Assignment, Assumption and Recognition Agreement
This
Assignment, Assumption and Recognition Agreement (this “Assignment Agreement”),
dated as of July 31 2007, between HSBC Bank, National Association, (the
“Assignor”), HSI Asset Securitization Corporation, (the “Assignee”), Xxxxx Fargo
Bank, N.A., as master servicer (the “Master Servicer”), Deutsche Bank National
Trust Company (the “Trustee”) not individually buy solely as trustee on behalf
of the HSI Asset Loan Obligation Trust 2007-AR2 (the “Trust”) and American
Mortgage Network, Inc. (the “Seller”):
For
good
and valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those certain
mortgage loans listed on Exhibit
A
attached
hereto (the “Mortgage Loans”); and (b) the Seller’s Purchase and Warranties
Agreement dated as of June 1, 2007, but only to the extent of the Mortgage
Loans
(the “Purchase Agreement”). For purposes of this Assignment Agreement, the term
“Purchase Agreement” includes any separate Assignment and Conveyance pursuant to
which Seller and Assignor effectuated the purchase and sale of any Mortgage
Loan
following the execution and delivery of the Seller’s Purchase and Warranties
Agreement dated as of June 1, 2007.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any all obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on Exhibit
A
attached
hereto and are not the subject of this Assignment Agreement.
2. Each
of
the Seller and the Assignor represent and warrant to the Assignee that (a)
the
copy of the Purchase Agreement, attached hereto as Exhibit
B,
provided to the Assignee, is a true, complete and accurate copy of the Purchase
Agreement, (b) the Purchase Agreement is in full force and effect as of the
date
hereof, (c) the provisions thereof have not been waived, amended or modified
in
any respect, nor have any notices of termination been given thereunder, (d)
the
Purchase Agreement contains all of the terms and conditions governing the sale
of the Mortgage Loans by Seller to Assignor and the purchase of the Mortgage
Loans by Assignor from Seller; provided,
however,
that
the date of purchase and sale and the amount of payment for the Mortgage Loans
may be set out in a Confirmation Letter, as defined in the Purchase Agreement,
and (e) Seller sold, conveyed and transferred each Mortgage Loan to Assignor
pursuant to the Purchase Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee, the
Trustee, the Master Servicer and the Seller that:
As
of the
date hereof, the Assignor is not in default under the Purchase
Agreement
The
Assignor is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to sell, transfer and assign the Mortgage
Loans;
The
Assignor has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignor is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignor or its property is subject.
The
execution, delivery and performance by the Assignor of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Assignment Agreement has been duly executed and delivered by the Assignor
and constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignor in connection with the execution, delivery or performance by the
Assignor of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
4. The
Assignee warrants and represents to, and covenants with, the Assignor, the
Master Servicer, the Trustee and the Seller that:
The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignee’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject.
The
execution, delivery and performance by the Assignee of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Assignment Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignee in connection with the execution, delivery or performance by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Purchase Agreement and the Mortgage Loans, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
5. The
Seller warrants and represents to, and covenants with, the Assignor, the Master
Servicer, the Trustee and the Assignee that:
The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
formation, and has all requisite power and authority to service the Mortgage
Loans;
The
Seller has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject. The execution, delivery and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller. This Assignment Agreement has been
duly executed and delivered by the Seller and constitutes the valid and legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms except as enforceability thereof may be limited by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or in law;
No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby;
As
of the
date hereof, the Seller is not in default under the Purchase Agreement;
and
No
event
has occurred or has failed to occur, during the period commencing on date on
which Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth in
Section 3.01 or Section 3.02 of the Purchase Agreement untrue if such
representations and warranties were made with respect to the Mortgage Loans
effective as of the date hereof.
6. From
and
after the date hereof, the Seller shall recognize the Assignee as the owner
of
the Mortgage Loans, and shall look solely to the Assignee for performance from
and after the date hereof of the Assignor’s obligations with respect to the
Mortgage Loans. The Assignee shall have all the rights and remedies available
to
the Assignor, insofar as they relate to the Mortgage Loans, under the Purchase
Agreement, including, without limitation, the enforcement of the document
delivery requirements and remedies with respect to breaches of representations
and warranties set forth in the Purchase Agreement, and shall be entitled to
enforce all of the obligations of the Seller thereunder insofar as they relate
to the Mortgage Loans, and all references to the Purchaser (insofar as they
relate to the rights, title and interest and, with respect to obligations of
the
Purchaser, only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Seller) under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to
refer
to the Assignee. Neither the Seller nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Seller’s performance under the
Purchase Agreement with respect to the Mortgage Loans without the prior written
consent of the Assignee.
7. Notwithstanding
any term hereof to the contrary, the execution and delivery of this AAR
Agreement by the Trustee is solely in its capacity as trustee for the Trust
and
not individually, and any recourse against the Trustee in respect of any
obligations it may have under or pursuant to the terms of this AAR Agreement
shall be limited solely to the assets it may hold as trustee of the Trust.
It is
expressly understood and agreed by the parties hereto that (i) this AAR
Agreement is executed and delivered by the Trustee, not individually or
personally but solely as trustee on behalf of the Trust, in the exercise of
the
powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements by the Assignee is made and
intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part of the
Trustee, individually or personally, to perform any covenant (either express
or
implied) contained herein, and all such liability, if any, is hereby expressly
waived by the parties hereto, and such waiver shall bind any third party making
a claim by or through one of the parties hereto, and (iv) under no circumstances
shall the Trustee be personally liable for the payment of any indebtedness
or
expenses of the Trust (including, but not limited to, any amounts to be paid
under the Purchase Agreement), or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Trust
under this AAR Agreement, the Pooling Agreement or any related
document.
8. Notice
Addresses.
The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
Re:
HALO
2007-AR2
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ABS/MBS Structured Finance
The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
HSBC
Bank
USA, National Association
Re:
HALO
2007-AR2
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ABS/MBS Structured Finance
The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
American
Mortgage Network, Inc.
00000
Xxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
Attention:
Capital Markets
Facsimile:
858-9091389
The
Master Servicer’s address for purposes of all notices and correspondence related
to the Mortgage Loans and this Assignment Agreement is:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx,
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager - HALO 2007-AR2
The
Trustee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
Deutsche
Bank National Trust Company
0000
Xx.
Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Attention:
Trust Administration - HB07L2
9. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of laws principles) and
the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws, except to the extent preempted by federal
law.
10. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
11. No
term
or provision of this Assignment Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
12. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans and
the
assignment of the Purchase Agreement by the Assignor.
13. Notwithstanding
the assignment of the Purchase Agreement by either the Assignor or Assignee,
this Assignment Agreement shall not be deemed assigned by the Seller or the
Assignor unless assigned by separate written instrument.
14. For
the
purpose for facilitating the execution of this Assignment Agreement as herein
provided and for other purposes, this Assignment Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute and be
one
and the same instrument.
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
HSBC BANK USA, NATIONAL
ASSOCIATION,
as Assignor
|
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: Xxxxxxx Xxxxxx |
||||
Title: Officer #15568 |
HSI ASSET SECURITIZATION
CORPORATION,
as Assignee
|
||||
By: | /s/ Xxxxxx Xxxxx | |||
Name: Xxxxxx Xxxxx |
||||
Title: Vice President |
AMERICAN MORTGAGE NETWORK, INC.,
as Seller
|
||||
By: | /s/ Xxxx X. Xxxxxxxx | |||
Name: Xxxx X. Xxxxxxxx |
||||
Title: Sr. Vice President |
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Trustee
|
||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx |
||||
Title: Vice President |
XXXXX FARGO BANK, N.A.,
as Master Servicer
|
||||
By: | /s/ Xxxxxx Xxxx | |||
Name: Xxxxxx Xxxx |
||||
Title: Vice President |
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
On
file
with HSBC
EXHIBIT
B
PURCHASE
AGREEMENT
On
file
with HSBC
Execution
Version
|
HSBC
BANK
USA, NATIONAL ASSOCIATION
Initial
Purchaser
AMERICAN
MORTGAGE NETWORK, INC.,
d/b/a
VERTICE
Seller
SELLER’S
PURCHASE AND WARRANTIES AGREEMENT
Dated
as
of June 1, 2007
TABLE
OF CONTENTS
Page
|
||
ARTICLE
I
|
DEFINITIONS
|
1
|
Section
1.01
|
Defined
Terms
|
1
|
ARTICLE
II
|
INTERIM
SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF MORTGAGE
FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF MORTGAGE
LOAN
DOCUMENTS
|
18
|
Section
2.01
|
Agreement
to Purchase
|
18
|
Section
2.02
|
Purchase
Price
|
18
|
Section
2.03
|
Servicing
of Mortgage Loans
|
19
|
Section
2.04
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files
|
19
|
Section
2.05
|
Books
and Records
|
20
|
Section
2.06
|
Transfer
of Mortgage Loans
|
20
|
Section
2.07
|
Delivery
of Mortgage Loan Documents; Due Diligence
|
21
|
Section
2.08
|
Expenses
|
22
|
Section
2.09
|
Quality
Control Procedures
|
22
|
Section
2.10
|
Closing
|
23
|
ARTICLE
III
|
REPRESENTATIONS
AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW OF MORTGAGE
LOANS
|
25
|
Section
3.01
|
Representations
and Warranties of the Seller
|
25
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage Loans
|
28
|
Section
3.03
|
Repurchase;
Substitution
|
44
|
ARTICLE
IV
|
THE
SELLER
|
47
|
Section
4.01
|
Indemnification;
Third Party Claims
|
47
|
Section
4.02
|
Merger
or Consolidation of the Seller
|
47
|
Section
4.03
|
Limitation
on Liability of the Seller and Others
|
48
|
ARTICLE
V
|
MISCELLANEOUS
PROVISIONS
|
50
|
Section
5.01
|
[Reserved]
|
50
|
Section
5.02
|
Amendment
|
50
|
Section
5.03
|
Governing
Law
|
50
|
Section
5.04
|
Intention
of the Parties
|
50
|
Section
5.05
|
Waivers
|
51
|
Section
5.06
|
Notices
|
51
|
Section
5.07
|
Severability
of Provisions
|
52
|
Section
5.08
|
Exhibits
|
52
|
Section
5.09
|
General
Interpretive Principles
|
52
|
Section
5.10
|
Reproduction
of Documents
|
53
|
Section
5.11
|
Confidentiality
of Information
|
53
|
Section
5.12
|
Recordation
of Assignments of Mortgage
|
53
|
i
Section
5.13
|
Assignment
by Purchaser
|
54
|
Section
5.14
|
No
Partnership
|
54
|
Section
5.15
|
Counterparts
|
54
|
Section
5.16
|
Entire
Agreement
|
54
|
Section
5.17
|
No
Solicitation
|
54
|
Section
5.18
|
Costs
|
55
|
Section
5.19
|
Protection
of Mortgagor Personal Information
|
55
|
Section
5.20
|
Regulation
AB
|
55
|
Section
5.21
|
Third
Party Beneficiary
|
57
|
ii
EXHIBITS
A-1
|
Contents
of Mortgage File
|
A-2
|
Contents
of Servicing File
|
D
|
|
E
|
Form
of Assignment and Conveyance
|
G
|
Form
of Seller’s Officer’s Certificate
|
H
|
Form
of Opinion of Counsel
|
I
|
Form
of Indemnification Agreement
|
iii
This
is a
Seller’s Purchase and Warranties Agreement, dated as of June 1, 2007, and is
executed by and between HSBC Bank USA, National Association, as purchaser (the
“Initial Purchaser”), and American
Mortgage Network, Inc.,
d/b/a
Vertice, as seller (in such capacity, the “Seller”).
WITNESSETH:
WHEREAS,
the Initial Purchaser has heretofore agreed to purchase from the Seller and
the
Seller has heretofore agreed to sell to the Initial Purchaser certain Mortgage
Loans, servicing rights released, including the right to any Prepayment
Penalties payable by the related Mortgagors as described herein, pursuant to
the
terms of a letter agreement by and between the Seller and the Purchaser (the
“Confirmation
Letter”);
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the related Mortgage Loan Schedule, which is
annexed to the related Assignment and Conveyance as Exhibit
A
thereto.
The Mortgage Loans as described herein shall be delivered in groups of whole
loans (each, a “Mortgage
Loan Package”)
on
various dates as provided herein (each, a “Closing
Date”);
and
WHEREAS,
the Initial Purchaser and the Seller wish to prescribe the representations
and
warranties of the Seller with respect to itself and the Mortgage Loans;
and
WHEREAS,
the Initial Purchaser and the Seller have agreed that the Seller will
(i) service the Mortgage Loans on behalf of the Initial Purchaser for an
interim period beginning on the related Closing Date and ending on the related
Servicing Transfer Date pursuant to an Interim Servicing Agreement between
the
parties dated as of June 1, 2007 and (ii) cooperate in the mechanics of the
servicing transfer to the Initial Purchaser or its designee at the end of such
interim period; and
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Initial Purchaser and the Seller agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement or in the Interim Servicing Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meaning specified in this Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, and which are in accordance with
Xxxxxx Mae servicing practices and procedures, for MBS pool mortgages, as
defined in the Xxxxxx Xxx Guides, including future updates, the terms of the
Mortgage Loan Documents and all applicable federal, state and local legal and
regulatory requirements.
1
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan as to which the related Mortgage Note provides that the Mortgage
Interest Rate may be adjusted periodically.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the date set forth in the related
Mortgage Note on which the Mortgage Interest Rate on such Adjustable Rate
Mortgage Loan is adjusted in accordance with the terms of the related Mortgage
Note.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
The
sale or transfer by the Purchaser of some or all of the Mortgage Loans to Xxxxxx
Mae or Xxxxxxx Mac.
Agreement:
This
Seller’s Purchase, Warranties and Interim Servicing Agreement including all
exhibits hereto, amendments hereof and supplements hereto.
Ancillary
Fees:
Any
late payment charges, charges for dishonored checks (NSF fees), pay-off fees,
assumption fees, commissions, and administrative fees on insurance and similar
fees and charges collected from or assessed against Mortgagors or otherwise
collected in connection with the servicing of the Mortgage Loans during the
related Interim Servicing Period.
Appraised
Value:
With
respect to any Mortgaged Property and pursuant to the Underwriting Standards,
the lesser of (i) the value thereof as determined by an appraisal made for
the
originator of the Mortgage Loan at the time of origination of the Mortgage
Loan
by a Qualified Appraiser, and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan,
provided,
however,
in the
case of a Refinanced Mortgage Loan, such value of the Mortgaged Property is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an appraiser who met the underwriting requirements of the
originator.
Assignment
and Conveyance:
As
defined in Section 2.03.
Assignment
of Mortgage:
With
respect to each Mortgage Loan which is not a MERS Mortgage Loan, an assignment
of the Mortgage, notice of transfer or equivalent instrument in recordable
form
and in blank, sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect the transfer of the
Mortgage.
Balloon
Mortgage Loan:
Any
Mortgage Loan which by its original terms or any modifications thereof provides
for amortization beyond its scheduled maturity date.
2
Balloon
Payment:
With
respect to any Balloon Mortgage Loan as of any date of determination, the
Monthly Payment payable on the maturity of such Mortgage Loan.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a legal holiday in the States
of
California, North Carolina or New York, or (iii) a day on which banks in the
States of California, North Carolina or New York are authorized or obligated
by
law or executive order to be closed.
Closing
Date:
The
date or dates set forth in the related Confirmation Letter on which the Initial
Purchaser from time to time shall purchase and the Seller from time to time
shall sell to the Initial Purchaser, the Mortgage Loans listed on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Closing
Documents:
With
respect to any Closing Date, the documents required pursuant to
Section 2.10.
Code:
The
Internal Revenue Code of 1986, as the same may be amended from time to time
(or
any successor statute thereto).
Combined
Loan-to-Value Ratio or CLTV:
With
respect to any Mortgage Loan as of any date of determination, the ratio on
such
date of the outstanding principal amount of the Mortgage Loan and any other
mortgage loan which is secured by a lien on the related Mortgaged Property
to
the Appraised Value of the Mortgaged Property.
Commission
or SEC:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards, compensation and settlements in respect of a taking of all or a part
of
a Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Confirmation
Letter:
As
defined in the Recitals to this Agreement which may also be a form of trade
execution notice.
Convertible
Mortgage Loan:
Any
Adjustable Rate Mortgage Loan purchased pursuant to this Agreement as to which
the related Mortgage Note permits the Mortgagor to convert the Mortgage Interest
Rate on such Mortgage Loan to a fixed Mortgage Interest Rate.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of Standard &
Poor’s Glossary.
3
Credit
Score:
With
respect to any Mortgage Loan, the statistical credit score obtained by the
originator in accordance with the Underwriting Standards in order to assess
the
borrower’s credit worthiness.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
2.04 of the Interim Servicing Agreement, which shall be entitled “American
Mortgage Network, Inc., in trust for the Purchaser, owner of various whole
loan
series”. Each Custodial Account shall be an Eligible Account.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement, as
therein provided.
Cut-off
Date:
With
respect to each Mortgage Loan Package, the first Business Day of the month
of
the related Closing Date, or as otherwise set forth in the related Confirmation
Letter.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
With
respect to each Distribution Date, the fifteenth (15th) day of the calendar
month in which such Distribution Date occurs or, if such fifteenth (15th) day
is
not a Business Day, the Business Day immediately preceding such fifteenth (15th)
day.
Due
Date:
With
respect to any Mortgage Loan, the day of the month on which the Monthly Payment
is due on such Mortgage Loan (including the Balloon Payment with respect to
a
Balloon Mortgage Loan), exclusive of any days of grace.
Eligible
Account:
An
account established and maintained: (a) within an account with insurance
coverage acceptable to the Rating Agencies created, maintained and monitored
by
the Seller so that all funds deposited therein are fully insured, (b) with
the
corporate trust department of a financial institution assigned a short-term
debt
rating of not less than “A-1” by Standard & Poor’s or “P-1” by Xxxxx’x
Investors Service, Inc. and, if ownership of the Mortgage Loans is evidenced
by
mortgaged backed securities, the equivalent ratings of the rating agencies,
and
held such that the rights of the Purchaser and the owner of the Mortgage Loans
shall be fully protected against the claims of any creditors of the Seller
and
of any creditors or depositors of the institution in which such account is
maintained or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account
is
established pursuant to clause (b) or (c) of the preceding sentence, the Seller
shall provide the Purchaser with written notice on the Business Day following
the date on which the applicable institution fails to meet the applicable
ratings requirements.
Eligible
Institution:
An
institution having (i) the highest short-term debt rating, and one of the two
highest long-term debt ratings of each of the Rating Agencies; or (ii) with
respect to any Custodial Account, an unsecured long-term debt rating of at
least
one of the two highest unsecured long-term debt ratings of the Rating
Agencies.
