MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT MORGAN STANLEY MORTGAGE CAPITAL INC., Purchaser INDYMAC BANK, F.S.B., Seller Dated as of September 1, 2006 Conventional, Adjustable and Fixed Rate, Residential Mortgage Loans
Exhibit
99.8b
EXECUTION
COPY
__________________
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
INDYMAC
BANK, F.S.B.,
Seller
__________________
Dated
as of September 1, 2006
Conventional,
Adjustable
and Fixed Rate,
Residential
Mortgage Loans
NY1
5986941v.1
TABLE
OF CONTENTS
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Page
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SECTION
1.
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Definitions.
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1
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SECTION
2.
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Agreement
to Purchase.
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14
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SECTION
3.
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Mortgage
Schedules.
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14
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SECTION
4.
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Purchase
Price.
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15
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SECTION
5.
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Examination
of Mortgage Files.
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15
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SECTION
6.
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Conveyance
from Seller to Purchaser.
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16
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SECTION
7.
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Servicing
of the Mortgage Loans.
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18
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SECTION
8.
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Representations,
Warranties and Covenants of the Purchaser
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19
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SECTION
9.
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Representations,
Warranties and Covenants of the Seller; Remedies for
Breach.
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19
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SECTION
10.
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Closing.
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38
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SECTION
11.
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Closing
Documents.
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39
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SECTION
12.
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Costs.
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41
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SECTION
13.
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Cooperation
of Seller with a Reconstitution.
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41
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SECTION
14.
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The
Seller.
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43
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SECTION
15.
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Financial
Statements.
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43
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SECTION
16.
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Mandatory
Delivery; Grant of Security Interest.
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44
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||
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SECTION
17.
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Notices.
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44
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SECTION
18.
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Severability
Clause.
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45
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SECTION
19.
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Counterparts.
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45
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SECTION
20.
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Governing
Law.
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45
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SECTION
21.
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Intention
of the Parties.
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46
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SECTION
22.
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Successors
and Assigns; Assignment of Purchase Agreement.
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00
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-x-
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||
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XXXXXXX
00.
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Waivers.
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46
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SECTION
24.
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Exhibits.
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46
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SECTION
25.
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General
Interpretive Principles.
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47
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SECTION
26.
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Reproduction
of Documents.
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47
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SECTION
27.
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Further
Agreements.
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47
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SECTION
28.
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Recordation
of Assignments of Mortgage.
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48
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SECTION
29.
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No
Solicitation.
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48
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SECTION
30.
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Waiver
of Trial by Jury.
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48
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SECTION
31.
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Submission
To Jurisdiction; Waivers.
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48
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SECTION
32.
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Compliance
with Regulation AB
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49
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SECTION
33.
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Confidentiality
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54
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-ii-
EXHIBITS
| EXHIBIT A |
CONTENTS
OF EACH MORTGAGE FILE
|
| EXHIBIT B | SERVICING AGREEMENT |
| EXHIBIT C | FORM OF SELLER’S OFFICER’S CERTIFICATE |
| EXHIBIT D | FORM OF OPINION OF COUNSEL TO THE SELLER |
| EXHIBIT E | FORM OF SECURITY RELEASE CERTIFICATION |
| EXHIBIT F | FORM OF SECURITY RELEASE CERTIFICATION |
| EXHIBIT G | FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT |
| EXHIBIT H | UNDERWRITING GUIDELINES |
| EXHIBIT I | CONTENTS OF EACH CREDIT FILE |
| EXHIBIT J | RECONSTITUTION REPRESENTATIONS |
| EXHIBIT K | FORM OF BAILEE AGREEMENT |
| EXHIBIT L | FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT |
-iii-
This
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (the “Agreement”),
dated as of September 1, 2006, by
and between Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation, having
an office at 0000 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Purchaser”)
and IndyMac Bank, F.S.B., a federal savings bank, having an office at 0000
X.
Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the “Seller”).
W I T N E S S E T H:
WHEREAS,
the Seller desires to sell, from time to time, to the Purchaser, and the
Purchaser desires to purchase, from time to time, from the Seller, certain
conventional, adjustable and fixed rate, residential first mortgage loans (the
“Mortgage
Loans”)
on a servicing retained basis as described herein, and which shall be delivered
in pools of whole loans (each, a “Mortgage
Loan Package”)
on various dates as provided herein (each, a “Closing
Date”);
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien on a residential dwelling located in the
jurisdiction indicated on the Mortgage Loan Schedule for the related Mortgage
Loan Package;
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of the conveyance,
servicing and control of the Mortgage Loans; and
WHEREAS,
following its purchase of the Mortgage Loans from the Seller, the Purchaser
desires to sell some or all of the Mortgage Loans to one or more purchasers
as a
whole loan transfer or a public or private, rated or unrated mortgage
pass-through transaction;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller
agree
as follows:
SECTION
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below. Other capitalized terms used in this
Agreement and not defined herein shall have the respective meanings set forth
in
the Servicing Agreement.
Accepted
Servicing Practices:
With respect to any Mortgage Loan those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located and incorporating the Delinquency Collection Policies and
Procedures.
Act:
The National Housing Act, as amended from time to time.
1
Adjustable
Rate Mortgage Loan:
A Mortgage Loan purchased pursuant to this Agreement, the Mortgage Interest
Rate
of which is adjusted from time to time in accordance with the terms of the
related Mortgage Note.
Affiliate:
With respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agency
Transfer:
A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement:
This Mortgage Loan Purchase and Warranties Agreement and all amendments hereof
and supplements hereto.
ALTA:
The American Land Title Association, and its successors in
interest.
Ancillary
Income:
All late charges, assumption fees, escrow account benefits, reinstatement fees,
and similar types of fees arising from or in connection with any Mortgage,
to
the extent not otherwise payable to the Mortgagor under applicable law or
pursuant to the terms of the related Mortgage Note.
Appraised
Value:
The value set forth in an appraisal made in connection with the origination
of
the related Mortgage Loan as the value of the Mortgaged Property.
Appropriate
Federal Banking Agency:
As defined in Section 1813(q) of Title 12 of the United States Code, as
amended from time to time.
Assignment
and Conveyance Agreement:
As defined in Subsection 6.01.
Assignment
of Mortgage:
An assignment of the Mortgage, notice of transfer or equivalent instrument
in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan: Any
Mortgage Loan (a) that requires only payments of interest until the stated
maturity date of the Mortgage Loan or (b) for which Monthly Payments of
principal (not including the payment due on its stated maturity date) are based
on an amortization schedule that would be insufficient to fully amortize the
principal thereof by the stated maturity date of the Mortgage
Loan.
Business
Day:
Any day other than (i) a Saturday or Sunday, or (ii) a day on which
banking and savings and loan institutions, in (a) the State of New York, (b)
the
state in which the Seller’s servicing operations are located or (c) the
State in which the Custodian’s operations are located, are authorized or
obligated by law or executive order to be closed.
Closing
Date:
Shall have the meaning set forth in the applicable Purchase Price and Terms
Agreement.
2
Code:
Internal Revenue Code of 1986, as amended.
Commission:
The United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect 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.
Convertible
Mortgage Loan:
Any individual Adjustable Rate Mortgage Loan purchased pursuant to this
Agreement which contains a provision whereby the Mortgagor is permitted to
convert the Adjustable Rate Mortgage Loan to a fixed rate Mortgage Loan in
accordance with the terms of the related Mortgage Note.
Co-op:
A private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and
the
issuance of a Co-op Lease.
Co-op
Lease:
With respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A Mortgage Loan secured by the pledge of stock allocated to a dwelling unit
in a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Credit
File:
The items pertaining to a particular Mortgage Loan referred to in Exhibit
I
annexed hereto, and any additional documents required to be added to the Credit
File pursuant to this Agreement.
Custodial
Account:
The separate trust account created and maintained pursuant to Section 2.04
of the Servicing Agreement (with respect to each Mortgage Loan, as specified
therein).
Custodial
Agreement:
The agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents. If more
than
one Custodial Agreement is in effect at any given time, all of the Individual
Custodial Agreements shall collectively be referred to as the “Custodial
Agreement.”
Custodian:
LaSalle Bank, National Association, or its successor in interest or permitted
assigns, or any successor to the Custodian under the Custodial Agreement as
therein provided. If at any time there is no Custodial Agreement in effect
with
respect to a Mortgage Loan, all references to the Custodian herein and in the
Servicing Agreement shall be deemed to refer to the Purchaser (or its designee)
with respect to such Mortgage Loan.
Cut-off
Date:
Shall have the meaning set forth in the applicable Purchase Price and Terms
Agreement.
3
Deemed
Material and Adverse Representation:
Each representation and warranty identified as such in Subsection 9.02 of this
Agreement.
Deleted
Mortgage Loan:
A Mortgage Loan that is repurchased or replaced or to be replaced with a
Qualified Substitute Mortgage Loan by the Seller in accordance with the terms
of
this Agreement.
Depositor:
The depositor, as such term is defined in Regulation AB, with respect to
any
Securitization Transaction.
Determination
Date:
The date specified in the Servicing Agreement (with respect to each Mortgage
Loan as specified therein).
Due
Date:
The day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period:
With respect to each Remittance Date and any Mortgage Loan, the period
commencing on the second day of the month immediately preceding the month of
the
Remittance Date for such Mortgage Loan and ending on the first day of the month
of the Remittance Date.
Equity
Take-Out Refinanced Mortgage Loan:
A Mortgage Loan used to refinance an existing mortgage loan, the proceeds of
which were in excess of the outstanding principal balance of the existing
mortgage loan.
Escrow
Account:
The separate account created and maintained pursuant to Section 2.06 of the
Servicing Agreement (with respect to each Mortgage Loan, as specified
therein).
Escrow
Payments:
With respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Exchange
Act:
The Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
The Federal National Mortgage Association, or any successor
thereto.
Xxxxxx
Mae Guides:
The Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and all
amendments or additions thereto.
Xxxxxx
Xxx Transfer:
As defined in Section 13
hereof.
FDIC:
The Federal Deposit Insurance Corporation, and its successors in
interest.
Fitch:
Fitch, Inc., and its successors in interest.
4
FHA:
The Federal Housing Administration, an agency within HUD, and its successors
in
interest, and including the Federal Housing Commissioner and the Secretary
of
Housing and Urban Development where appropriate under the FHA
Regulations.
FHA
Approved Mortgagee:
A corporation or institution approved as a mortgagee by the FHA under the
National Housing Act, and applicable HUD regulations, and eligible to own and
service mortgage loans such as the FHA insured mortgage loans.
Fixed
Rate Mortgage Loan:
A fixed rate mortgage loan purchased pursuant to this Agreement.
Xxxxxxx
Mac:
The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Xxxxxxx
Mac Transfer:
As defined in Section 13
hereof.
Gross
Margin:
With respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set forth in the related Mortgage Note which amount is added to the Index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
High
Cost Loan:
A Mortgage Loan (a) covered by the Home Ownership and Equity Protection Act
of
1994
(“HOEPA”), (b) with an “annual percentage rate” or total “points and fees”
payable by the related Mortgagor (as each such term is calculated under HOEPA)
that exceed the thresholds set forth by HOEPA and its implementing
regulations, including 12 C.F.R. § 226.32(a)(1)(i) and (ii), (c)
classified as a “high cost home,” “threshold,” “covered,” (excluding New Jersey
“Covered Home Loans” as that term was
defined in clause (1) of the definition of that term in the New Jersey Home
Ownership Security Act of 2002 that were originated between November 26,
2003
and July 7, 2004),“high
risk home,” “predatory”
or
similar loan
under any other applicable state,
federal
or local law (or a similarly classified loan using different terminology
under a
law imposing heightened regulatory scrutiny or additional legal liability
for
residential mortgage loans having high interest rates, points and/or fees)
or
(d)
categorized as High Cost pursuant to the then current 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.
the then current Standard & Poor’s Glossary (which is now Version 5.6(d)
Revised, Appendix E). 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.
HUD:
The Department of (Housing and Urban Development, or any federal agency or
official thereof which may from time to time succeed to the functions thereof
with regard to FHA Mortgage Insurance. The term “HUD,”
for purposes of this Agreement, is also deemed to include subdivisions thereof
such as the FHA and Government National Mortgage Association.
5
Index:
The index indicated in the related Mortgage Note for each Adjustable Rate
Mortgage Loan.
Insurance
Proceeds:
With respect to each Mortgage Loan, proceeds of insurance policies insuring
the
Mortgage Loan or the related Mortgaged Property.
Interest
Rate Adjustment Date:
With respect to each Adjustable Rate Mortgage Loan, the date, specified in
the
related Mortgage Note and the related Mortgage Loan Schedule, on which the
Mortgage Interest Rate is adjusted.
Interim
Funder:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the interim funder pursuant to the MERS Procedures
Manual.
Investor:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime
Rate Cap:
The provision of each Mortgage Note related to an Adjustable Rate Mortgage
Loan
which provides for an absolute maximum Mortgage Interest Rate thereunder. The
Mortgage Interest Rate during the terms of each Adjustable Rate Mortgage Loan
shall not at any time exceed the Mortgage Interest Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the Lifetime
Rate
Cap set forth as an amount per annum on the related Mortgage Loan
Schedule.
Liquidation
Proceeds:
Cash received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio
or LTV:
With respect to any Mortgage Loan, the ratio (expressed as a percentage) of
the
outstanding principal amount of the Mortgage Loan as of the related origination
date (unless otherwise indicated), to the lesser of (a) the Appraised Value
of the Mortgaged Property at origination and (b) if the Mortgage Loan was
made to finance the acquisition of the related Mortgaged Property, the purchase
price of the Mortgaged Property.
Manufactured
Home:
A single family residential unit that is constructed in a factory in sections
in
accordance with the Federal Manufactured Home Construction and Safety Standards
adopted on July 15, 1976, by the Department of Housing and Urban
Development (“HUD Code”), as amended in 2000, which preempts state and local
building codes. Each unit is identified by the presence of a HUD
Plate/Compliance Certificate label. The sections are then transported to the
site and joined together and affixed to a pre-built permanent foundation (which
satisfies the manufacturer’s requirements and all state, county, and local
building codes and regulations). The manufactured home is built on a
non-removable, permanent frame chassis that supports the complete unit of walls,
floors, and roof. The underneath part of the home may have running gear (wheels,
axles, and brakes) that enable it to be transported to the permanent site.
The
wheels and hitch are removed prior to anchoring the unit to the permanent
foundation. The manufactured home must be classified as real estate and taxed
accordingly. The permanent foundation may be on land owned by the mortgager
or
may be on leased land.
6
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, and
its
successors in interest.
MERS
Designated Mortgage Loan:
Mortgage Loans for which (a) the Seller has designated or will designate MERS
as, and has taken or will take such action as is necessary to cause MERS to
be,
the mortgagee of record, as nominee for the Seller, in accordance with the
MERS
Procedures Manual and (b) the Seller has designated or will designate the
Purchaser as the Investor on the MERS System.
MERS
Identification Number:
The eighteen digit number permanently assigned to each MERS Designated Mortgage
Loan.
MERS
Procedures Manual:
The MERS Procedures Manual, as it may be amended, supplemented or otherwise
modified from time to time.
MERS
Report:
The report from the MERS System listing MERS Designated Mortgage Loans and
other
information.
MERS
System:
MERS mortgage electronic registry system, as more particularly described in
the
MERS Procedures Manual.
Monthly
Payment:
The scheduled monthly payment of principal and interest on a Mortgage
Loan.
Moody’s:
Xxxxx’x Investors Service, Inc., and its successors in interest.
Mortgage:
With respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed
of
trust or other instrument securing a Mortgage Note, which creates a first lien
on 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. With respect to a Co-op Loan, the Security
Agreement.
Mortgage
File:
The items pertaining to a particular Mortgage Loan referred to in Exhibit A
annexed hereto, and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage
Interest Rate:
The annual rate of interest borne on a Mortgage Note with respect to each
Mortgage Loan.
Mortgage
Interest Rate Cap:
With respect to an Adjustable Rate Mortgage Loan, the limit on each Mortgage
Interest Rate adjustment as set forth in the related Mortgage Note.
Mortgage
Loan:
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 applicable Mortgage Loan Schedule, which Mortgage Loan includes without
limitation the Mortgage File, the Credit File, the Servicing File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased mortgage loans.
7
Mortgage
Loan Documents:
The documents required to be delivered to the Custodian pursuant to
Section 6.03 hereof with respect to any Mortgage Loan.
Mortgage
Loan Package:
Each pool of Mortgage Loans, which shall be purchased by the Purchaser from
the
Seller from time to time on each Closing Date.
