance or Servicing Advance would be a non-recoverable advance, all engineers'
reports, environmental reports or other information relevant thereto that
support such determination. Such Officers' Certificate shall set forth the
Servicer's considerations in reaching its conclusion that such advance is
non-recoverable, and such conclusion shall be based upon, in addition to the
above-described appraisal and reports, income and expense statements, rent
rolls, occupancy, property inspections, servicer inquiries and other information
of similar nature that support the Servicer's conclusion that such advance is
non-recoverable. The Purchaser shall have a period of 45 days following the
later of (i) the receipt by the Purchaser of such Officers' Certificate and all
documentation supplied by the Servicer relating thereto and (ii) the receipt by
the Purchaser of such other related documentation or information as shall have
been reasonably requested by the Purchaser within 30 days following the delivery
of such Officers' Certificate, to approve, by the exercise by the Purchaser of
its reasonable credit judgment, the subject Monthly Advance or Servicing Advance
as a non-recoverable advance. Only if the Purchaser has so approved any Monthly
Advance or Servicing Advance as non-recoverable shall the Servicer be entitled
to reimbursement for such non-recoverable advance (solely to the extent made) as
provided in Section 5.05 or Section 5.13, as applicable. The Servicer shall also
deliver to the Purchaser from time to time upon request copies of any appraisals
and other reports or information of the type described in this Section 6.04 that
it possesses relative to any Mortgaged Property.
Section 6.05 Itemization of Servicing Advances.
The Servicer shall provide the Purchaser with an itemization of all
Servicing Advances incurred or made by the Servicer hereunder not less than
quarterly and at such other times as the Purchaser may from time to time
reasonably request.
Section 6.06 Officer's Certificate.
The Seller shall deliver to the Purchaser an Officer's Certificate in the
form attached hereto as Exhibit 9 on the Initial Funding Date and upon
Purchaser's reasonable request thereafter.
ARTICLE VII:
GENERAL SERVICING PROCEDURE
Section 7.01 Enforcement of Due-on-Sale Clauses, Assumption Agreements.
(1) The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of the Mortgaged Property (whether
by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under any "due-on-sale" clause applicable
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thereto; provided that the Servicer shall not exercise any such rights if
prohibited by law from doing so or if the exercise of such rights would
impair or threaten to impair any recovery under the related Primary
Insurance Policy, if any.
(2) If the Servicer is prohibited from enforcing such "due-on-sale" clause,
then the Servicer will enter into an assumption agreement with the Person
to whom the Mortgaged Property has been conveyed or is proposed to be
conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor
remains liable thereon. (For purposes of this Section 7.01, the term
"assumption" is deemed to also include a sale of the Mortgaged Property
subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.) If any Mortgage Loan is to be
assumed, then the Servicer shall inquire into the creditworthiness of the
proposed transferee and shall use the same underwriting criteria for
approving the credit of the proposed transferee that are used with respect
to underwriting mortgage loans of the same type as the Mortgage Loans.
Where an assumption is allowed, the Servicer, with the prior written
consent of the primary mortgage insurer, if any, and subject to the
conditions of Section 7.01(3), shall, and is hereby authorized to, enter
into a substitution of liability agreement with the Person to whom the
Mortgaged Property is proposed to be conveyed pursuant to which the
original mortgagor is released from liability and such Person is
substituted as mortgagor and becomes liable under the related Mortgage
Note. Any such substitution of liability agreement shall be in lieu of an
assumption agreement. In no event shall the Note Rate, the amount of the
Monthly Payment or the final maturity date be changed. The Servicer shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser the original of
any such substitution of liability or assumption agreement, which document
shall be added to the related Purchaser's Mortgage File and shall, for all
purposes, be considered a part of such Purchaser's Mortgage File to the
same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Servicer for entering into an assumption
or substitution of liability agreement shall be retained by the Servicer as
additional compensation for servicing the Mortgage Loans.
(3) If the credit of the proposed transferee does not meet such underwriting
criteria, then the Servicer shall, to the extent permitted by the Mortgage
or the Mortgage Note and by applicable law, accelerate the maturity of the
Mortgage Loan.