4
Eligible
Investments:
Any one
or more of the following obligations or securities:
(a) direct
obligations of, and obligations fully guaranteed by the United States of America
or any agency or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United States of
America;
(b)
(i)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term deposit rating and/or the long-term
unsecured debt obligations or deposits of such depository institution or trust
company at the time of such investment or contractual commitment providing
for
such investment are rated in one of the two highest rating categories by each
Rating Agency and (ii) any other demand or time deposit or certificate of
deposit that is fully insured by the FDIC;
(c) repurchase
obligations with a term not to exceed thirty (30) days and with respect to
(i)
any security described in clause (a) above and entered into with a depository
institution or trust company (acting as principal) described in clause (b)(i)
above;
(d) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that are
rated in one of the two highest rating categories by each Rating Agency at
the
time of such investment or contractual commitment providing for such investment;
provided, however, that securities issued by any particular corporation will
not
be Eligible Investments to the extent that investments therein will cause the
then outstanding principal amount of securities issued by such corporation
and
held as Eligible Investments to exceed 10% of the aggregate outstanding
principal balances of all of the Mortgage Loans and Eligible
Investments;
(e) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than one (1) year after the date of issuance thereof) which are rated in one
of
the two highest rating categories by each Rating Agency at the time of such
investment;
(f) any
other
demand, money market or time deposit, obligation, security or investment as
may
be acceptable to each Rating Agency as evidenced in writing by each Rating
Agency; and
(g) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instrumentality of the United
States of America, the obligations of which are backed by the full faith and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (a)) and other securities and which
money market funds are rated in one of the two highest rating categories by
each
Rating Agency.
5
provided,
however, that no instrument or security shall be an Eligible Investment if
such
instrument or security evidences a right to receive only interest payments
with
respect to the obligations underlying such instrument or if such security
provides for payment of both principal and interest with a yield to maturity
in
excess of 120% of the yield to maturity at par or if such investment or security
is purchased at a price greater than par.
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
2.06 of the Interim Servicing Agreement which shall be established as an
Eligible Accountwith respect to the related Mortgage Loans.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage, applicable law or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 5.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The
entity formerly known as the Federal National Mortgage Association, or any
successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and all amendments
or additions thereto, including, but not limited to, future updates
thereof.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to Section 2.12 of the
Interim Servicing Agreement.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to this
Agreement), a determination made by the Seller that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Seller, in
its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Seller shall maintain records, prepared
by a
servicing officer of the Seller, of each Final Recovery
Determination.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
First
Lien Loan:
A
Mortgage Loan secured by a first lien Mortgage on the related Mortgaged
Property.
6
Fixed
Rate Mortgage Loan:
A
Mortgage Loan purchased pursuant to this Agreement which bears a fixed Mortgage
Interest Rate during the life of the loan.
Flood
Zone Service Contract:
A
transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone status relating to such Mortgaged Property.
Xxxxxxx
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation, or any
successor thereto.
Xxxxxxx
Mac Guides:
The
Xxxxxxx Mac Single-Family Seller/Servicer Guide and all amendments or additions
thereto, including, but not limited to, any future updates thereof.
GAAP:
Generally accepted accounting principles, consistently applied.
Goodbye
Letter:
With
respect to each Mortgage Loan, the notification to the related Mortgagor of
the
impending transfer of servicing as described in the Servicing Transfer
Instructions.
Gross
Margin:
With
respect to any Adjustable Rate Mortgage Loan, the fixed percentage amount set
forth in the related Mortgage Note and the related Mortgage Loan Schedule that
is added to the Index on each Adjustment Date in accordance with the terms
of
the related Mortgage Note to determine the new Mortgage Interest Rate for such
Mortgage Loan.
High
Cost Loan:
A
Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act of
1994, (b) classified as a “high cost home,” “threshold,” “covered,” “high risk
home,” or “predatory” loan under any other applicable state, federal or local
law (or a similarly classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees)
or
(c) categorized as High Cost pursuant to Appendix E of Standard & Poor’s
Glossary. For avoidance of doubt, the parties agree that this definition shall
apply to any law regardless of whether such law is presently, or in the future
becomes, the subject of judicial review or litigation.
Home
Loan:
A
Mortgage Loan categorized as Home Loan pursuant to Appendix E of Standard &
Poor’s Glossary.
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the Mortgage Interest Rate thereon.
Initial
Purchaser:
HSBC
Bank USA, National Association, or any successor or assign.
7
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Insurer
Letter:
With
respect to any Mortgage Loan, the notification to each insurer under each
insurance policy related to such Mortgage Loan of the impending transfer of
servicing, as described in the Servicing Transfer Instructions.
Interest
Only Mortgage Loan:
A
Mortgage Loan that only requires payments of interest for a period of time
specified in the related Mortgage Note.
Interest
Rate Adjustment Date:
With
respect to each adjustable rate Mortgage Loan, the date, specified in the
related Mortgage Note and the related Mortgage Loan Schedule, on which the
Mortgage Interest Rate is adjusted.
Interim
Servicing Agreement:
That
certain agreement between Seller and Purchaser referenced above, which will
govern the servicing of the Mortgage Loans by Seller during the Interim
Servicing Period, if applicable.
Interim
Servicing Period:
With
respect to each Mortgage Loan Package, the period beginning on the related
Closing Date and ending on the related Servicing Transfer Date, during which
time the Seller shall service the related Mortgage Loans on behalf of the
Purchaser.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the partial or complete liquidation of a defaulted Mortgage
Loan, whether through the sale or assignment of such Mortgage Loan, trustee’s
sale, foreclosure sale or otherwise, other than amounts received following
the
acquisition of REO Property..
Loan-to-Value
Ratio
or
LTV:
With
respect to any Mortgage Loan, as of any date of determination, the ratio
(expressed as a percentage) of the original outstanding principal amount of
the
Mortgage Loan to the Appraised Value of the Mortgaged Property.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer”, if any,
specified by the Purchaser and identified in the related transaction
documents.
Maximum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be increased on any Adjustment Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
8
MIN:
The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Interest Rate:
With
respect to each Adjustable Rate Mortgage Loan, a rate that is set forth on
the
related Mortgage Loan Schedule and in the related Mortgage Note and is the
minimum interest rate to which the Mortgage Interest Rate on such Mortgage
Loan
may be decreased on any Adjustment Date.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Payment:
With
respect to each Mortgage Loan, the scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal and/or interest (including any
Balloon Payment) on such Mortgage Loan pursuant to the terms of the related
Mortgage Note and payable by a Mortgagor on each Due Date.
Mortgage:
With
respect to any Mortgage Loan, 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; except that with
respect to real property located in jurisdictions in which the use of leasehold
estates for residential properties is a widely-accepted practice, the mortgage,
deed of trust or other instrument securing the Mortgage Note may secure and
create a first lien upon a leasehold estate of the Mortgagor.
Mortgage
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified in
Exhibit
A-1
and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement or the related Confirmation Letter.
Mortgage
Interest Rate:
As to
each Mortgage Loan, the annual rate at which interest accrues on such Mortgage
Loan in accordance with the provisions of the related Mortgage
Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage File, the Monthly Payments, Principal Prepayments (including any
Prepayment Penalty), Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds, any escrow accounts related to the Mortgage
Loan, and all other rights, benefits, proceeds and obligations arising from
or
in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage
Loan Documents:
The
documents contained in a Mortgage File.
Mortgage
Loan Package:
As
defined in the Recitals to this Agreement.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans annexed to the related Assignment and Conveyance,
each such schedule setting forth the following information with respect to
each
Mortgage Loan in the related Mortgage Loan Package:
(1) the
Seller’s Mortgage Loan identifying number;
9
(2) the
Mortgagor’s first and last name;
(3) the
street address of the Mortgaged Property including the state and zip
code;
(4) a
code
indicating whether the Mortgaged Property is owner-occupied, a second home
or
investment property;
(5) the
number of units and type of Residential Dwelling constituting the Mortgaged
Property (e.g., single family, two- to four-family, condominium,
etc.);
(6) the
original months to maturity and the remaining months to maturity from the
related Cut-off Date, in both cases based on the original amortization schedule
and, if different, the maturity expressed in the same manner but based on the
actual amortization schedule;
(7) the
Loan-to-Value Ratio at origination;
(8) a
code
indicating whether the Mortgage Loan is a First Lien Mortgage Loan;
(9) the
Mortgage Interest Rate at origination and as of the related Cut-off
Date;
(10) the
Mortgage Loan origination date;
(11) the
last
Due Date on which a Monthly Payment was actually applied to pay interest and
the
outstanding principal balance;
(12) the
stated maturity date of the Mortgage Loan;
(13) the
amount of the Monthly Payment at origination and as of the related Cut-off
Date;
(14) the
original principal amount of the Mortgage Loan;
(15) the
Stated Principal Balance of the Mortgage Loan as of the close of business on
the
related Cut-off Date;
(16) a
code
indicating the purpose of the Mortgage Loan (i.e., purchase, rate and term
refinance, equity take-out refinance);
(17) a
code
indicating the documentation style (i.e. full, alternative or
reduced);
(18) a
code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan and, if so,
the
term of the Balloon Mortgage Loan and the amount of the Balloon Payment
scheduled to be due at maturity assuming no Principal Prepayments;
10
(19) the
date
on which the first Monthly Payment was due and the applicable next Due
Date;
(20) a
code
indicating whether or not the Mortgage Loan is insured as to payment defaults
by
a Primary Mortgage Insurance Policy, and if so, the insurer;
(21) a
code
indicating whether or not the Mortgage Loan is the subject of a Prepayment
Penalty, and if so, a description of and the terms of such Prepayment
Penalty;
(22) the
Primary Mortgage Insurance Policy certificate number, if
applicable;
(23) the
Primary Mortgage Insurance Policy coverage percentage, if
applicable;
(24) a
code
indicating the Credit Score of the Mortgagor at the time of origination of
the
Mortgage Loan;
(25) a
code
indicating whether a borrower is a non-resident alien;
(26) the
loan
type (i.e. fixed, adjustable; 2/28, 3/27, 5/25, etc.);
(27) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date and
the
Adjustment Date frequency;
(28) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(29) with
respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage Interest
Rate under the terms of the Mortgage Note;
(30) with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate under the terms of the Mortgage Note;
(31) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
(32) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the related Cut-off Date;
(33) with
respect to each Adjustable Rate Mortgage Loan, the Index;
(34) a
code
indicating whether a borrower is in bankruptcy;
(35) a
code
indicating whether the Mortgage Loan is a MERS Mortgage Loan, and if so, the
related MIN;
(36) a
code
indicating whether the Mortgage Loan is an Interest Only Mortgage Loan and
the
term of the interest-only period;
(37) the
Mortgage Interest Rate adjustment period;
11
(38) the
Mortgage Interest Rate adjustment percentage;
(39) the
Due
Date for the first Monthly Payment;
(40) with
respect to the related Mortgagor, the debt-to-income ratio, if
available;
(41) the
Appraised Value of the Mortgaged Property;
(42) the
sales
price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; and
With
respect to the Mortgage Loans in the aggregate in each Mortgage Loan Package,
the Mortgage Loan Schedule shall set forth the following information, as of
the
related Cut-off Date unless otherwise specified:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans;
(3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and
(4) the
weighted average original months to maturity of the Mortgage Loans and the
weighted average remaining months to maturity of the Mortgage
Loans.
Mortgage
Note:
The
original executed note or other evidence of the indebtedness of a Mortgagor
secured by a Mortgage.
Mortgaged
Property:
With
respect to each Mortgage Loan, the underlying real property securing repayment
of the related Mortgage Note, consisting of a fee simple parcel of real property
improved by a Residential Dwelling, the term of which is equal to or longer
than
the term of such Mortgage Note.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor:
The
obligor on a Mortgage Note, the owner of the Mortgaged Property and the grantor
or mortgagor named in the related Mortgage and such grantor’s or mortgagor’s
successor’s in title to the Mortgaged Property.
Mortgagor
Personal Information:
Any
information, including, but not limited to, all personal information about
a
Mortgagor or co-Mortgagor that is disclosed to the Seller or the Purchaser
by or
on behalf of the Mortgagor or co-Mortgagor.
Negative
Amortization:
With
respect to each Negative Amortization Mortgage Loan, that portion of interest
accrued at the Mortgage Interest Rate in any month that 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.
12
Negative
Amortization Mortgage Loan:
Each
Mortgage Loan that that may be subject to Negative Amortization.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Senior Vice President, a Vice President or an Assistant Vice
President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Seller, and delivered to the
Purchaser as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
a number of percentage points per annum that is set forth in the related
Mortgage Loan Schedule and in the related Mortgage Note, which is the maximum
amount by which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may increase (without regard to the Maximum Mortgage Interest Rate) or
decrease (without regard to the Minimum Mortgage Interest Rate) on such
Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to
such Adjustment Date, which may be a different amount with respect to the first
Adjustment Date.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Premium
Percentage:
With
respect to any Mortgage Loan, a percentage equal to the excess of the Purchase
Price Percentage over 100%.
Prepayment
Penalty:
With
respect to each Mortgage Loan, the amount of any premium or penalty required
to
be paid by the Mortgagor if the Mortgagor prepays such Mortgage Loan as provided
in the related Mortgage Note or Mortgage.
Primary
Mortgage Insurance Policy:
Each
policy of primary mortgage insurance represented to be in effect pursuant to
Section 3.02(kk) issued by a Qualified Insurer.
Principal
Prepayment:
Any
full or partial payment or other recovery of principal on a Mortgage Loan which
is received in advance of its scheduled Due Date, including any Prepayment
Penalty or premium thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase
Price:
As
defined in Section 2.02.
13
Purchase
Price Percentage:
The
purchase price percentage used in calculating the Purchase Price, as set forth
in the related Confirmation Letter.
Purchaser:
The
Initial Purchaser or the Person, if any, to which the Initial Purchaser has
assigned its rights and obligations thereunder as Purchaser with respect to
a
Mortgage Loan, and each of their respective successors and
assigns..
Qualified
Appraiser:
With
respect to each Mortgage Loan, an appraiser, duly appointed by the originator,
who had no interest, direct or indirect in the Mortgaged Property or in any
loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Xxxxxx Xxx
and
Title XI of FIRREA and the regulations promulgated thereunder, all as in effect
on the date the Mortgage Loan was originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided by the insurance policy issued by it, approved as an insurer by Xxxxxx
Mae and Xxxxxxx Mac and
whose
claims paying ability is rated in the two highest rating categories by the
Rating Agencies with respect to primary mortgage insurance and in the two
highest rating categories by Best’s Key Rating Guide with respect to hazard and
flood insurance.
Qualified
Substitute Mortgage Loan:
A
mortgage loan substituted for a deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of the Stated Principal Balance of the deleted Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) have
a
Mortgage Interest Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Interest Rate of the deleted Mortgage Loan, (iii) have
a
remaining term to maturity not greater than (and not more than one year less
than) that of the deleted Mortgage Loan, (iv) have the same Due Date as the
Due
Date on the deleted Mortgage Loan, (v) have a Loan-to-Value Ratio as of the
date
of substitution equal to or lower than the Loan-to-Value Ratio of the deleted
Mortgage Loan as of such date, (vi) have a credit score for the related
Mortgagor not lower than that of the Mortgagor under the deleted Mortgage Loan;
(vii) conform to each representation and warranty set forth in
Subsection 3.02 of this Agreement, (viii) be the same type of mortgage loan
(i.e. fixed or adjustable rate with the same Gross Margin and Index as the
deleted Mortgage Loan) and (ix) be covered under a Primary Insurance Policy
if
such Qualified Substitute Mortgage Loan has a Loan-to-Value Ratio in excess
of
80%. In the event that one or more mortgage loans are substituted for one or
more deleted Mortgage Loans, the amounts described in clause (i) hereof shall
be
determined on the basis of aggregate principal balances, the Mortgage Interest
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Interest Rates and shall be satisfied as to each
such
mortgage loan, the terms described in clause (iii) shall be determined on the
basis of weighted average remaining terms to maturity, the Loan-to-Value Ratios
described in clause (v) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (vii) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be.
14
Rating
Agencies:
Standard & Poor’s Ratings Services, a division of The XxXxxx- Xxxx
Companies, Inc., Xxxxx’x Investors Service, Inc. or, in the event that some or
all ownership of the Mortgage Loans is evidenced by mortgage-backed securities,
the nationally recognized rating agencies issuing ratings with respect to such
securities, if any.
Reconstitution:
Any Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans serviced hereunder, in connection with a Whole Loan
Transfer or a Securitization Transaction as provided in Section 4.04
hereof.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Whole Loan Transfer or Securitization Transaction pursuant to Section 4.04
hereof.
Record
Date:
With
respect to each Remittance Date, the last Business Day of the month immediately
preceding the month in which such Remittance Date occurs.
Refinanced
Mortgage Loan:
A
Mortgage Loan which 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.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
AB Compliance Addendum:
The
Regulation AB Compliance Addendum attached hereto as Exhibit
J
and
incorporated herein by reference thereto.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMICs, which appear in
Sections 860A through 860G of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
Remittance
Date:
The
18th
day of
any month (or, if such 18th
day is
not a Business Day, the following Business Day), or such other date as may
be
specified as such in the related Servicing Agreement.
15
REO
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
2.14 of the Interim Servicing Agreement which shall be established as an
Eligible Account with respect to the related Mortgage Loans.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Seller in connection with an REO Disposition.
REO
Property:
A
Mortgaged Property acquired by or on behalf of the Purchaser in full or partial
satisfaction of the related Mortgage.
Repurchase
Price:
With
respect to any Mortgage Loan for which repurchase is required pursuant to this
Agreement due to a breach of a representation or warranty, a price equal to
(a)
the then outstanding principal balance of the Mortgage Loan to be repurchased
as
of the repurchase date, plus (b) accrued interest thereon at the Mortgage
Interest Rate from the date to which interest had last been paid through the
date of such repurchase, plus (c) the amount of any outstanding advances owed
to
any servicer, plus (d) all reasonable costs and expenses incurred by the
Purchaser or any servicer arising out of or based upon such breach, including
without limitation costs and expenses incurred in the enforcement of the
Seller's repurchase obligation hereunder, and plus, in the event a Mortgage
Loan
is repurchased during the first twelve (12) months following the related Closing
Date and has not been placed in a Securitization Transaction, an amount equal
to
the product of (i) the Premium Percentage, (ii) 12 minus the number of months
since the Closing Date, (iii) 1/12 and (iv) the outstanding principal balance
of
such Mortgage Loan as of the date of such repurchase.
Residential
Dwelling:
Any one
of the following: (i) a detached one-family dwelling, (ii) a detached two-
to
four-family dwelling, (iii) a one-family dwelling unit in a Xxxxxx Xxx eligible
condominium project, or (iv) a detached one-family dwelling in a planned unit
development, none of which is a co-operative, mobile or manufactured
home.
RESPA:
Real
Estate Settlement Procedures Act, as amended from time to time.
Second
Lien Loan:
A
Mortgage Loan secured by a second lien Mortgage on the related Mortgaged
Property.
Securitization
Transaction:
Any
transaction involving either (1) a sale or transfer of some or all of the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Seller of its interim servicing obligations, including,
but
not limited to, the cost of (a) the preservation, restoration and repair of
a
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Seller specifies the
Mortgage Loan(s) to which such expenses relate, and provided further that any
such enforcement, administrative or judicial proceeding does not arise out
of a
breach of any representation, warranty or covenant of the Seller hereunder),
(c)
the management and liquidation of any REO Property, (d) taxes, assessments,
water rates, sewer rates and other charges which are or may become a lien upon
the Mortgaged Property, and Primary Mortgage Insurance Policy premiums and
fire
and hazard insurance coverage, (e) any expenses reasonably sustained by the
Seller with respect to the liquidation of the Mortgaged Property in accordance
with the terms of this Agreement and (f) compliance with the obligations
under Section 7.08 of the Servicing Addendum.
16
Servicing
Fee:
With
respect to each Mortgage Loan Package, the amount of the fee the Purchaser
shall
pay to the Seller for servicing the Mortgage Loans during the Interim Servicing
Period in accordance with the terms of this Agreement, which shall, with respect
to each Mortgage Loan, be equal to the amount set forth in the related
Confirmation Letter.