Mortgage
Loan Remittance Rate:
With respect to each Mortgage Loan, the annual rate of interest remitted to
the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
The schedule of Mortgage Loans setting forth the following information with
respect to each Mortgage Loan in the related Mortgage Loan Package: (1) the
Seller’s Mortgage Loan identifying number; (2) the Mortgagor’s first and
last name; (3) the street address of the Mortgaged Property including the
city, state and zip code; (4) a code indicating the Mortgagor’s race and/or
ethnicity; (5) a code indicating whether the Mortgagor is self-employed; (6)
a
code indicating whether the Mortgaged Property is owner-occupied, investment
property or a second home; (7) the number and type of residential units
constituting the Mortgaged Property (e.g. single family residence, a two- to
four-family dwelling, condominium, planned unit development or cooperative);
(8) the original months to maturity or the remaining months to maturity
from the related Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner but based
on the actual amortization schedule; (9) the Loan-to-Value Ratio at
origination; (10) the Mortgage Interest Rate as of the related Cut-off
Date; (11) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (12) the stated maturity date; (13) the amount of the
Monthly Payment as of the related Cut-off Date; (14) the last payment date
on which a payment was actually applied to the outstanding principal balance;
(15) the original principal amount of the Mortgage Loan; (16) the
principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (17) with respect to Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (18) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (19) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (20) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (21) the type of Mortgage Loan (i.e., Fixed
Rate, Adjustable Rate); (22) a code indicating the purpose of the loan
(i.e., purchase, rate and term refinance, equity take-out refinance);
(23) a code indicating the documentation style (i.e. no documents, full,
alternative or reduced, no income/no asset, stated income, no ration, reduced
or
NIV); (24) the loan credit classification (as described in the Underwriting
Guidelines); (25) whether such Mortgage Loan provides for a Prepayment
Penalty; (26) the Prepayment Penalty period of such Mortgage Loan, if
applicable; (27) a description of the Prepayment Penalty, if applicable;
(26) the Mortgage Interest Rate as of origination; (29) the credit risk
score (FICO score); (30) the date of origination; (31) with respect to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate adjustment period;
(32) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate adjustment percentage; (33) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate floor; (34) the Mortgage Interest Rate
calculation method (i.e., 30/360, simple interest, other); (35) with
respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap as of the
first
Interest Rate Adjustment Date; (36) a code indicating whether the Mortgage
Loan is a Balloon Mortgage Loan; (37) the Due Date for the first Monthly
Payment; (38) the original Monthly Payment due; (39) a code indicating
whether the Mortgage Loan is covered by a PMI Policy and, if so, identifying
the
PMI Policy provider; (40) in connection with a condominium unit, a code
indicating whether the condominium project where such unit is located is
low-rise or high-rise; (41) delinquency status as of the related Cut-off Date;
(42) asset verification (Y/N); (43) with respect to each Adjustable Rate
Mortgage Loan, a code indicating whether the Mortgage Loan provides for negative
amortization; (44) Appraised Value; (45) appraisal type; (46) automated
valuation model (AVM); (47) appraisal date; (48) with respect to the
related Mortgagor, the debt-to-income ratio; (49) the MERS Identification
Number, if applicable; (50) whether the Mortgage Loan has Monthly Payments
that
are interest-only for a period of time, and the interest-only period, if
applicable; (51) with respect to each Adjustable Rate Mortgage Loan with
negative amortization, the negative amortization limit; and (52) a code
indicating the PMI Policy provider and percentage of coverage, if applicable.
With respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall set forth the following information, as of the related Cut-off Date:
(1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; (4) the weighted
average maturity of the Mortgage Loans; (5) the average principal balance of
the
Mortgage Loans; (6) the applicable Cut-off Date; and (7) the
applicable Closing Date.
8
Mortgage
Note:
The note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With respect to a Mortgage Loan that is not a Co-op Loan, the underlying real
property (or leasehold estate, if applicable) securing repayment of the debt
evidenced by a Mortgage Note. With respect to a Co-op Loan, the stock allocated
to a dwelling unit in the residential cooperative housing corporation that
was
pledged to secure such Co-op Loan and the related Co-op Lease.
Mortgagor:
The obligor on a Mortgage Note.
Non-Convertible
Mortgage Loan:
Any individual Adjustable Rate Mortgage Loan purchased pursuant to this
Agreement which does not contain a provision pursuant to which the Mortgagor
may
convert the Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage
Loan.
OCC:
Office of the Comptroller of the Currency, and its successors in
interest.
Officer’s
Certificate:
A certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Seller,
and
delivered to the Purchaser as required by this Agreement.
9
Opinion
of Counsel:
A written opinion of counsel, who may be counsel for the Seller, reasonably
acceptable to the Purchaser, provided that any Opinion of Counsel relating
to
(a) the qualification of any account required to be maintained pursuant to
this Agreement as an Eligible Account, (b) qualification of the Mortgage
Loans in a REMIC or (c) compliance with the REMIC Provisions, must be
(unless otherwise stated in such Opinion of Counsel) an opinion of counsel
who
(i) is in fact independent of the Seller and any servicer of the Mortgage
Loans, (ii) does not have any material direct or indirect financial
interest in the Seller or any servicer of the Mortgage Loans or in an Affiliate
of either and (iii) is not connected with the Seller or any servicer of the
Mortgage Loans as an officer, employee, director or person performing similar
functions.
OTS:
Office of Thrift Supervision, and its successors in interest.
Periodic
Rate Cap:
With respect to each Adjustable Rate Mortgage Loan, the provision of each
Mortgage Note which provides for an absolute maximum amount by which the
Mortgage Interest Rate therein may increase or decrease on an Interest Rate
Adjustment Date above or below the Mortgage Interest Rate previously in
effect.
Person:
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
PMI
Policy:
A policy of primary mortgage guaranty insurance issued by a Qualified
Insurer.
Preliminary
Mortgage Schedule:
As defined in Section 3.
Prepayment
Penalty:
With respect to each Mortgage Loan, the fee, if any, payable upon the
prepayment, in whole or in part, of such Mortgage Loan, as set forth in the
related Mortgage Note.
Prime
Rate:
The prime rate announced to be in effect from time to time, as published as
the
average rate in The Wall Street Journal (Northeast edition).
Principal
Prepayment:
Any payment or other recovery of principal on a Mortgage Loan which is received
in advance of its scheduled Due Date, including any Prepayment Penalty or
premium thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase
Price:
The price paid on the related Closing Date by the Purchaser to the Seller in
exchange for the Mortgage Loans purchased on such Closing Date as calculated
in
Section 4
of this Agreement.
Purchase
Price and Terms Agreement:
With respect to each pool of Mortgage Loans purchased pursuant to this Agreement
the related agreement setting forth the general terms and conditions of the
purchase transaction and identifying the Mortgage Loans to be purchased
thereunder, by and between the Seller and the Purchaser.
10
Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation, and its successors
in interest and assigns, and any successor to the Purchaser under this Agreement
as herein provided.
Qualified
Correspondent:
Any Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within one hundred
eighty (180) days after origination; (iii) either (x) the Designated Guidelines
were, at the time such Mortgage Loans were originated, used by the Seller in
origination of mortgage loans of the same type as the Mortgage Loans for the
Seller’s own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Seller on a consistent
basis
for use by lenders in originating mortgage loans to be purchased by the Seller;
and (iv) the Seller employed, at the time such Mortgage Loans were acquired
by
the Seller, 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 Seller.
Qualified
Appraiser:
An appraiser, duly appointed by the Seller, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation was not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfied the requirements of Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 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, approved as an insurer by Xxxxxx Mae and Xxxxxxx Mac (or such other
rating as may be required by a Rating Agency in connection with a Securitization
Transaction in order to achieve the desired ratings for the securities to be
issued in connection with such Securitization Transaction).
Qualified
Substitute Mortgage Loan:
A mortgage loan eligible to be substituted by the Seller for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the outstanding principal balance of the Deleted Mortgage Loan (the amount
of
any shortfall will be deposited in the Custodial Account by the Seller in the
month of substitution); (ii) have a Mortgage Interest Rate not less than
and not more than 1% greater than the Mortgage Interest Rate of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than and
not more than one year less than that of the Deleted Mortgage Loan (iv) be
of the same type as the Deleted Mortgage Loan (i.e., fixed rate or adjustable
rate with same Mortgage Interest Rate Cap and Index); and (v) comply with
each representation and warranty (respecting individual Mortgage Loans) set
forth in Section 9
hereof.
11
Rating
Agency:
Any of Fitch, Xxxxx’x or Standard & Poor’s, or their respective successors
designated by the Purchaser.
Reconstitution:
Any Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreements:
The agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans sold hereunder, in connection with a Whole Loan
Transfer, Agency Transfer or a Securitization Transaction pursuant to
Section 13,
including, but not limited to, a seller’s warranties and servicing agreement
with respect to a Whole Loan Transfer, and a pooling and servicing agreement
and/or seller/servicer agreements and related custodial/trust agreement and
documents with respect to a Securitization Transaction.
Reconstitution
Date:
As defined in Section 13.
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.
REMIC:
A “real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the
Code, and related provisions and regulations, rulings or pronouncements
promulgated thereunder, as the foregoing may be in effect from time to
time.
Remittance
Date:
The date specified in the Servicing Agreement (with respect to each Mortgage
Loan, as specified therein).
Repurchase
Price:
As defined in the related Purchase Price and Terms Agreement.
RESPA:
Real Estate Settlement Procedures Act, as amended 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 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.
12
Security
Agreement:
The agreement creating a security interest in the stock allocated to a dwelling
unit in the residential cooperative housing corporation that was pledged to
secure such Co-op Loan and the related Co-op Lease.
Seller:
IndyMac Bank, F.S.B., and its successors in interest.
Servicing
Agreement:
The Amended and Restated Servicing Agreement, attached as Exhibit L
hereto, between the Purchaser and the Seller, pursuant to which the Seller
will
service the Mortgage Loans..
Servicing
Fee:
With respect to each Mortgage Loan subject to the Servicing Agreement, a fee
payable monthly equal to one-twelfth of the product of (a) the Servicing
Fee Rate and (b) the aggregate scheduled principal balance of such Mortgage
Loan. Such fee shall be payable monthly and shall be pro-rated for any portion
of a month during which the Mortgage Loan is serviced by the Seller under the
Servicing Agreement. The obligation of the Purchaser to pay the Servicing Fee
is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds, to the extent permitted by this
Agreement) of such Monthly Payment collected by the Seller, or as otherwise
provided under this Agreement.
Servicing
Fee Rate:
37.5 basis points (0.375%) per annum or such other rate as may be set forth
in
the Purchase Price and Terms Agreement.
Servicing
File:
With respect to each Mortgage Loan, the file retained by the Seller consisting
of originals of all documents in the Mortgage File which are not delivered
to
the Purchaser or the Custodian and copies of the Mortgage Loan Documents set
forth in Section 2 of the Custodial Agreement.
Sponsor:
The sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard
& Poor’s:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies
Inc., and 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 on any date of determination, (i) the principal
balance of each Mortgage Loan at the related Cut-off Date after giving effect
to
payments of principal due on or before such date, whether or not received,
minus
(ii) all amounts previously distributed to the Purchaser with respect to
the related Mortgage Loan representing payments or recoveries of principal
on
such Mortgage Loan.
13
Successor
Servicer:
Any servicer of one or more Mortgage Loans designated by the Purchaser as being
entitled to the benefits of the indemnifications set forth in Subsections 9.03
and 14.01.
Static
Pool Information:
Static pool information as described in Item 1105(a)(1)-(3) and 1105(c) of
Regulation AB.
Successor
Servicer:
Any servicer of one or more Mortgage Loans designated by the Purchaser as being
entitled to the benefits of the indemnifications set forth in Subsections 9.03
and 14.01.
Third-Party
Originator:
Each Person, other than a Qualified Correspondent, that originated Mortgage
Loans acquired by the Seller.
Underlying
Mortgaged Property:
With respect to each Co-op Loan, the underlying real property owned by the
related residential cooperative housing corporation.
Underwriting
Guidelines:
The underwriting guidelines of the Seller, a copy of which is attached hereto
as
Exhibit
H
and a then-current copy of which shall be attached as an exhibit to the related
Assignment and Conveyance.
VA
Approved Lender:
A lender which is approved by the VA to act as a lender in connection with
the
origination of VA guaranteed mortgage loans.
Whole
Loan Agreement:
Any Reconstitution Agreement in respect of a Whole Loan Transfer.
Whole
Loan Transfer:
Any sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
SECTION
2. Agreement
to Purchase.
The
Seller agrees to sell from time to time, and the Purchaser agrees to purchase
from time to time, Mortgage Loans having an aggregate principal balance on
the
Cut-off Date in an amount as set forth in the related Purchase Price and Terms
Agreement, or in such other amount as agreed by the Purchaser and the Seller
as
evidenced by the actual aggregate principal balance of the Mortgage Loans
accepted by the Purchaser on each Closing Date.
SECTION
3. Mortgage
Schedules.
The
Seller from time to time shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on
each
Closing Date in accordance with the related Purchase Price and Terms Agreement
and this Agreement (each, a “Preliminary
Mortgage Schedule”).
14
The
Seller is obligated to deliver those Mortgage Loans owned by the Seller pursuant
to the original terms of the Seller’s commitment to the Mortgagor. The Seller
shall deliver the Mortgage Loan Schedule for the Mortgage Loans to be purchased
on a particular Closing Date to the Purchaser at least two (2) Business Days
prior to the related Closing Date. The Mortgage Loan Schedule shall be the
related Preliminary Mortgage Schedule with those Mortgage Loans which have
not
been funded prior to the Closing Date deleted.
SECTION
4. Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the related Purchase Price and Terms Agreement (subject to adjustment as
provided therein), multiplied by the aggregate principal balance, as of the
related Cut-off Date, of the Mortgage Loans, after application of scheduled
payments of principal due on or before the related Cut-off Date, whether or
not
collected. The initial principal amount of the Mortgage Loans shall be the
aggregate principal balance of the Mortgage Loans, so computed as of the related
Cut-off Date. If so provided in the related Purchase Price and Terms Agreement,
portions of the Mortgage Loans shall be priced separately.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Seller, at closing, accrued interest on the current principal amount of
the
related Mortgage Loans as of the related Cut-off Date at the weighted average
Mortgage Interest Rate of those Mortgage Loans, net of the Servicing Fee Rate,
from the Cut-off Date through the day prior to the Closing Date, inclusive.
The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid to the Seller by wire transfer of immediately available funds
to
an account designated by the Seller in writing.
The
Purchaser shall be entitled to (1) all scheduled principal due after the
related Cut-off Date, (2) all other recoveries of principal collected on or
after the related Cut-off Date, (3) all payments of interest on the
Mortgage Loans net of applicable Servicing Fees (minus that portion of any
such
payment which is allocable to the period prior to the related Cut-off Date),
and
(4) all Prepayment Penalties (unless the related Purchase Price and Terms
Agreement indicates otherwise) collected on or after the related Cut-off Date
(minus the portion of any such payment which is allocable to the period prior
the related Cut-off Date). The outstanding principal balance of each Mortgage
Loan as of the related Cut-off Date is determined after application of payments
of principal due on or before the related Cut-off Date, whether or not
collected, together with any unscheduled principal prepayments collected prior
to the such Cut-off Date; provided, however, that payments of scheduled
principal and interest paid prior to such Cut-off Date, but to be applied on
a
Due Date beyond the related Cut-off Date shall not be applied to the principal
balance as of the related Cut-off Date. Such prepaid amounts shall be the
property of the Purchaser. The Seller shall deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of
the
Purchaser for subsequent remittance by the Seller to the Purchaser.
SECTION
5. Examination
of Mortgage Files.
At
least ten (10) Business Days prior to the related Closing Date, the Seller
shall
make the related Credit File available to the Purchaser for examination at
such
location as shall be agreed upon by the Seller and the Purchaser. Such
examination of the Mortgage Files may be made by the Purchaser or its designee
at any reasonable time before or after the related Closing Date. If the
Purchaser makes such examination prior to the related Closing Date and
determines, in its sole discretion, that any Mortgage Loans do not conform
to
any of the requirements set forth in the Purchase Price and Terms Agreement
and
Exhibit A thereto, the Purchaser may delete such Mortgage Loans from the related
Mortgage Loan Schedule, and such Deleted Mortgage Loan (or Loans) may be
replaced by a Qualified Substitute Mortgage Loan (or Loans) acceptable to the
Purchaser. The Purchaser may, at its option and without notice to the Seller,
purchase some or all of the Mortgage Loans without conducting any partial or
complete examination. The fact that the Purchaser or its designee has conducted
or has failed to conduct any partial or complete examination of the Mortgage
Files or the Credit Files shall not impair in any way the Purchaser’s (or any of
its successor’s) rights to demand repurchase, substitution or other remedy as
provided in this Agreement. In the event that the Seller fails to deliver the
Credit Files with respect to any Mortgage Loan, the Seller shall, upon the
request of the Purchaser, repurchase such Mortgage Loan as the price and in
the
manner specified in Subsection 9.03.
15
SECTION
6. Conveyance
from Seller to Purchaser.
Subsection
6.01 Conveyance
of Mortgage Loans; Possession of Servicing Files.
The
Seller, simultaneously with the delivery of the Mortgage Loans Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in the
form attached hereto as Exhibit G
(the “Assignment
and Conveyance Agreement”).
The Seller
shall cause the Servicing File retained by the Seller pursuant to this Agreement
to be appropriately identified in the Seller’s computer system and/or books and
records, as appropriate, to clearly reflect the sale of the related Mortgage
Loan to the Purchaser. The Seller shall release from its custody the contents
of
any Servicing File retained by it only in accordance with this Agreement or
the
Servicing Agreement.
Subsection
6.02 Books
and Records.
Record
title to each Mortgage as of the related Closing Date shall be in the name
of
the Seller, an Affiliate of the Seller, the Purchaser or one or more designees
of the Purchaser, as the Purchaser shall select. Notwithstanding the foregoing,
each Mortgage and related Mortgage Note shall be possessed solely by the
Purchaser or the appropriate designee of the Purchaser, as the case may be.