Section 7.02 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in frill of any Mortgage Loan, the Servicer will
immediately notify the Purchaser by a certification of a Servicing Officer,
which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the Collection Account pursuant to Section 5.04 have been or
will be so deposited and shall request delivery to it of the Purchaser's
Mortgage File held by the Purchaser. Upon receipt of such certification and
request, the Purchaser shall promptly release the related mortgage documents to
the Servicer and the Servicer shall promptly prepare and process any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
If the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage, or should it
otherwise take such action which results in a reduction of the coverage under
the Primary Insurance Policy, if any, then the Servicer shall promptly give
written notice thereof to the Purchaser, and, within 10 Business Days following
written demand therefor from the Purchaser to the Servicer, the Servicer shall
repurchase the related Mortgage Loan by paying to the Purchaser the Repurchase
Price therefor by wire transfer of immediately available funds directly to the
Purchaser's Account.
From time to time and as appropriate for the servicing or foreclosure of
the Mortgage Loan, including for this purpose collection under any Primary
Insurance Policy, the Purchaser shall, upon request of the Servicer and delivery
to the Purchaser of a servicing receipt signed by a Servicing Officer, release
the Purchaser's Mortgage File held by the Purchaser to the Servicer. Such
servicing receipt shall obligate the Servicer to return the related Mortgage
documents to the Purchaser when the need therefor by the Servicer no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Collection
Account or the Purchaser's Mortgage File or such document has been delivered to
an attorney, or to a
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public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or nonjudicially, and the Servicer has
delivered to the Purchaser a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Purchaser's Mortgage File or
such document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage Loan
was liquidated and the Liquidation Proceeds were deposited in the Collection
Account, the servicing receipt shall be released by the Purchaser to the
Servicer.
Section 7.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be entitled
to retain from interest payments on the Mortgage Loans the amounts provided for
as the Servicing Fee. The Servicing Fee in respect of a Mortgage Loan for a
particular month shall become payable only upon the receipt by the Servicer from
the Mortgagor of the full Monthly Payment in respect of such Mortgage Loan.
Additional servicing compensation in the form of assumption fees, as provided in
Section 7.01, late payment charges and other servicer compensation for
modifications, short sales, and other services not to exceed those fees
described in the FHLMC Servicing Guide shall be retained by the Servicer to the
extent not required to be deposited in the Collection Account. The Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for herein.
Section 7.04 Annual Statement as to Compliance.
The Servicer will deliver to the Purchaser on or before March 31 of each
year, beginning with March 31, 2002, an Officers' Certificate stating that (i) a
review of the activities of the Servicer during the preceding calendar year and
of performance under this Agreement has been made under such officers'
supervision, (ii) the Servicer has fully complied with the provisions of this
Agreement and (iii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof.
Section 7.05 Annual Independent Certified Public Accountants' Servicing
Report.
On or before March 31 of each year beginning March 31, 2002, the Servicer
at its expense shall cause a firm of independent public accountants which is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Purchaser to the effect that such firm has examined certain
documents and records relating to the servicing of the mortgage loans generally
that include a sampling of the Mortgage Loans, the provisions of Article VI have
been complied with and, on the basis of such an examination conducted
substantially in accordance with the Uniform Single Attestation Program for
Mortgage Bankers, such servicing has been conducted in compliance with this
Agreement, except for (i) such exceptions as such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in such
statement.
Section 7.06 Purchaser's Right to Examine Servicer Records.
The Purchaser shall have the right to examine and audit, during business
hours or at such other times as are reasonable under applicable circumstances,
upon ten days advance notice any and all of (i) the credit and other loan files
relating to the Mortgage Loans or the Mortgagors, (ii) any and all books,
records, documentation or other information of the Servicer (whether held by the
Servicer or by another) relating to the servicing of the Mortgage Loans and
(iii) any and all books, records, documentation or other information of the
Servicer (whether held by the Servicer or by another) that are relevant to the
performance or observance by the Servicer of the terms, covenants or conditions
of this Agreement. The Servicer shall be obligated to make the foregoing
information available to the Purchaser at the site where such information is
stored; vide that the Purchaser shall be required to pay all reasonable costs
and expenses incurred by the Servicer in making such information available.