Servicing
File:
With
respect to each Mortgage Loan, the documents pertaining thereto specified in
Exhibit
A-2
and
copies of all documents for such Mortgage Loan specified in Exhibit
A-1.
Servicing
Transfer Date:
With
respect to each Mortgage Loan Package, the date upon which the Seller’s
obligations to service the related Mortgage Loans shall cease. Such date shall
occur on the date provided in the related Confirmation Letter and confirmed
in
the related Assignment and Conveyance.
Servicing
Transfer Instructions:
The
transfer instructions for servicing as described in Exhibit
K.
Standard
& Poor’s:
Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies
Inc., and its successors in interest.
Standard
& Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
Stated
Principal Balance:
As to
each Mortgage Loan and any date of determination, (i) the unpaid principal
balance of such Mortgage Loan as of the related Cut-off Date after giving effect
to payments of principal due on or before such date, to the extent received,
minus (ii) all amounts previously distributed to the Purchaser with respect
to
the Mortgage Loan representing payments or recoveries of principal.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
17
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Tax
Service Contract:
A
transferable contract maintained for the Mortgaged Property with a tax service
provider for the purpose of obtaining current information from local taxing
authorities relating to such Mortgaged Property.
Underwriting
Standards:
As to
each Mortgage Loan, the underwriting guidelines of the Seller in effect as
of
the date of origination of such Mortgage Loan.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
ARTICLE
II
INTERIM
SERVICING OF MORTGAGE LOANS; RECORD TITLE AND
POSSESSION
OF MORTGAGE FILES; BOOKS AND RECORDS; CUSTODIAL
AGREEMENT;
DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase on each Closing
Date,
pursuant to this Agreement and the related Confirmation Letter, the Mortgage
Loans, including, without limitation, all servicing rights with respect thereto,
being sold by the Seller and listed on the related Mortgage Loan Schedule,
having an aggregate Stated Principal Balance in an amount as set forth in the
related Confirmation Letter, or in such other amount as agreed by the Purchaser
and the Seller as evidenced by the actual aggregate principal balance of the
Mortgage Loans accepted by the Purchaser on such Closing Date. Notwithstanding
the foregoing, the parties understand and agree that the responsibilities
related to the servicing of the Mortgage Loans shall remain vested in the Seller
through the related Servicing Transfer Date. The Seller shall deliver in an
electronic format the Mortgage Loan Schedule for the Mortgage Loans to be
purchased on such Closing Date to the Purchaser and its Custodian at least
five
(5) Business Days prior to such Closing Date
Section
2.02 Purchase
Price.
The
Purchase Price for the Mortgage Loans in a Mortgage Loan Package shall be equal
to the sum of (a) the percentage of par as stated in the related Confirmation
Letter (subject to adjustment as provided therein), multiplied by the aggregate
Stated Principal Balance of Mortgage Loans as of the related Cut-off Date listed
on the related Mortgage Loan Schedule plus
(b)
accrued interest on the aggregate Stated Principal Balance as of the related
Cut-off Date of the related Mortgage Loans at the weighted average Mortgage
Interest Rate of such Mortgage Loans from the related Cut-off Date to
but
not including such Closing Date,
net of
the Servicing Fee, from the related Cut-off Date to but not including such
Closing Date (the “Purchase
Price”).
If so
provided in the related Confirmation Letter, portions of each Mortgage Loan
Package shall be priced separately.
18
The
Purchase Price as set forth in the preceding paragraph for the Mortgage Loans
in
a Mortgage Loan Package shall be paid by the Initial Purchaser to the Seller
on
the related Closing Date by wire transfer of immediately available
funds.
With
respect to each Mortgage Loan purchased, the Initial Purchaser shall own and
be
entitled to receive: (a) all payments and/or recoveries of principal collected
after the related Cut-off Date, (b) all payments of interest on such Mortgage
Loan net of the related Servicing Fee, and (c) all Prepayment Penalties on
the
Mortgage Loans collected on or after the Cut-off Date.
For
the
purposes of this Agreement, if received prior to the related Cut-off Date,
payments of scheduled principal and interest prepaid for a Due Date beyond
the
related Closing Date shall be applied to reduce the Stated Principal Balance
of
the related Mortgage Loan as of such Closing Date. Such prepaid amounts shall
be
the property of the Seller.
Section
2.03 Servicing
of Mortgage Loans.
On
each
Closing Date, the Mortgage Loans in the related Mortgage Loan Package will
be
sold by the Seller to the Initial Purchaser on a servicing released basis upon
the execution and delivery of an Assignment and Conveyance in the form attached
hereto as Exhibit
E
(the
“Assignment
and Conveyance”).
Simultaneously
with the execution and delivery of the related Assignment and Conveyance, for
each Mortgage Loan Package, the Seller hereby agrees to service the Mortgage
Loans listed on the Mortgage Loan Schedule in accordance with the Interim
Servicing Agreement during the Interim Servicing Period. The Seller shall
transfer servicing of each Mortgage Loan to the Initial Purchaser on the related
Servicing Transfer Date, in full compliance with Section 6.01 of the Interim
Servicing Agreement. The rights of the Purchaser to receive payments with
respect to the related Mortgage Loans shall be as set forth in this
Agreement.
Section
2.04 Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files.
As
of
each Closing Date, the Seller will have sold, transferred, assigned, set over
and conveyed to the Initial Purchaser, without recourse but subject to the
terms
of this Agreement, and the Seller hereby acknowledges that the Initial Purchaser
will have, all the right, title and interest of the Seller in and to the
Mortgage Loans. In accordance with Section 2.07, the Seller shall deliver at
its
own expense, the Mortgage Files for the related Mortgage Loans to Initial
Purchaser or its designee. The possession of each Servicing File by the Seller
is for the sole purpose of servicing the related Mortgage Loan during the
related Interim Servicing Period. From each Closing Date, the ownership of
each
related Mortgage Loan, including the Mortgage Note, the Mortgage, the contents
of the related Mortgage File and all rights, benefits, proceeds and obligations
arising therefrom or in connection therewith, shall be vested in the Initial
Purchaser. All rights arising out of the Mortgage Loans including, but not
limited to, all funds received on or in connection with the Mortgage Loans
and
all records or documents with respect to the Mortgage Loans prepared by or
which
come into the possession of the Seller shall be received and held by the Seller
in trust for the benefit of the Initial Purchaser as the owner of the Mortgage
Loans. Any portion of the Mortgage Files retained by the Seller shall be
appropriately identified in the Seller’s computer system to clearly reflect the
ownership of the Mortgage Loans by the Initial Purchaser.
19
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at its own expense, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Initial Purchaser or its designee in accordance with this Agreement by including
(or deleting, in the case of Mortgage Loans which are repurchased in accordance
with this Agreement) in such computer files the information required by the
MERS® System to identify the Initial Purchaser of such Mortgage Loans. The
Seller further agrees that it will not alter the information referenced in
this
paragraph with respect to any Mortgage Loan during the related Interim Servicing
Period unless otherwise directed by the Initial Purchaser.
Section
2.05 Books
and Records.
The
sale
of each Mortgage Loan will be reflected on the Seller’s balance sheet and other
financial statements as a sale of assets by the Seller and will be reflected
on
the Initial Purchaser’s balance sheet and other financial statements as a
purchase by the Initial Purchaser. The Seller shall maintain a complete set
of
books and records for the Mortgage Loans sold by it which shall be appropriately
identified in the Seller’s computer system to clearly reflect the ownership of
the Mortgage Loans by the Initial Purchaser. In particular, the Seller shall
maintain in its possession, available for inspection by the Initial Purchaser
or
its designee and shall deliver to the Initial Purchaser upon demand, evidence
of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Mae or Xxxxxxx Mac, as applicable, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended,
to
the Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by Seller and periodic
inspection reports. To the extent that original documents are not required
for
purposes of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Seller may be in the form of microfilm or microfiche or such
other reliable means of recreating original documents, including but not limited
to, optical imagery techniques so long as the Seller complies with the
requirements of the Xxxxxx Mae Guides.
Section
2.06 Transfer
of Mortgage Loans.
The
Seller shall keep at its office books and records in which, subject to such
reasonable regulations as it may prescribe, the Seller shall note transfers
of
Mortgage Loans. No transfer of a Mortgage Loan may be made by Initial Purchaser
unless such transfer is in compliance with the terms of Section 8.13 of the
Interim Servicing Agreement. For the purposes of this Agreement, the Seller
shall be under no obligation to deal with any person with respect to this
Agreement or any Mortgage Loan unless a properly executed Assignment, Assumption
and Recognition Agreement in the form of Exhibit
D
with
respect to such Mortgage Loan has been delivered to the Seller; provided that,
unless otherwise provided in the related Confirmation Letter, in no event shall
there be more than three (3) “Purchasers” with respect to any Mortgage Loan
Package. Upon receipt of notice of the transfer, the Seller shall xxxx its
books
and records to reflect the ownership of the Mortgage Loans by such assignee,
and, except as otherwise provided herein, the previous Purchaser shall be
released from its obligations hereunder with respect to the Mortgage Loans
sold
or transferred.
20
Section
2.07 Delivery
of Mortgage Loan Documents; Due Diligence.
The
Seller shall deliver and release to the Initial Purchaser’s Custodian the
Mortgage Loan Documents no later than three (3) Business Days prior to the
related Closing Date pursuant to a bailee letter agreement. If the Seller cannot
deliver the original recorded Mortgage Loan Documents on the related Closing
Date, the Seller shall, promptly upon receipt thereof and in any case not later
than 180 days from the related Closing Date, deliver such original recorded
documents to the Initial Purchaser or its designee (unless the Seller is delayed
in making such delivery by reason of the fact that such documents shall not
have
been returned by the appropriate recording office). If delivery is not completed
within 180 days of the related Closing Date solely because such documents shall
not have been returned by the appropriate recording office, the Seller shall
deliver a recording receipt of such recording office, or, if such recording
receipt is not available, an officer’s certificate of a servicing officer of the
Seller, confirming that such document has been accepted for recording and shall
use its best efforts to deliver such document within twelve (12) months of
the
related Closing Date.
The
Seller shall provide to each of the Initial Purchaser and the Custodian a notice
containing a list of authorized servicing officers (each, an “Authorized
Representative”) for the purpose of giving and receiving notices, requests and
instructions and delivering certificates and documents in connection with this
Agreement. Such notice shall contain the specimen signature for each Authorized
Representative. From time to time, the Seller may, by delivering to the others
a
revised notice, change the information previously given pursuant to this
Section, but each of the parties hereto shall be entitled to rely conclusively
on the then current notice until receipt of a superseding notice.
With
respect to each Mortgage Loan for which the related Underwriting Standards
require a title insurance policy, the Seller shall provide the
original policy of title insurance with all applicable endorsements thereto,
a
title insurance binder, or a copy of the commitment for the issuance of such
policy, to
the
Initial Purchaser or its designee no later than two (2) days prior to the
related Closing Date.
With
respect to each Mortgage Loan Package, the Initial Purchaser shall be entitled
to conduct a due diligence review in order to ensure that the Mortgage Loans
included in such Mortgage Loan Package meet the requirements set forth in the
related Confirmation Letter and this Agreement. Such due diligence review shall
be conducted in accordance with the timetable and any additional terms and
conditions set forth in the related Confirmation Letter.
Subject
to any contrary provision in the Confirmation Letter, Initial Purchaser shall
have the right to reject any Mortgage Loan prior to closing for which the value
of the Mortgaged Property pursuant to any BPO, AVM or other indicator of value
varies by more than the amount specified in the related Confirmation Letter
from
the Appraised Value of the Mortgaged Property; provided, however, that Seller
shall have the right to dispute the property valuation obtained by Initial
Purchaser. In such event, Seller will provide a supplemental property valuation,
and Seller and Initial Purchaser agree to discuss in good faith such property
valuations and mutually agree to the final determination as to the property
value.
21
If
Initial Purchaser after the Closing Date requests a repurchase based on property
value, the Initial Purchaser must submit a justification and written request.
The Initial Purchaser will be responsible for reconciling its property valuation
to the original Appraised Value and submitting the findings to the Seller as
part of the repurchase request. Upon receipt of the Initial Purchaser’s demand
for repurchase, the Seller will have the right to dispute the Initial
Purchaser’s property valuation by providing a supplemental property valuation.
Seller and Initial Purchaser agree to discuss in good faith such property
valuations and mutually agree to the final determination as to the property
value. A current property valuation can only be used for proving a breach under
this Agreement related to the Appraised Value or the condition of the property
at the time of closing. The Initial Purchaser’s right to demand repurchase based
on current property valuation is limited to twelve (12) months after the Closing
Date.
Except
as
provided herein, any review by the Initial Purchaser or its designee of the
Mortgage Files shall in no way alter or reduce the Seller’s obligations
hereunder.
To
the
extent received by it, the Seller shall forward to the Initial Purchaser, or
its
designee, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance
with
this Agreement within two (2) weeks after their execution; provided, however,
that the Seller shall provide the Initial Purchaser, or its designee, with
a
copy, certified by the Seller as a true copy, of any such document submitted
for
recordation within two (2) weeks after its execution, and shall promptly provide
the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within two (2) weeks of its return from the
appropriate public recording office.
In
the
event the Seller does not comply with the delivery requirements set forth in
this Subsection 2.07 and such noncompliance materially and adversely affects
the
Purchaser’s interest in the Mortgage Loan, the Purchaser shall notify the Seller
of such noncompliance, and the Seller shall correct or cure the related omission
or defect within forty-five (45) days of the receipt of such notice. If the
Seller does not correct or cure such material and adverse omission or defect
within such period, then the Seller shall repurchase such Mortgage Loan from
the
Purchaser within ten (10) Business Days after the expiration of such forty-five
(45) day period at the Repurchase Price.
Section
2.08 Expenses.
The
Seller shall pay such fees as may be prescribed in the Confirmation Letter
in
connection with transferring all original documents to the Initial Purchaser
or
the Initial Purchaser’s designee.
Section
2.09 Quality
Control Procedures.
The
Seller shall have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program shall
include evaluating and monitoring the overall quality of the Seller’s loan
production and the servicing activities of the Seller. The program is to ensure
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Practices and the Underwriting Standards; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
22
The
Seller has in place, and will maintain throughout the term of this Agreement,
a
procedure by which it confirms, on an ongoing basis, that no Mortgage Loan
is
subject to nullification pursuant to Executive Order 13224 (the “Executive
Order”) or regulations promulgated by the Office of Foreign Assets Control of
the United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations nor
listed as a “specially designated national or blocked person” for purposes of
the OFAC Regulations.
Section
2.10 Closing.
(a) The
closing for the purchase and sale of the Mortgage Loans shall take place on
the
related Closing Date specified in the related Confirmation Letter. The closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall
agree.
The
closing for the Mortgage Loans to be purchased on the related Closing Date
shall
be subject to each of the following conditions:
(i) at
least
one (1) Business Day prior to the related Closing Date, the Seller shall have
delivered to the Initial Purchaser a magnetic diskette, or transmit by modem
or
e-mail, a listing on a loan-level basis of the information contained in the
Mortgage Loan Schedule as of the delivery date;
(ii) all
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct as of the related Closing Date or, with respect to
representations and warranties made as of a date other than the related Closing
Date, as of such date, and no event shall have occurred which, with notice
or
the passage of time, would constitute a default under this
Agreement;
(iii) the
Initial Purchaser shall have received, or the Initial Purchaser’s attorneys
shall have received in escrow, all Closing Documents, in such forms as are
agreed upon and acceptable to the Initial Purchaser, duly executed by all
signatories other than the Initial Purchaser as required pursuant to the terms
hereof;
(iv) the
Seller shall have received, or the Seller’s attorneys shall have received in
escrow, all Closing Documents, in such forms as are agreed upon and acceptable
to the Seller, duly executed by all signatories other than the Seller as
required pursuant to the terms hereof;
23
(v) the
Seller shall have delivered and released to the Initial Purchaser (or its
designee) on or prior to the related Closing Date all documents required to
be
delivered and released prior to such date pursuant to the terms of this
Agreement; and
(vi) all
other
terms and conditions of this Agreement, the related Confirmation Letter and
the
related Assignment and Conveyance shall have been materially complied
with.
Subject
to the foregoing conditions and, in the event the Seller ties out the related
Mortgage Loan Package one (1) Business Day prior to the related Closing Date,
the Initial Purchaser shall pay to the Seller by 1:00 PM Eastern Time on the
related Closing Date the Purchase Price pursuant to Section 2.02 of this
Agreement, by wire transfer of immediately available funds to the account
designated by the Seller.
(b) Closing
Documents.
On
the
initial Closing Date, the Seller shall deliver to the Initial Purchaser in
escrow fully executed originals of:
(i) this
Agreement, including all exhibits;
(ii) the
Interim Servicing Agreement, including all exhibits;
(iii) the
Regulation AB Compliance Addendum;
(iv) a
Custodial Account Certification;
(v) an
Escrow
Account Certification;
(vi) an
Opinion of Counsel to the Seller;
(vii) the
Underwriting Standards;
(viii) an
Officer’s Certificate, in the form of Exhibit
G
hereto,
for the Seller including all attachments thereto.
The
Closing Documents to be delivered by the Seller on each Closing Date shall
consist of fully executed originals of the following documents:
(i) an
Assignment and Conveyance in the form of Exhibit
E
hereto,
including all exhibits;
(ii) a
Confirmation Letter;
(iii) an
Officer’s Certificate, in the form of Exhibit
G
hereto,
for the Seller including all attachments thereto;
24
(iv) if
requested by the Initial Purchaser, an Opinion of Counsel to the
Seller;
(v) a
security release certification or appropriate form of bailee or similar letter
executed by any other person, as requested by the Initial Purchaser, if any
of
the Mortgage Loans have at any time been subject to a security interest, pledge
or hypothecation for the benefit of such person;
(vi) any
modifications, amendments or supplements to the Underwriting Standards following
the initial Closing Date which have not been previously provided to the Initial
Purchaser; and
(vii) the
related Mortgage Loan Schedule, with one copy to be attached to the related
Assignment and Conveyance.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLER; REPURCHASE;
REVIEW
OF MORTGAGE LOANS
Section
3.01 Representations
and Warranties of the Seller.
