<PAGE>
Execution Copy
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AMENDED
AND RESTATED FLOW MORTGAGE LOAN SALE AND SERVICING AGREEMENT
between
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Seller and as Servicer,
and
LEHMAN BROTHERS BANK, FSB,
as Purchaser
November 1, 2004
Performing, Conventional, Residential Mortga ge Loans
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<PAGE>
TABLE OF CONTENTS
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SECTION 1.
DEFINITIONS.......................................................................................1
SECTION 2. PURCHASE AND CONVEYANCE.
........................................................................14
SECTION 3. MORTGAGE LOAN
SCHEDULE...........................................................................14
SECTION 4. PURCHASE
PRICE...................................................................................15
SECTION 5. EXAMINATION OF MORTGAGE
FILES....................................................................15
SECTION 6. DELIVERY OF MORTGAGE LOAN
DOCUMENTS..............................................................15
Subsection 6.01 Possession
of Mortgage
Files.............................................................15
Subsection 6.02 Books and
Records........................................................................16
Subsection 6.03 Delivery of
Mortgage Loan
Documents......................................................16
SECTION 7. REPRESENTATIONS, WARRANTIES AND
COVENANTS; REMEDIES FOR
BREACH...................................17
Subsection 7.01
Representations and Warranties Regarding Individual Mortgage
Loans.......................17
Subsection 7.02 Seller and
Servicer
Representations......................................................27
Subsection 7.03 Remedies for
Breach of Representations and
Warranties....................................29
SECTION 8. CLOSING
CONDITIONS...............................................................................31
SECTION 9. CLOSING
DOCUMENTS................................................................................32
Subsection 9.01 Initial
Closing
Date.....................................................................32
Subsection 9.02 Subsequent
Closing
Dates.................................................................32
SECTION
10.COSTS............................................................................................33
SECTION 11. ADMINISTRATION AND SERVICING OF
MORTGAGE
LOANS..................................................33
Subsection 11.01 Servicer to
Act as Servicer;
Subservicing...............................................33
Subsection 11.02 Liquidation
of Mortgage
Loans...........................................................35
Subsection 11.03 Collection
of Mortgage Loan
Payments....................................................35
Subsection 11.04
Establishment of Custodial Account; Deposits in Custodial
Account.......................35
Subsection 11.05 Withdrawals
From the Custodial
Account..................................................37
Subsection 11.06
Establishment of Escrow Account; Deposits in Escrow
Account.............................38
Subsection 11.07 Withdrawals
From Escrow
Account.........................................................39
Subsection 11.08 Payment of
Taxes, Insurance and Other Charges; Collections
Thereunder...................39
Subsection 11.09 Transfer of
Accounts....................................................................40
Subsection 11.10 Maintenance
of Hazard
Insurance.........................................................40
Subsection 11.11 Maintenance
of Primary Mortgage Insurance Policy;
Claims................................41
Subsection 11.12 Fidelity
Bond; Errors and Omissions
Insurance...........................................41
Subsection 11.13 Title,
Management and Disposition of REO
Property.......................................42
Subsection 11.14 Servicing
Compensation..................................................................43
Subsection 11.15
Distributions...........................................................................43
Subsection 11.16 Statements
to the
Purchaser.............................................................44
Subsection 11.17 Advances by
the
Servicer................................................................44
Subsection 11.18 Assumption
Agreements...................................................................45
Subsection 11.19
Satisfaction of Mortgages and Release of Mortgage
Files.................................45
Subsection 11.20 Annual
Statement as to
Compliance.......................................................46
Subsection 11.21 Annual
Independent Public Accountants' Servicing
Report.................................46
Subsection 11.22 Servicer
Shall Provide Access and Information as Reasonably
Required....................46
Subsection 11.23 Restoration
of Mortgaged
Property.......................................................47
Subsection 11.24 Master
Servicer.........................................................................47
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Subsection 11.25 Fair Credit
Reporting
Act...............................................................47
Subsection 11.26 Compliance
with Safeguarding Customer Information
Requirements..........................48
Subsection 11.27 BPP
Mortgage
Loans......................................................................48
SECTION 12. THE
SERVICER....................................................................................48
Subsection 12.01
Indemnification; Third Party
Claims.....................................................48
Subsection 12.02 Merger or
Consolidation of the
Servicer.................................................49
Subsection 12.03 Limitation
on Liability of the Servicer and
Others......................................49
Subsection 12.04 Seller and
Servicer Not to
Resign.......................................................49
SECTION 13.
DEFAULT.........................................................................................50
Subsection 13.01 Events of
Default.......................................................................50
Subsection 13.02 Waiver of
Default.......................................................................51
SECTION 14.
TERMINATION.....................................................................................51
Subsection 14.01
Termination.............................................................................51
Subsection 14.02 Termination
of the Servicer Without
Cause...............................................52
Subsection 14.03 Successors
to the
Servicer..............................................................52
SECTION 15.
NOTICES.........................................................................................53
SECTION 16. SEVERABILITY
CLAUSE.............................................................................54
SECTION 17. NO
PARTNERSHIP..................................................................................54
SECTION 18.
COUNTERPARTS....................................................................................54
SECTION 19. GOVERNING
LAW...................................................................................54
SECTION 20. INTENTION OF THE
PARTIES........................................................................55
SECTION 21.
WAIVERS.........................................................................................55
SECTION 22.