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ARTICLE VIII:
REPORTS TO BE PREPARED BY THE SERVICER
Section 8.01 The Servicer's Reporting Requirements.
Electronic Format. If requested by the Purchaser, the Servicer shall supply
any and all information regarding the Mortgage Loans and the REO Properties,
including all reports required to be delivered pursuant to Section 5.03, Section
6.02 and this Section 8.01, to the Purchaser in electronic format reasonably
acceptable to Purchaser.
REO Property Reports. On or before the 3rd Business Day preceding each
Determination Date, the Servicer shall deliver to the Purchaser a report, in
form acceptable to Purchaser, describing in reasonable detail the Servicer's
efforts in connection with the sale of each REO Property and setting forth all
operating income (including rental income) and operating expenses pertaining to
each REO Property for the previous month, together with rent rolls, operating
statements, and such other information as is referenced on such report
pertaining to the REO Property.
Additional Reports Further Assurances. On or before the 3rd Business
Day preceding each Determination Date, the Servicer shall deliver to the
Purchaser (i) a report, acceptable to the Purchaser, describing in reasonable
detail all Mortgage Loans that are 90 days or more delinquent and the Servicer's
activities in connection with such delinquencies and (ii) a report
(substantially in the form of Exhibit 8.01 attached hereto) with respect to
delinquent Mortgage Loans. Utilizing resources reasonably available to the
Servicer without incurring any cost except the Servicer's overhead and
employees' salaries, the Servicer shall furnish to the Purchaser during the term
of this Agreement such periodic, special or other reports, information or
documentation, whether or not provided for herein, as shall be reasonably
requested by the Purchaser with respect to Mortgage Loans or REO Properties
(provided the Purchaser shall have given the Servicer reasonable notice and
opportunity to prepare such reports, information or documentation), including
any reports, information or documentation reasonably required to comply with any
regulations of any governmental agency or body having jurisdiction over the
Purchaser, all such reports or information to be as provided by and in
accordance with such applicable instructions and directions as the Purchaser may
reasonably request. If any of such reports are not customarily prepared by the
Servicer or require that the Servicer program data processing systems to create
the reports, then the Purchaser shall pay to the Servicer a fee mutually agreed
to by the Purchaser and the Servicer taking into account the Servicer's actual
time and cost in preparing such reports. The Servicer agrees to execute and
deliver all such instruments and take all such action as the Purchaser, from
time to time, may reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
Section 8.02 Financial Statements.
The Servicer understands that, in connection with marketing the Mortgage
Loans, the Purchaser may make available to any prospective purchaser of the
Mortgage Loans the Servicer's audited financial statements for its fiscal year
1999 and its audited financial statements for fiscal year 2000, together with
any additional statements provided pursuant to the next sentence. During the
term hereof, the Servicer will deliver to the Purchaser audited financial
statements for each of its fiscal years following the Funding Date and all other
financial statements prepared following the Funding Date to the extent any such
statements are available upon request to the public at large.
The Servicer also agrees to make available upon reasonable notice and
during normal business hours to any prospective purchasers of the Mortgage Loans
a knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Servicer or the financial
statements of the Servicer which may affect, in any material respect, the
Servicer's ability to comply with its obligations under this Agreement, and to
permit any prospective purchasers upon reasonable notice and during normal
business hours to inspect the Servicer's servicing facilities for the purpose of
satisfying such prospective purchasers that the Servicer has the ability to
service the Mortgage Loans in accordance with this Agreement.
ARTICLE IX:
THE SELLERS
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Section 9.01 Indemnification; Third Party Claims.
Each Seller shall indemnify and hold harmless the Purchaser, its directors,
officers, agents, employees, and assignees (each, an "Indemnified Party") from
and against any costs, damages, expenses (including reasonable attorneys' fees
and costs, irrespective of whether or not incurred in connection with the
defense of any actual or threatened action, proceeding, or claim), fines,
forfeitures, injuries, liabilities or losses ("Losses") suffered or sustained in
any way by any such Person, no matter how or when arising (including Losses
incurred or sustained in connection with any judgment, award, or settlement), in
connection with or relating to (i) a breach by such Seller of any of its
representations and warranties contained in Article III or (ii) a breach by such
Seller of any of its covenants and other obligations contained herein including
any failure to service the Mortgage Loans in compliance with the terms hereof.