The
Seller represents, warrants and covenants to the Initial Purchaser and to any
subsequent Purchaser that as of each Closing Date or as of such date
specifically provided herein:
(a) The
Seller is a Delaware corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
licenses necessary to carry out its business as now being conducted, and is
licensed and qualified to transact business in and is in good standing under
the
laws of each state in which any Mortgaged Property is located or is otherwise
exempt under applicable law from such licensing or qualification or is otherwise
not required under applicable law to effect such licensing or qualification
and
no demand for such licensing or qualification has been made upon the Seller
by
any such state, and in any event the Seller is in compliance with the laws
of
any such state to the extent necessary to ensure the enforceability of each
Mortgage Loan and the servicing of the Mortgage Loans in accordance with the
terms of this Agreement. No licenses or approvals obtained by the Seller have
been suspended or revoked by any court, administrative agency, arbitrator or
governmental body and no proceedings are pending which might result in such
suspension or revocation;
(b) The
Seller has the full power and authority and legal right to hold, transfer and
convey 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 Interim Servicing Agreement, the related Confirmation Letter
and the related Assignment and Conveyance and to conduct its business as
presently conducted; the Seller has duly authorized the execution, delivery
and
performance of this Agreement and any agreements contemplated hereby, has duly
executed and delivered this Agreement, the Interim Servicing Agreement, the
related Confirmation Letter and the related Assignment and Conveyance, and
any
agreements contemplated hereby, and this Agreement, the Interim Servicing
Agreement, the related Confirmation Letter, the related Assignment and
Conveyance and each Assignment of Mortgage to the Purchaser and any agreements
contemplated hereby, constitute the legal, valid and binding obligations of
the
Seller, enforceable against it in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting the
enforceability of the rights of creditors; and all requisite corporate action
has been taken by the Seller to make this Agreement, the Interim Servicing
Agreement, the related Confirmation Letter, the related Assignment and
Conveyance and all agreements contemplated hereby valid and binding upon the
Seller in accordance with their respective terms;
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(c) None
of
the execution and delivery of this Agreement, the Interim Servicing Agreement,
the related Confirmation Letter, the related Assignment and Conveyance, the
sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement, the Interim Servicing Agreement, the related
Confirmation Letter or the related Assignment and Conveyance will conflict
with
any of the terms, conditions or provisions of the Seller’s charter or by-laws or
conflict with or result in a material breach of any of the terms, conditions
or
provisions of 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;
(d) There
is
no litigation, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened, or any order or decree outstanding, which is reasonably
likely to have a material adverse effect on the sale of the Mortgage Loans,
the
execution, delivery, performance or enforceability of this Agreement, the
Interim Servicing Agreement, the related Confirmation Letter or the related
Assignment and Conveyance, or which is reasonably likely to have a material
adverse effect on the financial condition of the Seller;
(e) 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 Interim Servicing Agreement,
the related Confirmation Letter and the related Assignment and Conveyance,
except for consents, approvals, authorizations and orders which have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement, the Interim
Servicing Agreement, the related Confirmation Letter and the related Assignment
and Conveyance are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller pursuant to this Agreement, the Interim Servicing Agreement, the
related Confirmation Letter and the related Assignment and Conveyance are not
subject to bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
(g) Reserved;
26
(h) The
Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(i) The
Seller is an approved seller/servicer of residential mortgage loans for Xxxxxx
Xxx and Xxxxxxx Mac and is a HUD approved mortgagee pursuant to Section 203
of
the National Housing Act, with such facilities, procedures and personnel
necessary for the sound servicing of such mortgage loans. The Seller is duly
qualified, licensed, registered and otherwise authorized under all applicable
federal, state and local laws and regulations, meets the minimum capital
requirements, if applicable, set forth by the OCC, and is in good standing
to
sell mortgage loans to and service mortgage loans for Xxxxxx Mae and Xxxxxxx
Mac
and no event has occurred which would make the Seller unable to comply with
eligibility requirements or which would require notification to either Xxxxxx
Mae, Xxxxxxx Mac or HUD;
(j) The
Seller does not believe, nor does it have any cause or reason to believe, that
it cannot perform each and every covenant contained in this Agreement, the
Interim Servicing Agreement, and the related Confirmation Letter. The Seller
is
solvent and the sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with the intent
to
hinder, delay or defraud any of the Seller’s creditors;
(k) Neither
this Agreement, the Interim Servicing Agreement, nor any information, statement,
tape, diskette, form, report, or other document furnished or to be furnished
by
or on behalf of the Seller pursuant to this Agreement, the Interim Servicing
Agreement, the related Confirmation Letter or in connection with the
transactions contemplated hereby contains or will contain any untrue statement
of material fact or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading;
(l) The
Seller acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Seller, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement;
(m) The
Seller has delivered to the Purchaser financial statements as to its last
complete fiscal year for which financial statements are available. All such
financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries
and
have been prepared in accordance with GAAP consistently applied throughout
the
periods involved, except as set forth in the notes thereto. There has been
no
change in the business, operations, financial condition, properties or assets
of
the Seller since the date of the Seller’s financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement, the Interim Servicing Agreement, the related Confirmation Letter
or
the related Assignment and Conveyance;
(n) The
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans; and
27
(o) The
Seller is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS and is current in payment of all fees and assessments imposed by
MERS.
(p) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(q) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered with respect to each Mortgage Loan pursuant to this
Agreement, have been delivered to the Custodian all in compliance with the
specific requirements of this Agreement. With respect to each Mortgage Loan,
the
Seller is in possession of a complete Mortgage File in compliance with Exhibit
A-1, except for such documents as have been delivered to the
Custodian;
(r) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note and upon the payment of the Purchase Price by
the
Purchaser, in the event that the Seller retains record title, the Seller shall
retain such record title to each Mortgage, each related Mortgage Note and the
related Mortgage Files with respect thereto in trust for the Purchaser as the
owner thereof and only for the purpose of servicing and/or supervising the
servicing of each Mortgage Loan;
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Initial Purchaser and to any
subsequent Purchaser, as to each Mortgage Loan, as of the related Closing Date
as follows:
(a) The
information set forth in the Mortgage Loan Schedule, including any diskette
or
other related data tapes delivered to the Purchaser, is complete, true and
correct;
(b) With
respect to each Mortgage Loan, the Mortgage creates a first lien or a first
priority ownership interest in an estate in fee simple in real property securing
the related Mortgage Note;
(c) Reserved;
(d)
(i) All
payments due on or prior to the related Closing Date for such Mortgage Loan
have
been made, and the Mortgage Loan is not delinquent thirty (30) days or more
in
payment. (ii) The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of
the
Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required by the Mortgage Loan. (iii) There has been no
delinquency, exclusive of any period of grace, in any payment by the Mortgagor
thereunder since the origination of the Mortgage Loan;
28
(e) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(f) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been recorded
to the extent any such recordation is required by law, or, necessary to protect
the interest of the Purchaser. No instrument of waiver, alteration or
modification has been executed in connection with such Mortgage Loan, and no
Mortgagor has been released, in whole or in part, from the terms thereof except
in connection with an assumption agreement and which assumption agreement is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule; the substance of any such waiver, alteration or modification
has
been approved by the issuer of any related Primary Mortgage Insurance Policy
and
title insurance policy, to the extent required by the related
policies;
(g) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(h) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the Xxxxxx Xxx Guides and the Xxxxxxx
Mac Guide, against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the Xxxxxx Xxx Guides and by the Xxxxxxx Mac
Guide, as well as all additional requirements set forth in Section 2.10 of
the
Interim Servicing Agreement. All such standard hazard policies are in full
force
and effect and on the date of origination contained a standard mortgagee clause
naming the Seller and its successors in interest and assigns as loss payee
and
such clause is still in effect and all premiums due thereon have been paid.
If
required by the Flood Disaster Protection Act of 1973, as amended, the Mortgage
Loan is covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration which policy conforms
to Xxxxxx Xxx and Xxxxxxx Mac requirements, as well as all additional
requirements set forth in Section 2.10 of the Interim Servicing Agreement.
Such
policy was issued by an insurer acceptable under Xxxxxx Mae and Xxxxxxx Mac
guidelines. The Mortgage obligates the Mortgagor thereunder to maintain all
such
insurance at the Mortgagor’s cost and expense, and upon the Mortgagor’s failure
to do so, authorizes the holder of the Mortgage to maintain such insurance
at
the Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
29
(i) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws and all predatory
and abusive lending laws applicable to the origination and servicing of the
Mortgage Loans including, without limitation, any provisions relating to
Prepayment Penalties, have been complied with and the consummation of the
transactions contemplated hereby will not involve the violation of any such
laws
or regulations. The Seller shall maintain in its possession, available for
the
Purchaser’s inspection, and shall deliver to the Purchaser, upon request,
evidence of compliance with all such requirements;
(j) The
Mortgage has not been satisfied, canceled or subordinated, in whole or in part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(k) With
respect to any Mortgage Loan, the related Mortgage is a valid, subsisting,
enforceable and perfected first lien on the Mortgaged Property;
(l) The
Mortgage and the Mortgage Note do not contain any evidence of any security
interest or other interest or right thereto. Such lien is free and clear of
all
adverse claims, liens and encumbrances having priority over the first lien,
of
the Mortgage subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording which are acceptable to mortgage
lending institutions generally and either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan, or
(B)
which do not adversely affect the appraised value of the Mortgaged Property
as
set forth in such appraisal, and (4) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property;
(m) Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein, and the Seller has the full right
to
sell and assign the same to the Purchaser;
(n) The
Mortgage Note and the related Mortgage are original and genuine and each is
the
legal, valid and binding obligation of the maker thereof, enforceable in all
respects in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, moratorium, reorganization and other laws of general
application affecting the rights of creditors generally
and the equitable remedy of specific performance and by
general equitable principles. All parties to the Mortgage Note and the related
Mortgage had the legal capacity to enter into the Mortgage Loan and to execute
and deliver the Mortgage Note and the related Mortgage. The Mortgage Note and
the related Mortgage have been duly and properly executed by such parties.
The
Mortgagor is a natural person or a trust acceptable to Xxxxxx Mae and Xxxxxxx
Mac and guaranteed by a natural person;
30
(o) No
fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Seller, the Mortgagor
or any other party involved in the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan;
(p) The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as
to
completion of any on-site or off-site improvements and as to disbursements
of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or related Mortgage;
(q) Except
with respect to MERS Mortgage Loans, the Seller or its Affiliate is the sole
owner of record and holder of the Mortgage Loan and the indebtedness evidenced
by the Mortgage Note, and upon recordation the Purchaser or its designee will
be
the owner of record of the Mortgage and the indebtedness evidenced by the
Mortgage Note, and upon the sale of the Mortgage Loan to the Purchaser, the
Seller will retain the Servicing File in trust for the Purchaser only for the
purpose of servicing and supervising the servicing of the Mortgage Loan.
Immediately prior to the transfer and assignment to the Purchaser on the related
Closing Date, the Mortgage Loan, including the Mortgage Note and the Mortgage,
were not subject to an assignment or pledge, and the Seller had good and
marketable title to and was the sole legal and beneficial owner thereof and
had
full right to transfer and sell the Mortgage Loan to the Purchaser free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
Mortgage Loan pursuant to this Agreement and following the sale of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in this Agreement. After the related Closing Date,
the Seller will have no right to modify or alter the terms of the sale of the
Mortgage Loan and the Seller will have no obligation or right to repurchase
the
Mortgage Loan or substitute another Mortgage Loan, except as provided in this
Agreement;
(r) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx and
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae and Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (k)(1), (2), (3)
and
(4) above) the Seller, its successors and assigns, as to the first priority
lien, of the Mortgage in the original principal amount of the Mortgage Loan
and,
with respect to any Adjustable Rate Mortgage Loan, against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly
Payment provisions of the Mortgage Note. Additionally, such lender’s title
insurance policy affirmatively insures ingress and aggress to and from the
Mortgaged Property, and against encroachments by or upon the Mortgaged Property
or any interest therein. Where required by applicable state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Seller, its successors and assigns,
are
the sole insureds of such lender’s title insurance policy, such title insurance
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser of the Seller’s interest therein does not require the consent of
or notification to the insurer 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 the related Confirmation
Letter. No claims have been made under such lender’s title insurance policy, and
no prior holder of the related Mortgage, including the Seller, has done, by
act
or omission, anything which would impair the coverage of such lender’s title
insurance policy;
31
(s) Except
with respect to Mortgage Loans less than thirty (30) days delinquent as of
the
related Closing Date, there is no default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and no
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
permitting acceleration; and neither the Seller nor, to the Seller’s knowledge,
any prior mortgagee has waived any default, breach, violation or event
permitting acceleration ;
(t) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to or equal to the lien of the related Mortgage, which are not insured
against by the title insurance policy referenced in paragraph (n)
above;
(u) All
improvements subject to the Mortgage which were considered in determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (n) above and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(v) The
Mortgage Loan generally
complies
with the terms, conditions and requirements of the Underwriting Standards which
guidelines are generally acceptable within the secondary mortgage market. The
Mortgage Notes and Mortgages are on forms generally acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac.
(w) The
Mortgage Loan bears interest at the Mortgage Interest Rate set forth in the
related Mortgage Loan Schedule, and Monthly Payments under the Mortgage Note
are
due and payable in accordance with the Mortgage Loan Schedule. The Mortgage
contains the usual and enforceable provisions of the originator at the time
of
origination for the acceleration of the payment of the unpaid principal amount
of the Mortgage Loan if the related Mortgaged Property is sold without the
prior
consent of the mortgagee thereunder;
32
(x) The
Mortgaged Property is free of damage and waste. At origination, the Mortgage
Property was and, to the best of Seller’s knowledge, currently is in good
repair. There currently is no proceeding pending for the total or partial
condemnation of the Mortgaged Property;
(y) The
Mortgage and related Mortgage Note contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
the
realization against the Mortgaged Property of the benefits of the security
provided thereby. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption;
(z) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses,
except as may be required by local law, are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with
a
trustee’s sale or attempted sale after default by the Mortgagor;
(aa) The
Mortgage File contains an appraisal of the related Mortgaged Property, in a
form
acceptable to Xxxxxx Mae and Xxxxxxx Mac, and such appraisal was signed prior
to
the final approval of the mortgage loan application by a Qualified
Appraiser;
(bb) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state, or
(2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(cc) The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in clause (m)
above and such collateral does not serve as security for any other
obligation;
(dd) 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;
(ee) Reserved;
(ff) Reserved;
33
(gg) Reserved;
(hh) Reserved;
(ii) The
Mortgaged Property is not subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor was not in bankruptcy or insolvent as of the date
of origination of the Mortgage Loan and is not in bankruptcy or insolvent as
of
the related Closing Date;
(jj) Each
Mortgage Loan has an original term to maturity of not more than forty (40)
years, with interest calculated and payable in arrears on the first day of
each
month in equal monthly installments of principal and interest. Except with
respect to Interest Only Mortgage Loans, each Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal balance
of
the Mortgage Loan fully by the stated maturity date, over an original term
of
not more than forty (40) years and to pay interest at the related Mortgage
Interest Rate; provided, however, in the case of a Balloon Mortgage Loan, the
Mortgage Loan matures at least seven (7) years after the first payment date
thereby requiring a final payment of the outstanding principal balance prior
to
the full amortization of the Mortgage Loan. With respect to each Mortgage Loan
identified on the Mortgage Loan Schedule as an Interest-Only Mortgage Loan,
the
interest-only period shall not exceed ten (10) years (or such other period
specified on the Mortgage Loan Schedule) and following the expiration of such
interest-only period, the remaining Monthly Payments shall be sufficient to
fully amortize the original principal balance over the remaining term of the
Mortgage Loan and to pay interest at the related Mortgage Interest Rate. With
respect to each Balloon Mortgage Loan, the Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal balance
over a period greater than the original term thereof and to pay interest at
the
related Mortgage Interest Rate and requires a final Monthly Payment
substantially greater than the preceding monthly payment which is sufficient
to
repay the remaining unpaid principal balance of the Balloon Mortgage Loan at
the
Due Date of such monthly payment. The Index for each Adjustable Rate Mortgage
Loan is as set forth on the Mortgage Loan Schedule;
(kk) If
a
Mortgage Loan has an LTV greater than 80%, the portion of the principal balance
of such Mortgage Loan in excess of the portion of the Appraisal Value of the
Mortgaged Property required by Xxxxxx Xxx, is and will be insured as to payment
defaults by a Primary Mortgage Insurance Policy issued by a Qualified Insurer;
unless otherwise indicated on the Mortgage Loan Schedule. All provisions of
such
Primary Mortgage 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. No action, inaction, or event has occurred and no state of facts exists
that has, or will result in the exclusion from, denial of, or defense to
coverage under any Primary Mortgage Insurance Policy. Any Mortgage Loan subject
to a Primary Mortgage Insurance Policy obligates the Mortgagor thereunder to
maintain the Primary Mortgage Insurance Policy and to pay all premiums and
charges in connection therewith. The Mortgage Interest Rate for the Mortgage
Loan as set forth on the related Mortgage Loan Schedule is net of any such
insurance premium. No Mortgage Loan is subject to a lender paid primary mortgage
insurance policy;
(ll) 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;
34
(mm) As
to
each Mortgage Loan, the Mortgaged Property is located in the state identified
in
the related Mortgage Loan Schedule and consists of a single parcel of real
property with a detached single family residence erected thereon, or a
townhouse, or a two-to four-family dwelling, or an individual condominium unit
in a condominium project, or an individual unit in a planned unit development
or
a de minimis planned unit development, provided,
however,
that no
residence or dwelling is a mobile home, geodesic dome or any other property
generally deemed unacceptable by Xxxxxx Mae or Xxxxxxx Mac. Since the date
of
origination no portion of the Mortgaged Property has been used for commercial
purposes;
(nn) Except
with respect to Interest Only Mortgage Loans, principal payments on the Mortgage
Loan commenced no more than sixty (60) days after the funds were disbursed
in
connection with such Mortgage Loan;
(oo) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Penalty. With respect to any Mortgage Loan that contains
a provision permitting imposition of a premium upon a prepayment prior to
maturity: (a) the Mortgage Loan provides some benefit to the Mortgagor (e.g.
a
rate or fee reduction) in exchange for accepting such Prepayment Penalty; (b)
the Mortgage Loan’s originator had a written policy of offering the Mortgagor,
or requiring third-party brokers to offer the Mortgagor, the option of obtaining
a Mortgage Loan that did not require payment of such a Prepayment Penalty;
(c)
the Prepayment Penalty was adequately disclosed to the Mortgagor pursuant to
applicable state and federal law; (d) the duration of the Prepayment Penalty
shall not exceed three (3) years from the date of the Mortgage Note; and (e)
such Prepayment Penalty shall not be imposed in any instance where the Mortgage
Loan is accelerated or paid off in connection with the workout of a delinquent
Mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition of such
Prepayment Penalty;
(pp) As
of the
date of origination of the Mortgage Loan the Mortgaged Property was and, to
the
best of Seller’s knowledge, as of the Closing Date, the
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 and fire underwriting
certificates, have been made or obtained from the appropriate
authorities;
(qq) If
the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development), or stock in a cooperative housing
corporation, such condominium, cooperative or planned unit development project
meets the Seller’s eligibility requirements of the Underwriting Standards Xxxxxx
Mae and Xxxxxxx Mac;
(rr) There
is
no pending action or proceeding directly involving the Mortgaged Property in
which compliance with any environmental law, rule or regulation is an issue
and
(ii) to the best of Seller’s knowledge, there is no violation of any
environmental law, rule or regulation with respect to the Mortgaged
Property;
35
(ss) The
related Mortgagor has not notified the Seller, and the Seller has no knowledge
of any relief requested or allowed to the Mortgagor under the Servicemembers
Civil Relief Act;
(tt) No
action
has been taken or failed to be taken by the Seller on or prior to the related
Closing Date which has resulted or will result in an exclusion from, denial
of,
or defense to coverage under any Primary Mortgage Insurance Policy (including,
without limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Seller, or
for
any other reason under such coverage;
(uu) Reserved;
(vv) Reserved;
(ww) Reserved;
(xx) Reserved;
(yy) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or state authority;
(zz) Reserved;
(aaa) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the borrower and no claims will
arise
as to broker fees that are double charged and for which the borrower would
be
entitled to reimbursement;
(bbb) Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(ccc) All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that is or will be
inaccurate or misleading in any material respect;
(ddd) The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of any adjustable rate mortgage loans in the case of Adjustable Rate Mortgage
Loans, and fixed rate mortgage loans in the case of Fixed Rate Mortgage Loans.