EXHIBITS........................................................................................55
SECTION 23. GENERAL INTERPRETIVE
PRINCIPLES.................................................................55
SECTION 24. REPRODUCTION OF
DOCUMENTS.......................................................................56
SECTION 25.
AMENDMENT.......................................................................................56
SECTION 26.
CONFIDENTIALITY.................................................................................56
SECTION 27. ENTIRE
AGREEMENT................................................................................57
SECTION 28. FURTHER AGREEMENTS;
TRANSFERS...................................................................57
SECTION 29. SUCCESSORS AND
ASSIGNS..........................................................................58
SECTION 30.
NON-SOLICITATION................................................................................59
SECTION 31. PROTECTION OF CONSUMER
INFORMATION..............................................................59
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<PAGE>
EXHIBITS
EXHIBIT 1
MORTGAGE LOAN DOCUMENTS
EXHIBIT 2
CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 3
UNDERWRITING GUIDELINES
EXHIBIT 4
FORM OF SELLER'S AND SERVICER'S OFFICER'S CERTIFICATE
EXHIBIT 5
FORM OF LOST NOTE
AFFIDAVIT
EXHIBIT 6
FORM OF MONTHLY REMITTANCE REPORT
EXHIBIT 7
FORM OF ACKNOWLEDGMENT AND CONVEYANCE AGREEMENT
EXHIBIT 8
FORM OF CERTIFICATION TO BE PROVIDED BY THE SERVICER
EXHIBIT 9
FORM OF OPINION OF COUNSEL
EXHIBIT 10
FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 11
FORM OF ESCROW ACCOUNT CERTIFICATION
iii
<PAGE>
AMENDED
AND RESTATED FLOW MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS
AMENDED AND RESTATED FLOW MORTGAGE LOAN SALE AND SERVICING
AGREEMENT (the "Agreement"), dated November
1, 2004, is hereby executed by and
between LEHMAN BROTHERS BANK, FSB, a
federally chartered savings bank, as
purchaser (the "Purchaser"), and BANK OF
AMERICA, NATIONAL ASSOCIATION, a
national banking association, as seller
(the "Seller") and as servicer (the
"Servicer").
WITNESSETH:
WHEREAS, the Seller, the Servicer and the Purchaser are parties to
a
Flow Mortgage Loan Sale and Servicing
Agreement, dated as of August 1, 2004 (the
"Existing Flow Agreement"), by and among
the Seller, the Servicer and the
Purchaser; and
WHEREAS, the Seller, the Servicer and the Purchaser have determined
to
amend and restate the Existing Flow
Agreement in its entirety; and
WHEREAS, the Seller has agreed to sell from time to time to the
Purchaser, and the Purchaser has agreed to
purchase from time to time from the
Seller, certain performing, conventional,
residential, first lien mortgage loans
(the "Mortgage Loans") as described herein
on a servicing-retained basis, and
which shall be delivered as whole loans as
provided herein; and
WHEREAS, the Mortgage Loans will be sold by the Seller and
purchased by
the Purchaser as pools or groups of whole
loans, servicing retained (each, a
"Mortgage Loan Package") on the various
Closing Dates as provided herein; and
WHEREAS, each of the Mortgage Loans will be secured by a mortgage,
deed
of trust or other security instrument
creating a first lien on a residential
dwelling located in the jurisdiction
indicated on the related Mortgage Loan
Schedule which will be annexed to an
Acknowledgment and Conveyance Agreement (as
defined herein) on the related Closing
Date; and
WHEREAS, the Purchaser, the Seller and the Servicer wish to
prescribe
the manner of the conveyance, servicing and
control of the Mortgage Loans;
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, the Seller and the
Servicer agree as follows:
SECTION 1. DEFINITIONS.
For purposes of this Agreement, the following capitalized terms
shall
have the respective meanings set forth
below.
Acknowledgment and Conveyance Agreement: The agreement,
substantially
in the form of Exhibit 7 hereto, to be
prepared by the Purchaser and executed by
the Seller and the Purchaser on each
Closing Date.
<PAGE>
Adjustable Rate Mortgage Loan: A Mortgage Loan that contains a
provision pursuant to which the Mortgage
Interest Rate is adjusted periodically.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the date
on
which the Mortgage Interest Rate is
adjusted in accordance with the terms of the
related Mortgage Note and Mortgage.
Agency Transfer: An exchange of the Mortgage Loans for agency
securities.
Agreement : This Amended and Restated Flow Mortgage Loan Sale
and
Servicing Agreement including all exhibits,
schedules, amendments and
supplements hereto.
ALTA: The American Land Title Association.
Appraised Value: With respect to any Mortgaged Property, the lesser
of
(i) the value thereof as determined by a
Qualified Appraiser at the time of
origination of the Mortgage Loan, and (ii)
the purchase price paid for the
related Mortgaged Property by the Mortgagor
with the proceeds of the Mortgage
Loan; provided, however, that in the case
of a Refinanced Mortgage Loan, such
value of the Mortgaged Property is based
solely upon the value determined by an
appraisal made for the originator of such
Refinanced Mortgage Loan at the time
of origination of such Refinanced Mortgage
Loan by a Qualified Appraiser.
Assignment and Assumption: An assignment and assumption of the
Custodial Agreement, prepared by the
Purchaser and executed by the Seller and
the Purchaser on each Closing Date,
assigning all of the Purchaser's rights as
the "Servicer" thereunder to the
Servicer.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument
in recordable form and in blank,
sufficient under the laws of the
jurisdiction in which the related Mortgaged
Property is located to give record notice
of the sale of the Mortgage to the
Purchaser.