All
rights arising out of the Mortgage Loans including, but not limited to, all
funds received by the Seller after the related Cut-off Date, net of any funds
due the Seller, on or in connection with a Mortgage Loan shall be vested in
the
Purchaser or one or more designees of the Purchaser; provided, however, that
all
funds received on or in connection with a Mortgage Loan shall be received and
held by the Seller in trust for the benefit of the Purchaser or the appropriate
designee of the Purchaser, as the case may be, as the owner of the Mortgage
Loans pursuant to the terms of this Agreement.
The
sale of each Mortgage Loan shall be reflected on the Seller’s balance sheet and
other financial statements as a sale of assets by the Seller.
16
The
Seller shall be responsible for maintaining, and shall maintain, a complete
set
of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
the
Seller shall maintain in its possession, available for inspection by the
Purchaser, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations, and
requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by the Servicing Agreement and Xxxxxx Mae
Guides. To the extent that original documents are not required for purposes
of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Seller may be in the form of microfilm or microfiche so long as the
Seller complies with the requirements of the Xxxxxx Xxx Guides.
Subsection
6.03 Delivery
of Mortgage Loan Documents.
The
Seller or its designee shall deliver and release to the Custodian no later
than
five (5) Business Days prior to the related Closing Date those documents and
instruments in the Mortgage File for each Mortgage Loan that are required to
be
delivered to the Custodian pursuant to the Custodial Agreement.
The
Custodian shall certify its receipt of all such Mortgage Loan Documents required
to be delivered pursuant to the Custodial Agreement for the related Closing
Date, as evidenced by the certification and trust receipt of the Custodian
in
the form annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian from and after the Closing Date.
The
Seller shall forward to the Custodian, or to such other Person as the Purchaser
shall designate in writing, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into
in
accordance with this Agreement within two weeks of their execution, provided,
however, that the Seller shall provide the Custodian, or to such other Person
as
the Purchaser shall designate in writing, with a certified true copy of any
such
document submitted for recordation within two (2) weeks of its execution, and
shall promptly provide the original of any document submitted for recordation
or
a copy of such document certified by the appropriate public recording office
to
be a true and complete copy of the original within one hundred twenty (120)
days
of its submission for recordation.
In
the event any document required to be delivered to the Custodian pursuant to
the
preceding paragraph, including an original or copy of any document submitted
for
recordation to the appropriate public recording office, is not so delivered
to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, within one hundred twenty (120) days following the related Closing
Date
(other than with respect to the Assignments of Mortgage which shall be delivered
to the Custodian in blank on or prior to the Closing Date and recorded
subsequently by the Purchaser or its designee), and in the event that the Seller
does not cure such failure within thirty (30) days of discovery or receipt
of
written notification of such failure from the Purchaser, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by the Seller
at
the price and in the manner specified in Subsection 9.03.
The foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recordation
to the appropriate public recording office within the specified period due
to a
delay caused by the recording office in the applicable jurisdiction; provided
that (i) the Seller shall deliver an Officer’s Certificate of a servicing
officer of the Seller, confirming that such documents have been delivered for
recording, (upon request of the Purchaser and delivery by the Purchaser to
the
Seller of a schedule of the related Mortgage Loans, the Seller shall reissue
and
deliver to the Purchaser or its designee said officer’s certificate relating to
the related Mortgage Loans), and (ii) such document is delivered within twelve
(12) months of the Closing Date.
17
The
Seller shall pay all initial recording fees, if any, for the Assignments of
Mortgage up to $30 per Mortgage Loan and any other fees or costs in transferring
all original documents to the Custodian or, upon written request of the
Purchaser, to the Purchaser or the Purchaser’s designee. Notwithstanding the
foregoing, Seller shall not be required to pay recording fees in connection
with
any Mortgage Loan secured by a Mortgaged Property located in the State of
California, or any other state, provided that Seller shall, upon request of
the
Purchaser and at the Seller’s expense, cause to be furnished to the Purchaser
and its designees an opinion of counsel reasonably satisfactory to the Purchaser
to the effect that recordation is not necessary in such states to protect the
Purchaser’s (or its designees’) interest in such Mortgage Loans. If such opinion
of counsel is not available by the Closing Date, the Seller will pay $30 per
Mortgage Loan, to be netted from the Purchase Price on the Closing Date. The
Purchaser or the Purchaser’s designee shall be responsible for recording the
Assignments of Mortgage.
Subsection
6.04 Quality
Control Procedures.
The
Seller shall, or shall have an internal quality control program that verifies
in
a manner consistent with accepted industry procedures, 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 Guidelines, guard against dishonest, fraudulent, or negligent
acts, and guard against errors and omissions by officers, employees, or other
authorized persons.
Subsection
6.05 MERS
Designated Mortgage Loans.
With
respect to each MERS Designated Mortgage Loan, the Seller shall, on or prior
to
the related Closing Date, designate the Purchaser as the Investor and the
Custodian as custodian, and no Person shall be listed as Interim Funder on
the
MERS System. In addition, on or prior to the related Closing Date, the Seller
shall provide the Custodian and the Purchaser with a MERS Report listing the
Purchaser as the Investor, the Custodian as custodian and no Person as Interim
Funder with respect to each MERS Designated Mortgage Loan.
SECTION
7. Servicing
of the Mortgage Loans.
The
Mortgage Loans have been sold by the Seller to the Purchaser on a servicing
retained basis.
18
The
Purchaser shall retain the Seller as independent contract servicer of the
Mortgage Loans pursuant to and in accordance with the terms and conditions
contained in the Servicing Agreement. The Purchaser and Seller shall execute
the
Servicing Agreement on the Closing Date.
Pursuant
to the Servicing Agreement, the Seller shall begin servicing the Mortgage Loans
on behalf of the Purchaser and shall be entitled to the Servicing Fee and any
Ancillary Income with respect to such Mortgage Loans from the related Closing
Date until the termination of the Servicing Agreement with respect to any of
the
Mortgage Loans as set forth in the Servicing Agreement. The Seller shall service
the Mortgage Loans in accordance with the terms of the Servicing
Agreement.
SECTION
8. Representations,
Warranties and Covenants of the Purchaser
Subsection
8.01 Representations
and Warranties Regarding the Purchaser.
The
Purchaser represents, warrants and covenants to the Seller that as of the date
hereof and as of each Closing Date that the
execution, delivery and performance by the Purchaser of this Agreement has
been
duly and validly authorized by all necessary corporate action. This Agreement
constitutes a legal, valid and enforceable obligation of the Purchaser.
SECTION
9. Representations,
Warranties and Covenants of the Seller; Remedies for Breach.
Subsection
9.01 Representations
and Warranties Regarding the Seller.
The
Seller represents, warrants and covenants to the Purchaser that as of the date
hereof and as of the Closing Date:
(a) Due
Organization and Authority.
The Seller is a federal savings bank duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all licenses necessary to carry on its business as now being conducted
and is licensed, qualified and in good standing in each state wherein it owns
or
leases any material properties or where a Mortgaged Property is located, if
the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Seller, 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 the related Mortgage Loan and the servicing of such Mortgage
Loan in accordance with the terms of this Agreement and the Servicing Agreement;
the Seller has the full corporate power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this Agreement
and to perform its obligations hereunder and thereunder; the execution, delivery
and performance of this Agreement (including all instruments of transfer to
be
delivered pursuant to this Agreement) by the Seller and the consummation of
the
transactions contemplated hereby and thereby have been duly and validly
authorized; this Agreement and all agreements contemplated hereby have been
duly
executed and delivered and constitute the valid, legal, binding and enforceable
obligations of the Seller, regardless of whether such enforcement is sought
in a
proceeding in equity or at law; and all requisite corporate action has been
taken by the Seller to make this Agreement and all agreements contemplated
hereby valid and binding upon the Seller in accordance with their
terms;
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(b) Ordinary
Course of Business.
The consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No
Conflicts.
Neither the execution and delivery of this Agreement, the acquisition or
origination of the Mortgage Loans by the Seller, the sale of the Mortgage Loans
to the Purchaser, the consummation of the transactions contemplated hereby,
nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Seller’s charter, by-laws or other
organizational documents or any legal restriction or any agreement or instrument
to which the Seller is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the foregoing, or result
in
the violation of any law, rule, regulation, order, judgment or decree to which
the Seller or its property is subject, or result in the creation or imposition
of any lien, charge or encumbrance that would have an adverse effect upon any
of
its properties pursuant to the terms of any mortgage, contract, deed of trust
or
other instrument, or impair the ability of the Purchaser to realize on the
Mortgage Loans, impair the value of the Mortgage Loans, or impair the ability
of
the Purchaser to realize the full amount of any insurance benefits accruing
pursuant to this Agreement;
(d) Ability
to Service.
Seller has the facilities, procedures, and experienced personnel necessary
for
the sound servicing of mortgage loans of the same type as the Mortgage Loans.
The Seller is duly qualified, licensed, registered and otherwise authorized
under all applicable federal, state and local laws, and regulations, if
applicable, meets the minimum capital requirements set forth by HVD, the OTS,
the OCC or the FDIC, if applicable, and is in good standing to enforce,
originate, sell mortgage loans to, and service mortgage loans in the
jurisdiction wherein the Mortgaged Properties are located;
(e) Reasonable
Servicing Fee.
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 and the Servicing Agreement;
(f) Ability
to Perform; Solvency.
The Seller does not believe, nor does it have any reason or cause to believe,
that it cannot perform each and every covenant contained in this Agreement.
The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of Seller’s creditors;
(g) No
Litigation Pending.
There is no action, suit, proceeding or investigation pending or threatened
against the Seller, before any court, administrative agency or other tribunal
asserting the invalidity of this Agreement, seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or which, either
in
any one instance or in the aggregate, may result in any material adverse change
in the business, operations, financial condition, properties or assets of the
Seller, or in any material impairment of the right or ability of the Seller
to
carry on its business substantially as now conducted, or in any material
liability on the part of the Seller, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
to be
taken in connection with the obligations of the Seller contemplated herein,
or
which would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
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(h) No
Consent Required.
No consent, approval, authorization or order of, or registration or filing
with,
or notice to any court or governmental agency or body including HUD, the FHA
or
the Department of Veterans Affairs is required for the execution, delivery
and
performance by the Seller of or compliance by the Seller with this Agreement
or
the Mortgage Loans, the delivery of a portion of the Mortgage Files to the
Custodian or the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has
been obtained prior to the related Closing Date;
(i) Selection
Process.
The Mortgage Loans were selected from among the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date as to which
the representations and warranties set forth in Subsection 9.02
could be made and such selection was not made in a manner so as to affect
adversely the interests of the Purchaser;
(j) Delivery
to the Custodian.
The Mortgage Note, the Mortgage, the Assignment of Mortgage and any other
documents required to be delivered with respect to each Mortgage Loan pursuant
to the Custodial Agreement, shall be delivered to the Custodian all in
compliance with the specific requirements of the Custodial Agreement. With
respect to each Mortgage Loan, the Seller will be in possession of a complete
Mortgage File in compliance with Exhibit A
hereto, except for such documents as will be delivered to the
Custodian;
(k) Mortgage
Loan Characteristics.
The characteristics of the related Mortgage Loan Package are as set forth on
the
description of the pool characteristics for the applicable Mortgage Loan Package
delivered pursuant to Section 11 on the related Closing Date in the form
attached as Exhibit B
to each related Assignment and Conveyance Agreement;
(l) No
Untrue Information.
Neither this Agreement nor any information, statement, tape, diskette, report,
form, or other document furnished or to be furnished pursuant to this Agreement
or any Reconstitution Agreement or in connection with the transactions
contemplated hereby (including any Securitization Transaction or Whole Loan
Transfer) contains or will contain any untrue statement of fact or omits or
will
omit to state a fact necessary to make the statements contained herein or
therein not misleading;
(m) No
Brokers.
The Seller has not dealt with any broker, investment banker, agent or other
person that may be entitled to any commission or compensation in connection
with
the sale of the Mortgage Loans;
(n) Sale
Treatment.
The Seller expects to be advised by its independent certified public accountants
that under generally accepted accounting principles the transfer of the Mortgage
Loans will be treated as a sale on the books and records of the Seller and
the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting
purposes;
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(o) Owner
of Record.
The Seller is the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, except for the Assignments of Mortgage which
have been sent for recording, and upon recordation the Seller will be the owner
of record of each Mortgage and the indebtedness evidenced by each Mortgage
Note,
and upon the sale of the Mortgage Loans to the Purchaser, the Seller will retain
the Mortgage Files with respect thereto in trust only for the purpose of
servicing and supervising the servicing of each Mortgage Loan;
(p) Reasonable
Purchase Price.
The consideration received by the Seller upon the sale of the Mortgage Loans
under this Agreement constitutes fair consideration and reasonably equivalent
value for the Mortgage Loans; and
(q) Seller’s
Origination.
The Seller’s decision to originate any mortgage loan or to deny any mortgage
loan application is an independent decision based upon the Underwriting
Guidelines, and is in no way made as a result of Purchaser’s decision to
purchase, or not to purchase, or the price Purchaser may offer to pay for,
any
such mortgage loan, if originated.
Subsection
9.02 Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage
Loans as Described.
The information set forth in the related Mortgage Loan Schedule is complete,
true and correct;
(b) Payments
Current.
All payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor
has any payment under the Mortgage Loan been 30 days or more delinquent at
any time since the origination of the Mortgage Loan;
(c) No
Outstanding Charges.
There are no defaults in complying with the terms of the Mortgage, and all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date
of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the related Due
Date of the first installment of principal and interest;
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(d) Original
Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified in any respect, from the date of origination except by
a
written instrument which has been recorded, if necessary to protect the
interests of the Purchaser, and which has been delivered to the Custodian or
to
such other Person as the Purchaser shall designate in writing, and the terms
of
which are reflected in the related Mortgage Loan Schedule. The substance of
any
such waiver, alteration or modification has been approved by the issuer of
any
related PMI Policy and the title insurer, if any, to the extent required by
the
policy, and its terms are reflected on the related Mortgage Loan Schedule,
if
applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan
Schedule;
(e) No
Defenses.
The Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto, and
no
Mortgagor was a debtor in any state or Federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the Underwriting Guidelines, as well as all additional
requirements set forth in Section 2.10 of the Servicing Agreement. If
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration as in effect which
policy conforms with the Underwriting Guidelines, as well as all additional
requirements set forth in Section 2.10 of the Servicing Agreement. All
individual insurance policies contain a standard mortgagee clause naming the
Seller and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
the
hazard insurance policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor’s cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier
of
the required hazard insurance, provided the policy is not a “master”
or “blanket”
hazard insurance policy covering a condominium, or any hazard insurance policy
covering the common facilities of a planned unit development. The hazard
insurance policy is the valid and binding obligation of the insurer, is in
full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by
this
Agreement. The Seller has not engaged in, and has no knowledge of the
Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
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(g) Compliance
with Applicable Laws.
Any and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, disclosure laws, predatory, fair
lending or abusive lending laws applicable to the Mortgage Loan, including,
without limitation, any provisions relating to the Illinois Interest Act and
Prepayment Penalties have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any such
laws
or regulations, and the Seller shall maintain in its possession, available
for
the Purchaser’s inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements. This
representation and warranty is a Deemed Material and Adverse
Representation;
(h) No
Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole or in part, and the Mortgaged Property has not been released from the
lien
of the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property. As to Mortgage Loans that are not Co-op
Loans and that are not secured by an interest in a leasehold estate, 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, log home, geodesic dome or other unique property type. As of the
date of origination, no portion of the Mortgaged Property was used for
commercial purposes, and, since the date of origination no portion of the
Mortgaged Property has been used for commercial purposes, except as permitted
under the Underwriting Standards. In the case of any Mortgaged Properties that
are manufactured homes (a “Manufactured Home Mortgage Loan”), (i) such
Manufactured Home Mortgage Loan conforms with the applicable Xxxxxx Xxx or
Xxxxxxx Mac requirements regarding mortgage loans related to manufactured
dwellings, (ii) the related manufactured dwelling is permanently affixed to
the
land, (iii) the related manufactured dwelling and the related land are subject
to a Mortgage properly filed in the appropriate public recording office and
naming Seller as mortgagee, (iv) the applicable laws of the jurisdiction in
which the related Mortgaged Property is located will deem the manufactured
dwelling located on such Mortgaged Property to be a part of the real property
on
which such dwelling is located, and (v) such Manufactured Home Mortgage Loan
is
(x) a qualified mortgage under Section 860G(a)(3) of the Internal Revenue Code
of 1986, as amended and (y) secured by manufactured housing treated as a single
family residence under Section 25(e)(10) of the Code. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used
for
commercial purposes as long as the Mortgaged Property has not been altered
for
commercial purposes and is not storing any chemicals or raw materials other
than
those commonly used for homeowner repair, maintenance and/or household
purposes;
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(j) Valid
First Lien.
The Mortgage is a valid, subsisting, enforceable and perfected, first lien
on
the Mortgaged Property, including all buildings and improvements on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect
to
the foregoing. The lien of the Mortgage is subject only to:
(A) the
lien of current real property taxes and assessments not yet due and
payable;
(B) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and
(a) specifically referred to or otherwise considered in the appraisal made
for the originator of the Mortgage Loan or (b) which do not adversely
affect the Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(C) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Seller has full right to
sell
and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related cooperative shares
securing the Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity
of Mortgage Documents.