The Seller shall maintain such statement in the Servicing File;
(eee) No
Mortgage Loan had a Loan-to-Value Ratio or CLTV at the time of origination
in
excess of 100%;
36
(fff) Reserved;
(ggg) Reserved;
(hhh) Reserved;
(iii) No
Mortgage Loan is a High Cost Loan or Covered Loan. No Mortgage Loan is (a)(1)
subject to the provisions of the Homeownership and Equity Protection Act of
1994
as amended (“HOEPA”) or (2) has an “annual percentage rate” or “total points and
fees” (as each such term is defined under HOEPA) payable by the Mortgagor that
equal or exceed the applicable thresholds defined under HOEPA (as defined in
12
CFR 226.32 (a)(1)(i). The Mortgaged Property is not located in a jurisdiction
where a breach of this representation with respect to the related Mortgage
Loan
may result in additional assignee liability to the Purchaser, as determined
by
Purchaser in its reasonable discretion;
(jjj) With
respect to any Mortgage Loan which is a Texas Home Equity Loan, any and all
requirements of Section 50, Article XVI of the Texas Constitution applicable
to
Texas Home Equity Loans which were in effect at the time of the origination
of
the Mortgage Loan have been complied with;
(kkk) The
origination and servicing practices with respect to each Mortgage Note and
Mortgage have been legal and in accordance with applicable laws and regulations,
and in all material respects proper and prudent in the mortgage origination
and
servicing business.
(lll) With
respect to escrow deposits and payments that the Seller is entitled to collect,
all such payments are in the possession of, or under the control of, the Seller,
and there exist no deficiencies therewith for which customary arrangements
for
repayment thereof have not been made. All escrow payments have been collected
and are being maintained in full compliance with applicable state and federal
law and the provisions of the related Mortgage Note and Mortgage. As to any
Mortgage Loan that is the subject of an escrow, escrow of funds is not
prohibited by applicable law and has been established in an amount sufficient
to
pay for every escrowed item that remains unpaid and has been assessed but is
not
yet due and payable. If applicable, with respect to each Mortgage, the Seller
or
a prior servicer has within the last twelve (12) months (unless such Mortgage
was originated within such twelve (12) month period) analyzed the required
Escrow Payments for each Mortgage and adjusted the amount of such payments
so
that, assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law. No escrow deposits or other charges or payments due under the
Mortgage Note have been capitalized under any Mortgage or the related Mortgage
Note;
(mmm) No
Mortgage Loan is a Convertible Mortgage Loan;
(nnn) Reserved;
(ooo) Any
principal advances made to the Mortgagor prior to the applicable Cut-off Date
have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The lien of the Mortgage securing
the
consolidated principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring the
Mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
37
(ppp) No
Mortgage Loan was made in connection with the construction (other than a
“construct-to-perm” loan which has become a permanent loan and construction has
been completed) or rehabilitation of a Mortgaged Property;
(qqq) All
Mortgage Interest Rate adjustments have been made in strict compliance with
state and federal law and the terms of the related Mortgage Note. Any interest
required to be paid pursuant to state and local law has been properly paid
and
credited;
(rrr) As
to
each consumer report (as defined in the Fair Credit Reporting Act, Public Law
91-508) or other credit information furnished by the Seller to the Purchaser,
that Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage;
(sss) With
respect to each Mortgage Loan, the Seller either (i) shall have obtained, at
its
own expense, a paid in full, life of loan, tax service contract issued by a
company acceptable to the Purchaser, and assignable to the Purchaser or its
designee, or (ii) the Seller shall reimburse the Purchaser or its designee
for
all costs and expenses incurred in obtaining such a contract;
(ttt) Each
original Mortgage was recorded, and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of being
recorded;
(uuu) The
Seller or Seller’s parent has adopted an Anti-Money Laundering and
Terrorist-Finance Policy (the “Policy”)
that
requires the Seller to comply with applicable anti-money laundering laws and
regulations, including without limitation on the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”)
and
based upon the succeeding information the Seller is in material compliance
with
that Policy; the Seller has established an anti-money laundering compliance
program as required by the Policy, has procedures in place to conduct due
diligence, based upon the Seller’s risk assessment of the applicable Mortgagor,
in connection with Seller’s origination of any Mortgage Loan for purposes of the
Policy, including the verification of the identity of the applicable Mortgagor
and, where required, the origin of the assets used by the said Mortgagor to
purchase the property in question and has procedures, including record keeping
procedures, in place to comply with Section 326 of the USA Patriot Act of 2001
and its implementing regulation 31 CFR 103.121 regarding the identity of the
applicable Mortgagor. On or before the closing of any Mortgage Loan, the Seller
conducts or causes to be conducted an OFAC screening of the Mortgagor to comply
with regulations of the Office of Foreign Assets Control (“OFAC”)
of the
United States Department of Treasury implementing certain United States laws
and
the executive orders issued under the authority of such laws; and thereafter
Seller periodically re-screens or causes the re-screening of Mortgagors when
the
OFAC sanctioned parties lists are updated. No Mortgage Loan is subject to
nullification pursuant to Executive Order 13224 (the “Executive Order”) or the
regulations promulgated by the Office of Foreign Assets Control of the United
States Department of the Treasury (the “OFAC Regulations”) or in violation of
the Executive Order or the OFAC Regulations, and no Mortgagor is subject to
the
provisions of such Executive Order or the OFAC Regulations nor listed as a
“specially designated national or blocked person” for purposes of the OFAC
Regulations;
38
(vvv) Reserved;
(www) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve (12) 30-day months;
(xxx) Reserved;
(yyy) Reserved
(zzz) No
Mortgage Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was originated
prior to October 1, 2002 or after March 6, 2003, or (y) the property securing
the Mortgage Loan is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. There is no Mortgage Loan that was originated on
or after October 1, 2002 and before March 7, 2003, which is secured by a
Mortgaged Property located in the State of Georgia. There is no Mortgage Loan
which is a “high cost home loan” as defined under the Georgia Fair Lending
Act;
(aaaa) Reserved;
(bbbb) No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, disability, accident, unemployment, or health insurance product)
or
debt cancellation agreement in connection with the origination of the Mortgage
Loan. No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g., life, mortgage, disability, accident, unemployment, health or credit
property insurance product) or debt cancellation agreement in connection with
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan;
(cccc) Reserved;
(dddd) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities to the proposed mortgage payment. Such underwriting methodology
determined that at the time of origination (application/approval) the borrower
had the reasonable ability to make timely payments on the Mortgage
Loan;
39
(eeee) The
Mortgage Loan is in compliance with all requirements set forth in the related
Confirmation Letter, and the characteristics of the related Mortgage Loan
Package as set forth in the related Confirmation Letter are true and correct;
provided, however, that in the event of any conflict between the terms of any
Confirmation Letter and this Agreement, the terms of this Agreement shall
control;
(ffff) The
Seller has no knowledge of any circumstances or condition with respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause the Mortgage Loan to be an
unacceptable investment, or cause the Mortgage Loan to become delinquent or
adversely affect the value of the Mortgage Loan;
(gggg) The
source of the down payment with respect to each Mortgage Loan has been fully
verified by the Seller, subject to the Seller’s Underwriting
Standards;
(hhhh) No
predatory, abusive, or deceptive lending practices, including but not limited
to, the extension of credit to a Mortgagor without regard for the Mortgagor’s
ability to repay the Mortgage Loan and the extension of credit to a Mortgagor
which has no apparent benefit to the Mortgagor, were employed in connection
with
the origination of the Mortgage Loan. Each Mortgage Loan is in compliance with
the anti-predatory lending eligibility for purchase requirements of the Xxxxxx
Mae Guides;
(iiii) The
debt-to-income ratio of the related Mortgagor was not greater than 55% at the
origination of the related Mortgage Loan, subject to the Seller’s Underwriting
Standards;
(jjjj) The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio as to which the representations and
warranties set forth in this Agreement could be made at the related Closing
Date
in a manner so as to affect adversely the interests of the Purchaser except
that
this representation shall not apply to any particular Mortgage Loan for which
Purchaser has requested the inclusion of, or exclusion from, a Mortgage Loan
Package, or with respect to the Purchaser’s criteria for purchasing the Mortgage
Loans;
(kkkk) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(llll) The
Mortgage Loan complies with all applicable consumer credit statutes and
regulations, including, without limitation, the respective Uniform Consumer
Credit Code laws in effect in Alabama, Colorado, Idaho, Indiana, Iowa, Kansas,
Maine, Oklahoma, South Carolina, Utah, West Virginia and Wyoming, has been
originated by a properly licensed entity, and in all other respects, complies
with all of the material requirements of any such applicable laws;
(mmmm) The
information set forth in the Mortgage Loan Schedule as to Prepayment Penalties
is complete, true and correct in all material respects and each Prepayment
Penalty is permissible, enforceable and collectable in accordance with its
terms
upon the Mortgagor’s full and voluntary principal payment under applicable
law;
40
(nnnn) The
Mortgage Loan was not prepaid in full prior to the Closing Date and the Seller
has not received notification from a Mortgagor that a prepayment in full shall
be made after the Closing Date;
(oooo) No
Mortgage Loan is secured by cooperative housing, commercial property or mixed
use property;
(pppp) The
Mortgagor was not encouraged or required to select a mortgage loan product
offered by the Mortgage Loan’s originator which is a higher cost product
designed for less creditworthy borrowers, taking into account such facts as,
without limitation, the Mortgage Loan’s requirements and the Mortgagor’s credit
history, income, assets and liabilities. For a borrower who seeks financing
through a mortgage loan originator’s higher-priced subprime lending channel, the
borrower should be directed towards or offered the mortgage loan originator’s
standard mortgage line if the borrower is able to qualify for one of the
standard products. If, at the time of loan application, the Mortgagor may have
qualified for a lower cost credit product then offered by any mortgage lending
affiliate of the Mortgage Loan’s originator, the Mortgage Loan’s originator
referred the Mortgagor’s application to such affiliate for underwriting
consideration;
(qqqq) Reserved;
(rrrr) Reserved;
(ssss) Reserved;
(tttt) No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking Law
Section 6-1, effective as of April 1, 2003;
(uuuu) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and (c)
has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans”, as defined in Section 6-1 of the New York State Banking
Law;
(vvvv) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(wwww) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(xxxx) No
Mortgage Loan in the transaction originated in the City of Los Angeles is
subject to the City of Los Angeles, California Ordinance 175008 (the
“Ordinance”) as a home loan;
41
(yyyy) No
Mortgage Loan secured by property located in the State of Nevada is a “home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(zzzz) No
Mortgage Loan in the transaction originated in the City of Oakland is subject
to
the City of Oakland, California Ordinance 12361 (the “Ordinance”) as a home
loan;
(aaaaa) No
Mortgage Loan is a “manufactured housing loan” or “home improvement home loan”
pursuant to the New Jersey Home Ownership Act. No Mortgage Loan is a “High-Cost
Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22
et
seq.);
(bbbbb) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity protection Act;
(ccccc) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(ddddd) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(eeeee) No
Mortgage Loan that is secured by property located within the State of Maine
meets the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan”
as defined under the Maine House Xxxx 383 X.X. 494, effective as of September
13, 2003;
(fffff) With
respect to any Loan for which a mortgage loan application was submitted by
the
Mortgagor after April 1, 2004, no such Loan secured by Mortgaged Property in
the
State of Illinois which has a Loan Interest Rate in excess of 8.0% per annum
has
lender-imposed fees (or other charges) in excess of 3.0% of the original
principal balance of the Loan;
(ggggg) No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a Mortgaged Property
located in the Commonwealth of Massachusetts was made to pay off or refinance
an
existing loan or other debt of the related borrower (as the term “borrower” is
defined in the regulations promulgated by the Massachusetts Secretary of State
in connection with Massachusetts House Xxxx 4880 (2004)) unless either (1)
(a)
the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.25% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the related
Mortgage Loan as of the fifteenth day of the month immediately preceding the
month in which the application for the extension of credit was received by
the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note provides that the related Mortgage Interest Rate may not exceed at any
time
the Prime rate index as published in The Wall Street Journal plus a margin
of
one percent, or (2) such Mortgage Loan is in the "borrower's interest," as
documented by a "borrower's interest worksheet" for the particular Mortgage
Loan, which worksheet incorporates the factors set forth in Massachusetts House
Xxxx 4880 (2004) and the regulations promulgated thereunder for determining
"borrower's interest," and otherwise complies in all material respects with
the
laws of the Commonwealth of Massachusetts;
42
(hhhhh) No
Loan
is a “High Cost Home Loan” as defined by the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. §§ 24-9-1 et seq.);
(iiiii) The
Mortgagee has not made or caused to be made any payment in the nature of an
“overage” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(jjjjj) The
sale
or transfer of the Mortgage Loan by the Seller complies with all applicable
federal, state, and local laws, rules, and regulations governing such sale
or
transfer, including, without limitation, the Fair and Accurate Credit
Transactions Act (“FACT Act”) and the Fair Credit Reporting Act, each as may be
amended from time to time, and the Seller has not received any actual or
constructive notice of any identity theft, fraud, or other misrepresentation
in
connection with such Mortgage Loan or any party thereto;
(kkkkk) With
respect to each MOM Loan, a MIN has been assigned by MERS and such MIN is
accurately provided on the Mortgage Loan Schedule. The related Assignment of
Mortgage to MERS has been duly and properly recorded, or has been delivered
for
recording to the applicable recording office;
(lllll) With
respect to each MOM Loan, Seller has not received any notice of liens or legal
actions with respect to such Mortgage Loan and no such notices have been
electronically posted by MERS;
(mmmmm) No
Mortgage Loan is a Negative Amortization Mortgage Loan;
(nnnnn) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Mortgage Loan transaction. No Mortgage Loan is
subject to mandatory arbitration;
(ooooo) No
Mortgage Loan is secured by a lien on a “condo hotel;”
(ppppp) No
Mortgage Loan is secured by manufactured housing;
(qqqqq) No
Mortgage Loan is secured by a leasehold interest;
(rrrrr) Each
Mortgage Loan secured by property located within the Xxxx County, Illinois
anti-predatory lending Pilot Program area (i.e., ZIP Codes 60620, 60621, 60623,
60628, 60629, 60632, 60636, 60638, 60643 and 60652) complies with the recording
requirements outlined in Illinois House Xxxx 4050 and Senate Xxxx 304 effective
September 1, 2006;
(sssss) To
the
best of Seller’s knowledge, no Mortgagor is deceased;
43
(ttttt) Subject
to the Underwriting Standards and as otherwise stated in the related
Confirmation Letter, no Mortgagor is the obligor on more than four (4)
Mortgage Notes;
(uuuuu) None
of
the Mortgage Loans are simple interest Mortgage Loans;
(vvvvv) The
originator or "supplier" of each Mortgage Loan used "reasonable methods" to
determine the borrowers ability to make all required payments under the terms
of
residential mortgage loans as defined in the Ohio Consumer Sales Practices
Act
(Oh. Rev. Stat. 1345.01 et seq); and
(wwwww) No
Mortgage Loan is a Second Lien Mortgage Loan.
Section
3.03 Repurchase;
Substitution.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans and delivery
of the Mortgage File to the Purchaser, or its designee, and shall inure to
the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination,
or lack of examination, of any Mortgage Loan Document; Upon discovery by the
Seller or the Purchaser of a breach of any of the foregoing representations
and
warranties that materially and adversely affects the value of the Mortgage
Loans
or the interest of the Purchaser in any Mortgage Loan, the party discovering
such breach shall give prompt written notice to the others. The Seller shall
have a period of forty-five (45) days from the earlier of its discovery or
its
receipt of notice of any such breach within which to correct or cure such
breach. The Seller hereby covenants and agrees that if any such breach is not
corrected or cured within such forty-five (45) day period, the Seller shall,
at
the Purchaser’s sole option and within ten (10) days following Purchaser’s
request, either repurchase such Mortgage Loan at the Repurchase Price or
substitute a mortgage loan for the Defective Mortgage Loan as provided below.
In
the event that any such breach shall involve any representation or warranty
set
forth in Section 3.01, and such breach is not cured within forty-five (45)
days
of the earlier of either discovery by or notice to the Seller of such breach,
all affected Mortgage Loans shall, at the option of the Purchaser, be
repurchased by the Seller at the Repurchase Price. Any such repurchase shall
be
accomplished by remitting to the Purchaser by wire transfer of immediately
available funds on the repurchase date to an account designated by the
Purchaser, or if during the Interim Servicing Period, by depositing into the
Custodial Account, the amount of the Repurchase Price.
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Seller, or if such repurchase occurs after the
related Servicing Transfer Date, the Purchaser shall either (i) cause MERS
to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller as
the beneficial holder of such Mortgage Loan.
If
the
Seller is required to repurchase any Mortgage Loan pursuant to this Section
3.03
as a result of a breach of any of the representations and warranties set forth
in Section 3.02, the Seller may, at the Purchaser’s sole option, within 120
calendar days from the related Closing Date, remove such defective Mortgage
Loan
from the terms of this Agreement and substitute a Qualified Substitute Mortgage
Loan in lieu of repurchasing such defective mortgage loan.
44
As
to any
deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, the Seller shall effect such substitution by delivering
to the Purchaser for such Qualified Substitute Mortgage Loan or Loans the
Mortgage Note, the Mortgage, the Assignment of Mortgage and such other documents
and agreements as are set forth in Exhibit A-1 hereto, with the Mortgage Note
endorsed as required therein. The Seller shall deposit in the Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified Substitute
Mortgage Loan or Loans in the month following the date of such substitution.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in
the
month of substitution will be retained by the Seller. For the month of
substitution, distributions to the Purchaser will include the Monthly Payment
due on such deleted Mortgage Loan in the month of substitution, and the Seller
shall thereafter be entitled to retain all amounts subsequently received by
the
Seller in respect of such deleted Mortgage Loan. The Seller shall give written
notice to the Purchaser that such substitution has taken place and shall amend
the Mortgage Loan Schedule to reflect the removal of such deleted Mortgage
Loan
from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Seller shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution,
the
covenants, representations and warranties set forth in Subsections 3.01 and
3.02.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more deleted Mortgage Loans, the Seller will determine the
amount (if any) by which the aggregate principal balance of all such Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
An amount equal to the sum of (x) the product of (i) the amount of such
shortfall and (ii) the purchase price percentage used to calculate the Purchase
Price, as stated in the related Confirmation Letter and (y) accrued interest
on
the amount of such shortfall to the last day of the month such substitution
occurs, shall be distributed by the Seller in the month of substitution pursuant
to the Interim Servicing Agreement. Accordingly, on the date of such
substitution, the Seller, as applicable, will deposit from its own funds into
the Custodial Account an amount equal to such amount. Notwithstanding anything
to the contrary contained herein, it is understood by the parties hereto that
a
breach of the representations and warranties made in Subsection 3.02(i), (oo),
(bbb), (iii), (zzz), (bbbb), (dddd), (pppp), (rrrr), (nnnnn) or (ppppp) will
be
deemed to materially and adversely affect the value of the related Mortgage
Loan
or the interest of the Purchaser therein.
In
addition to such cure, repurchase and substitution obligation, the Seller shall
indemnify the Initial Purchaser and any subsequent Purchaser and hold them
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Seller’s representations and
warranties, respectively, contained in this Section 3, including, without
limitation, any loss incurred by the Purchaser of any Prepayment Penalty to
which the Purchaser would otherwise be entitled pursuant to this Agreement.