BPP Addendum: With respect to any BPP Mortgage Loan, a
Borrowers
Protection Plan(R) addendum to the related
Mortgage Note pursuant to which the
Servicer agrees to cancel (i) certain
payments of principal and interest on the
related Mortgage Loan for up to twelve (12)
months upon the disability or
involuntary unemployment of the Mortgagor
or (ii) the outstanding principal
balance of such Mortgage Loan upon the
accidental death of the Mortgagor,
subject to the terms thereof. When used
herein, a Mortgage Loan to which such
BPP Addendum relates is a BPP Mortgage
Loan, to the extent not so stated.
BPP Fees: With respect to any BPP Mortgage Loan, any fees payable
by a
Mortgagor for the right to cancel any
portion of principal or interest of a BPP
Mortgage Loan pursuant to the terms of the
related BPP Addendum.
BPP Mortgage Loan: Any Mortgage Loan which includes a BPP
Addendum,
provided that such BPP Addendum has not
been terminated in accordance with its
terms.
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<PAGE>
BPP Mortgage Loan Payment: With respect to any BPP Mortgage Loan,
the
Monthly Covered Amount or Total Covered
Amount, if any, payable by the Servicer
pursuant to Subsection 11.27.
Balloon Mortgage Loan: Any Mortgage Loan which by its original
terms or
any modifications thereof provides for
amortization beyond its scheduled
maturity date.
BPO: A broker's price opinion with respect to a Mortgaged
Property.
Business Day: Any day other than a Saturday or Sunday, or a day
on
which banking and savings and loan
institutions in the state in which (i) the
Servicer is located or (ii) the Custodial
Account is maintained are authorized
or obligated by law or executive order to
be closed.
Closing Date: The date or dates, set forth in the related
Acknowledgment and Conveyance Agreement
and/or Purchase Price and Terms
Agreement, on which the Purchaser will
purchase and the Seller will sell the
Mortgage Loans identified therein.
CLTA: The California Land Title Association.
Code: The Internal Revenue Code of 1986, as amended, or any
successor
statute thereto.
Condemnation Proceeds: All awards, compensation and settlements
in
respect of a taking (whether permanent or
temporary) of all or part of a
Mortgaged Property by exercise of the power
of condemnation or the right of
eminent domain, to the extent not required
to be released to a Mortgagor in
accordance with the terms of the related
Mortgage Loan Documents.
Consumer Information: Information including but not limited to
all
personal information about the Mortgagors
that is supplied to the Seller by or
on behalf of the Mortgagors.
Convertible Mortgage Loan: An Adjustable Rate Mortgage Loan that by
its
terms and subject to certain conditions
allows the Mortgagor to convert the
adjustable Mortgage Interest Rate thereon
to a fixed Mortgage Interest Rate.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real
property and improvements constituting
the Cooperative Property and which governs
the Cooperative Property, which
Cooperative Corporation must qualify as a
Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares
and a
Proprietary Lease.
Cooperative Loan Documents: With respect to any Cooperative Loan,
(i)
the Cooperative Shares, together with a
stock power in blank; (ii) the original
executed Security Agreement and the
assignment of the Security Agreement
endorsed in blank; (iii) the original
executed Proprietary Lease and the
assignment of the Proprietary Lease
endorsed in blank; (iv) the original
executed Recognition Agreement and the
assignment of the Recognition Agreement
(or a blanket assignment of all Recognition
Agreements) endorsed in blank; (v)
the executed UCC-1 financing statement with
evidence of recording thereon, which
3
<PAGE>
has been filed in all places required to
perfect the security interest in the
Cooperative Shares and the Proprietary
Lease; and (vi) the Seller's executed
UCC-3 financing statements (or copies
thereof) or other appropriate UCC
financing statements required by state law,
evidencing a complete and unbroken
chain of title from the mortgagee to the
Seller with evidence of recording
thereon (or in a form suitable for
recordation).
Cooperative Property: The real property and improvements owned by
the
Cooperative Corporation, that includes the
allocation of individual dwelling
units to the holders of the Cooperative
Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a
Cooperative
Property.
Custodial Account: As defined in Subsection 11.04.
Custodial Account Certification: As defined in Subsection
11.04.
Custodial Agreement: That certain Custodial Agreement between
Purchaser
and Custodian dated as of September 1,
1999.
Custodian: U.S. Bank Trust National Association, or any successor
under
the Custodial Agreement.
Customary Servicing Procedures: Procedures (including
collection
procedures) that the Servicer customarily
employs and exercises in servicing and
administering mortgage loans for its own
account that are similar to the
Mortgage Loans and which are in accordance
with accepted mortgage servicing
practices of prudent lending institutio ns
and the Fannie Mae Guides.
Cut-off Date: With respect to each Mortgage Loan, the first day of
the
month of the related Closing Date as set
forth in the related Acknowledgment and
Conveyance Agreement and/or the related
Purchase Price and Terms Agreement.
Cut-off Date Principal Balance: The aggregate Stated Principal
Balance
of the Mortgage Loans as of the related
Cut-off Date which is determined after
the application, to the reduction of
principal, of payments of principal due on
or before the related Cut-off Date, whether
or not collected, and of Principal
Prepayments received before the related
Cut-off Date.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
with
a Substitute Mortgage Loan in accordance
with this Agreement.