The Mortgage Note and the Mortgage and any other agreement executed and
delivered by a Mortgagor in connection with a Mortgage Loan are genuine, and
each is the legal, valid and binding obligation of the maker thereof enforceable
in accordance with its terms (including, without limitation, any provisions
therein relating to Prepayment Penalties). All parties to the Mortgage Note,
the
Mortgage and any other such related agreement had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and
any such agreement, and the Mortgage Note, the Mortgage and any other such
related agreement have been duly and properly executed by other such related
parties. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of the
Seller in connection with the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect
to a
Mortgage Loan has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or any
other
party involved in the origination of the Mortgage Loan or in the application
for
any insurance in relation to such Mortgage Loan. The Seller has reviewed all
of
the documents constituting the Servicing File and has made such inquiries as
it
deems necessary to make and confirm the accuracy of the representations set
forth herein;
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(l) Full
Disbursement of Proceeds.
The Mortgage Loan has been closed and the proceeds of the Mortgage Loan have
been fully disbursed and there is no requirement for future advances thereunder,
and any and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor
is
not entitled to any refund of any amounts paid or due under the Mortgage Note
or
Mortgage;
(m) Ownership.
The Seller is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Seller intends to
relinquish all rights to possess, control and monitor the Mortgage Loan. After
the 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, except as provided in this Agreement;
(n) Doing
Business.
All parties which have had any interest in the Mortgage Loan, whether as
mortgagee, assignee, pledgee or otherwise, are (or, during the period in which
they held and disposed of such interest, were) (1) in compliance with any
and all applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (2) either (i) organized under the
laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national
bank having a principal office in such state, or (3) not doing business in
such state;
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(o) LTV,
PMI Policy.
No Mortgage Loan has an LTV greater than 100%. Any Mortgage Loan that had at
the
time of origination an LTV in excess of 80% is insured as to payment defaults
by
a PMI Policy. Any PMI Policy in effect covers the related Mortgage Loan for
the
life of such Mortgage Loan. All provisions of such PMI Policy have been and
are
being complied with, such policy is in full force and effect, and all premiums
due thereunder have been paid. No action, inaction, or event has occurred and
no
state of facts exists that has, or will result in the exclusion from, denial
of,
or defense to coverage. Any Mortgage Loan subject to a PMI Policy obligates
the
Mortgagor thereunder to maintain the PMI Policy and to pay all premiums and
charges in connection therewith. The Mortgage Interest Rate for the Mortgage
Loan as set forth on the Mortgage Loan Schedule is net of any such insurance
premium;
(p) Title
Insurance.
With respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan
is
covered by an ALTA lender’s title insurance policy, or other generally
acceptable form of policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx
Mac
and each such title insurance policy is issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan (or to the extent a Mortgage Note provides for
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), subject only to the exceptions contained in clauses (1)
and (2) of paragraph (j) of this Subsection 9.02,
and in the case of Adjustable Rate Mortgage Loans, against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No
Defaults.
Other than payments due but not yet 30 days or more delinquent, there is no
default, breach, violation or event which would permit acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither the Seller nor any of its affiliates nor any of their
respective predecessors, have waived any default, breach, violation or event
which would permit acceleration;
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(r) No
Mechanics’ Liens.
There are no mechanics’ or similar liens or claims which have been filed for
work, labor or material (and no rights are outstanding that under law could
give
rise to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(s) Location
of Improvements; No Encroachments.
All improvements which were considered in determining the Appraised Value of
the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part
of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
The Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or other similar institution
which is supervised and examined by a federal or state authority. Principal
payments on the Mortgage Loan commenced no more than seventy days after funds
were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate
as well as the Lifetime Rate Cap and the Periodic Cap are as set forth on the
related Mortgage Loan Schedule. Unless specified on the Mortgage Loan Schedule
as an interest only loan or a Balloon Mortgage Loan, the Mortgage Note is
payable in equal monthly installments of principal and interest, which
installments of interest, with respect to Adjustable Rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than fifteen years from commencement of
amortization. Unless otherwise specified on the related Mortgage Loan Schedule,
the Mortgage Loan is payable on the first day of each month. There are no
Convertible Mortgage Loans which contain a provision allowing the Mortgagor
to
convert the Mortgage Note from an adjustable interest rate Mortgage Note to
a
fixed interest rate Mortgage Note;
(u) Customary
Provisions.
The Mortgage contains customary and enforceable provisions such as to render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines.
The Mortgage Loan was underwritten substantially in accordance with the Seller’s
Underwriting Guidelines (a copy of which is attached hereto as Exhibit
H),
subject to the exception guidelines and processes they include. The Mortgage
Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae and
no
representations have been made to a Mortgagor that are inconsistent with the
mortgage instruments used;
28
(w) Occupancy
of the Mortgaged Property.
As of the related Closing Date the Mortgaged Property is lawfully occupied
under
applicable law. All inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been made
or
obtained from the appropriate authorities. Unless otherwise specified on the
Mortgage Loan Schedule, the Mortgagor represented at the time of origination
of
the Mortgage Loan that the Mortgagor would occupy the Mortgaged Property as
the
Mortgagor’s primary residence;
(x) No
Additional Collateral.
The Mortgage Note is not and has not been secured by any collateral except
the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (j)
above;
(y) Deeds
of Trust.
In the event the Mortgage constitutes a deed of trust, a trustee, authorized
and
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(z) Acceptable
Investment.
There are no circumstances or conditions with respect to the Mortgage, the
Mortgaged Property, the Mortgagor, the Mortgage File or the Mortgagor’s credit
standing that can reasonably be expected to cause private institutional
investors who invest in prime mortgage loans similar to the Mortgage Loan to
regard the Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan
to become delinquent, or adversely affect the value or marketability of the
Mortgage Loan, or cause the Mortgage Loans to prepay during any period
materially faster or slower than the mortgage loans originated by the Seller
generally;
(aa)
(bb) Delivery
of Mortgage Documents.
The Mortgage Note, the Mortgage, the Assignment of Mortgage and any other
documents required to be delivered under the Custodial Agreement for each
Mortgage Loan have been delivered to the Custodian. The Seller is in possession
of a complete, true and accurate Mortgage File in compliance with Exhibit A
attached hereto, except for such documents the originals of which have been
delivered to the Custodian;
(cc) Georgia
Loans.
No Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act and no Mortgage Loan originated on
or
after March 7, 2003, is a “high cost home loan” as defined under the Georgia
Fair Lending Act;
(dd) Transfer
of Mortgage Loans.
The Assignment of Mortgage with respect to each Mortgage Loan is in recordable
form and is acceptable for recording under the laws of the jurisdiction in
which
the Mortgaged Property is located. The transfer, assignment and conveyance
of
the Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
29
(ee) Due-On-Sale.
With respect to each Fixed Rate Mortgage Loan, the Mortgage contains an
enforceable provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event that the Mortgaged Property
is sold or transferred without the prior written consent of the mortgagee
thereunder, and to the best of the Seller’s knowledge, such provision is
enforceable;
(ff) Assumability.
With respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Interest Rate Adjustment Date, a related
Mortgage Loan may only be assumed if the party assuming such Mortgage Loan
meets
certain credit requirements stated in the Mortgage Loan Documents;
(gg) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are paid or partially paid with funds deposited in any separate account
established by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor,
or paid by any source other than the Mortgagor nor does it contain any other
similar provisions which may constitute a “buydown” provision. The Mortgage Loan
is not a graduated payment mortgage loan and the Mortgage Loan does not have
a
shared appreciation or other contingent interest feature;
(hh) Consolidation
of Future Advances.
Any future advances made to the Mortgagor prior to the applicable Cut-off Date
have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The lien of the Mortgage securing
the
consolidated principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring the
mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(ii) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged
by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property;
(jj) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The origination, servicing and collection practices used by the Seller with
respect to the Mortgage Loan have been in all respects in compliance with
Accepted Servicing Practices, applicable laws and regulations, and have been
in
all respects legal and proper. With respect to escrow deposits and Escrow
Payments, all such payments are in the possession of, or under the control
of,
the Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law
and
the provisions of the related Mortgage Note and Mortgage. An escrow of funds
is
not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed
but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage
or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect
to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Seller
executed and delivered any and all notices required under applicable law and
the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and
credited;
30
(kk) Conversion
to Fixed Interest Rate.
No Mortgage Loan is a Convertible Mortgage Loan;
(ll) Other
Insurance Policies.
No action, inaction or event has occurred and, to the best of the Seller’s
knowledge, no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable, special hazard insurance policy, PMI Policy or bankruptcy bond,
irrespective of the cause of such failure of coverage. In connection with the
placement of any such insurance, no commission, fee, or other compensation
has
been or will be received by the Seller or by any officer, director, or employee
of the Seller or any designee of the Seller or any corporation in which the
Seller or any officer, director, or employee had a financial interest at the
time of placement of such insurance;
(mm) No
Violation of Environmental Laws.
To the best of the Seller’s knowledge, there is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue; there is no violation of
any
environmental law, rule or regulation with respect to the Mortgage Property;
and
nothing further remains to be done to satisfy in full all requirements of each
such law, rule or regulation constituting a prerequisite to use and enjoyment
of
said property;
(nn) Soldiers’
and Sailors’ Civil Relief Act.
The Mortgagor has not notified the Seller, and the Seller has no knowledge
of
any relief requested or allowed to the Mortgagor under the Soldiers’ and
Sailors’ Civil Relief Act of 1940 as amended, or other similar state
statute;
(oo) Appraisal.
The Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a Qualified Appraiser,
duly appointed by the Seller, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all
as
in effect on the date the Mortgage Loan was originated;
(pp) Disclosure
Materials.
The Mortgagor has executed a statement to the effect that the Mortgagor has
received all disclosure materials required by, and the Seller has complied
with,
all applicable law with respect to the making of the Mortgage Loans. The Seller
shall maintain such statement in the Mortgage File or the Credit
File;
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(qq) Construction
or Rehabilitation of Mortgaged Property.
No Mortgage Loan was made in connection with the construction (other than a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(rr) [Reserved];
(ss) No
Defense to Insurance Coverage.
No action has been taken or failed to be taken, no event has occurred and no
state of facts exists or has existed on or prior to the Closing Date (whether
or
not known to the Seller on or prior to such date) which has resulted or will
result in an exclusion from, denial of, or defense to coverage under any primary
mortgage insurance (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), provided
this shall not include the failure of such insurer to pay by reason of such
insurer’s breach of such insurance policy or such insurer’s financial inability
to pay;
(tt) Escrow
Analysis.
If applicable, with respect to each Mortgage, the Seller has within the last
twelve (12) months (unless such Mortgage was originated within such twelve
month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(uu) Prior
Servicing.
Each Mortgage Loan has been serviced in all material respects in strict
compliance with Accepted Servicing Practices;
(vv) Credit
Information.
As to each consumer report (as defined in the Fair Credit Reporting Act, Public
Law 91-508) or other credit information furnished by the Seller to the
Purchaser, the Seller has full right and authority and is not precluded by
law
or contract from furnishing such information to the Purchaser and the Purchaser
is not precluded from furnishing the same to any subsequent or prospective
purchaser of such Mortgage. The Seller has and shall in its capacity as
servicer, for each Mortgage Loan, furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis. This representation and warranty
is a
Deemed Material and Adverse Representation;
(ww) Leaseholds.
If the Mortgage Loan is secured by a long-term residential lease, (1) the ground
lease is assignable or transferable; (2) the ground lease will not terminate
earlier than five years after the maturity date of the Mortgage Loan; (3) the
ground lease does not provide for termination of the lease in the event of
lessee’s default without the mortgagee being entitled to receive written notice
of, and a reasonable opportunity to cure the default; (4) the ground lease
permits the mortgaging of the related Mortgaged Property; (5) the ground lease
protects the mortgagee’s interests in the event of a property condemnation; and
(6) all ground lease rents, other payments, or assessments that have become
due
have been paid;
32
(xx) Prepayment
Penalty.
Each Mortgage Loan that is subject to a Prepayment
Penalty
as provided in the related Mortgage Note is identified on the related Mortgage
Loan Schedule. With respect to each
Mortgage Loan that has a Prepayment Penalty feature, each such Prepayment
Penalty is enforceable and will be enforced by the Seller for the benefit of
the
Purchaser (unless the related Purchase Price and Terms Agreement indicates
otherwise), and each Prepayment Penalty is permitted pursuant to federal, state
and local law. Each such Prepayment Penalty is in an amount not more than the
maximum amount permitted under applicable law and
no such Prepayment Penalty may provide
for a term in excess of five (5) years with
respect to Mortgage Loans originated prior to October, 1, 2002.
With respect to Mortgage Loans originated on or after October 1, 2002,
the
duration of the Prepayment Penalty period shall not exceed three (3) years
from
the date of the Mortgage Note unless the Mortgage Loan was modified to reduce
the Prepayment Penalty period to no more than three (3) years from the date
of
the related Mortgage Note and the Mortgagor was notified in writing of such
reduction in Prepayment Penalty period. With respect to any Mortgage Loan that
contains a provision permitting imposition of a Prepayment Penalty upon a
prepayment prior to maturity: (i) the Mortgage Loan provides some benefit to
the
Mortgagor (e.g.,
a rate or fee reduction) in exchange for accepting such Prepayment Penalty,
(ii)
prior
to the
Mortgage Loan’s origination, the Mortgagor
was offered the option of obtaining a mortgage loan that did not require payment
of such a penalty, (iii) the Prepayment Penalty was adequately disclosed to
the
Mortgagor in the mortgage loan documents pursuant to applicable state, local
and
federal law, and (iv) notwithstanding any state, local or federal law to the
contrary, the Seller shall not impose such Prepayment Penalty in any instance
when the mortgage debt is accelerated or paid off in connection with the workout
of a delinquent Mortgage Loan or as a result of the Mortgagor’s default in
making the Mortgage Loan payments. This representation and warranty is a Deemed
Material and Adverse Representation;
(yy) Predatory
Lending Regulations.
No Mortgage Loan is (a) a “high cost” loan under the Home Ownership and Equity
Protection Act of 1994 or (b) a “high cost,” “threshold,” “covered” or
“predatory” or similar loan under any other applicable state, federal or local
law (or a similarly classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees);
provided that any Mortgage Loan secured by a Mortgaged Property in Illinois
characterized as a “threshold” loan shall not be a “high cost” loan unless it is
characterized as “predatory” under applicable local law. This representation and
warranty is a Deemed Material and Adverse Representation;
(zz) Single-premium
credit insurance policy.
No Mortgagor was required to purchase any single premium credit insurance policy
(e.g. live, mortgage, disability, accident, unemployment, or health 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. This
representation and warranty is a Deemed Material and Adverse
Representation;
33
(aaa) Qualified
Mortgage. The Mortgage Loan is a qualified mortgage under
Section 860G(a)(3) of the Code;
(bbb) Tax
Service Contract.
Each Mortgage Loan is covered by a paid in full, life of loan, tax service
contract issued by First American Real Estate Tax Service, and such contract
is
transferable;
(ccc) Origination.
No predatory or deceptive lending practices, including, without limitation,
the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan;
(ddd) Recordation.
Each original Mortgage was recorded and all subsequent assignments of the
original Mortgage (other than the assignment to the Purchaser) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Seller, or is in the
process of being recorded;
(eee) Compliance
with Anti-Money Laundering Laws.
The Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the Seller has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of
the
Anti-Money Laundering Laws; Additionally,
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 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 “blocked person” for purposes of the OFAC
Regulations;
(fff) Co-op
Loans.
With respect to a Mortgage Loan that is a Co-op Loan, the stock that is pledged
as security for the Mortgage Loan is held by a person as a tenant-stockholder
(as defined in Section 216 of the Code) in a cooperative housing
corporation (as defined in Section 216 of the Code);
(ggg) No
Prior Offer.
The Mortgage Loan has not previously been offered for sale;
(hhh) HOEPA.
No Thresholds Applicable to all Loans. No refinance or purchase money mortgage
loan in the trust has an APR or total points and fees that exceed the thresholds
set by the Home Ownership and Equity Protection Act of 1994 (“HOEPA”) and its
implementing regulations, including 12 CFR § 226.32(a)(1)(i) and
(ii);
(iii) No
Arbitration.
No Mortgagor with respect to any Mortgage Loan originated on or after August
1,
2004 is required under the Mortgage or Mortgage Note to submit to arbitration
to
resolve any dispute arising out of or relating in any way to the mortgage loan
transaction;
34
(jjj) Borrower’s
Ability to Repay.
The methodology used in underwriting the extension of credit for each Mortgage
Loan in the trust 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 and, based
on
such methodology, the originator made a reasonable determination that at the
time of origination the Mortgagor had the ability to make timely payments on
the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the related Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan. This representation and
warranty is a Deemed Material and Adverse Representation;
(kkk) Points
and Fees.