It
is understood and agreed that the obligations of the Seller set forth in this
Subsection 3.03 to cure, substitute for or repurchase a defective Mortgage
Loan and to indemnify the Initial Purchaser and any subsequent Purchaser as
provided in this Subsection 3.03 constitute the sole remedies of the
Initial Purchaser and any subsequent Purchaser respecting a breach of the
foregoing representations and warranties.
45
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) the earlier of discovery of such breach by the Seller
or notice thereof by the Purchaser to the Seller, (ii) failure by the Seller
to
cure such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Seller by the Purchaser for compliance with this
Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, Purchaser may, in connection
with
any repurchase or substitution of a Defective Mortgage Loan pursuant to this
Section 3.03, require that the Seller deliver, at the Seller’s expense, an
Opinion of Counsel to the effect that such repurchase or substitution will
not
(i) result in the imposition of taxes on “prohibited transactions” of such REMIC
(as defined in Section 860F of the Code) or otherwise subject the REMIC to
tax,
or (ii) cause the REMIC to fail to qualify as a REMIC at any
time.
Section
3.04 Repurchase
of Certain Mortgage Loans
(a) In
the
event that (i) the first Due Date for a Mortgage Loan is prior to the Cut-off
Date and the initial Monthly Payment is not made by the related Mortgagor within
thirty (30) calendar days of such Due Date or (ii) the first Monthly Payment
on
any Mortgage Loan due following the Cut-off Date is not made by the related
Mortgagor within thirty (30) days of the related Due Date, then, in each such
case, the Seller shall repurchase the affected Mortgage Loans, within ten (10)
calendar days of the Initial Purchaser’s request, at the Repurchase Price, which
shall be paid as provided for in Subsection 3.03. The Seller shall notify
the Purchaser of any such default under this Subsection 3.04(a) within thirty
(30) days of any such Mortgage Loan becoming thirty (30) days
delinquent.
(b) In
the
event that any Mortgage Loan prepays-in-full within six (6) months following
the
related Closing Date, Seller shall remit to the Initial Purchaser an amount
equal to the product of (i) the excess of (A) the percentage of par as stated
in
the related Confirmation as the purchase price percentage (subject to adjustment
as provided therein) over (B) 100%, times (ii) the outstanding principal balance
of such Mortgage Loan as of the Cut-off Date. Such obligation to the Initial
Purchaser shall survive any sale or assignment of the Mortgage Loans by the
Initial Purchaser to any third party and shall be independently enforceable
by
the Initial Purchaser.
(c) In
the
event that any Mortgage Loan is repurchased pursuant to Section 3.03 or 3.04(a),
in addition to its obligations under Section 3.03 and 3.04(a), Seller shall
remit to the Initial Purchaser, within ten (10) calendar days of the Initial
Purchaser’s request, an amount equal to the product of (i) the excess of (A) the
percentage of par as stated in the related Confirmation as the purchase price
percentage (subject to adjustment as provided therein) over (B) 100%, times
(ii)
the outstanding principal balance of such Mortgage Loan as of the date of
repurchase. Such obligation to the Initial Purchaser shall survive any sale
or
assignment of the Mortgage Loans by the Initial Purchaser to any third party
and
shall be independently enforceable by the Initial Purchaser.
46
ARTICLE
IV
THE
SELLER
Section
4.01 Indemnification;
Third Party Claims.
The
Seller agrees to indemnify and hold the Initial Purchaser and any subsequent
Purchaser, any successor servicer and their respective present and former
directors, officers, employees and agents (each, an “Indemnified Party”)
harmless from any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses (including, without limitation, any legal fees and expenses,
judgments or expenses relating to such liability, claim, loss or damage) that
such parties may sustain in any way related to the failure of the Seller to
observe and perform its duties, obligations, covenants, and agreements or as
a
result of the breach of a representation or warranty set forth in Sections
3.01
or 3.02 of this Agreement.
Promptly
after receipt by an Indemnified Party under this Section 4.01 of notice of
the
commencement of any action, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 4.01,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any Indemnified Party under this
Section 4.01, except to the extent that it has been prejudiced in any material
respect, or from any liability which it may have, otherwise than under this
Section 4.01. The indemnifying party shall assume (with the consent of the
Indemnified Party) the defense of any such claim and pay all expenses in
connection therewith, including attorney’s fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the
Indemnified Party in respect of such claim. The indemnifying party shall follow
any written instructions received from the Indemnified Party in connection
with
such claim. The provisions of this Section 4.01 shall survive termination of
this Agreement.
Section
4.02 Merger
or Consolidation of the Seller.
The
Seller shall keep in full force and effect its existence, rights and franchises
as a corporation under the laws of the state of its incorporation except as
permitted herein, and shall obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or
shall be necessary to protect the validity and enforceability of this Agreement,
or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated (including by means
of sale or disposal of all or substantially all of the Seller’s assets), or any
corporation resulting from any merger, conversion or consolidation to which
the
Seller shall be a party, or any Person succeeding to the business of the Seller
(whether or not related to loan servicing), shall be the successor of the Seller
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be (i) an institution whose deposits are insured by FDIC or a company whose
business is the origination and servicing of mortgage loans, (ii) have a GAAP
net worth of not less than $25,000,000 and (iii) be a Xxxxxx Xxx or Xxxxxxx
Mac
approved seller/servicer in good standing and shall satisfy any requirements
of
8.01 if the Interim Servicing Agreement with respect to the qualifications
of a
successor to the Seller.
47
Section
4.03 Limitation
on Liability of the Seller and Others.
Neither
the Seller nor any of the officers, employees or agents of the Seller shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith in connection with its obligations under
this Agreement, or for errors in judgment made in good faith; provided, however,
that this provision shall not protect the Seller or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of
negligence, bad faith or willful misconduct, or any breach of the terms and
conditions of this Agreement. The Seller and any officer, employee or agent
of
the Seller may rely in good faith on any document of any kind prima facie
properly executed and submitted by the Purchaser respecting any matters arising
hereunder. The Seller shall not be under any obligation to appear in, prosecute
or defend any legal action which is not related to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its reasonable
opinion may involve it in any expenses or liability; provided, however, that
the
Seller may, with the consent of the Purcahser, undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto. In such event, the reasonable legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities for which the Purchaser will be liable, and
the
Seller shall be entitled to be reimbursed therefor from the Purchaser upon
written demand, except when such expenses,costs and liabilities are subject
to
the its indemnification obligations herein or in the Interim Servicing
Agreement.
Section
4.04 Reconstitution
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, the Purchaser may effect either:
(1)
one
or
more Whole Loan Transfers; and/or
(2)
one
or
more Securitization Transactions.
With
respect to each Whole Loan Transfer or Securitization Transaction, as the case
may be, entered into by the Purchaser, the Seller agrees:
1.
|
to
cooperate fully with the Purchaser and any prospective purchaser
with
respect to all reasonable requests and due diligence procedures including
participating in meetings with rating agencies, bond insurers and
such
other parties as the Purchaser shall designate and participating
in
meetings with prospective purchasers of the Mortgage Loans or interests
therein and providing information reasonably requested by such
purchasers;
|
48
2.
|
to
execute all Reconstitution Agreements, which may include, without
limitation, an Assignment and Recognition Agreement in substantially
the
form attached hereto as Exhibit D and an Indemnification Agreement
in
substantially the form attached hereto as Exhibit I, provided that
each of
the Seller and the Purchaser is given an opportunity to review and
reasonably negotiate in good faith the content of such other documents
not
specifically referenced or provided for
herein;
|
3.
|
with
respect to any Whole Loan Transfer or Securitization
Transaction,
or
any transfer of servicing with respect to any Mortgage Loans, the
Seller shall make the representations and warranties regarding the
Seller,
modified to the extent necessary to accurately reflect the pool statistics
of the Mortgage Loans as of the date of such Whole Loan Transfer,
Securitization Transaction
or
servicing transfer;
|
4.
|
to
deliver to the Purchaser for inclusion in any prospectus or other
offering
material such publicly available information regarding the Seller’s
underwriting standards, the Seller, its financial condition and its
mortgage loan delinquency, foreclosure and loss experience and any
additional information requested by the Purchaser including, without
limitation, information on the Mortgage Loans and the Seller’s
underwriting standards, and to deliver to the Purchaser any similar
non
public, unaudited financial information, in which case the Purchaser
shall
bear the cost of having such information audited by certified public
accountants if the Purchaser desires such an audit, or as is otherwise
reasonably requested by the Purchaser and which the Seller is capable
of
providing without unreasonable effort or expense, and to indemnify
the
Purchaser and its affiliates for material misstatements or omissions
or
any alleged misstatements or omissions contained in such
information;
|
5.
|
to
deliver to the Purchaser and to any Person designated by the Purchaser,
at
the Purchaser’s expense, such statements and audit letters of reputable,
certified public accountants pertaining to information provided by
the
Seller pursuant to clause 4 above as shall be reasonably requested
by the
Purchaser;
|
6.
|
to
deliver to the Purchaser, and to any Person designated by the Purchaser,
such legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Purchaser to be necessary in connection with Whole
Loan
Transfers or Securitization Transactions, as the case may be, such
in-house Opinions of Counsel for a Securitization Transaction to
be in the
form reasonably acceptable to the Purchaser, it being understood
that the
cost of any opinions of outside special counsel that may be required
for a
Whole Loan Transfer or Securitization Transaction, as the case may
be,
shall be the responsibility of the Purchaser;
and
|
49
7.
|
in
the event that the Mortgage Loans become subject to a Securitization
Transaction prior to the termination of the Interim Servicing Period,
the
Seller agrees to service the Mortgage Loans on a scheduled/scheduled
basis
including making advances of delinquent scheduled payments of principal
and interest through liquidation (unless deemed non-recoverable)
and
paying compensating interest with respect to prepayment interest
shortfalls (to the extent of the monthly servicing fee payable
thereto).
|
ARTICLE
V
MISCELLANEOUS
PROVISIONS
Section
5.01 [Reserved]
Section
5.02 Amendment.
This
Agreement may be amended or supplemented from time to time by written agreement
executed by the Purchaser and the Seller.
Section
5.03 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to its conflict of law provisions, except
to
the extent preempted by Federal law. The obligations, rights and remedies of
the
parties hereunder shall be determined in accordance with such laws.
Section
5.04 Intention
of the Parties.
It
is the
intention of the parties that the Purchaser is purchasing, and the Seller is
selling, the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the transaction
for federal income tax purposes as a sale by the Seller, and a purchase by
the
Purchaser, of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such
review.
It
is not
the intention of the parties that such conveyances be deemed a pledge thereof.
However, in the event that, notwithstanding the intent of the parties, such
assets are held to be the property of the Seller or if for any other reason
this
Agreement is held or deemed to create a security interest in either such assets,
then (a) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (b) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Seller to the Purchaser of a security interest in all of
the
assets transferred, whether now owned or hereafter acquired.
50
Section
5.05 Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
Section
5.06 Notices.
Any
demands, notices or other communications permitted or required hereunder shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
(i) if
to the
Seller:
American
Mortgage Network, Inc.
00000
Xxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
Attention:
Capital Markets
Facsimile:
000-000-0000
With
a
copy to:
American
Mortgage Network, Inc.
00000
Xxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
Facsimile:
000-000-0000
And:
Wachovia
Corporation Legal Division
000
X.
Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx,
XX 000000
Attn:
CIB
(Structured Products Group)
(ii) if
to the
Purchaser:
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxx Xxxxxxxxxx
Facsimile:
(000) 000-0000
51
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
Section
5.07 Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section
5.08 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
5.09 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) 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;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(iii) 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;
(iv) 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;
52
(v) the
words
“herein,” “hereof,” “hereunder,” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(vi) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(vii) headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
Section
5.10 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
5.11 Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required by law, each party agrees
to
keep the
terms
of this Agreement and all
non-public information regarding the other party strictly confidential, and
to
use all such information solely in order to effectuate the purpose of the
Agreement, except
to
the extent (a) the disclosure of which is reasonably believed by such party
to
be required in connection with regulatory requirements or other legal
requirements relating to its affairs; (b) disclosed to any one or more of such
party’s employees, officers, directors, agents, attorneys or accountants who
would have access to the contents of this Agreement and such data and
information in the normal course of the performance of such Person’s duties for
such party, to the extent such party has procedures in effect to inform such
Person of the confidential nature thereof; (c) that is disclosed in a
prospectus, prospectus supplement or private placement memorandum relating
to a
securitization of the Mortgage Loans by the Purchaser (or an affiliate assignee
thereof) or to any Ratings Agency or other Person in connection with the resale
or proposed resale of all or a portion of the Mortgage Loans by such party
in
accordance with the terms of this Agreement; and (d) that is reasonably believed
by such party to be necessary for the enforcement of such party’s rights under
this Agreement.
Section
5.12 Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected as
prescribed in the Confirmation Letter.
53
Section
5.13 Assignment
by Purchaser.
The
Purchaser shall have the right, upon notice to the Seller, to assign, in whole
or in part, its interest under this Agreement with respect to some or all of
the
Mortgage Loans, and designate any person to exercise any rights of the Purchaser
hereunder, by executing an Assignment, Assumption and Recognition Agreement
substantially in the form of Exhibit
D
hereto,
and the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans; provided,
however, that, in no event shall there be any more than three (3) “Purchasers”
with respect to any Mortgage Loan Package. All references to the Purchaser
in
this Agreement shall be deemed to include its assignee or designee.
Section
5.14 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Seller shall
be
rendered as an independent contractor and not as agent for
Purchaser.
Section
5.15 Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement.
Section
5.16 Entire
Agreement.
Each
of
the parties to this Agreement acknowledges that no representations, agreements
or promises were made to any of the other parties to this Agreement or any
of
its employees other than those representations, agreements or promises
specifically contained herein. This Agreement and the related Confirmation
Letter set forth the entire understanding between the parties hereto and shall
be binding upon all successors of all of the parties. In the event of any
inconsistency between a Confirmation Letter and this Agreement, this Agreement
shall control.
Section
5.17 No
Solicitation.
From
and
after the related Closing Date, except as provided below, the Seller agrees
that
it will not take any action or permit or cause any action to be taken by any
of
its agents or Affiliates, or by any independent contractors on the Seller’s
behalf, in any manner to solicit the borrower or obligor under any Mortgage
Loan
to refinance the Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits relating to the solicitation of any Mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the list
of such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant hereto on the
related Closing Date and the Seller shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and agreed
that the following promotions or solicitations undertaken by the Seller or
any
Affiliate of the Seller shall not be prohibited under this Section 5.17: (i)
promotions or solicitations that are directed to the general public at large
or
segments thereof, provided that no segment shall consist primarily of the
borrowers or obligors under the Mortgage Loans, including, without limitation,
mass mailing based on commercially acquired mailing lists, newspaper, radio
and
television advertisements; (ii) responding to Mortgagor requests for pay-off
information and regarding other bank or financial products or services; (iii)
promotions or solicitations to any Mortgagor for any other bank or financial
products or services, unless such promotions or solicitations are for a
prepayment of a Mortgage Loan; and (iv) statements on or inserts in a
Mortgagor’s monthly billing statement referencing the Seller’s or an Affiliate’s
mortgage lending capabilities.
54
Section
5.18 Costs.
The
Purchaser shall pay any commissions due its salesmen, the expenses of its
accountants and attorneys and the expenses and fees of any broker retained
by
the Purchaser with respect to the transactions covered by this Agreement. To
the
extent not otherwise provided herein, all other costs and expenses incurred
in
connection with the transfer and delivery of the Mortgage Loans, including,
without limitation, fees for recording intervening assignments of mortgage
and
Assignments of Mortgage, the cost of obtaining tax service contracts and the
legal fees and expenses of its attorneys shall be paid by the Seller. The Seller
shall be responsible for causing the recordation of all Assignments of Mortgage
and all intervening assignments of mortgage, as applicable.
Section
5.19 Protection
of Mortgagor Personal Information.
Each
of
the Purchaser and the Seller agree that it (i) shall comply with any applicable
laws and regulations regarding the privacy and security of Mortgagor Personal
Information, (ii) shall not use Mortgagor Personal Information in any manner
inconsistent with any applicable laws and regulations regarding the privacy
and
security of Mortgagor Personal Information, (iii) shall not disclose Mortgagor
Personal Information to third parties except at the specific written direction
of the other; provided,
however,
that the
Purchaser and the Seller may disclose Mortgagor Personal Information to third
parties in connection with secondary market transactions to the extent not
prohibited by applicable law or to the extent required by a valid and effective
subpoena issued by a court of competent jurisdiction or other governmental
body,
(iv) shall maintain adequate physical, technical and administrative
safeguards to protect Mortgagor Personal Information from unauthorized access
and (v) shall immediately notify the other of any actual or suspected
breach of the confidentiality of Mortgagor Personal Information.
Section
5.20 Regulation
AB.
In
order
to facilitate compliance with Regulation AB, each of the Seller and the
Purchaser hereby covenants and agrees to comply with the provisions of the
Regulation AB Compliance Addendum attached hereto as Exhibit
J.
Any
conflict of a term or section of this Agreement and the same or similar term
or
section in the Regulation AB Compliance Addendum shall be resolved in favor
of
the meaning ascribed to such term or section in the Regulation AB Compliance
Addendum.
55
Section
5.21 Financial
Statements
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser may make available to prospective purchasers
the
Seller’s financial statements for the most recently completed three (3) fiscal
years respecting which such statements are available. The Seller also shall
make
available any comparable interim statements to the extent any such statements
have been prepared by the Seller (and are available upon request to members
or
stockholders of the Seller or the public at large). The Seller, if it has not
already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above. The Seller also shall make available information
on
its servicing performance with respect to mortgage loans serviced for others,
including delinquency ratios.
The
Seller also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Seller for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Seller, its loan origination or servicing practices or the
financial statements of the Seller.
56
Section
5.22 Third
Party Beneficiary.
Each
Master Servicer shall be considered a third-party beneficiary of this Agreement
and the Regulation AB Compliance Addendum, entitled to all the rights and
benefits hereunder as if it were a direct party to this Agreement and the
Regulation AB Compliance Addendum.
[SIGNATURE
PAGE TO FOLLOW]
57
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
HSBC
BANK USA, NATIONAL ASSOCIATION
as
Purchaser
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By: | /s/ Xxx Xxxxxxxxxx | |
Name: Xxx Xxxxxxxxxx |
||
Title: SVP |
AMERICAN
MORTGAGE NETWORK, INC.,
d/b/a
VERTICE
as
Seller
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By: | /s/ X. Xxxx Xxxxxxxx | |
Name: X. Xxxx Xxxxxxxx |
||
Title: Senior Vice President |
[Signature
Page to Seller’s Purchase and Warranties Agreement, dated as of June 1,
2007]
EXHIBIT
A-1
Contents
of Mortgage File
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Seller in the Servicing File or delivered to
the
Purchaser or its designee pursuant to Section 2.07 of the Seller’s Purchase and
Warranties Agreement.
1. The
original Mortgage Note endorsed “Pay to the order of [___________________]
without recourse,” and signed in the name of the Seller by an authorized
officer, with all intervening endorsements showing a complete chain of title
from the originator to the Seller. If the Mortgage Loan was acquired by the
Seller in a merger, the endorsement must be by “[Seller], successor by merger to
the [name of predecessor]”. If the Mortgage Loan was acquired or originated by
the Seller while doing business under another name, the endorsement must be
by
“[Seller] formerly known as [previous name]”. If the original note is
unavailable, seller will provide an affidavit of lost note (in form acceptable
to the Purchaser) stating that the original Mortgage Note was lost or destroyed,
together with a copy of such Mortgage Note and indemnifying the Purchaser
against any and all claims arising as a result of any person or entity claiming
they are the holder of the note or that the note has been paid off and
returned.