Determination Date: With respect to each Remittance Date, the 15th
day
(or, if such 15th day is not a Business
Day, the following Business Day) of the
month in which such Remittance Date
occurs.
Due Date: With respect to each Remittance Date, the first day of
the
calendar month in which such Remittance
Date occurs, which is the day on which
the Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
4
<PAGE>
Due Period: With respect to each Remittance Date, the period
beginning
on the second day of the month preceding
the month of the Remittance Date, and
ending on the first day of the month of the
Remittance Date.
Eligible Investments: Any one or more of the following obligations
or
securities:
(i) obligations of or guaranteed as to principal and interest
by Freddie Mac, Fannie Mae or any agency or instrumentality of
the
United States when such obligations are backed by the full faith
and
credit of the United States; provided, however, that such
obligations
of Freddie Mac or Fannie Mae shall be limited to senior debt
obligations and mortgage participation certificates except that
investments in mortgage-backed or mortgage participation
securities
with yields evidencing extreme sensitivity to the rate of
principal
payments on the underlying mortgages shall not constitute
Eligible
Investments hereunder;
(ii) repurchase agreements on obligations specified in clause
(i) maturing not more than one month from the date of
acquisition
thereof;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have
an
original maturity of not more than ninety (90) days and, in the
case of
bankers' acceptances, shall in no event have an original maturity
of
more than 365 days or a remaining maturity of more than thirty
(30)
days) denominated in United States dollars of any United States
depository institution or trust company incorporated under the laws
of
the United States or any state thereof or of any domestic branch of
a
foreign depository institution or trust company;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of
the
United States or any state thereof which is rated not lower than
"P-2"
by Moody's Investors Service, Inc. and rated not lower than "A-2"
by
Standard & Poor's Ratings Service, a division of The
McGraw-Hill
Companies, Inc.; and
(v) a money market fund;
provided, however, that no instrument shall
be an Eligible Investment if it
represents, either (1) the right to receive
only interest payments with respect
to the underlying debt instrument or (2)
the right to receive both principal and
interest payments derived from obligations
underlying such instrument and the
principal and interest with respect to such
instrument provide a yield to
maturity greater than 120% of the yield to
maturity at par of such underlying
obligations.
Escrow Account: As defined in Subsection 11.06.
Escrow Account Certification: As defined in Subsection 11.06.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, Primary Mortgage Insurance
Policy premiums (if any), fire and
hazard insurance premiums, flood insurance
premiums, condominium charges and
other payments as may be required to be
escrowed by the Mortgagor with the
Mortgagee pursuant to the terms of any
Mortgage Note or Mortgage.
5
<PAGE>
Event of Default: Any one of the conditions or circumstances
enumerated
in Subsection 13.01.
Fannie Mae: The entity formerly known as the Federal National
Mortgage
Association or any successor thereto.
Fannie Mae Guides: The Fannie Mae Sellers' Guide and the Fannie
Mae
Servicers' Guide and all amendments or
additions thereto.
FDIC: The Federal Deposit Insurance Corporation or any
successor
thereto.
Fidelity Bond: The fidelity bond required to be obtained by the
Servicer pursuant to Subsection 11.12.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement
Act of 1989, as amended and in effect from
time to time.
First Remittance Date: With respect to each Mortgage Loan Package,
the
18th day (or if such 18th day is not a
Business Day, the Business Day
immediately following such 18th day) of the
month following the related Closing
Date.
Freddie Mac: The entity formerly known as the Federal Home Loan
Mortgage Corporation or any successor
thereto.
Freddie Mac Guide: The Freddie Mac Single Family Seller/Servicer
Guide
and all amendments or additions
thereto.
GAAP: Generally accepted accounting principles consistently
applied.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the
fixed percentage amount set forth in each
related Mortgage Note and Mortgage
which is added to the Index in order to
determine the related Mortgage Interest
Rate.
Index: With respect to any Adjustable Rate Mortgage Loan, the
index
identified on the Mortgage Loan Schedule
and set forth in the related Mortgage
Note for the purpose of calculating
interest thereon.
Initial Rate Cap: As to each Adjustable Rate Mortgage Loan, the
maximum
increase or decrease in the Mortgage
Interest Rate on the first Adjustment Date
as provided in the related Mortgage
Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of
insurance policies insuring the Mortgage
Loan or the related Mortgaged Property.
6
<PAGE>
Lifetime Rate Cap: As to each Adjustable Rate Mortgage Loan,
the
maximum Mortgage Interest Rate which shall
be as permitted in accordance with
the provisions of the related Mortgage
Note.
Liquidation Proceeds: The proceeds received in connection with
the
liquidation of a defaulted Mortgage Loan
through trustee's sale, foreclo sure
sale or otherwise, other than amounts
received following the acquisition of REO
Property, Insurance Proceeds and
Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan as of any
date
of determination, the ratio, expressed as a
percentage, the numerator of which
is the outstanding principal balance of the
Mortgage Loan at origination (or on
such date, if a current Loan-to-Value Ratio
is being calculated), and the
denominator of which is the Appraised Value
of the related Mortgaged Property.
LTV: Loan-to-Value Ratio.
Monthly Covered Amount: With respect to any BPP Mortgage Loan,
the
amount of any principal and interest due by
a Mortgagor and cancelled for any
month pursuant to the terms of the related
BPP Addendum upon the disability or
involuntary unemployment of such
Mortgagor.