No Mortgagor under a Mortgage Loan in the trust was charged “points and fees” in
an amount greater than (a) $1,000 or (b) 5% of the principal amount of such
Mortgage Loan, whichever is greater. For purposes of this representation,
“points and fees” (x) include origination, underwriting, broker and finder’s
fees and charges that the lender imposed as a condition of making the Mortgage
Loan, whether they are paid to the lender or a third party; and (y) exclude
bona
fide discount points, fees paid for actual services rendered in connection
with
the origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations and
extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title, hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges, which miscellaneous fee and charges, in total,
do not exceed 0.25 percent of the loan amount.
This representation and warranty is a Deemed Material and Adverse
Representation;
(lll) Disclosure
of Fees and Charges.
All fees and charges (including finance charges), whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Mortgage Loan, have been disclosed in writing to the
Mortgagor
in accordance with applicable state and federal law and regulation. This
representation and warranty is a Deemed Material and Adverse
Representation;
(mmm)
Mortgagor Selection.
The
Mortgagor was
not
encouraged or required to select a Mortgage Loan product offered by the
Seller
which is a higher cost product designed for less creditworthy mortgagors, unless
at the time of the Mortgage Loan’s origination, such Mortgagor did not qualify
taking into such
facts as, without limitation, the Mortgage Loan’s requirements and the
Mortgagor’s
credit history,
income, assets and liabilities
and debt-to-income ratios for a lower-cost credit product then offered by the
Seller
or any Affiliate of the Seller.
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
Seller,
the Seller
referred the related Mortgagor’s application to such Affiliate for underwriting
consideration.
For a Mortgagor who seeks financing through a Mortgage Loan originator’s
higher-priced subprime lending channel, the Mortgagor was directed towards
or
offered the Mortgage Loan originator’s standard mortgage line if the Mortgagor
was able to qualify for one of the standard products. This representation and
warranty is a Deemed Material and Adverse Representation;
35
(nnn) No
Failure to Cure Default.
The Seller has not received a written notice of default of any senior mortgage
loan related to the Mortgaged Property which has not been cured;
and
(ooo) Xxxxxx
Mae Guides Anti-Predatory Lending Eligibility:
Each Mortgage Loan is in compliance with the anti-predatory lending eligibility
for purchase requirements of Xxxxxx Xxx Guides. This representation and warranty
is a Deemed Material and Adverse Representation.
Subsection
9.03 Remedies
for Breach of Representations and Warranties.
It
is understood and agreed that the representations and warranties set forth
in
Subsections 9.01
and 9.02
shall survive the sale of the Mortgage Loans to the Purchaser and shall inure
to
the benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or
failure to examine any Mortgage File. Upon discovery by either the Seller or
the
Purchaser of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other.
Within
60 days of the earlier of either discovery by or notice to the Seller of any
breach of a representation or warranty which materially and adversely affects
the value of the Mortgage Loans or the interest of the Purchaser therein (or
which materially and adversely affects the value of the applicable Mortgage
Loan
or the interest of the Purchaser therein in the case of a representation and
warranty relating to a particular Mortgage Loan), the Seller shall use its
best
efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Seller shall repurchase such Mortgage Loan at the
Repurchase Price, together with all expenses incurred by the Purchaser as a
result of such repurchase unless the Purchaser has otherwise notified the Seller
in writing before the end of the related cure period. Notwithstanding the above
sentence, (i) within 60 days of the earlier of either discovery by, or notice
to, the Seller of any breach of the representations or warranties set forth
in
clauses (g), (i), (ww), (bb), (yy), (jj) (uu), (xx), (yy), (hhh), (iii) or
(jjj)
of Subsection 9.02,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price, together
with all expenses incurred by the Purchaser as a result of such repurchase
and
(ii) any breach of a Deemed Material and Adverse Representation shall
automatically be deemed to materially and adversely affect the value of the
Mortgage Loans or the interest of the Purchaser therein. In the event that
a
breach shall involve any representation or warranty set forth in Subsection 9.01,
and such breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Seller of such breach, all of the Mortgage Loans
affected by such breach shall, at the Purchaser’s option, be repurchased by the
Seller at the Repurchase Price. However, if the breach shall involve a
representation or warranty set forth in Subsection 9.02
(other than the representations and warranties set forth in clauses (g), (i),
(ww), (bb), (yy), (jj) (uu), (xx), (yy), (hhh), (iii) or (jjj) of such
Subsection or any Deemed Material Breach Representation) and the Seller
discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller may, provided that it has a Qualified
Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as provided
above, remove such Mortgage Loan (a “Deleted
Mortgage Loan”)
and substitute in its place a Qualified Substitute Mortgage Loan or Loans,
provided that any such substitution shall be effected not later than
120 days after the related Closing Date. If the Seller does not substitute
a Qualified Substitute Mortgage Loan, it shall repurchase the deficient Mortgage
Loan at the Repurchase Price. Any repurchase of a Mortgage Loan or Loans
pursuant to the foregoing provisions of this Subsection 9.03
shall be accomplished by either (a) if the Servicing Agreement has been
entered into and is in effect, deposit in the Custodial Account of the amount
of
the Repurchase Price for distribution to the Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution or (b) if the Servicing Agreement has not been
entered into or is no longer in effect, by direct remittance of the Repurchase
Price to the Purchaser or its designee in accordance with the Purchaser’s
instructions.
36
At
the time of repurchase or substitution, the Purchaser and the Seller shall
arrange for the reassignment of the Deleted Mortgage Loan to the Seller and
the
delivery to the Seller of any documents held by the Custodian relating to the
Deleted Mortgage Loan. In the event of a repurchase or substitution, the Seller
shall, simultaneously with such reassignment, give written notice to the
Purchaser that such repurchase or substitution has taken place, amend the
related Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage
Loan from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, the Seller shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Seller shall effect such substitution by delivering to the
Custodian or to such other party as the Purchaser may designate in writing
for
such Qualified Substitute Mortgage Loan the documents required by Subsection 6.03
herein and the Custodial Agreement, with the Mortgage Note endorsed as required
by Subsection 6.03
herein and the Custodial Agreement. No substitution will be made in any calendar
month after the Determination Date for such month. The Seller shall remit
directly to the Purchaser, or its designee in accordance with the Purchaser’s
instructions the Monthly Payment less the Servicing Fee due, if any, on such
Qualified Substitute Mortgage Loan or Loans in the month following the date
of
such substitution. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution shall be retained by the Seller.
For
the month of substitution, distributions to the Purchaser shall include the
Monthly Payment due on any Deleted Mortgage Loan in the month of substitution,
and the Seller shall thereafter be entitled to retain all amounts subsequently
received by the Seller in respect of such Deleted Mortgage Loan.
For
any month in which the Seller substitutes a Qualified Substitute Mortgage Loan
for a Deleted Mortgage Loan, the Seller shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Seller directly to the Purchaser or its designee in
accordance with the Purchaser’s instructions within two (2) Business Days of
such substitution. Accordingly, on the date of such substitution, the Seller
will deposit from its own funds into the Custodial Account an amount equal
to
the amount of such shortfall plus one month’s interest thereon at the Mortgage
Loan Remittance Rate.
37
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and present and former directors, officers, employees
and agents and any Successor Servicer and its present and former directors,
officers, employees and agents and hold such parties harmless against any
losses, damages, penalties, fines, forfeitures, 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 representations and warranties contained in this
Agreement or any Reconstitution Agreement (including, without limitation, any
alleged breach of any such representations and warranties arising out of or
based upon any term or provision of any Mortgage Loan alleged to be not in
conformity with any state or local law as a result of an assertion of federal
preemption or an assertion that the laws of the jurisdiction in which the Seller
is located apply to a Mortgage Loan secured by Mortgaged Property in another
jurisdiction). It is understood and agreed that the obligations of the Seller
set forth in this Subsection 9.03
to cure, substitute for or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Subsection 9.03
constitute the sole remedies of the Purchaser respecting a breach of the
foregoing representations and warranties.
Any
cause of action against the Seller relating to or arising out of the breach
of
any representations and warranties made in Subsections 9.01
and 9.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser,
(ii) failure by the Seller to cure such breach or repurchase such Mortgage
Loan as specified above, and (iii) demand upon the Seller by the Purchaser
for compliance
with this Agreement.
Subsection
9.04 Repurchase
of Mortgage Loans With First Payment Defaults.
In
the event that any Mortgage Loan becomes 30 days delinquent following the first
scheduled payment of principal and interest to be made by the Mortgagor to
the
Purchaser following the related Closing Date, the Seller, at the Purchaser’s
option, shall repurchase such Mortgage Loan from the Purchaser at a price equal
to the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein) multiplied by the then
outstanding principal balance of such Mortgage Loan, plus accrued and unpaid
interest thereon from the date to which interest had last been paid through
the
date of such repurchase at the applicable Mortgage Interest Rate, less any
Servicing Fees due the Seller, plus any outstanding advances owed to any
servicer in connection with such Mortgage Loan. The Purchaser shall notify
the
Seller and request any such repurchase within 60 days after the date the
Purchaser receives the Remittance Report which describes the related delinquency
and the Seller shall repurchase such Mortgage Loan within 30 days of receipt
of
such notice.
SECTION
10. Closing.
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the related Closing Date. At the Purchaser’s option, each Closing shall be
either (i) by telephone, confirmed by letter or wire as the parties shall
agree, or (ii) conducted in person, at such place as the parties shall
agree.
38
The
closing for the Mortgage Loans to be purchased on each Closing Date shall be
subject to each of the following conditions:
(1) at
least two Business Days prior to the related Closing Date, the Seller shall
deliver to the Purchaser via electronic medium acceptable to the Purchaser,
a
listing on a loan-level basis of the necessary information to compute the
Purchase Price of the Mortgage Loans delivered on such Closing Date (including
accrued interest), and prepare a Mortgage Loan Schedule;
(2) all
of the representations and warranties of the Seller under this Agreement and
under the Servicing Agreement (with respect to each Mortgage Loan, as specified
therein) shall be true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time, would constitute
a default under this Agreement or an Event of Default under the Servicing
Agreement;
(3) the
Purchaser shall have received, or the Purchaser’s attorneys shall have received
in escrow, all closing documents as specified in Section 11
of this Agreement, in such forms as are agreed upon and acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(4) the
Seller shall have delivered and released to the Custodian all documents required
pursuant to the Custodial Agreement; and
(5) all
other terms and conditions of this Agreement and the related Purchase Price
and
Terms Agreement shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Seller on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 4
of this Agreement, by wire transfer of immediately available funds to the
account designated by the Seller.
SECTION
11. Closing
Documents.
The
Closing Documents for the Mortgage Loans to be purchased on each Closing Date
shall consist of fully executed originals of the following
documents:
39
| 1. |
this
Agreement (to be executed and delivered only for the initial
Closing
Date);
|
| 2. |
the
Servicing Agreement, dated as of the Initial Cut-off Date (to
be executed
and delivered only for the Initial Closing
Date);
|
| 3. | with respect to the initial Closing Date, the Custodial Agreement, dated as of the initial Cut-off Date; |
| 4. | the related Mortgage Loan Schedule (one copy to be attached to the Custodian’s counterpart of the Custodial Agreement in connection with the Initial Closing Date, and one copy to be attached to the related Assignment and Conveyance as the Mortgage Loan Schedule thereto); |
| 5. | a Custodian’s Certification, as required under the Custodial Agreement, in the form of Exhibit 2 to the Custodial Agreement; |
| 6. | with respect to the initial Closing Date, a Custodial Account Letter Agreement or a Custodial Account Certification, as applicable, as required under the Servicing Agreement; |
| 7. | with respect to the initial Closing Date, an Escrow Account Letter Agreement or an Escrow Account Certification, as applicable, as required under the Servicing Agreement; |
| 8. | with respect to the initial Closing Date, an Officer’s Certificate, in the form of Exhibit C hereto with respect to the Seller, including all attachments thereto; with respect to subsequent Closing Dates, an Officer’s Certificate upon request of the Purchaser; |
| 9. | with respect to the initial Closing Date, an Opinion of Counsel of the Seller (who may be an employee of the Seller), in the form of Exhibit D hereto (“Opinion of Counsel of the Seller”) with respect to subsequent Closing Dates, an Opinion of Counsel of the Seller upon request of the Purchaser; |
| 10. | with respect to the initial Closing Date, an Opinion of Counsel of the Custodian (who may be an employee of the Custodian), in the form of an exhibit to the Custodial Agreement; |
| 11. | a Security Release Certification, in the form of Exhibit E or F, as applicable, hereto executed by any person, as requested by the Purchaser, if any of the Mortgage Loans have at any time been subject to any security interest, pledge or hypothecation for the benefit of such person; |
| 12. | a certificate or other evidence of merger or change of name, signed or stamped by the applicable regulatory authority, if any of the Mortgage Loans were acquired by the Seller by merger or acquired or originated by the Seller while conducting business under a name other than its present name, if applicable; |
| 13. | with respect to the initial Closing Date, the Underwriting Guidelines to be attached hereto as Exhibit H; |
| 14. | Exhibit B to the related Assignment and Conveyance Agreement; and |
| 15. | Assignment and Conveyance Agreement in the form of Exhibit G hereto. |
40
The
Seller shall bear the risk of loss of the closing documents until such
time as
they are received by the Purchaser or its attorneys.
SECTION
12. Costs.
The
Purchaser shall pay any commissions due its salesmen and the legal fees and
expenses of its attorneys and custodial fees. All other costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans
including recording fees, fees for title policy endorsements and continuations,
fees for recording Assignments of Mortgage as set forth in Subsection 6.03,
and the Seller’s attorney’s fees, shall be paid by the Seller.
SECTION
13. Cooperation
of Seller with a Reconstitution.
The
Seller and the Purchaser agree that with respect to some or all of the Mortgage
Loans, after each Closing Date, on one or more dates (each a “Reconstitution
Date”)
at the Purchaser’s sole option, the Purchaser may effect a sale (each, a
“Reconstitution”)
of some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
(1) Xxxxxx
Xxx under its Cash Purchase Program or MBS Program (Special Servicing Option)
(each a “Xxxxxx
Mae Transfer”);
or
(2) Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
(3) one
or more third party purchasers in one or more Whole Loan Transfers;
or
(4) one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
The
Seller agrees to execute (i) in connection with any Agency Transfer, any and
all
pool purchase contracts, and/or agreements reasonably acceptable to the
Purchaser and the Seller among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx
Mac (as the case may be) and any servicer, (ii) in connection with a Whole
Loan
Transfer, an assignment and assumption agreement in form and substance
reasonably acceptable to the Seller and Purchaser, and (iii) in connection
with
a Securitization Transaction, a pooling and servicing agreement in form and
substance reasonably acceptable to the Seller and Purchaser (collectively the
agreements referred to herein are designated, the “Reconstitution
Agreements”).
41
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser as set forth below;
(3) to restate the representations and warranties set forth in Subsection
9.01,
Subsection
9.02
(other than the representations and warranties in subclauses (b), (c), (m),
(q),
(r), (w), (z), (ii), (nn), and (ggg) thereof) and on Exhibit
J
hereto or make the representations and warranties set forth in the related
selling/servicing guide of the servicer or such representations or warranties
as
may be required by any rating agency or prospective purchaser of the related
securities or such Mortgage Loans (collectively, the “Reconstitution
Representations”)
as of the settlement or closing date in connection with such Reconstitution
that
occurs on or prior to the date which is six (6) months following the related
Closing Date. The Seller shall use its reasonable best efforts to make available
to such master servicer or issuer, as the case may be, and any other
participants or purchasers in such Reconstitution: (i) any and all
information and appropriate verification of information which may be reasonably
available to the Seller or its affiliates, whether through letters of its
auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request; (ii) such additional reasonable representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are believed
necessary by the Purchaser or any such other participant; and (iii) to
execute, deliver and satisfy all conditions set forth in any indemnity agreement
required by the Purchaser or any such participant that is satisfactory to the
Seller, including, without limitation, an Indemnification and Contribution
Agreement in substantially the form attached hereto as Exhibit L. Moreover,
the
Seller agrees to cooperate with all reasonable requests made by the Purchaser
to
effect such Reconstitution Agreements. The Seller shall indemnify the Purchaser,
each Affiliate designated by the Purchaser, each placement agent or underwriter
participating in the Reconstitution, and each Person who controls the Purchaser,
such Affiliate, underwriter or placement agent and their respective present
and
former directors, officers, employees and agents and hold each of them harmless
from and against any losses, damages, liabilities, penalties, fines,
forfeitures, reasonable and necessary legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that each of them may sustain
arising out of or based upon in any way related to any untrue statements,
alleged untrue statement or omissions of a material fact contained in the
information provided by or on behalf of the Seller regarding the Seller, the
Seller’s or other originator’s static pool information servicing practices or
performance, the Mortgage Loans or the Underwriting Guidelines set forth in
any
offering document prepared in connection with any Reconstitution. If such
indemnification is not available, Seller shall contribute to such losses,
damages, liabilities, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
(x) in such proportion as is appropriate to reflect the Seller’s relative
benefit on the one hand (measured relative to the Purchase Price) and the
Purchaser on the other hand (measured relative to the underwriting discount
received in connection with the Whole Loan Transfer and/or Securitization
Transaction); or (y) if the allocation provided by clause (x) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not
only the relative benefits referred to in clause (x) but also the relative
faults of the Seller, on the one hand, and the Purchaser, on the other hand,
as
well as any other equitable considerations. But, in no event shall the Seller
be
obligated to any greater extent under a Reconstitution Agreement than it is
under this Agreement. For purposes of this section, “Purchaser” shall mean the
Person then acting as the Purchaser under this Agreement and any and all Persons
who previously were “Purchasers” under this Agreement.