2. A
true
certified copy, certified by the [title insurer], of the applicable First Lien
Loan.
3. Except
as
provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original Mortgage with evidence of recording thereon, or a copy thereof
certified by the public recording office in which such mortgage has been
recorded or, if the original Mortgage has not been returned from the applicable
public recording office, a true certified copy, certified by the [title
insurer], of the original Mortgage together with a certificate of the Seller
certifying that the original Mortgage has been delivered for recording in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN of the Mortgage Loans and either
language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage
Loan
was not a MOM Loan at origination, the original Mortgage and the assignment
thereof to MERS, with evidence of recording indicated thereon, or a copy of
the
Mortgage certified by the public recording office in which such Mortgage has
been recorded.
4. The
original or certified to be a true copy or if in electronic form identified
on
the Mortgage Loan Schedule, the certificate number, certified by the Seller,
of
the related Primary Mortgage Insurance Policy, if required.
5. In
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, the original
Assignment of Mortgage, from the Seller in accordance with Purchaser’s
instructions, which assignment shall, but for any blanks requested by the
Purchaser, be in form and substance acceptable for recording, or a copy
certified by the Seller as a true and correct copy of the original Assignment
of
Mortgage which has been sent for recordation. If the Mortgage Loan was acquired
or originated by the Seller while doing business under another name, the
Assignment of Mortgage must be by “[Seller] formerly known as [previous
name]”.
A-1-1
6. The
original policy of title insurance, including riders and endorsements thereto
in
the form of an ALTA mortgage title insurance policy, containing each of the
endorsements required by Xxxxxx Xxx and insuring the Purchaser and its
successors and assigns as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan, or if the policy has not yet
been issued, a written commitment or interim binder or preliminary report of
title issued by the title insurance or escrow company.
7. Originals
of all recorded intervening Assignments
of Mortgages,
or
copies thereof, certified by the public recording office in which such
Assignments of Mortgages have been recorded showing a complete chain of title
from the originator to the Seller, with evidence of recording thereon, or a
copy
thereof certified by the public recording office in which such Assignment of
Mortgage has been recorded or, if the original Assignment of Mortgage has not
been returned from the applicable public recording office, a true certified
copy, certified by the [title insurer] of the original Assignment of Mortgage
together with a certificate of the [title insurer] certifying that the original
Assignment of Mortgage has been delivered for recording in the appropriate
public recording office of the jurisdiction in which the Mortgaged Property
is
located.
8. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the [title insurer], of such
original document together with certificate of Seller certifying the original
of
such document has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is
located.
9. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original power of attorney or other instrument that authorized and empowered
such person to sign bearing evidence that such instrument has been recorded,
if
so required in the appropriate jurisdiction where the Mortgaged Property is
located (or, in lieu thereof, a duplicate or conformed copy of such instrument,
together with a certificate of receipt from the recording office, certifying
that such copy represents a true and complete copy of the original and that
such
original has been or is currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located), or if the original power of attorney or other such instrument
has
been delivered for recording in the appropriate public recording office of
the
jurisdiction in which the Mortgaged Property is located.
10. The
original of any guarantee executed in connection with the Mortgage
Note.
Notwithstanding
anything to the contrary herein, the Seller may provide one certificate for
all
of the Mortgage Loans indicating that the documents were delivered for
recording.
X-0-0
XXXXXXX
X-0
Contents
of Servicing File
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items, which shall be available for inspection by the
Purchaser:
1. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
2. Residential
loan application.
3. Uniform
underwriter and transmittal summary (Xxxxxx Mae Form 1008) or reasonable
equivalent.
4. Credit
report on the mortgagor.
5. Business
credit report, if applicable.
6. Residential
appraisal report and attachments thereto.
7. Verification
of employment and income, all in accordance with Seller’s Underwriting
Standards.
8. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
the Underwriting Standards.
9. Photograph
of the Mortgaged Property (may be part of appraisal).
10. Survey
of
the Mortgaged Property, if any.
11. Sales
contract, if applicable.
12. If
available, termite report, structural engineer’s report, water portability and
septic certification.
13. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
14. Any
ground lease, including all amendments, modifications and supplements
thereto.
15. Any
other
document required to service the Mortgage Loans.
16. A
code
indicating whether the Mortgage Loan is a temporary buydown (Y or
N).
A-2-1
17. Copy
of
each instrument necessary to complete identification of any exception set forth
in the exception schedule in the title policy, i.e., map or plat, restrictions,
easements, sewer agreements, home association declarations, etc.
18. All
required disclosure statements and statement of Mortgagor confirming receipt
thereof.
19.
Hazard
insurance policy.
20. Tax
receipts, insurance premium receipts, ledger sheets, payment history from date
of origination, insurance claim files, correspondence, current and historical
computerized data files, and all other processing, underwriting and closing
papers and records which are customarily contained in a mortgage loan file
and
which are required to document the Mortgage Loan or to service the Mortgage
Loan.
21.
Amortization
schedule, if available.
22.
Payment
history for Mortgage Loans that have been closed for more than 90
days.
23. Flood
insurance policy, if applicable.
24.
Tax
Service Contract.
25.
Flood
Zone Service Contract.
A-2-2
EXHIBIT
D
This
Assignment, Assumption and Recognition Agreement (this “Assignment Agreement”),
dated as of [_____] 200[_], between [_____], a [_____] (the “Assignor”),
[_____], a [_____] (the “Assignee”), and [___________], a [________] (the
“Seller”):
For
good
and valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those certain
mortgage loans listed on Exhibit
A
attached
hereto (the “Mortgage Loans”); and (b) the Seller’s Purchase and Warranties
Agreement dated as of [_____], 200[_], but only to the extent of the Mortgage
Loans (the “Purchase Agreement”). For purposes of this Assignment Agreement, the
term “Purchase Agreement” includes any separate Assignment and Conveyance
pursuant to which Seller and Assignor effectuated the purchase and sale of
any
Mortgage Loan following the execution and delivery of the Seller’s Purchase and
Warranties Agreement dated as of [_____], 200[_].
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under any all obligations of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the Mortgage Loans set forth on Exhibit
A
attached
hereto and are not the subject of this Assignment Agreement.
2. Each
of
the Seller and the Assignor represent and warrant to the Assignee that (a)
the
copy of the Purchase Agreement, attached hereto as Exhibit
B,
provided to the Assignee, is a true, complete and accurate copy of the Purchase
Agreement, (b) the Purchase Agreement is in full force and effect as of the
date
hereof, (c) the provisions thereof have not been waived, amended or modified
in
any respect, nor have any notices of termination been given thereunder, (d)
the
Purchase Agreement contains all of the terms and conditions governing the sale
of the Mortgage Loans by Seller to Assignor and the purchase of the Mortgage
Loans by Assignor from Seller; provided,
however,
that
the date of purchase and sale and the amount of payment for the Mortgage Loans
may be set out in a Confirmation Letter, as defined in the Purchase Agreement,
and (e) Seller sold, conveyed and transferred each Mortgage Loan to Assignor
pursuant to the Purchase Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee and the
Seller that:
(a) As
of the
date hereof, the Assignor is not in default under the Purchase
Agreement
D-1
(b) The
Assignor is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to sell, transfer and assign the Mortgage
Loans;
(c) The
Assignor has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignor’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignor’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignor is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignor or its property is subject.
The
execution, delivery and performance by the Assignor of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Assignment Agreement has been duly executed and delivered by the Assignor
and constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
(d) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignor in connection with the execution, delivery or performance by the
Assignor of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
4. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Seller that:
(a) The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Assignment
Agreement is in the ordinary course of the Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Assignee’s charter or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject.
The
execution, delivery and performance by the Assignee of this Assignment
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Assignment Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms except
as enforceability thereof may be limited by bankruptcy, insolvency, or
reorganization or other similar laws now or hereinafter in effect relating
to
creditor’s rights generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or in
law;
D-2
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignee in connection with the execution, delivery or performance by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Purchase Agreement and the Mortgage Loans, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Seller
and
the Assignor all of the Assignor’s obligations as Purchaser thereunder, with
respect to the Mortgage Loans.
5. The
Seller warrants and represents to, and covenants with, the Assignor and the
Assignee that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
formation, and has all requisite power and authority to service the Mortgage
Loans;
(b) The
Seller has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject. The execution, delivery and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller. This Assignment Agreement has been
duly executed and delivered by the Seller and constitutes the valid and legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms except as enforceability thereof may be limited by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or in law;
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby;
(d) As
of the
date hereof, the Seller is not in default under the Purchase Agreement;
and
(e) No
event
has occurred or has failed to occur, during the period commencing on date on
which Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth in
Section 3.01 or Section 3.02 of the Purchase Agreement untrue if such
representations and warranties were made with respect to the Mortgage Loans
effective as of the date hereof.
D-3
6. From
and
after the date hereof, the Seller shall recognize the Assignee as the owner
of
the Mortgage Loans, and shall look solely to the Assignee for performance from
and after the date hereof of the Assignor’s obligations with respect to the
Mortgage Loans. The Assignee shall have all the rights and remedies available
to
the Assignor, insofar as they relate to the Mortgage Loans, under the Purchase
Agreement, including, without limitation, the enforcement of the document
delivery requirements and remedies with respect to breaches of representations
and warranties set forth in the Purchase Agreement, and shall be entitled to
enforce all of the obligations of the Seller thereunder insofar as they relate
to the Mortgage Loans, and all references to the Purchaser (insofar as they
relate to the rights, title and interest and, with respect to obligations of
the
Purchaser, only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Seller) under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to
refer
to the Assignee. Neither the Seller nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Seller’s performance under the
Purchase Agreement with respect to the Mortgage Loans without the prior written
consent of the Assignee.
7. Notice
Addresses.
(a) The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
[________________]
[________________]
[________________]
Attention:
[________________]
(b) The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
[________________]
[________________]
[________________]
Attention:
[________________]
(c) The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
[________________]
[________________]
[________________]
Attention:
[________________]
D-4
8. This
Assignment Agreement shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of laws principles) and
the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws, except to the extent preempted by federal
law.
9. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
10. No
term
or provision of this Assignment Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
11. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans and
the
assignment of the Purchase Agreement by the Assignor.
12. Notwithstanding
the assignment of the Purchase Agreement by either the Assignor or Assignee,
this Assignment Agreement shall not be deemed assigned by the Seller or the
Assignor unless assigned by separate written instrument.
13. For
the
purpose for facilitating the execution of this Assignment Agreement as herein
provided and for other purposes, this Assignment Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute and be
one
and the same instrument.
[SIGNATURES
ON FOLLOWING PAGE]
D-5
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
[______________________________]
Assignor
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By: | ||
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Name: | ||
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Title: | ||
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[______________________________]
Assignee
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By: | ||
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Name: | ||
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Title: | ||
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[______________________________]
Seller
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By: | ||
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Name: | ||
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Title: | ||
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D-6
EXHIBIT
E
Form
of Assignment and Conveyance
On
this
[__] day of [_____], 200[_], American Mortgage Network, Inc., as the Seller
under that certain Seller’s Purchase and Warranties Agreement, dated as of June
1, 2007 (the “Agreement”) by and between Seller and HSBC Bank USA, National
Association (the “Purchaser”) does hereby sell, transfer, assign, set over and
convey to the Purchaser under the Agreement, without recourse, but subject
to
the terms of the Agreement, all rights, title and interest of Seller in and
to
the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as
Exhibit
A,
together with the Mortgage Files and all rights and obligations arising under
the documents contained therein. Pursuant to Section 2.05 of the Agreement,
Seller has delivered to the Purchaser the documents for each Mortgage Loan
to be
purchased as set forth therein. The contents of each Servicing File required
to
be retained by Seller to service the Mortgage Loans during the related Interim
Servicing Period pursuant to the Interim Servicing Agreement and thus not
delivered to the Purchaser are and shall be held in trust by Seller, for the
benefit of the Purchaser as the owner thereof. Seller’s possession of any
portion of the Servicing File is at the will of the Purchaser for the sole
purpose of facilitating servicing of the related Mortgage Loan during the
related Interim Servicing Period pursuant to the Interim Servicing Agreement,
and such retention and possession by Seller shall be in a custodial capacity
only. The ownership of each Mortgage Note, Mortgage, and the contents of the
Mortgage File and Servicing File is vested in the Purchaser and the ownership
of
all records and documents with respect to the related Mortgage Loan prepared
by
or which come into the possession of Seller shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by Seller at the
will
of the Purchaser in such custodial capacity only.
The
Seller confirms to the Purchaser that the representation and warranties set
forth in Subsections 3.01 and 3.02 of the Agreement are true and correct with
respect to the Seller and the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto as of the date hereof, and that all statements made
in
the Seller’s Officer’s Certificates and all Attachments thereto remain complete,
true and correct in all respects as of the date hereof,
and that
the Mortgage Loan characteristics identified on the attached Schedule are true
and correct as of the date hereof.
Seller
and the Purchaser hereby each acknowledge and agree that the Servicing Transfer
Date with respect to the Mortgage Loans listed on the Mortgage Loan Schedule
attached hereto as Exhibit
A
shall be
[_____], 200[_].
E-1
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
AMERICAN
MORTGAGE NETWORK, INC.
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Name: | ||
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Title: | ||
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E-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE
MORTGAGE
LOAN SCHEDULE
E-3
EXHIBIT
G
Form
of Seller’s Officer’s Certificate
I,
[_____________], hereby certify that I am a duly elected [_____________] of
American Mortgage Network, Inc., a Delaware corporation (the “Company”),
and
further certify, on behalf of the Company as follows:
1. Attached
hereto as Attachment I is a true and correct copy of the Certificate of
Incorporation and by-laws of the Company as are in full force and effect on
the
date hereof. No event has occurred which has affected the good standing of
the
Company under the laws of the United States.
2. No
proceedings looking toward liquidation, dissolution or bankruptcy of the Company
or a merger pursuant to which the Company would not be the surviving entity
are
pending or contemplated.
3. Each
person who, as an officer or attorney-in-fact of the Company, signed (a) the
Seller’s Purchase and Warranties Agreement (the “Sale
Agreement”),
dated
June 1, 2007, by and between the Company, as seller, and HSBC Bank USA, National
Association, as purchaser (the “Purchaser”), (b) the Interim Servicing Agreement
(the “Interim
Servicing Agreement”),
dated
June 1, 2007, by and between the Company, as interim servicer, and the
Purchaser, (c) the Confirmation Letter, dated [_______] between the Company
and
the Purchaser (the “Confirmation Letter”), and (d) any other document delivered
prior hereto or on the date hereof in connection with the sale and servicing
of
the Mortgage Loans in accordance with the Sale Agreement, the Interim Servicing
Agreement and the Confirmation Letter was, at the respective times of such
signing and delivery, and is, as of the date hereof, duly elected or appointed,
qualified and acting as such officer or attorney-in-fact, and the signatures
of
such persons appearing on such documents are their genuine
signatures.
4. [Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Company on ________________, 200_
(the
“Resolutions”) with respect to the authorization and approval of the sale and
servicing of the Mortgage Loans; said Resolutions have not been amended,
modified, annulled or revoked and are in full force and effect on the date
hereof.][AMNET to confirm]
5. Attached
hereto as Attachment III is a Certificate of Good Standing of the Company dated
______________, 200_. No event has occurred since ___________________, 200_
which has affected the good standing of the Company under the laws of the State
of ___________.
6. All
of
the representations and warranties of the Company contained in Sections 3.01
and
3.02 of the Sale Agreement were true and correct in all material respects as
of
the initial Closing Date.
G-1
7. The
Company has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the initial Closing
Date pursuant to the Sale Agreement.
G-2
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Sale Agreement
IN
WITNESS WHEREOF, I have hereunto signed my name on this ___ day of
_____.
AMERICAN MORTGAGE NETWORK, INC. | ||
|
|
|
By: | ||
Name: |
||
Title: |
I,
_________, a _________of [_______], hereby certify that _______________________
is a duly elected, qualified and acting ______________________ of the Seller
and
that the signature appearing above is such person’s genuine
signature.
IN
WITNESS WHEREOF, I have hereunto signed my name on this ___ day of
_____.
AMERICAN MORTGAGE NETWORK, INC. | ||
|
|
|
By: | ||
Name: |
||
Title: |
G-3
EXHIBIT
H
Form
of Opinion of Counsel
______________________
______________________
______________________
______________________
Dear
Sirs:
You
have
requested [our] [my] opinion, as [Assistant] General Counsel to American
Mortgage Network, Inc. (the “Company”), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans pursuant to that
certain Seller’s Purchase and Warranties Agreement (the “Purchase Agreement”)
and the interim servicing by the Company of the Mortgage Loans pursuant to
that
certain Interim Servicing Agreement (the “Interim Servicing Agreement”), each
dated June 1, 2007, by and between HSBC Bank USA, National Association, as
Purchaser (the “Purchaser”), and the Company and the related Confirmation Letter
(the “Confirmation Letter”), dated [DATE], by and between the Purchaser and the
Company. The Purchase Agreement, Interim Servicing Agreement and Confirmation
Letter shall be collectively referred to herein as the “Agreements.” Capitalized
terms used but not defined herein shall have the meanings set forth in the
Agreements.
[We]
[I]
have examined the following documents:
1. the
Agreements;
2. the
form
of Assignment of Mortgage;
3. the
form
of endorsement of the Mortgage Notes;
4. such
other documents, records and papers as we have deemed necessary and relevant
as
a basis for this opinion;
5. The
Company’s Articles of Incorporation and By-Laws, as amended to date;
and
6. Resolutions
adopted by the board of directors of the Company relating to the transactions
covered by this opinion.
To
the
extent [we] [I] have deemed necessary and proper, [we] [I] have relied upon
the
representations and warranties of the Company contained in the Agreements.
[We]
[I] have assumed the authenticity of all documents submitted to [us] [me] as
originals, the genuineness of all signatures, the legal capacity of natural
persons and the conformity to the originals of all documents.
H-1
Based
upon the foregoing, it is [our] [my] opinion that:
1. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified to transact business
in, and is in good standing under, the laws of the state of
incorporation.
2. The
Company has the power to engage in the transactions contemplated by the
Agreements and all requisite power, authority and legal right to execute and
deliver the Agreements, and to perform and observe the terms and conditions
of
such Agreements.
3. The
Agreements have been duly authorized, executed and delivered by the Company
and
is a legal, valid and binding agreement enforceable in accordance with their
terms against the Company, subject to bankruptcy laws and other similar laws
of
general application affecting rights of creditors and subject to the application
of the rules of equity, including those respecting the availability of specific
performance, none of which will materially interfere with the realization of
the
benefits provided thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
4. The
Company has been duly authorized to allow any of its officers to execute any
and
all documents by original signature in order to complete the transactions
contemplated by the Purchase Agreement.
5. Either
(i) no consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by the
Company of or compliance by the Company with the Agreements, or the sale of
the
Mortgage Loans or the consummation of the transactions contemplated by the
Agreements; or (ii) any required consent, approval, authorization or order
has
been obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of, the Agreements conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under the
charter or by-laws of the Company, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound or to
which it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body
to
which the Company is subject or by which it is bound.