Monthly Payment: With respect to any Mortgage Loan, the
scheduled
payment of principal and interest payable
by a Mortgagor under the related
Mortgage Note on each Due Date, which such
payment may change on any Adjustment
Date as provided in the related Mortgage
Note and Mortgage for any Adjustable
Rate Mortgage Loan.
Mortgage: With respect to any Mortgage Loan that is not a
Cooperative
Loan, the mortgage, deed of trust or other
instrument creating a first lien on
the Mortgaged Property securing the
Mortgage Note and, with respect to a
Cooperative Loan, the related Security
Agreement.
Mortgage File: With respect to any Mortgage Loan, the items listed
in
Exhibit 2 hereto and any additional
documents required to be added to the
Mortgage File pursuant to this
Agreement.
Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual
rate at which interest accrues on such
Mortgage Loan from time to time in
accordance with the provisions of the
related Mortgage Note, including, but not
limited to, the limitations on such
interest rate imposed by the Initial Rate
Cap, the Periodic Rate Cap/Floor and the
Lifetime Rate Cap, if any.
Mortgage Loan: Each mortgage loan sold, assigned and
transferred
pursuant to this Agreement and identified
on the Mortgage Loan Schedule annexed
to the related Acknowledgment and
Conveyance Agreement, including, without
limitation, the Mortgage File, the Monthly
Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition
Proceeds, and all other rights, benefits,
proceeds and obligations arising from
or in connection with such mortgage
loan.
7
<PAGE>
Mortgage Loan Documents: With respect to any Mortgage Loan, the
documents listed in Exhibit 1 hereto.
Mortgage Loan Package: The pool or group of whole loans purchased
on a
Closing Date, as described in the Mortgage
Loan Schedule annexed to the related
Acknowledgment and Conveyance
Agreement.
Mortgage Loan Remittance Rate: With respect to any Mortgage Loan,
the
annual rate of interest payable to the
Purchaser, which shall be equal to the
related Mortgage Interest Rate minus the
related Servicing Fee Rate.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the
schedule of Mortgage Loans annexed to the
related Acknowledgment and Conveyance
Agreement (and delivered in electronic
format to the Purchaser), setting forth
the following information with respect to
each Mortgage Loan: (1) the Seller's
Mortgage Loan identifying number; (2) the
Mortgagor's and Co-Mortgagor's (if
applicable) names; (3) the street address
of the Mortgaged Property, including
the city, state, zip code, county, lot
number, block number and section number;
(4) a code indicating whether the Mortgaged
Property is a single family
residence, a 2 family dwelling, a 3-4
family dwelling, a manufactured home, a
planned unit development, a townhouse, a
unit in a condominium project, a
Cooperative Property, a mixed-use property,
land, or a non-residential property;
(5) a code indicating the loan is a fixed
rate or Adjustable Rate Mortgage Loan
(to be provided in accordance with Standard
and Poor's loan type
requirements-Field 14); (6) product
description (to be provided in accordance
with Standard and Poor's description
categories-Field 7); (7) a code indicating
the lien status of the Mortgage Loan; (8)
the original months to maturity or the
remaining months to maturity from the
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 LTV at
origination; (10) the combined LTV at
origination; (11) the Mortgage Interest
Rate as of the Cut-off Date; (12) the
payment and rate adjustment frequencie s
(if applicable); (13) the Index (if
applicable); (14) the initial Adjustment
Date (if applicable); (15) the initial
payment Adjustment Date (if applicable);
(16) the next interest rate Adjustment Date
(if applicable); (17) the next
payment Adjustment Date (if applicable);
(18) the Gross Margin (if applicable);
(19) the minimum Mortgage Interest Rate
under the terms of the Mortgage Note (if
applicable); (20) Mortgage Interest Rate
adjustment frequencies (if applicable);
(21) the maximum Mortgage Interest Rate
under the terms of the Mortgage Note (if
applicable); (22) the Mortgage Interest
Rate adjustment cap at the initial
interest rate Adjustment Date (if
applicable); (23) the Mortgage Interest Rate
adjustment cap at all subsequent interest
rate Adjustment Dates (if applicable);
(24) the Lifetime Rate Cap (if applicable);
(25) the rounding provisions under
the terms of the Mortgage Note (if
applicable); (26) the lookback provisions (#
of days) under the terms of the Mortgage
Note (if applicable); (27) negative
amortization indicator and limit; (28) the
date on which the first payment is
due; (29) the original term of the Mortgage
Loan; (30) the stated maturity date;
(31) the amount of the Monthly Payment;
(32) the annual payment cap expressed as
a percentage (for Adjustable Rate Mortgage
Loans only); (33) the next due date
as of the Cut-off Date; (34) the original
principal amount of the Mortgage Loan;
(35) the senior and subordinate balances
(if applicable); (36) the closing date
of the Mortgage Loan; (37) the principal
balance of the Mortgage Loan as of the
close of business on the Cut-off Date;
after deduction of payments of principal
actually received on or before the Cut-off
Date; (38) monthly payment histories
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on current and prior mortgages (24 months
if available); (39) prior foreclosure
history (for the past 24 months); (40)
prior bankruptcy history (for the past 24
months); (41) the loan purpose code; (42)
the occupancy code; (43) the loan
documentation type, (to be provided in
conformance with Standard and Poor's
documentation categories - Field 5); (44)
asset verification (purchase money
loans only), (yes or no); (45) a code
indicating the credit grade of the