42
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if the Servicing Agreement shall remain in effect
with respect to the related Mortgage Loan Package, shall continue to be serviced
in accordance with the terms of this Agreement and the Servicing Agreement
and
with respect thereto this Agreement shall remain in full force and
effect.
SECTION
14. The
Seller.
Subsection
14.01 Additional
Indemnification by the Seller; Third Party Claims.
The
Seller shall indemnify the Purchaser and hold it harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses
(including (without limitation) legal fees incurred in connection with the
enforcement of the Seller’s indemnification obligation under this
Subsection 14.01) and related costs, judgments, and any other costs, fees
and expenses that the Purchaser may sustain in any way related to the failure
of
the Seller to perform its duties under this Agreement and to service the
Mortgage Loans in strict compliance with the terms of the Servicing Agreement
or
any Reconstitution Agreement entered into pursuant to Section 13
or any breach of any of Seller’s representations, warranties and covenants set
forth in this Agreement. The Seller immediately shall notify the Purchaser
if a
claim is made by a third party with respect to this Agreement or any
Reconstitution Agreement or the Mortgage Loans, assume (with the prior written
consent of the Purchaser) the defense of any such claim and pay all expenses
in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Purchaser
in respect of such claim. The Purchaser promptly shall reimburse the Seller
for
all amounts advanced by it pursuant to the preceding sentence, except when
the
claim is in any way related to the Seller’s indemnification pursuant to
Section 9,
or is in any way related to the failure of the Seller to service and administer
the Mortgage Loans in strict compliance with the terms of this Agreement or
any
Reconstitution Agreement. For purposes of this section, “Purchaser” shall mean
the Person then acting as the Purchaser under this Agreement and any and all
Persons who previously were “Purchasers” under this Agreement.
Subsection
14.02 Merger
or Consolidation of the Seller.
The
Seller will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Seller may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller
shall
be a party, or any Person succeeding to the business of the Seller, shall be
the
successor of the Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to
the contrary notwithstanding; provided, however, that the successor or surviving
Person shall have a net worth of at least $25,000,000.
SECTION
15. Financial
Statements.
The
Seller understands that in connection with the Purchaser’s marketing of the
Mortgage Loans, the Purchaser shall make available to prospective purchasers
audited financial statements of the Seller for the most recently completed
three
(3) fiscal years respecting which such statements are available, as well as
a
Consolidated Statement of Condition of the Seller at the end of the last two
(2)
fiscal years covered by such Consolidated Statement of Operations. The Seller
shall also make available any comparable interim statements to the extent any
such statements have been prepared by the Seller (and are available upon request
to members or stockholders of the Seller or the public at large). The Seller,
if
it has not already done so, agrees to furnish promptly to the Purchaser copies
of the statements specified above. The Seller shall also make available
information on its servicing performance with respect to loans serviced for
others, including delinquency ratios.
43
The
Seller also agrees to allow reasonable access to a knowledgeable financial
or
accounting officer for the purpose of answering questions asked by any
prospective purchaser regarding recent developments affecting the Seller or
the
financial statements of the Seller.
SECTION
16. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the related Closing Date of the Mortgage Loans described
on
the related Mortgage Loan Schedule is mandatory from and after the date of
the
execution of the related Purchase Price and Terms Agreement, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller’s failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage
Loans or (iii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. The Seller hereby grants to
the
Purchaser a lien on and a continuing security interest in each Mortgage Loan
and
each document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the Purchase Price and Terms
Agreement, and the Seller agrees that it shall hold such Mortgage Loans in
custody for the Purchaser subject to the Purchaser’s (i) right to reject
any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the terms of
this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (ii) obligation to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the Purchaser
under this Agreement are distinct from, and cumulative with, any other rights
or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or
successively.
SECTION
17. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given, if mailed, by overnight or express mail,
registered or certified mail, return receipt requested, or, if by other means,
when received by the other party at the address as follows:
44
(1) if
to the Seller:
IndyMac
Bank, F.S.B.
Capital
Markets
0000
X. Xxxxxxxx Xxxxxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Secondary Marketing
Fax:
(000) 000-0000
(2) if
to the Purchaser:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue
of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxxx - Whole Loan Operations Manager
Fax:
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
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
18. Severability
Clause.
Any
part, provision representation or warranty of this Agreement which is prohibited
or unenforceable or is held to be void or unenforceable in any jurisdiction
shall be ineffective, as to such jurisdiction, to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
SECTION
19. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
SECTION
20. Governing
Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Purchaser in the State of New York and shall be deemed to have
been made in the State of New York. The Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
the
substantive laws of the State of New York (without regard to conflicts of laws
principles), except to the extent preempted by Federal law.
45
SECTION
21. Intention
of the Parties.
It
is the intention of the parties that the Purchaser is purchasing, and the Seller
is selling the Mortgage Loans and not a debt instrument of the Seller or another
security. Accordingly, the parties hereto each intend to treat the transaction
for Federal income tax purposes as a sale by the Seller, and a purchase by
the
Purchaser, of the Mortgage Loans. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent direct
ownership of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income
tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such
review.
SECTION
22. Successors
and Assigns; Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. This Agreement
shall
not be assigned, pledged or hypothecated by the Seller to a third party without
the prior written consent of the Purchaser, which consent may be withheld by
the
Purchaser in its sole discretion. This Agreement may be assigned, pledged or
hypothecated by the Purchaser in whole or in part, and with respect to one
or
more of the Mortgage Loans, without the consent of the Seller. There shall
be no
limitation on the number of assignments or transfers allowable by the Purchaser
with respect to the Mortgage Loans and this Agreement. In the event the
Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser’s obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed and the Purchaser shall be relieved from any liability
to
the Seller with respect thereto.
SECTION
23. Waivers.
No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
SECTION
24. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
46
SECTION
25. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words “herein,” “hereof,” “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision; and
(f) the
term “include” or “including” shall mean without limitation by reason of
enumeration.
SECTION
26. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in
the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
27. Further
Agreements.
The
Seller and the Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
47
SECTION
28. Recordation
of Assignments of Mortgage.
To
the extent permitted by applicable law, each of the Assignments of Mortgage
is
subject to recordation in all appropriate public offices for real property
records in all the counties or their comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Seller’s expense pursuant to this Agreement in the event recordation is either
necessary under applicable law or requested by the Purchaser at its sole
option.
SECTION
29. No
Solicitation.
From
and after the related Closing Date, the Seller agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller’s behalf, to
personally, by telephone or mail (via electronic means or otherwise), solicit
the borrower or obligor under any Mortgage Loan for any purpose whatsoever,
including to refinance a 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 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 promotions
undertaken by the Seller or any affiliate of the Seller which are directed
to
the general public at large, including, without limitation, mass mailing based
on commercially acquired mailing lists, newspaper, radio and television
advertisements shall not constitute solicitation under this Section 29.
SECTION
30. Waiver
of Trial by Jury.
THE
SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION
31. Submission
To Jurisdiction; Waivers.
The
Seller hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
48
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
SECTION
32. Compliance
with Regulation AB.
Subsection
32.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of
Section 34 of this Agreement is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its
terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Seller acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with reasonable requests made by the Purchaser or any Depositor
in good faith for delivery of information under these provisions on the basis
of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate fully with the Purchaser to deliver
to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Seller, and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in order
to effect such compliance.
49
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller 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.
Subsection
32.02 Additional
Representations and Warranties of the Seller.
(a) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Subsection 32.03 that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller; and (ii) there are no affiliations, relationships or
transactions relating to the Seller with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a
type
described in Item 1119 of Regulation AB.
(b) If
so requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Subsection 32.03, the Seller shall, within five (5) Business Days following
such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such representation
and warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
Subsection
32.03 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five (5) Business Days following request by the Purchaser or any Depositor,
provide to the Purchaser and such Depositor, in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a) and (b) of this
Section, and (ii) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this
Section.
(a) If
so requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
| (A) |
the
originator’s form of organization;
|
| (B) |
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as the
Mortgage
Loans; information regarding the size and composition of the originator’s
origination portfolio; and information that may be material, in the
good
faith judgment of the Purchaser or any Depositor, to an analysis
of the
performance of the Mortgage Loans, including the originators’
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans 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;
|
50
| (C) |
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Seller;
and
|
| (D) |
a
description of any affiliation or relationship between the Seller
and any
of the following parties to a Securitization Transaction, as such
parties
are identified to the Seller by the Purchaser or any Depositor in
writing
in advance of such Securitization
Transaction:
|
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested by the Purchaser or any Depositor, the Seller shall provide Static
Pool Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent).
Such Static Pool Information shall be prepared in form and substance reasonably
satisfactory to the Purchaser by the Seller on the basis of its reasonable,
good
faith interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation
AB. To the extent that there is reasonably available to the Seller Static Pool
Information with respect to more than one mortgage loan type, the Purchaser
or
any Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. Such Static Pool
Information for each vintage origination year or prior securitized pool, as
applicable, shall be presented in increments no less frequently than quarterly
over the life of the mortgage loans included in the vintage origination year
or
prior securitized pool. The most recent periodic increment must be as of a
date
no later than one hundred thirty-five (135) days prior to the date of the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the
Seller.
51
If
so requested by the Purchaser or any Depositor, the Seller shall provide, at
the
expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to
the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to
the
Seller’s originations or purchases, to calendar months commencing January 1,
2006, as the Purchaser or such Depositor shall reasonably request. Such letters
shall be addressed to and be for the benefit of such parties as the Purchaser
or
such Depositor shall designate, which may include, by way of example, any
Sponsor, any Depositor and any broker dealer acting as underwriter, placement
agent or initial purchaser with respect to a Securitization Transaction. Any
such statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) [Reserved]
(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (i) notify the Purchaser and any
Depositor in writing of (A) any material litigation or governmental proceedings
pending against the Seller and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between
the
Seller and any of the parties specified in clause (D) of paragraph (a) of this
Section (and any other parties identified in writing by the requesting party)
with respect to such Securitization Transaction, and (ii) provide to the
Purchaser and any Depositor a description of such proceedings, affiliations
or
relationships.
Subsection
32.04 Indemnification;
Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, the
Depositor and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the 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 and agents of each of the foregoing
and of the Depositor, and shall hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
| (1) |
(A) any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, accountants’ letter or other
material provided in written or electronic form under this
Section 32.04 by or on behalf of the Seller, (the “Seller
Information”),
or (B) the omission or alleged omission to state in the Seller
Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph
shall
be construed solely by reference to the Seller Information and not
to any
other information communicated in connection with a sale or purchase
of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such
other
information;
|
| (2) |
any
failure by the Seller to deliver any information, report, certification,
accountants’ letter or other material when and as required under this
Section 32.04; or
|
| (3) |
any
breach by the Seller of a representation or warranty set forth in
Subsection 32.02(a) or in a writing furnished pursuant to Subsection
32.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not
cured by
such closing date, or any breach by the Seller of a representation
or
warranty in a writing furnished pursuant to Subsection 32.02(b) to
the
extent made as of a date subsequent to such closing
date.
|
In
the case of any failure of performance described in clause (a)(ii) of this
Section, the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller.
(b) Any
failure by the Seller to deliver any information, report, certification,
accountants’ letter or other material when and as required under this
Section 34, or any breach by the Seller of a representation or warranty set
forth in Subsection 32.02(a) or in a writing furnished pursuant to Subsection
32.02(b) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such
closing date, or any breach by the Seller of a representation or warranty in
a
writing furnished pursuant to Subsection 32.02(b) to the extent made as of
a
date subsequent to such closing date, shall immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Seller under this Agreement and any applicable Reconstitution Agreement,
and
shall entitle the Purchaser or Depositor, as applicable, in its sole discretion
to terminate the rights and obligations of the Seller as servicer under the
Servicing Agreement and/or any applicable Reconstitution Agreement without
payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Seller;
provided that to the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Seller as servicer,
such provision shall be given effect.
52
SECTION
33. Confidentiality.
Each of the Purchaser and the Seller shall employ proper procedures and
standards designed to maintain the confidential nature of the terms of this
Agreement, except to the extent: (a) the disclosure of which is reasonably
believed by
such party to be required in connection with regulatory requirements or other
legal requirements relating to its affairs; (b) disclosed to any one or
more of such party’s employees, officers, directors, agents, attorneys or
accountants who would have access to the contents of this Agreement and such
data and information in the normal course of the performance of such Person’s
duties for such party, to the extent such party has procedures in effect to
inform such Person of the confidential nature thereof; (c) that is
disclosed in a prospectus, prospectus supplement or private placement memorandum
relating to a securitization of the Mortgage Loans by the Purchaser (or an
affiliate assignee thereof) or to any Person in connection with the resale
or
proposed resale of all or a portion of the Mortgage Loans by such party in
accordance with the terms of this Agreement; and (d) that is reasonably
believed by such party to be necessary for the enforcement of such party’s
rights under this Agreement.
Notwithstanding
any other express or implied agreement to the contrary, each of the Purchaser
and the Seller agree and acknowledge that each of them and each of their
employees, representatives, and other agents may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transaction and all materials of any kind (including opinions or other
tax
analyses) that are provided to any of them relating to such tax treatment and
tax structure, except to the extent that confidentiality is reasonably necessary
to comply with U.S. federal or state securities laws. For purposes of this
paragraph, the terms “tax treatment” and “tax structure” have the meanings
specified in Treasury Regulation section 1.6011-4(c).
[Signatures
Commence on Following Page]
53
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
date first above written.
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
(Purchaser)
By:________________________________________
Name:______________________________________
Title:_______________________________________
INDYMAC
BANK, F.S.B.
(Seller)
By:________________________________________
Name:______________________________________
Title:_______________________________________
Exhibit
A
EXHIBIT
A
CONTENTS
OF EACH 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
any prospective Purchaser, and which shall be delivered to the Custodian, or
to
such other Person as the Purchaser shall designate in writing, pursuant to
Section 6 of the Mortgage Loan Purchase and Warranties Agreement to which
this Exhibit is attached (the “Agreement”):
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of _________, without recourse” and signed in the name of the last
endorsee (the “Last
Endorsee”)
by an authorized officer. To the extent that there is no room on the face of
the
Mortgage Notes for endorsements, the endorsement may be contained on an allonge,
if state law so allows and the Custodian is so advised by the Seller that state
law so allows. If the Mortgage Loan was acquired by the Seller in a merger,
the
endorsement must be by “[Last Endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be by
“[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage (or
certified copy thereof from the applicable recording office), with evidence
of
recording thereon. If in connection with any Mortgage Loan, the Seller cannot
deliver or cause to be delivered the original Mortgage with evidence of
recording thereon on or prior to the Closing Date because of a delay caused
by
the public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Seller shall
deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an Officer’s Certificate of the Seller (or certification by the title
company, escrow agent, or closing attorney) stating that such Mortgage has
been
dispatched to the appropriate public recording office for recordation and that
the original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof by
the
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the
original recorded Mortgage. With respect to any Co-op Loan, an original or
copy
of the Security Agreement;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment
of
Mortgage for each Mortgage Loan, in form and substance acceptable for recording.
The Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. The Assignment of
Mortgage shall be delivered in blank. If the Mortgage Loan was acquired by
the
Seller in a merger, the Assignment of Mortgage must be made by “[Seller],
successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired
or originated by the Seller while doing business under another name, the
Assignment of Mortgage must be by “[Seller], formerly known as [previous name]”.
With respect to any Co-op Loan, an original or copy of the assignment of the
Security Agreement endorsed in blank, together with all intervening assignments
thereof;
A-1
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the originator to the Last Endorsee with evidence of recording
thereon, or if any such intervening assignment has not been returned from the
applicable recording office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the Seller shall deliver
or cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the Seller (or certification by
the title company, escrow agent, or closing attorney) stating that such
intervening assignment of mortgage has been dispatched to the appropriate public
recording office for recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office to be a true and complete
copy of the original recorded intervening assignment of mortgage will be
promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment or in the case
where
an intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance, if any;
(h) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the assignment
of
such Co-op Lease, with all intervening assignments showing a complete chain
of
title and an assignment thereof by Seller; (ii) the stock certificate together
with an undated stock power relating to such stock certificate executed in
blank; (iii) the recognition agreement of the interests of the mortgagee with
respect to the Co-op Loan by the residential cooperative housing corporation,
the stock of which was pledged by the related Mortgagor to the originator of
such Co-op Loan; (iv) copies of the financial statement filed by the originator
as secured party and, if applicable, a filed UCC-3 Assignment of the subject
security interest showing a complete chain of title, together with an executed
UCC-3 Assignment of such security interest by the Seller in a form sufficient
for filing; and
(i) security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage.
A-2
In
the event an Officer’s Certificate of the Seller is delivered to the Purchaser
because of a delay caused by the public recording office in returning any
recorded document, the Seller shall deliver to the Purchaser, within 120 days
of
the Closing Date, an Officer’s Certificate which shall (i) identify the
recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation,
and
(iv) specify the date the applicable recorded document will be delivered to
the Custodian.