The applicable Seller shall immediately (i) notify the Purchaser if a claim is
made by a third party with respect to this Agreement, any Mortgage Loan and/or
any REO Property (ii) assume the defense of any such claim and pay all expenses
in connection therewith, including attorneys' fees, and (iii) promptly pay,
discharge and satisfy any judgment, award, or decree that may be entered against
it or the Indemnified Party in respect of such claim. Nothing contained herein
shall prohibit the Indemnified Party, at its expense, from retaining its own
counsel to assist in any such proceedings or to observe such proceedings;
provided that neither Seller shall be obligated to pay or comply with any
settlement to which it has not consented. All amounts required to be paid or
reimbursed by a Seller hereunder shall be paid or reimbursed as and when
incurred by the Indemnified Party upon demand therefor by such Indemnified
Party.
Section 9.02 Merger or Consolidation of the Seller.
Each Seller will keep in full effect its existence, rights and franchises
as a corporation or a Delaware business trust, as applicable, under the laws of
the state of its organization and will obtain and preserve its qualification to
do business as a foreign entity in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which a Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation (including by
means of the sale of all or substantially all of such Seller's assets to such
Person) 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
that, unless otherwise consented to by the Purchaser, the successor or surviving
Person, in the case of a merger or consolidation, etc. of the Servicer, shall be
an institution qualified to service mortgage loans on behalf of FNMA and FHLMC
in accordance with the requirements of Section 3.02(1), shall not cause a rating
on any security backed by a Mortgage Loan to be downgraded and shall satisfy the
requirements of Section 12.01 with respect to the qualifications of a successor
to such Seller.
Section 9.03 Limitation on Liability of the Sellers and Others.
Neither the Sellers nor any of the officers, employees or agents of the
Sellers shall be under any liability to the Purchaser for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement or pursuant to the express written instructions of the Purchaser, or
for errors in judgment made in good faith; provided that this provision shall
not protect the Sellers or any such Person against any breach of warranties or
representations made herein, or failure to perform its obligations in compliance
with any standard of care set forth in this Agreement, or any liability which
would otherwise be imposed by reasons of willful misfeasance, bad faith,
negligence or any breach in the performance of the obligations and duties
hereunder. The Sellers and any officer, employee or agent of the Sellers may
rely in good faith on any document of any kind reasonably believed by the
Sellers or such Person to be genuine and prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
The Sellers shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to their duties hereunder and
which in their opinion may involve them in any expense or liability; provided
that the Sellers may in their discretion undertake any such action that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto. In such event, the legal expenses and costs
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of such action and any liability resulting therefrom shall be expenses, costs
and liabilities for which the Sellers shall be entitled to be reimbursed
therefor out of the Collection Account. This indemnity shall survive the
termination of this Agreement.
Section 9.04 Servicer Not to Resign.
With respect to the retention by Cendant Mortgage of the servicing of the
Mortgage Loans and the REO Properties hereunder, Cendant Mortgage acknowledges
that the Purchaser has acted in reliance upon Cendant Mortgage's Independent
status, the adequacy of its servicing facilities, plan, personnel, records and
procedures, its integrity, reputation and financial standing and the continuance
thereof. Consequently, Cendant Mortgage shall not assign the servicing rights
retained by it hereunder to any third party nor resign from the obligations and
duties hereby imposed on it except (i) with the approval of the Purchaser, such
approval not to be unreasonably withheld, or (ii) 3 Business Days following any
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by Cendant Mortgage. Any
determination permitting the transfer of the servicing rights or the resignation
of Cendant Mortgage under Subsection (ii) hereof shall be evidenced by an
opinion of counsel to such effect delivered to the Purchaser, which opinion of
counsel shall be in form and substance reasonably acceptable to the Purchaser.
ARTICLE X:
DEFAULT
Section 10.01 Events of Default.