Mortgage Loan; (46) the debt to income
ratio; (47) the Mortgagor's and
co-Mortgagor's (if applicable) social
security numbers; (48) the Mortgagor's and
co-Mortgagor's (if applicable) original
FICO score and the next generation FICO
score for new credit scores; (49) the date
of the FICO score; (50) the
Mortgagor's mailing address if different
from number (3) above; (51) the
Mortgagor's home telephone number; (52) the
Mortgagor's business telephone
number; (53) the purchase price of the
Mortgaged Property (if a purchase); (54)
the Appraisal date and the Appraised Value
of the Mortgaged Property; (55) the
Mortgagor's and co-Mortgagor's (if
applicable) race; (56) the Mortgagor's and
co-Mortgagor's (if applicable) gender; (57)
the Mortgagor's and co-Mortgagor's
(if applicable) date of birth; (58) the
number of bedrooms; (59) rental income
per unit; (60) the combined annual income;
(61) the application date; (62) the
broker's name; (63) the broker's firm name;
(64) the appraiser's name; (65) the
appraiser's firm name; (66) the settlement
agent; (67) the origination channel
(wholesale, retail, or correspondent); (68)
flood insurance contract provider;
(69) tax service contract provider; (70)
number of units; (71) as of date; (72)
amortization term; (73) balloon flag; (74)
prepayment penalty flag; (75)
prepayment penalty term and prepayment
penalty descriptio n (i.e., 6 months
interest, set percentage of UPB); (76)
payment history current loan; (77)
payment history previous loan and all
refinanced loans; (78) mortgage insurance
provider, or code for LPMI; (79) mortgage
insurance coveragepercentage; (80)
mortga ge insurance cost; (81) mortgage
insurance certificate number; (82)
number of borrowers; (83) first time home
buyer flag; (84) the year in which the
Mortgaged Property was built; (85) the
monthly tax and insurance payment; (86)
the monthly servicing fee; (87) the escrow
balance as of the Cut-off Date; (88)
the MIN number assigned to each Mortgage
Loan, if applicable; (89) a code
indicating the Appraisal Type (Tax
Assessment, BPO, Drive-By Form 704, URAR,
Form 2065, Form 2055 (Exterior only), Form
2055 (Interior Inspection), or AVM;
(90) if the Appraisal Type in #89 is an
AVM, then a description of the AVM type;
(91) a code indicating whether the
borrower(s) is self-employed (yes or no);
(92) a section 32 flag and the origination
points and or fees; (93) a code
indicating if a loan is assumable (yes or
no); (94) code indicating whether the
borrower's assets were verified; (95) a
code indicating whether the loan is a
high cost or covered loan under applicable
state/jurisdiction anti-predatory
lending laws; and (96) Annual Percentage
Rate (APR). With respect to the
Mortgage Loans on the Mortgage Loan
Schedule in the aggregate, the Mortgage Loan
Schedule shall set forth the following
information, as of the Cut-off Date: (i)
the number of Mortgage Loans; (ii) the
Cut-off Date Principal Balance; (iii) the
weighted average Mortgage Interest Rate of
the Mortgage Loans; (iv) the weighted
average months to maturity of the Mortgage
Loans; (v) with respect to each
Adjustable Rate Mortgage Loan, the weighted
average Lifetime Rate Cap; and (vi)
with respect to each Adjustable Rate
Mortgage Loan, the weighted average Gross
Margin.
Mortgage Note: The original executed note or other evidence of
the
Mortgage Loan indebtedness of a
Mortgagor.
Mortgaged Property: With respect to each Mortgage Loan that is not
a
Cooperative Loan, the Mortgagor's real
property securing repayment of a related
Mortgage Note, consisting of an
unsubordinated estate in fee simple or, with
respect to real property located in
jurisdictions in which the use of leasehold
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estates for residential properties is a
widely accepted practice, a leasehold
estate, in a single parcel or multiple
parcels of real property improved by a
Residential Dwelling. With respect to each
Cooperative Loan, the Cooperative
Shares allocated to a Cooperative Unit in
the related Cooperative Corporation
that were pledged to secure such
Cooperative Loan and the related Proprietary
Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the
successors and assigns of suc h mortgagee
or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of
the
Mortgaged Property and the grantor or
mortgagor named in the Mortgage and such
grantor's or mortgagor's successors in
title to the Mortgaged Property.
NAIC: The National Association of Insurance Commissioners or
any
successor organization.
Officer's Certificate: A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, a
President or a Vice President of the
Person on behalf of whom such certificate
is being delivered.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Seller or the Servicer,
reasonably acceptable to the Purchaser.
OTS: The Office of Thrift Supervision or any successor thereto.
Owner: As defined in Subsection 11.13.
P&I Advance: As defined in Subsection 11.17.
Periodic Rate Cap/Floor: As to each Adjustable Rate Mortgage Loan,
the
maximum increase or decrease in the
Mortgage Interest Rate, on any Adjustment
Date as provided in the related Mortgage
Note.
Person: An individual, corporation, partnership, joint venture,
association, joint-stock company, limited
liability company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
Primary Mortgage Insurance Policy: A policy of primary mortgage
guaranty insurance issued by an insurer
acceptable to Fannie Mae or Freddie Mac.
Principal Prepayment: Any payment or other recovery of principal on
a
Mortgage Loan which is received in advance
of its scheduled Due Date that 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.
Proprietary Lease: With respect to any Cooperative Unit, a lease
or
occupancy agreement between a Cooperative
Corporation and a holder of related
Cooperative Shares.