A-3
Exhibit
B
EXHIBIT
B
SERVICING
AGREEMENT
B-1
Exhibit
C
EXHIBIT
C
SELLER’S
OFFICER’S CERTIFICATE
I,
____________________, hereby certify that I am the duly elected [Vice] President
of ________________[COMPANY], a [state] [federally] chartered institution
organized under the laws of the [state of ____________] [United States] (the
“Company”)
and further as follows:
1. Attached
hereto as Exhibit
1
is a true, correct and complete copy of the charter of the Company which is
in
full force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since ___________.
2. Attached
hereto as Exhibit
2
is a true, correct and complete copy of the bylaws of the Company which are
in
effect on the date hereof and which have been in effect without amendment,
waiver, rescission or modification since ___________.
3. Attached
hereto as Exhibit
3
is an original certificate of good standing of the Company, and no event has
occurred since the date thereof which would impair such standing.
4. Attached
hereto as Exhibit
4
is a true, correct and complete copy of the corporate resolutions of the Board
of Directors of the Company authorizing the Company to execute and deliver
each
of the Mortgage Loan Purchase and Warranties Agreement, dated as of _______
__,
200_, by and between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”)
and the Company (the “Purchase
Agreement”),
the Servicing Agreement, dated as of _______ __, 200_, by and between the
Company and the Purchaser (the “Servicing
Agreement”)
[and to endorse the Mortgage Notes and execute the Assignments of Mortgages
by
original [or facsimile] signature], and such resolutions are in effect on the
date hereof and have been in effect without amendment, waiver, rescission or
modification since ____________.
5. Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, the Servicing Agreement, the sale of the mortgage loans or the
consummation of the transactions contemplated by the agreements; or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
6. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Purchase Agreement and the Servicing Agreement conflicts or will
conflict with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company, the terms
of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound or to which it is subject, or any statute or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which it
is
bound.
C-1
7. To
the best of my knowledge, there is no action, suit, proceeding or investigation
pending or threatened against the Company which, in my judgment, either in
any
one instance or in the aggregate, may result in any material adverse change
in
the business, operations, financial condition, properties or assets of the
Company or in any material impairment of the right or ability of the Company
to
carry on its business substantially as now conducted or in any material
liability on the part of the Company or which would draw into question the
validity of the Purchase Agreement and the Servicing Agreement, or the mortgage
loans or of any action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the ability
of the Company to perform under the terms of the Purchase Agreement and the
Servicing Agreement.
8. Each
person listed on Exhibit
5
attached hereto who, as an officer or representative of the Company, signed
(a) the Purchase Agreement, (b) the Servicing Agreement and
(c) any other document delivered or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the respective
times of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Company, who holds the
office set forth opposite his or her name on Exhibit
5,
and the signatures of such persons appearing on such documents are their genuine
signatures.
9. The
Company is duly authorized to engage in the transactions described and
contemplated in the Purchase Agreement and the Servicing Agreement.
C-2
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Company.
| Dated:____________________ | By:___________________________ |
| Name:_________________________ | |
| [Seal] | Title: [Vice] President |
I,
________________________, an [Assistant] Secretary of ______________[COMPANY],
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is [her]
[his] genuine signature.
IN
WITNESS WHEREOF, I have hereunto signed my name.
| Dated:____________________ | By:___________________________ |
| Name:_________________________ | |
| Title: [Assistant] Secretary |
C-3
EXHIBIT
5 to
Company’s
Officer’s Certificate
|
NAME
|
TITLE
|
SIGNATURE
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C-4
Exhibit
D
EXHIBIT
D
FORM
OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1500
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Dear
Sirs:
You
have requested [our] [my] opinion, as [Assistant] General Counsel to
___________________ (the “Company”),
with respect to certain matters in connection with the sale by the Company
of
the Mortgage Loans pursuant to that certain Mortgage Loan Purchase and
Warranties Agreement, by and between the Company and Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the “Purchaser”),
dated as of _________ __, 200_ (the “Purchase
Agreement”)
which sale is in the form of whole loans, delivered pursuant to a Bailee
Agreement dated as of _____ __, 200_ among the Purchaser, the Company, and
______________________[CUSTODIAN] (the “Bailee
Agreement”)
and serviced pursuant to a Servicing Agreement, dated as of ______ __, 200_
by
and between the Company, as servicer, and the Purchaser (the “Servicing
Agreement,”
and, collectively with the Purchase Agreement and the Bailee Agreement, the
“Agreements”).
Capitalized terms not otherwise defined herein have the meanings set forth
in
the Purchase Agreement and the Servicing Agreement.
[We]
[I] have examined the following documents:
1. the
Purchase Agreement;
2. the
Servicing Agreement;
3. the
Bailee Agreement;
4. the
form of Assignment of Mortgage;
5. the
form of endorsement of the Mortgage Notes; and
| 6. |
such
other documents,
records and papers as we have deemed necessary and relevant as a
basis for
this opinion.
|
To
the extent [we] [I] have deemed necessary and proper, [we] [I] have relied
upon
the representations and warranties of the Company contained in the Purchase
Agreement and in the Servicing Agreement, as applicable. [We] [I] have assumed
the authenticity of all documents submitted to [us] [me] as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents.
D-1
Based
upon the foregoing, it is [our] [my] opinion that:
| 1. |
The
Company is a [type of entity] duly organized, validly existing and
in good
standing under the laws of the [United States] and is qualified to
transact business in, and is in good standing under, the laws of
[the
state of incorporation/formation].
|
| 2. |
The
Seller has the power to engage in the transactions contemplated by
the
Agreements and all requisite power, authority and legal right to
execute
and deliver the Agreements and to perform and observe the terms and
conditions of the Agreements.
|
| 3. |
Each
of the Agreements has been duly authorized, executed and delivered
by the
Company, and is a legal, valid and binding agreement enforceable
in
accordance with its respective terms against the Company, subject
to
bankruptcy laws and other similar laws of general application affecting
rights of creditors and subject to the application of the rules of
equity,
including those respecting the availability of specific performance,
none
of which will materially interfere with the realization of the benefits
provided thereunder or with the Purchaser’s ownership of the Mortgage
Loans.
|
| 4. |
The
Seller has been duly authorized to allow any of its officers to execute
any and all documents by original signature in order to complete
the
transactions contemplated by the
Agreements.
|
|
[5.
|
The
Company has been duly authorized to allow any of its officers to
execute
by original [or facsimile] signature the endorsements to the Mortgage
Notes and the Assignments of Mortgages, and the original [or facsimile]
signature of the officer at the Company executing the endorsements
to the
Mortgage Notes and the Assignments of Mortgages represents the legal
and
valid signature of said officer of the
Company].
|
| 6. |
Either
(i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Company of or compliance by the Company with the
Agreements and the sale of the Mortgage Loans by the Company or the
consummation of the transactions contemplated by the Agreements or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
|
| 7. |
Neither
the consummation of the transactions contemplated by, nor the fulfillment
of the terms of, the Agreements conflicts or will conflict with or
results
or will result in a breach of or constitutes or will constitute a
default
under the charter or by-laws of the Company, the terms of any indenture
or
other agreement or instrument to which the Company is a party or
by which
it is bound or to which it is subject, or violates any statute or
order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by
which
it is bound.
|
D-2
| 8. |
There
is no action, suit, proceeding or investigation pending or, to the
best of
[our] [my] knowledge, threatened against the Company which, in [our]
[my]
judgment, either in any one instance or in the aggregate, may result
in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its
business
substantially as now conducted or in any material liability on the
part of
the Company or which would draw into question the validity of the
Agreements or the Mortgage Loans or of any action taken or to be
taken in
connection with the transactions contemplated thereby, or which would
be
likely to impair materially the ability of the Company to perform
under
the terms of the Agreements.
|
| 9. |
The
sale of each Mortgage Note and Mortgage as and in the manner contemplated
by the Purchase Agreement, the Servicing Agreement and the Bailee
Agreement is sufficient to fully transfer to the Purchaser all right,
title and interest of the Company thereto as noteholder and
mortgagee.
|
| 10. |
The
Mortgages have been duly assigned and the Mortgage Notes have been
duly
endorsed as provided in the Bailee 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.
|
Except
as otherwise set forth in the Agreements, I assume no obligation to revise
this
opinion or alter its conclusions to update or support this letter to reflect
any
facts or circumstances that may hereafter develop.
D-3
This
opinion is given to you for your sole benefit, and no other person or entity
is
entitled to rely hereon except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as
if
it were addressed to them as of the date of this opinion.
|
Very
truly yours,
|
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| |
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[Name]
|
||
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[Assistant]
General Counsel
|
||
D-4
Exhibit
E
EXHIBIT
E
FORM
OF SECURITY RELEASE CERTIFICATION
___________________,
200__
[Federal
Home Loan Bank of
______(the
“Association”)]
________________________
________________________
________________________
|
Attention:
|
___________________________
|
|
___________________________
|
| Re: |
Notice
of Sale and Release of
Collateral
|
Dear
Sirs:
This
letter serves as notice that ________________________[COMPANY] a [type of
entity], organized pursuant to the laws of [the state of incorporation] (the
“Company”)
has committed to sell to Xxxxxx Xxxxxxx Mortgage Capital Inc. under an Mortgage
Loan Purchase and Warranties Agreement, dated as of ______ __, 200_, certain
mortgage loans originated by the Association. The Company warrants that the
mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital Inc. are in
addition to and beyond any collateral required to secure advances made by the
Association to the Company.
The
Company acknowledges that the mortgage loans to be sold to Xxxxxx Xxxxxxx
Mortgage Capital Inc. shall not be used as additional or substitute collateral
for advances made by the Association. Xxxxxx Xxxxxxx Mortgage Capital Inc.
understands that the balance of the Company’s mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution
of this letter by the Association shall constitute a full and complete release
of any security interest, claim, or lien which the Association may have against
the mortgage loans to be sold to Xxxxxx Xxxxxxx Mortgage Capital
Inc.
E-1
Very
truly yours,
____________________________
By:__________________________
Name:________________________
Title:_________________________
Date:_________________________
Acknowledged
and approved:
[FEDERAL
HOME LOAN BANK OF]
__________________________
By:______________________________
Name:___________________________
Title:____________________________
Date:____________________________
E-2
Exhibit
F
EXHIBIT
F
FORM
OF SECURITY RELEASE CERTIFICATION
I. Release
of Security Interest
The
financial institution named below hereby relinquishes any and all right, title
and interest it may have in all Mortgage Loans to be purchased by Xxxxxx Xxxxxxx
Mortgage Capital Inc. from the Company named below pursuant to that certain
Mortgage Loan Purchase and Warranties Agreement, dated as of ______ __, 200_,
and certifies that all notes, mortgages, assignments and other documents in
its
possession relating to such Mortgage Loans have been delivered and released
to
the Company named below or its designees, as of the date and time of the sale
of
such Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc.
Name
and Address of Financial Institution
________________________________
(name)
________________________________
(Address)
By:_____________________________
F-1
II. Certification
of Release
The
Company named below hereby certifies to Xxxxxx Xxxxxxx Mortgage Capital Inc.
that, as of the date and time of the sale of the above-mentioned Mortgage Loans
to Xxxxxx Xxxxxxx Mortgage Capital Inc. the security interests in the Mortgage
Loans released by the above-named financial institution comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Company
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
_____________________________
By:__________________________
Title:_________________________
Date:________________________
F-2
EXHIBIT
G
ASSIGNMENT
AND CONVEYANCE
On
this ___ day of __________, ____, ___________________ (“Seller”),
as (i) the Seller under that certain Purchase Price and Terms Agreement,
dated as of ___________, _____ (the “PPTA”),
and (ii) the Seller under that certain Mortgage Loan Purchase and Warranties
Agreement, dated as of ________, ____ (the “Purchase
Agreement”),
does hereby sell, transfer, assign, set over and convey to Xxxxxx Xxxxxxx
Mortgage Capital Inc. (“Purchaser”)
as the Purchaser under the Agreements (as defined below), without recourse,
but
subject to the terms of the Agreements, all right, title and interest of, in
and
to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto
as
Exhibit A
(the “Mortgage
Loans”),
together with the Mortgage Files and all rights and obligations arising under
the documents contained therein. Each Mortgage Loan subject to the Agreements
was underwritten in accordance with, and conforms to, the Underwriting
Guidelines attached hereto as Exhibit .
Pursuant to Section 6 of the Purchase Agreement, the Seller has delivered to
the
Custodian the documents for each Mortgage Loan to be purchased as set forth
in
the Purchase Agreement. The contents of each Servicing File required to be
retained by ______________________ (“Servicer”),
as Servicer under that certain Servicing Agreement, dated as of ________, ____
(the “Servicing
Agreement”)
to service the Mortgage Loans pursuant to the Servicing Agreement and thus
not
delivered to the Purchaser are and shall be held in trust by the Servicer for
the benefit of the Purchaser as the owner thereof. The Servicer’s possession of
any portion of the Servicing File is at the will of the Purchaser for the sole
purpose of facilitating servicing of the related Mortgage Loan pursuant to
the
Servicing Agreement, and such retention and possession by the Servicer shall
be
in a custodial capacity only. The ownership of each Mortgage Note, Mortgage
and
the contents of the Mortgage File and Servicing File is vested in the Purchaser
and the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller or
the
Servicer shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Seller at the will of the Purchaser in such
custodial capacity only. The PPTA, the Purchase Agreement and the Servicing
Agreement shall collectively be referred to as the “Agreements”
herein.
The
Mortgage Loan Package characteristics of the Mortgage Loans subject hereto
are
set forth on Exhibit
B
hereto.
In
accordance with Section 6 of the Purchase Agreement, the Purchaser accepts
the Mortgage Loans listed on Exhibit
A
attached hereto. Notwithstanding the foregoing the Purchaser does not waive
any
rights or remedies it may have under the Agreements.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
G-1
|
[SELLER]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Accepted
and Agreed:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
| By: | |||
| Name: | |||
| Title: |
G-2
EXHIBIT
A
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
THE
MORTGAGE LOANS
G-A-1
EXHIBIT
B
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF EACH MORTGAGE LOAN
PACKAGE
Pool
Characteristics of the Mortgage Loan Package as delivered on the related Closing
Date:
No
Mortgage Loan has: (1) an outstanding principal balance less than $_________;
(2) an origination date earlier than _ months prior to the related Cut-off
Date;
(3) a CLTV of greater than _____%; (4) a FICO Score of less than ___; or (5)
a
debt-to-income ratio of more than __%. Each First Lien Loan has a Mortgage
Interest Rate of at least ___% per annum and an outstanding principal balance
less than $_________. Each Second Lien Loan has a Mortgage Interest Rate of
at
least ______% per annum and an outstanding principal balance less than
$________. Each Adjustable Rate Mortgage Loan has an Index of
[_______].
G-B-1
EXHIBIT
C
TO
ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING
GUIDELINES
G-C-1
Exhibit
H
EXHIBIT
H
SELLER’S
UNDERWRITING GUIDELINES
H-1
Exhibit
I
EXHIBIT
I
CONTENTS
OF EACH CREDIT FILE
(a) An
original policy binder or commitment for title or a certified true and complete
copy.
(b) A
copy of any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
(c) The
original hazard insurance policy and, if required by law, flood insurance
policy.
(d) Residential
loan application.
(e) Mortgage
Loan closing statement.
(f) Verification
of employment, except for Mortgage Loans originated under the Seller’s “No Doc”
documentation program.
(g) Verification
of income except for Mortgage Loans originated under the Seller’s “No Doc,
Reduced Doc, and No Ratio” documentation programs.
(h) Verification
of acceptable evidence of source and amount of downpayment except for Mortgage
Loans originated under the Seller’s “No Doc” program.
(i) Credit
report on the Mortgagor.
(j) Residential
appraisal report.
(k) Photograph
of the Mortgaged Property.
(l) Survey
of the Mortgaged Property, if any.
(m) 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.
(n) All
required disclosure statements.
(o) If
available, termite report, structural engineer’s report, water potability and
septic certification.
(p)
Sales contract, if applicable.
(q) 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.
I-1
(r) Amortization
schedule.
(s) the
original PMI Policy or certificate of insurance, where required pursuant to
the
Agreement.
I-2
Exhibit
J
EXHIBIT
J
RECONSTITUTION
REPRESENTATIONS
(t) Mortgage
Loans as Described.
The information set forth in the Mortgage Loan Schedule is complete, true and
correct;
(u) Payments
Current.
All payments required to be made up to the Reconstitution Closing Date for
the
Mortgage Loan under the terms of the Mortgage Note have been made and credited.
No payment required under the Mortgage Loan is 30 days or more delinquent
nor has any payment under the Mortgage Loan been 30 days or more delinquent
at any time since the origination of the Mortgage Loan;
(v) No
Outstanding Charges.