In case one or more of the following events shall occur and be continuing:
(1) any failure by the Servicer to remit to the Purchaser any payment required
to be made under the terms of this Agreement which continues unremedied for
a period of 3 Business Days unless such failure to remit is due to a cause
beyond the Servicer's control, including an act of God, act of civil,
military or governmental authority, fire, epidemic, flood, blizzard,
earthquake, riot, war, or sabotage, provided that the Servicer gives the
Purchaser notice of such cause promptly and uses its reasonable efforts to
correct such failure to remit and does so remit within 2 Business Days
following the end of the duration of the cause of such failure to remit;
(2) any failure on the part of a Seller/Servicer duly to observe or perform in
any material respect any of the covenants or agreements on the part of such
Seller/Servicer set forth in this Agreement which continues unremedied for
a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the applicable
Seller/Servicer by the Purchaser; provided that such 30-day period shall
not begin with respect to any failure to cure or repurchase in accordance
with Sections 2.04 and/or 3.04 until the expiration of the cure periods
provided for in Sections 2.04 and/or 3.04, as applicable;
(3) any filing of an Insolvency Proceeding by or on behalf of a
Seller/Servicer, any consent by or on behalf of a Seller/Servicer to the
filing of an Insolvency Proceeding against a Seller/Servicer, or any
admission by or on behalf of a Seller/Servicer of its inability to pay its
debts generally as the same become due;
(4) any filing of an Insolvency Proceeding against a Seller/Servicer that
remains undismissed or unstayed for a period of 60 days after the filing
thereof;
(5) any issuance of any attachment or execution against, or any appointment of
a conservator, receiver or liquidator with respect to, all or substantially
all of the assets of a Seller/Servicer;
(6) any failure or inability of Cendant Mortgage to be eligible to service
Mortgage Loans for FNMA or FHLMC;
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(7) any sale, transfer, assignment, or other disposition by a Seller/Servicer
of all or substantially all of its property or assets to a Person who does
not meet the qualifications enumerated or incorporated by reference into
Section 9.02, any assignment by a Seller/Servicer of this Agreement or any
of a Seller's/Servicer's rights or obligations hereunder except in
accordance with Section 9.04, or any action taken or omitted to be taken by
a Seller/Servicer in contemplation or in furtherance of any of the
foregoing, without the consent of the Purchaser; or
(8) any failure by the Seller to be in compliance with applicable "doing
business" or licensing laws of any jurisdiction where Mortgaged Property is
located;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied, the Purchaser, by notice in writing to the Sellers may, in
addition to whatever rights the Purchaser may have at law or in equity to
damages, including injunctive relief and specific performance, terminate all the
rights and obligations of the Sellers under this Agreement and in and to the
Mortgage Loans and the proceeds thereof subject to Section 12.01, without the
Purchaser's incurring any penalty or fee of any kind whatsoever in connection
therewith; provided that, upon the occurrence of an Event of Default under
Subsection (3), (4) or (5) of this Section 10.01, this Agreement and all
authority and power of the Sellers hereunder (whether with respect to the
Mortgage Loans, the REO Properties or otherwise) shall automatically cease. On
or after the receipt by the Sellers of such written notice, all authority and
power of the Sellers under this Agreement (whether with respect to the Mortgage
Loans or otherwise) shall cease.
ARTICLE XI:
TERMINATION
Section 11.01 Term and Termination.
(1) The servicing obligations of the Servicer under this Agreement may be
terminated as provided in Section 10.01 hereof.
(2) In any case other than as provided under Subsection (1) hereof, the
respective obligations and responsibilities of the Sellers hereunder shall
terminate upon: (a) the later of the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan or the
disposition of all REO Property and the remittance of all funds due
hereunder; or (b) the mutual written consent of the Sellers and the
Purchaser.
(3) Upon any termination of this Agreement or the servicing obligations of the
Servicer hereunder, then the Servicer shall prepare, execute and deliver
all agreements, documents and instruments, including all Servicer Mortgage
Files, and do or accomplish all other acts or things necessary or
appropriate to effect such termination, all at the Servicer's sole expense.