7. There
is
no action, suit, proceeding or investigation pending or, to the best of [our]
[my] knowledge, threatened against the Company which, in [our] [my] judgment,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or
assets of the Company or in any material impairment of the right or ability
of
the Company to carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would draw into question
the validity of the Agreements, or the Mortgage Loans or of any action taken
or
to be taken in connection with the transactions contemplated thereby, or which
would be likely to impair materially the ability of the Company to perform
under
the terms of the Agreements.
H-2
8. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Purchase Agreement is sufficient to fully transfer to the Purchaser all right,
title and interest of the Company thereto as noteholder and
mortgagee.
9. The
Mortgages have been duly assigned and the Mortgage Notes have been duly endorsed
as provided in the Purchase Agreement. The Assignments of Mortgage are in
recordable form, except for the insertion of the name of the assignee, and
upon
the name of the assignee being inserted, are acceptable for recording under
the
laws of the state where each related Mortgaged Property is located. The
endorsement of the Mortgage Notes, the delivery to the Purchaser, or its
designee, of the Assignments of Mortgage, and the delivery of the original
endorsed Mortgage Notes to the Purchaser, or its designee, are sufficient to
permit the Purchaser to avail itself of all protection available under
applicable law against the claims of any present or future creditors of the
Company, and are sufficient to prevent any other sale, transfer, assignment,
pledge or hypothecation of the Mortgages and the Mortgage Notes by the Company
from being enforceable.
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of its date.
Very truly yours, | ||
|
|
|
[Name] |
||
[Assistant] General Counsel |
H-3
EXHIBIT
I
FORM
OF
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (the “Agreement”), dated as of _____, 200_ (the
“Settlement Date”), by and between HSBC Asset Securitization Corp., a Delaware
corporation (such entity, and its successors and assigns, being referred to
herein as the “Depositor”) and [COMPANY] (the “Company”).
The
Depositor and the Company hereby recite and agree as follows:
RECITALS
1. HSBC
Bank
USA, National Association (the “Seller”) has purchased certain
[adjustable]-rate, [first] lien mortgage loans (the “Mortgage Loans”) from the
Company and intends to transfer all of its right, title and interest in and
to
the Mortgage Loans to the _______________ (the “Trust”) pursuant to the terms of
a Pooling and Servicing Agreement, dated as of _____, 200_ (the “Pooling and
Servicing Agreement”), by and among the Seller, the Depositor, _________ as
[master] servicer and ___________, as trustee of the Trust (the
“Trustee”).
2. In
exchange for the Mortgage Loans, the Trust shall issue to the Seller
___________________________, Series _____, Asset-Backed Certificates (the
“Certificates”) pursuant to the terms of the Pooling and Servicing
Agreement.
3. In
accordance with an Underwriting Agreement, dated _____, 200_ (the “Underwriting
Agreement”), the Depositor will sell to HSBC Securities (USA), Inc. (the
“Underwriter”) the Certificates.
4. The
Certificates will be offered and sold by the Underwriter pursuant to the terms
and conditions of the Underwriting Agreement, through the use of a prospectus
supplement to be dated as of the date of its printing but not later than the
Settlement Date (the “Prospectus Supplement”) and a related prospectus dated
_____, 200_, (the “Base Prospectus” and together with the Prospectus Supplement,
the “Prospectus”).
AGREEMENT
NOW
THEREFORE, in consideration of the mutual promises herein made and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Representations
and Warranties.
(a) The
Company hereby represents and warrants to the Depositor, as of the date of
this
Agreement, that:
(i) the
Company has been duly organized and is validly existing and in good standing
as
a [corporation] under the laws of the State of __________, with full power
and
authority to enter into and perform its obligations under this Agreement;
and
I-1
(ii) this
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, enforceable
against it in accordance with its terms, subject to (A) bankruptcy, insolvency,
receivership, conservatorship or other similar laws affecting creditors’ rights
generally, (B) general principles of equity regardless of whether enforcement
is
sought in a proceeding in equity or at law, and (C) public policy considerations
limiting the enforceability of provisions of this Agreement that purport to
provide indemnification from liabilities under applicable securities
laws.
(b) The
Company represents and warrants to the Depositor that as of the Settlement
Date:
(i) the
information set forth in the Prospectus Supplement under [TO BE DETERMINED],
(such information, the “Company Information”) does not contain an untrue
statement of a material fact; and
(ii) the
Company Information does not omit or fail to state any material fact required
to
be stated therein, or necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading.
(c) The
Depositor hereby represents and warrants to the Company that as of the date
of
this Agreement:
(i) it
is a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Delaware and has full corporate power and authority to enter
into and perform its obligations under this Agreement; and
(ii) this
Agreement has been duly authorized, executed and delivered by the Depositor
and
constitutes the legal, valid and binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, subject to (A) bankruptcy,
insolvency, receivership, conservatorship, reorganization, moratorium or other
similar laws affecting creditors’ rights generally, (B) general principals of
equity regardless of whether enforcement is sought in a proceeding in equity
or
at law, and (C) public policy considerations limiting the enforceability of
provisions of this Agreement that purport to provide indemnification from
penalties under applicable securities laws.
2. Indemnification.
(a) Company
(also referred to herein as the “Indemnifying Party”) agrees to indemnify and
hold harmless the Depositor and each of its directors and officers and
affiliates and each person, if any, who controls the Depositor within the
meaning of Section 15 of the Securities Act of 1933, as amended (the
“Securities Act”), or Section 20 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), (the “Indemnified Party”) and any assignee
thereof, against any and all actual losses, claims, expenses, damages or
liabilities to which the Depositor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (x) any untrue statement of any material fact
contained in the Company Information or omission to state therein, a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which such statements were made,
not misleading (in each case, regardless of whether a final judgment has been
entered by a finder of fact) or (y) any material misstatement or omission
contained in the Prospectus Supplement regarding information or statistics
therein regarding the Mortgage Loans based on information correctly derived
by
the Depositor or its affiliates and included in the Prospectus Supplement which
results or arises from information actually provided in writing to the Depositor
or its affiliates by Company; and will promptly upon request reimburse any
such
reasonable legal or other expenses reasonably incurred by the Depositor or
any
such director, officer or controlling person in connection with investigating
or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which Company may otherwise
have.
I-2
(b) Promptly
after receipt by the Indemnified Party under this Section 2 of notice of
the commencement of any action described therein, the Indemnified Party will,
if
a claim in respect thereof is to be made against the Indemnifying Party under
this Section 2, notify the Indemnifying Party of the commencement thereof,
but the omission so to notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability that it may have to the Indemnified Party
under this Agreement, except to the extent that such failure or delay in
notification materially prejudices the Indemnifying Party’s defense of such
action or proceeding, and shall in no event relieve the Indemnifying Party
from
any other obligation or liability which it may have to any Indemnified Person
otherwise than under this Agreement or with respect to any other action or
proceeding. In case any such action is brought against the Indemnified Party,
and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled to participate therein, and, to the extent
that it may wish to do so, jointly with any other Indemnifying Party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to
the Indemnified Party, and, after notice from the Indemnifying Party to the
Indemnified Party under this Section 2, the Indemnifying Party shall not be
liable for any legal or other expenses subsequently incurred by the Indemnified
Party in connection with the defense thereof other than reasonable out-of-pocket
costs of investigation.
(c) The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of the Indemnified Party unless: (i) the
employment thereof has been specifically authorized by the Indemnifying Party;
(ii) the Indemnifying Party shall have been advised by such counsel that there
may be one or more legal defenses available to the Indemnified Party which
are
different from or additional to those available to the Indemnifying Party and
in
the reasonable judgment of such counsel it is advisable for the Indemnified
Party to employ separate counsel (iii) a conflict exists between the Indemnified
Party and the Indemnifying Party (in which case the Indemnifying Party will
not
have the right to direct the defense of such action on behalf of the Indemnified
Party) or (iv) the Indemnifying Party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the Indemnified Party,
in
which case, if the Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense
of
such action on behalf of the Indemnified Party, it being understood, however,
the Indemnifying Party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for the Indemnified Party, which firm
shall be designated in writing by the Depositor or any of the Depositor’s
directors, officers or controlling persons.
I-3
(d) The
Indemnified Party, as a condition of the indemnity agreements contained herein,
shall use its best efforts to cooperate with the Indemnifying Party in the
defense of any such action or claim. The Indemnifying Party shall not be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the Indemnifying Party agrees to indemnify and hold harmless the
Indemnified Party from and against any loss or liability (to the extent set
forth herein as applicable) by reason of such settlement or
judgment.
3. Successors
and Assigns, Additional Information.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. No party hereto may assign either
this Agreement or any of its rights, interests or obligations hereunder without
the prior written approval of the other parties hereto.
4. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, covenants, indemnities
and
other statements of the Depositor and the Company and their respective officers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Depositor
or
the Company and will survive delivery of and payment for the Certificates.
The
provisions of Section 4 hereof shall survive the termination or cancellation
of
this Agreement.
5. Notices.
All
demands, notices and communications hereunder shall be in writing, shall be
effective only upon receipt and shall, if sent to the Depositor, be addressed
to
it at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President, with
a
copy to General Counsel; or, if sent to the Company, be addressed to it at,
[ADDRESS], Attn: [_________].
6. Miscellaneous.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by the party against
whom enforcement of such change, waiver, discharge or termination is sought.
This Agreement may be signed in any number of counterparts, each of which shall
be deemed an original, which taken together shall constitute one and the same
instrument. This Agreement supersedes all prior or contemporaneous agreements
and understandings relating to the subject matter hereof.
I-4
7. 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, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this
Agreement.
I-5
IN
WITNESS WHEREOF, the Depositor and the Company have caused this Agreement to
be
duly executed by their respective officers as of the day and year first above
written.
HSBC ASSET SECURITIZATION CORP. | ||
|
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|
By: | ||
Name: |
||
Title: |
[COMPANY] | ||
|
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|
By: | ||
Name: |
||
Title: |
I-6
EXHIBIT
J
REGULATION
AB COMPLIANCE ADDENDUM
TO
SELLER’S PURCHASE AND WARRANTIES AGREEMENT AND INTERIM
SERVICING
AGREEMENT
This
Regulation AB Compliance Addendum (this “Reg
AB
Addendum”),
dated
as of June 1, 2007 by and between HSBC Bank USA, National Association (the
“Purchaser”)
and
American Mortgage Network, Inc. (the “Company”),
to
those certain Seller’s Purchase and Warranties Agreement (the “Purchase
Contract”) and the Interim Servicing Agreement dated as of June 1, by and
between the Company and the Purchaser (the “Interim Servicing Agreement”, as
amended, modified or supplemented, together with the Purchase Contract, the
“Agreements”).
WITNESSETH
WHEREAS,
the Company and the Purchaser have agreed to adopt an addendum to the Agreements
to reflect the intention of the parties to comply with Regulation
AB.
NOW,
THEREFORE, in consideration of the mutual promises and mutual obligations set
forth herein, the Company and the Purchaser hereby agree as
follows:
ARTICLE
I
DEFINED
TERMS
Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Agreements. The following terms shall have the meanings set forth below,
unless the context clearly indicates otherwise:
Commission
or SEC:
The
United States Securities and Exchange Commission.
Company
Information:
As
defined in Section 2.07(a).
Depositor:
With
respect to any Securitization Transaction, the Person identified in writing
to
the Company by the Purchaser as depositor for such Securitization Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated
Guidelines”)
or
guidelines that do not vary materially from such Designated Guidelines; (ii)
such Mortgage Loans were in fact underwritten as described in clause (i) above
and were acquired by the Company within 180 days after origination; (iii) either
(x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by the Company in origination of mortgage loans of the same
type as the Mortgage Loans for the Company’s own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Company on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Company; and (iv) the Company employed, at the
time
such Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review
of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company.
J-1
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly by the Purchaser to an issuing entity
in
connection with an issuance of publicly offered or privately placed, rated
or
unrated mortgage-backed securities or (2) an issuance of publicly offered or
privately placed, rated or unrated securities, the payments on which are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As
defined in Section 2.03(c).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB for which the
Company is responsible in its capacity as Servicer as identified on a
certification substantially in the form of Exhibit 2 hereto, provided that
such
certification may be amended from time to time to reflect changes in Regulation
AB.
Sponsor:
With
respect to any Securitization Transaction, the Person identified in writing
to
the Company by the Purchaser as sponsor for such Securitization Transaction.
Static
Pool Information:
Static
pool information as described in Item 1l05(a)(l)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
J-2
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Reg AB Addendum or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Whole
Loan Transfer:
Any
sale or transfer by the Purchaser of some or all of the Mortgage Loans, other
than a Securitization Transaction.
ARTICLE
II
COMPLIANCE
WITH REGULATION AB
Section
2.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Company acknowledge and agree that the purpose of Article
II
of this Addendum is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Neither the Purchaser nor any Depositor shall exercise its
right
to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and, in each case, the rules, and regulations
of the Commission thereunder.
The
Company acknowledges that interpretations of the requirements of Regulation
AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff; consensus among participants in the asset-backed
securities markets: advice of counsel, or otherwise, and agrees to comply with
requests made by the Purchaser, or any Depositor in good faith for delivery
of
information under these provisions on the basis of established and evolving
interpretations of Regulation AB. In connection with any Securitization
Transaction, the Company shall cooperate fully with the Purchaser and to deliver
to the Purchaser (including any of its assignees or designees), any Master
Servicer and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser, any Master Servicer, or any Depositor to permit the Purchaser,
or
such Depositor to comply with the provisions of Regulation AB, together with
such disclosures relating to the Company, any Third-Party Originator and the
Mortgage Loans, reasonably believed by the Purchaser, any Master Servicer or
any
Depositor to be necessary in order to effect such compliance. In
the
event
of any conflict between Section 12A and any other term or provision in this
Agreement, the provisions of Section 12A shall control.
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Company by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser's reasonable judgment, to comply with Regulation AB.
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Section
2.02 Additional
Representations and Warranties of the Company.
(a)
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The
Company hereby represents to the Purchaser, any Master Servicer and
to any
Depositor, as of the date on which information is first provided
to the
Purchaser or any Depositor under Section 2.03 that, except as disclosed
in
writing to the Purchaser or such Depositor prior to such date there
are no
material legal or governmental proceedings pending (or known to be
contemplated) against the Company any Third-Party Originator; and
there
are no affiliations, relationships or transactions relating to the
Company, any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor
of a
type described in Item 1119 of Regulation AB.
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(b)
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If
so requested by the Purchaser, or any Depositor on any date following
the
date on which information is first provided to the Purchaser or any
Depositor under Section 2.03, the Company shall, within five (5)
Business
Days following such request, conform in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this
Section
or, if any such representation and warranty is
not
accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting
party.
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Section
2.03 Information
to Be Provided by the Company.
In
connection with any Securitization Transaction the Company shall (i) within
ten
(10) Business Days following request by the Purchaser or any Depositor, provide
to the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c)
and
(g)
of this Subsection, and (ii) as promptly as practicable following notice to
or
discovery by the Company, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this
Section.
(a)
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If
so requested by the Purchaser or any Depositor the Company shall
provide
such information regarding (i) the Company, as originator of the
Mortgage
Loans and the aggregate outstanding principal balance of Mortgage
Loans
being included in the Securitization Transaction exceed 20% of the
aggregated principal (including as an acquirer of Mortgage Loans
from a
Qualified Correspondent), or (ii) each Third-Party Originator compliance
with Regulation AB. Such information shall include at a
minimum:
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(1) the
originator's form of organization;
(2)
a
description of the originator's origination program and how long the originator
has been engaged in originating residential mortgage loam, which description
shall include a discussion of the originator's experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
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(3)
a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Company, each Third-Party-Originator and each
Subservicer; and
(4)
a
description of any affiliation or relationship between the Company, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Company by
the
Purchaser, any Master Servicer or any Depositor in writing in advance of such
Securitization Transaction: Transaction:
(1)
the
sponsor;
(2)
the
depositor;
(3)
the
issuing entity;
(4)
any
servicer;
(5)
any
trustee;
(6)
any
originator;
(7)
any
significant obligor;
(8)
any
enhancement or support provider; and
(9)
any
other material transaction party.
(b) |
For
the purpose of satisfying the reporting obligation under the Exchange
Act
with respect to any class of asset-backed securities, the Company
shall
(or shall cause Third-Party Originator to (i) provide prompt notice
to the
Purchaser, any Master Servicer and any Depositor in writing of (A)
any
material litigation or governmental proceedings involving the Company,
or
any Third-Party Originator, (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between
the Company or any Third-Party Originator and any
of the parties specified in clause (C)
of
paragraph (a) of this Section (and any other parties identified in
writing
by the requesting party) with respect to such Securitization Transaction,
and any Event of Default under the terms of this Agreement; (D) any
merger, consolidation or sale of substantially all of the assets
of the
Company, and (ii) provide to the Purchaser, any Master Servicer and
any
Depositor a description of such proceedings, affiliations or
relationships.
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Section
2.04 Indemnification:
Remedies.
(a)
The
Company shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person (including any Master Servicer, if
applicable) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d)
or
Rule 15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as
underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees, agents and affiliates of each of the foregoing
and of the Depositor (each, an "Indemnified Party"), and shall hold each of
them
harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
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(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants' letter or other
material provided in written or electronic form under this Article II by or
on
behalf of the Company, or provided under this Article II by or on behalf of
Third-Party Originator (collectively, the "Company Information”), or (B) the
omission or alleged omission to state in the Company Information a material
fact
required to be stated in the Company Information or necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided, by way of clarification, that clause
(B)
of
this
paragraph shall be construed solely by reference to the Company Information
and
not to any other information communicated in
connection
with a sale or purchase of securities, without regard to whether the Company
Information or any
portion
thereof is presented together with or separately from such other
information;
(ii)
any
breach by the Company of its obligations under this Reg AB Addendum , including
particularly any failure by the Company or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or other material
when and as required under this Article II;
(iii)
any
breach by the Company of a representation or warranty set forth in Section
2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 2.02(b) to the extent made as of a date subsequent to such closing
date;
or
(iv)
the
gross negligence, bad faith, or willful misconduct of the Seller in connection
with its performance under this Article II.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Seller on the other. In the case
of
any failure of performance described in clause (a)(ii) of this Section, the
Company shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in
order
to obtain the information, report, certification, accountants' letter or other
material not delivered as required by the Company, or any Third-Party
Originator.
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This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) Any
failure by the Company, or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other material when
and as required under this Article II, or any breach by the Company of a
representation or warranty set forth in Section 2.02(a) or in a writing
furnished pursuant to Section 2.02(b) and made as of a
date
prior to the closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 2.02(b) to the extent made as of a date subsequent to such closing
date,
shall immediately and automatically, without notice or grace period, constitute
an Event of Default with respect to the Company under this Agreement,
provided
that
to
the extent that any
provision
of this Agreement expressly provides for the survival of certain rights or
obligations following termination of the Company as servicer, such provision
shall be given effect.
SECTION
2.05 THIRD-PARTY
BENEFICIARY.
Each
Master Servicer shall be considered a third-party beneficiary of this Reg AB
Addendum, entitled to all the rights and benefits hereunder as if it were a
direct party to this Reg AB Addendum.
[REMAINDER
OF PAGE
INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Purchaser and the Company have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
HSBC
BANK USA, NATIONAL ASSOCIATION,
as
Purchaser
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By: | ||
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Name: | ||
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Title: | ||
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AMERICAN
MORTGAGE NETWORK, INC.,
d/b/a
VERTICE,
as
Company
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By: | ||
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Name: | ||
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Title: | ||
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