To the best of the Seller’s knowledge, there are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground
rents
which previously became due and owing have been paid, or an escrow of funds
has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
The
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement
of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes
by
one month the Due Date of the first installment of principal and
interest;
(w) Original
Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified in any respect, from the date of origination except by
a
written instrument which has been recorded, if necessary to protect the
interests of the Purchaser, and which has been delivered to the Custodian or
to
such other Person as the Purchaser shall designate in writing, and the terms
of
which are reflected in the Mortgage Loan Schedule. The substance of any such
waiver, alteration or modification has been approved by the issuer of any
related PMI Policy and the title insurer, if any, to the extent required by
the
policy, and its terms are reflected on the Mortgage Loan Schedule, if
applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the Mortgage Loan Schedule;
(x) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the Xxxxxx Mae Guides or by Xxxxxxx Mac, as well as all
additional requirements set forth in Section 2.10 of the Servicing
Agreement. If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect which policy conforms to Xxxxxx Mae Guides or by Xxxxxxx Mac,
as
well as all additional requirements set forth in Section 2.10 of the
Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and
expense, and on the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is
not
a “master”
or “blanket”
hazard insurance policy covering a condominium, or any hazard insurance policy
covering the common facilities of a planned unit development. The hazard
insurance policy is the valid and binding obligation of the insurer, is in
full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by
this
Agreement. The Seller has not engaged in, and has no knowledge of the
Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by
any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
J-1
(y) No
Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole or in part, and the Mortgaged Property has not been released from the
lien
of the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission. The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(z) LTV,
PMI Policy.
No Mortgage Loan has an LTV greater than 100%. Any Mortgage Loan that had at
the
time of origination an LTV in excess of 80% is insured as to payment default
by
a PMI Policy. Any PMI Policy in effect covers the related Mortgage Loan for
the
life of such Mortgage Loan. All provisions of such PMI Policy have been and
are
being complied with, such policy is in full force and effect, and all premiums
due thereunder have been paid. No action, inaction, or event has occurred and
no
state of facts exists that has, or will result in the exclusion from, denial
of,
or defense to coverage. Any Mortgage Loan subject to a PMI Policy obligates
the
Mortgagor thereunder to maintain the PMI Policy and to pay all premiums and
charges in connection therewith. The Mortgage Interest Rate for the Mortgage
Loan as set forth on the Mortgage Loan Schedule is net of any such insurance
premium;
(aa) Title
Insurance.
With respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan
is
covered by an ALTA lender’s title insurance policy or other generally acceptable
form of policy or insurance acceptable under the Underwriting Guidelines and
each such title insurance policy is issued by a title insurer acceptable under
the Underwriting Guidelines and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Seller, its successors
and
assigns, as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan (or to the extent a Mortgage Note provides for
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), subject only to the exceptions contained in clauses (1)
and (2) of paragraph (j) of this Subsection 9.02,
and in the case of Adjustable Rate Mortgage Loans, against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Seller, has done, by act
or
omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
J-2
(bb) No
Defaults.
As of the Reconstitution Closing Date, other than payments due but not yet
30 days or more delinquent, there is no default, breach, violation or event
which would permit acceleration existing under the Mortgage or the Mortgage
Note
and no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation
or
event which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration;
(cc) No
Mechanics’ Liens.
To the best of the Seller’s knowledge, there are no mechanics’ or similar liens
or claims which have been filed for work, labor or material (and no rights
are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(dd) Occupancy
of the Mortgaged Property.
To the best of the Seller’s knowledge, the Mortgaged Property is lawfully
occupied under applicable law. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate authorities.
Unless otherwise specified on the Mortgage Loan Schedule, the Mortgagor
represented at the time of origination of the Mortgage Loan that the Mortgagor
would occupy the Mortgaged Property as the Mortgagor’s primary
residence;
(ee) Acceptable
Investment.
There are no circumstances or conditions with respect to the Mortgage, the
Mortgaged Property, the Mortgagor, the Mortgage File or the Mortgagor’s credit
standing that can reasonably be expected to cause private institutional
investors who invest in prime mortgage loans similar to the Mortgage Loan to
regard the Mortgage Loan as an unacceptable investment;
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(ff) Mortgaged
Property Undamaged; No Condemnation Proceedings.
To the best of the Seller’s knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the Mortgaged Property.
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect adversely the value
of the Mortgaged Property as security for the Mortgage Loan or the use for
which
the premises were intended and each Mortgaged Property is in good repair. There
have not been any condemnation proceedings with respect to the Mortgaged
Property and the Seller has no knowledge of any such proceedings in the
future;
(gg) Collection
Practices; Escrow Deposits.
The origination, servicing and collection practices used by the Seller with
respect to the Mortgage Loan have been in all respects in compliance with
Accepted Servicing Practices, applicable laws and regulations, and have been
in
all respects legal and proper. With respect to escrow deposits and Escrow
Payments, all such payments are in the possession of, or under the control
of,
the Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law
and
the provisions of the related Mortgage Note and Mortgage. An escrow of funds
is
not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed
but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage
or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect
to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Seller
executed and delivered any and all notices required under applicable law and
the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and
credited;
(hh) Other
Insurance Policies.
No action, inaction or event has occurred and, to the best of the Seller’s
knowledge, no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable special hazard insurance policy, PMI Policy or bankruptcy bond,
irrespective of the cause of such failure of coverage. In connection with the
placement of any such insurance, no commission, fee, or other compensation
has
been or will be received by the Seller or by any officer, director, or employee
of the Seller or any designee of the Seller or any corporation in which the
Seller or any officer, director, or employee had a financial interest at the
time of placement of such insurance;
(ii) No
Violation of Environmental Laws.
To the best of the Seller’s knowledge, there is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue; there is no violation of
any
environmental law, rule or regulation with respect to the Mortgage Property;
and
nothing further remains to be done to satisfy in full all requirements of each
such law, rule or regulation constituting a prerequisite to use and enjoyment
of
said property;
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(jj) Soldiers’
and Sailors’ Civil Relief Act.
The Mortgagor has not notified the Seller, and the Seller has no knowledge
of
any relief requested or allowed to the Mortgagor under the Soldiers’ and
Sailors’ Civil Relief Act of 1940, as amended, or other similar state
statute;
(kk) No
Defense to Insurance Coverage.
No action has been taken or failed to be taken, no event has occurred and no
state of facts exists or has existed on or prior to the Closing Date (whether
or
not known to the Seller on or prior to such date) which has resulted or will
result in an exclusion from, denial of, or defense to coverage under any primary
mortgage insurance (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), provided
this shall not include the failure of such insurer to pay by reason of such
insurer’s breach of such insurance policy or such insurer’s financial inability
to pay;
(ll) Escrow
Analysis.
If applicable, with respect to each Mortgage, the Seller has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law; and
(mm) Prior
Servicing.
Each Mortgage Loan has been serviced in all material respects in strict
compliance with Accepted Servicing Practices.
J-5
Exhibit
K
EXHIBIT
K
FORM
OF BAILEE AGREEMENT
K-1
Exhibit
J
FORM
OF INDEMNIFICATION
AND
CONTRIBUTION
AGREEMENT
THIS
INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated _________, 200_ (“Agreement”)
among [______________], a [______________] (the “Depositor”),
[______________], a [______________] (the “Underwriter”),
[______________], a [______________] (the “Initial
Purchaser”)
and [______________], a [______________] (the “Indemnifying
Party”).
W
I T N E S S E T H:
WHEREAS,
the Indemnifying Party and the Depositor are parties to the Pooling and
Servicing Agreement (as defined herein);
WHEREAS,
the Indemnifying Party originated or acquired the Mortgage Loans and
subsequently sold the Mortgage Loans to Xxxxxx Xxxxxxx Mortgage Capital Inc.
(the “Purchaser”),
an affiliate of the Depositor, in anticipation of the securitization
transaction;
WHEREAS,
the Indemnifying Party also stands to receive substantial financial benefits
in
its capacity as servicer under the Pooling and Servicing Agreement;
WHEREAS,
as an inducement to the Depositor to enter into the Pooling and Servicing
Agreement and the Underwriter to enter into the Underwriting Agreement (as
defined herein), the Indemnifying Party wishes to provide for indemnification
and contribution on the terms and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
1.1 Certain
Defined Terms.
The following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
1933
Act:
The Securities Act of 1933, as amended.
1934
Act:
The Securities Exchange Act of 1934, as amended.
ABS
Informational and Computational Material
Any written communication as defined in Item 1101(a) of Regulation AB under
the
1933 Act and the 1934 Act, as may be amended from time to time.
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Agreement:
This Indemnification and Contribution Agreement, as the same may be amended
in
accordance with the terms hereof.
Free
Writing Prospectus:
Any written communication that constitutes a “free writing prospectus,” as
defined in Rule 405 under the 1933 Act.
Indemnified
Parties:
As defined in Section 3.1.
Indemnifying
Party Information:
[(A)]
All
information in the Prospectus Supplement,
the Offering Circular or any Free Writing Prospectus
or any amendment or supplement thereto (i) contained under the headings
“Summary—Relevant Parties—Responsible Party [and Servicer,”] “The Mortgage Loan
Pool—Underwriting Guidelines” [and “The Servicer”] and (ii) regarding the
Mortgage Loans, the related mortgagors and/or the related Mortgaged Properties
(but in the case of this clause (ii), only to the extent any untrue statement
or
omission arose from or is based upon errors or omissions in the information
concerning the Mortgage Loans, the related mortgagors and/or the related
Mortgaged Properties, as applicable, provided to the Depositor or any affiliate
by or on behalf of the Indemnifying Party)
[and (B) static pool information regarding mortgage loans originated or acquired
by the Seller [and included in the Prospectus Supplement, the Offering Circular,
the ABS Informational and Computational Materials or the Free Writing Prospectus
or any amendment or supplement thereto][incorporated by reference from the
website located at ___________]].
Offering
Circular:
The offering circular, dated [_______], 200___, relating to the private offering
of the Privately Offered Certificates, including any structural term sheets,
collateral terms sheets and computational materials used in connection with
such
offering.
Person:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Pooling
and Servicing Agreement:
The Pooling and Servicing Agreement, dated as of ___________, 200_, among the
Depositor, the Indemnifying Party, as responsible party and servicer, and
[______________].
Privately
Offered Certificates:
[______________], Mortgage Pass-Through Certificates, Series [_______], Class
[__] issued pursuant to the Pooling and Servicing Agreement.
Prospectus
Supplement:
The preliminary prospectus supplement, dated ___________, 200_, together with
the final prospectus supplement, dated ___________, 200_, relating to the
offering of the Publicly Offered Certificates, including any structural term
sheets, collateral terms sheets and computational materials used in connection
with such offering.
Publicly
Offered Certificates:
[______________], Mortgage Pass-Through Certificates, Series [_______], Class
[__], Class [__], Class [__], Class [__], Class [__], Class [__] and Class
[__]
issued pursuant to the Pooling and Servicing Agreement.
J-2
Purchase
Agreement:
The Purchase Agreement, dated ___________, 200_, between the Depositor and
the
Initial Purchaser, relating to the sale of the Privately Offered
Certificates.
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.
Underwriting
Agreement:
The Underwriting Agreement, dated ___________, 200_, between the Depositor
and
the Underwriter, relating to the sale of the Publicly Offered
Certificates.
1.2 Other
Terms.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
(a) Each
party hereto represents and warrants that it
has all requisite power and authority to execute, deliver and perform its
obligations under this Agreement;
(b) Each
party hereto represents and warrants this
Agreement has been duly authorized, executed and delivered by such party;
(c) Each
party hereto represents and warrants that assuming
the due authorization, execution and delivery by each other party hereto, this
Agreement constitutes the legal, valid and binding obligation of such
party;
and
(d) The
Indemnifying Party hereto represents that the Indemnifying Party Information
satisfies the requirements of the applicable provisions of Regulation
AB.
ARTICLE
III
INDEMNIFICATION
3.1 Indemnification
by the Indemnifying Party of the Depositor and the Underwriter.
(a) The Indemnifying Party shall indemnify and hold harmless the Depositor,
the
Underwriter and the Initial Purchaser and their respective affiliates, and
their
respective present and former directors, officers, employees, agents and each
Person, if any, that controls the Depositor, the Underwriter or such affiliate,
within the meaning of either the 1933 Act or the 1934 Act (collectively, the
“Indemnified
Parties”),
against any and all losses, claims, damages, penalties, fines, forfeitures
or
liabilities, joint or several, to which each such Indemnified Party may become
subject, under the 1933 Act, the 1934 Act or otherwise, to the extent that
such
losses, claims, damages, penalties, fines, forfeitures or liabilities (or
actions in respect thereof) arise out of
or are based upon (i)
any breach of the representation and warranty set forth in Article II(d) above
or (ii) any
untrue statement or alleged untrue statement of any material fact contained
in
the Prospectus Supplement, the Offering
Circular, the ABS Informational and Computational Materials, any Free Writing
Prospectus
or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to information set forth in the Indemnifying Party Information, and
the
Indemnifying Party shall in each case reimburse each Indemnified Party for
any
legal or other costs, fees, or expenses reasonably incurred and as incurred
by
such Indemnified Party in connection with investigating or defending any such
loss, claim, damage, penalty, fine, forfeiture, liability or action. The
Indemnifying Party’s liability under this Section 3.1 shall be in addition to
any other liability that the Indemnifying Party may otherwise have.
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(b) If
the indemnification provided for in this Section 3.1 shall for any reason be
unavailable to an Indemnified Party under this Section 3.1 (other than due
to
indemnification not being applicable under Section 3.1(a)), then the party
which
would otherwise be obligated to indemnify with respect thereto, on the one
hand,
and the parties which would otherwise be entitled to be indemnified, on the
other hand, shall contribute to the aggregate losses, liabilities, claims,
damages, penalty, fine, forfeiture, costs, fees and expenses of the nature
contemplated herein and incurred by the parties hereto in such proportions
that
are appropriate to reflect the relative fault of the Depositor or the
Underwriter, on the one hand, and the Indemnifying Party, on the other hand,
in
connection with the applicable misstatements or omissions as well as any other
relevant equitable considerations. Notwithstanding the foregoing, no Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the 0000 Xxx) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. For purposes of this Section 3.1,
each director of a party to this Agreement and each Person, if any, that
controls a party to this Agreement within the meaning of Section 15 of the
1933
Act shall have the same rights to contribution as such party.
3.2 Notification;
Procedural Matters.
Promptly after receipt by an Indemnified Party under Section 3.1 of notice
of
any claim or the commencement of any action, such Indemnified Party shall,
if a
claim in respect thereof is to be made against the Indemnifying Party (or if
a
claim for contribution is to be made against another party) under Section 3.1,
notify the Indemnifying Party (or other contributing party) in writing of the
claim or the commencement of such action; provided, however, that the failure
to
notify the Indemnifying Party (or other contributing party) shall not relieve
it
from any liability which it may have under Section 3.1 except to the extent
it
has been materially prejudiced by such failure; and provided, further, however,
that the failure to notify the Indemnifying Party shall not relieve it from
any
liability which it may have to any Indemnified Party (or to the party requesting
contribution) otherwise than under Section 3.1. In case any such action is
brought against any Indemnified Party and it notifies the Indemnifying Party
of
the commencement thereof, the Indemnifying Party shall be entitled to
participate therein and, to the extent that, by written notice delivered to
the
Indemnified Party promptly after receiving the aforesaid notice from such
Indemnified Party, the Indemnifying Party elects to assume the defense thereof,
it may participate with counsel reasonably satisfactory to such Indemnified
Party; provided, however, that if the defendants in any such action include
both
the Indemnified Party and the Indemnifying Party and the Indemnified Party
or
parties shall reasonably have concluded that there may be legal defenses
available to it or them and/or other Indemnified Parties that are different
from
or additional to those available to the Indemnifying Party, or if the use of
counsel chosen by the Indemnifying Party to represent the Indemnified Parties
would present such counsel with a conflict of interest, the Indemnified Party
or
parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf
of
such Indemnified Party or parties. Upon receipt of notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense of
such
action and approval by the Indemnified Party of such counsel, the Indemnifying
Party shall not be liable to such Indemnified Party under this paragraph for
any
legal or other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof, unless (i) the Indemnified Party shall
have
employed separate counsel (plus any local counsel) in connection with the
assertion of legal defenses in accordance with the proviso to the immediately
preceding sentence, (ii) the Indemnifying Party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of commencement of the action or
(iii) the Indemnifying Party shall have authorized the employment of counsel
for
the Indemnified Party at the expense of the Indemnifying Party. No party shall
be liable for contribution with respect to any action or claim settled without
its consent, which consent shall not be unreasonably withheld. In no event
shall
the Indemnifying Party be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from its own counsel for
all
Indemnified Parties in connection with any one action or separate but similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
J-4
ARTICLE
IV
GENERAL
4.1 Survival.
This Agreement and the obligations of the parties hereunder shall survive the
purchase and sale of the Publicly Offered Certificates and Privately Offered
Certificates.
4.2 Successors.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto, each Indemnified Party and their respective successors and assigns,
and
no other Person shall have any right or obligation hereunder.
4.3 Applicable
Law.
This Agreement shall be governed by and construed in accordance with the laws
of
the State of New York without giving effect to principles of conflict of
laws.
4.4 Miscellaneous.
Neither this Agreement nor any term hereof may be changed, waived, discharged
or
terminated except by a writing signed by the party against which 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.
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4.5 Notices.
All communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered to:
In
the case of the Depositor:
[______________]
[______________]
[______________]
Attention:
Telephone:
with
a copy to:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Whole Loans Operations Manager
Telephone:
In
the case of the Underwriter:
[______________]
[______________]
[______________]
Attention:
Telephone:
In
the case of the Indemnifying Party:
[______________]
[______________]
[______________]
Attention:
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as of the date first above written.
[DEPOSITOR]
By:______________________________
Name:
Title:
[UNDERWRITER]
By:______________________________
Name:
Title:
[INDEMNIFYING
PARTY]
By:______________________________
Name:
Title:
J-7