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Purchase Price: The price paid on the related Closing Date by
the
Purchaser to the Seller pursuant to this
Agreement in exchange for the Mortgage
Loans included in the related Mortgage Loan
Package, as calculated pursuant to
Section 4 and the related Purchase Price
and Terms Agreement.
Purchase Price and Terms Agreement: With respect to each purchase
of a
Mortgage Loan Package hereunder, that
certain letter agreement by and between
the Seller and the Purchaser, prepared by
the Purchaser substantially identical
to the form delivered in connection with
the purchase and sale of the Mortgage
Loans on the initial Closing Date
hereunder, setting forth the general terms,
cond itions and portfolio characteristics
for each Mortgage Loan Package to be
purchased hereunder as of the related
Closing Date.
Purchase Price Percentage: For each Mortgage Loan included in a
Mortgage Loan Package, the percentage of
par set forth in the related Purchase
Price and Terms Agreement that is used to
calculate the Purchase Price of the
Mortgage Loans included in such Mortgage
Loan Package.
Purchaser: The Person listed as such in the initial paragraph of
this
Agreement, together with its successors and
assigns as permitted under the terms
of this Agreement.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related
Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged
Property or in any loan made on the
security thereof, whose compensation is not
affected by the approval or
disapproval of the related Mortgage Loan
and who met the minimum qualifications
of Fannie Mae or Freddie Mac and satisfied
the requirements of Title XI of
FIRREA.
Qualified Depository: A deposit account or accounts maintained with
a
federal or state chartered depository
institution the deposits in which are
insured by the FDIC to the applicable
limits and the long-term unsecured debt
obligations of which (or, in the case of a
depository institution that is a
subsidiary of a holding company, the
long-term unsecured debt obligations of
such holding company) are rated AA by
Standard & Poor's Ratings Group or Aa by
Moody's Investors Service, Inc. (or a
comparable rating if another rating agency
is specified by the Purchaser by written
notice to the Seller) at the time any
deposits are held on deposit therein.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the related Cooperative
Corporation and the originator of such
Mortgage Loan to establish the rights of
such originator in the related
Cooperative Property.
Record Date: The close of business of the last Business Day of
the
month preceding the month of the related
Remittance Date.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which
were
not used to purchase the related Mortgaged
Property.
Remittance Date: The 18th day (or if such 18th day is not a
Business
Day, the first Business Day immediately
following such 18th day) of any month,
beginning with the First Remittance
Date.
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REO Disposition: The final sale by the Servicer of an REO
Property.
REO Disposition Proceeds: All amounts received with respect to an
REO
Disposition pursuant to Subsection
11.13.
REO Property: A Mortgaged Property acquired by the Servicer
through
foreclosure or deed in lieu of foreclosure,
as described in Subsection 11.13.
Repurchase Price: With respect to any Mortgage Loan, an amount
equal to
(A) the Stated Principal Balance of such
Mortgage Loan as of the date of
repurchase plus (B) interest on such Stated
Principal Balance at the Mortgage
Loan Remittance Rate from and including the
last Due Date through which interest
has been paid on behalf of the Mortgagor or
advanced by the Servicer to the day
prior to such date of repurchase, less
amounts received in respect of such
repurchased Mortgage Loan which are being
held in the Custodial Account for
distribution in connection with such
Mortgage Loan.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two-
to four-family dwelling, (iii) a
one-family dwelling unit in a condominium
project or (iv) a one-family dwelling
in a planned unit development, except as
set forth in the related Purchase Price
and Terms Agreement, none of which is a
Cooperative Property, mobile home or
manufactured home.
Securities: The securities issued in connection with a
Securitization
evidencing beneficial ownership interests
in a trust the assets of which include
the Mortgage Loans.
Securitization: The transfer of the Mortgage Loans to a trust
formed as
part of a publicly issued and/or privately
placed, rated securitization,
including the issuance of the related
Securities.
Security Agreement: With respect to any Cooperative Loan, the
agreement
between the owner of the related
Cooperative Shares and the originator of the
related Mortgage Note that defines the
terms of the security interest in such
Cooperative Shares and the related
Proprietary Lease.
Seller: Bank of America, National Association, a national
banking
association, or its successor in interest
or any successor to the Seller under
this Agreement appointed as herein
provided.
Servicer: Bank of America, National Association, a national
banking
association, or its successor in interest
or any successor to the Servicer under
this Agreement appointed as herein
provided.
Servicing Advances: All customary, reasonable and necessary
out-of-pocket costs and expenses incurred
in the performance by the Servicer of
its servicing obligations, including, but
not limited to, the cost of (a) the
preservation, restoration and protection of
the Mortgaged Property, (b) any
enforcement or judicial proceedings,
including foreclosures, (c) the management
and liquidation of the Mortgaged Property
if the Mortgaged Property is acquired
in satisfaction of the Mortgage, and (d)
payments made by the Servicer with
respect to a Mortgaged Property pursuant to
Subsection 11.08.
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<PAGE>
Servicing Fee: With respect to each Mortgage Loan, the amount of
the
annual fee the Purchaser shall pay to the
Servicer, which shall, for each month,
be equal to one-twelfth of the product of
(i) the applicable Servicing Fee Rate
and (ii) the Stated Principal Balance of
such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of
the same principal amount and period
respecting which any related interest
payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the
Servicing Fee is limited to, and
payable solely from, the interest portion
(including recoveries with respect to
interest from Liquidation Proceeds and
other proceeds, to the extent permitted
by Subsection 11.05) of related Monthly
Payments collected by the Servicer, or
as otherwise provided under Subsection
11.05.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum
rate set forth on the related Mortgage Loan
Schedule, or if not specified
thereon, in the related Purchase Price and
Terms Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and
servicing of the Mortgage Loans whose
name appears on a list of servicing
officers furnished to the Purchaser by the
Servicer, as such list may be amended from
time to time.