In any such event, the Servicer agrees to cooperate with the Purchaser in
effecting the termination of the Servicer's servicing responsibilities
hereunder, including the transfer to the Purchaser or its designee for
administration by it of all cash amounts which shall at the time be
contained in, or credited by the Servicer to, the Collection Account and/or
the Escrow Account or thereafter received with respect to any Mortgage Loan
or REO Property.
Section 11.02 Survival.
Notwithstanding anything to the contrary contained herein, the
representations and warranties of the parties contained herein and in any
certificate or other instrument delivered pursuant hereto, as well as the other
covenants hereof (including those set forth in Section 9.01) that, by their
terms, require performance after the termination by this Agreement, shall
survive the delivery and payment for the Mortgage Loans on each Funding Date as
well as the termination of this Agreement and shall inure to the benefit of the
parties, their successors and assigns. Sellers further agree that the
representations, warranties and covenants made by Sellers herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by Purchaser notwithstanding any investigation heretofore made by
Purchaser or on Purchaser's behalf.
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ARTICLE XII:
GENERAL PROVISIONS
Section 12.01 Successor to the Servicer.
Upon the termination of the Servicer's servicing responsibilities and
duties under this Agreement pursuant to Section 9.04, 10.01, or 11.01, the
Purchaser shall (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties and obligations under this Agreement or (ii)
appoint a successor servicer which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Servicer under this
Agreement prior to the termination of the Servicer's responsibilities, duties
and liabilities under this Agreement. If the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, then the Servicer shall continue to discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof (if applicable)
all on the terms and conditions contained herein and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The termination of the Servicer's servicing responsibilities
pursuant to any of the aforementioned Sections shall not, among other things,
relieve the Servicer of its obligations pursuant to Section 2.04 and/or 7.02,
the representations and warranties or other obligations set forth in Sections
2.04, 3.01, 3.02 and 3.03 and the remedies available to the Purchaser under the
various provisions of this Agreement. In addition, such termination shall not
affect any claims that the Purchaser may have against the Servicer arising prior
to any such termination.
Section 12.02 Governing Law.
This Agreement is to be governed by, and construed in accordance with the
internal laws of the State of New York without giving effect to principals of
conflicts of laws. The obligations, rights, and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 12.03 Notices.
Any notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered, sent by courier with delivery against signature therefor, mailed by
registered mail, postage prepaid, and return receipt requested or transmitted by
telex, telegraph or telecopier and confirmed by a similar writing mailed or sent
by courier as provided above, to (i) in the case of the Purchaser, Xxxxxxx Xxxxx
Mortgage Capital Inc., World Financial Center, 000 Xxxxx Xxxxxx, Xxxxx Tower,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Contract Finance Department, or
such other address as may hereafter be furnished to the Seller in writing by the
Purchaser, (ii) in the case of the Cendant Mortgage, Cendant Mortgage
Corporation, 0000 Xxxxxx Xxx, Xx. Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx,
Vice President, Secondary Marketing, and (iii) in the case of the Trust, c/o
Cendant Mortgage Corporation, as Administrator, 0000 Xxxxxx Xxx, Xx. Xxxxxx, XX
00000, Attention: Xxxxx X. Xxxxxx, Vice President, Secondary Marketing or such
other address as may hereafter be famished to the Purchaser in writing by the
applicable Seller.
Section 12.04 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, the invalidity
of any such covenant, agreement, provision or term of this Agreement shall in no
way affect the validity or enforceability of the other provisions of this
Agreement.
Section 12.05 Schedules and Exhibits.
The schedules and exhibits that are attached to this Agreement are hereby
incorporated herein and made a part hereof by this reference.
Section 12.06 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
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(1) 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;
(2) any reference in this Agreement to this Agreement or any other agreement,
document, or instrument shall be a reference to this Agreement or any other
such agreement, document, or instrument as the same has been amended,
modified, or supplemented in accordance with the terms hereof and thereof
(as applicable);
(3) accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles;
(4) 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, unless the context shall otherwise require;
(5) a reference to a subsection without further reference to a section is a
reference to such subsection as contained in the same section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(6) a reference to a "day" shall be a reference to a calendar day;
(7) 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
(8) the terms "include" and "including" shall mean without limitation by reason
of enumeration.
Section 12.07 Waivers and Amendments, Noncontractual Remedies Preservation
of Remedies.
This Agreement may be amended, superseded, canceled, renewed or extended
and the terms hereof may be waived, only by a written instrument signed by
authorized representatives of the parties or, in the case of a waiver, by an
authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, or any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the exercise of any
other such right, power or privilege. The rights and remedies herein provided
are cumulative and are not exclusive of any rights or remedies that any party
may otherwise have at law or in equity.
Section 12.08 Captions.
All section titles or captions contained in this Agreement or in any
schedule or exhibit annexed hereto or referred to herein, and the table of
contents to this Agreement, are for convenience only, shall not be deemed a part
of this Agreement and shall not affect the meaning or interpretation of this
Agreement.
Section 12.09 Counterparts; Effectiveness.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
This Agreement shall become effective as of the date first set forth herein upon
the due execution and delivery of this Agreement by each of the parties hereto.
Section 12.10 Entire Agreement; Amendment.
This Agreement (including the schedules and exhibits annexed hereto or
referred to herein), together with the Cendant Guide, contains the entire
agreement between the parties hereto with respect to the transactions
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contemplated hereby and supersedes all prior agreements, written or oral, with
respect thereto. No amendment, modification or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the authorized representatives of the parties
hereto.
Section 12.11 Further Assurances.
Each party hereto shall take such additional action as may be reasonably
necessary to effectuate this Agreement and the transactions contemplated hereby.
The Sellers will promptly and duly execute and deliver to the Purchaser such
documents and assurances and take such further action as the Purchaser may from
time to time reasonably request in order to carry out more effectively the
intent and purpose of this Agreement and to establish and protect the rights and
remedies created or intended to be created in favor of the Purchaser.
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IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their names to be
signed hereto by their respective officers as of the date first written above.
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CENDANT MORTGAGE CORPORATION
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX'X GATE RESIDENTIAL
MORTGAGE TRUST (FORMERLY KNOWN AS
CENDANT RESIDENTLAL MORTGAGE TRUST)
BY: CENDANT MORTGAGE CORPORATION,
AS ADMINISTRATOR
By:
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 10
FORM OF WARRANTY XXXX OF SALE
On this _________ day of ________, 200__, [Cendant Mortgage Corporation]
[Xxxxxx'x Gate Residential Mortgage Trust] ("Seller") as the Seller under that
certain Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of
March 27, 2001 (the "Agreement") does hereby sell, transfer, assign, set over
and convey to Xxxxxxx Xxxxx Mortgage Capital Inc. as Purchaser under the
Agreement, without recourse, but subject to the terms of the Agreement, all
rights, title and interest of the Seller in and to the Mortgage Loans listed on
the Mortgage Loan Schedule attached hereto, together with the related Mortgage
Files and all rights and obligations arising under the documents contained
therein. Pursuant to Section 2.01 of the Agreement, the Seller has delivered to
the Purchaser or its custodian the Legal Documents for each Mortgage Loan to be
purchased as set forth in the Agreement. The contents of each related Servicer's
Mortgage File required to be retained by Cendant Mortgage Corporation
("Cendant") to service the Mortgage Loans pursuant to the Agreement and thus not
delivered to the Purchaser are and shall be held in trust by Cendant for the
benefit of the Purchaser as the owner thereof. Cendant's possession of any
portion of each such Servicer's Mortgage File is at the will of the Purchaser
for the sole purpose of facilitating servicing of the related Mortgage Loan
pursuant to the Agreement, and such retention and possession by Cendant shall be
in a custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the contents of the Mortgage File and Servicer's 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 Cendant
shall immediately vest in the Purchaser and shall be retained and maintained, in
trust, by Cendant at the will of the Purchaser in such custodial capacity only.
The Seller confirms to the Purchaser that the representations and
warranties set forth in Sections 3.01, [3.02] and 3.03 of the Agreement are true
and correct as of the date hereof, and that all statements made in the Sellers'
Officer's Certificate and all attachments thereto remain complete, true and
correct in all respects as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
[CENDANT MORTGAGE CORPORATION]
[XXXXXX'X GATE RESIDENTIAL MORTGAGE
TRUST]
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