Standard & Poor's: Standard & Poor's Rating Service, a
division of the
McGraw Hill Companies, Inc., or any
successor thereto.
Stated Principal Balance: As to each Mortgage Loan as to any date
of
determination, (i) the principal balance of
the Mortgage Loan at the related
Cut-off Date after giving effect to the
principal portion of any Monthly
Payments due on or before such date,
whether or not received, as well as any
Principal Prepayments received before such
date, minus (ii) all amounts
previously distributed to the Purchaser
with respect to the Mortgage Loan
representing payments or recoveries of
principal, or advances in lieu thereof.
Substitute Mortgage Loan: A mortgage loan substituted by the Seller
for
a Deleted Mortgage Loan which must, on the
date of such substitution, (i) have a
Stated Principal Balance, after deduction
of the principal portion of the
Monthly Payment due in the month of
substitution, not in excess of, and not
materially greater or less than, the Stated
Principal Balance of the Deleted
Mortgage Loan; (ii) have a Mortgage
Interest Rate, Gross Margin, Initial Rate
Cap, Periodic Rate Cap/Floor and Lifetime
Rate Cap equal to that of the Deleted
Mortgage Loan; (iii) have a Loan-to-Value
Ratio not higher than that of the
Deleted Mortgage Loan; (iv) have a
remaining term to maturity not greater than
(and not more than one year less than) that
of the Deleted Mortgage Loan; (v)
comply with each representation and
warranty set forth in Subsection 7.01; (vi)
be current in the payment of principal and
interest; and (vii) be secured by a
Mortgaged Property of the same type and
occupancy status as secured the Deleted
Mortgage Loan.
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<PAGE>
Total Covered Amount: With respect to any BPP Mortgage Loan,
the
outstanding principal balance of the
Mortgage Loan cancelled pursuant to the
terms of the related BPP Addendum upon the
accidental death of the related
Mortgagor.
Transfers: As defined in Section 28.
Underwriting Guidelines: The underwriting guidelines of the
Seller
attached hereto as Exhibit 3, as may be
updated and incorporated into Exhibit 3
from time to time by providing such updates
to the Purchaser; provided, however,
any such updates shall apply to the
Mortgage Loans in the related Mortgage Loan
Package which are subject to purchases and
sales occurring after such updates.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third
party, which sale or transfer is not
an Agency Transfer or a Securitization.
SECTION 2. PURCHASE AND CONVEYANCE.
On each related Closing Date, the Seller, simultaneously with
the
execution and delivery of the related
Acknowledgment and Conveyance Agreement,
in exchange for the payment of the
applicable Purchase Price by the Purchaser,
receipt of which is hereby acknowledged,
hereby sells, transfers, assigns, sets
over and conveys to the Purchaser, without
recourse, but subject to the terms of
this Agreement, all of its rights, title
and interest in and to the Mortgage
Loans in the related Mortgage Loan Package
having an aggregate principal balance
on the related 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 Loan Package accepted by the
Purchaser on the related Closing Date,
together with the related Mortgage Files
and all rights and obligations arising
under the documents contained therein, but
excluding any BPP Fees.
With respect to each Mortgage Loan purchased, the Purchaser shall
own
and be entitled to receive: (a) all
scheduled principal due after the applicable
Cut-off Date, (b) all other payments and/or
recoveries of principal collected on
or after the applicable Cut-off Date
(provided, however, that all scheduled
payments of principal due on or before the
applicable Cutoff Date and collected
by the Servicer after the applicable
Cut-off Date shall belong to the Seller),
(c) all payments of interest on the
Mortgage Loans net of the Servicing Fee
(minus that portion of any such interest
payment that is allocable to the period
prior to the applicable Cut-off Date) and
(d) all BPP Mortgage Loan Payments
payable by the Servicer pursuant to
Subsection 11.27 with respect to scheduled
principal and interest due after the
applicable Cut-off Date.
SECTION 3. MORTGAGE LOAN SCHEDULE.
The Seller shall
deliver the Mortgage Loan Schedule (which will be
annexed to the related Acknowledgment and
Conveyance Agreement) to the Purchaser
at least two (2) Business Days prior to the
related Closing Date.
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<PAGE>
SECTION 4. PURCHASE PRICE.
The Purchase Price shall be the percentage of par as stated in
the
related Purchase Price and Terms Agreement
(subject to the adjustments as
provided therein), multiplied by the
aggregate Cut-off Date Principal Balance of
the Mortgage Loans included in the related
Mortgage Loan Package, plus accrued
interest on the aggregate scheduled
principal balance of the Mortgage Loan
Package at the weighted average Mortgage
Loan Remittance Rate from the related
Cut-off Date through the day immediately
prior to the related Closing Date,
inclusive. 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, after application of
scheduled payments of principal due on or
before the related Cut-off Date, whether or
not collected. Subject to
satisfaction or waiver of the conditions
set forth in Section 8 hereof, the
Purchaser shall pay the Purchase Price to
the Seller by 4:00 p.m. Eastern Time
on the related Closing Date. Such payment
shall be made to the account
designated by the Seller by wire transfer
of immediately available funds.
SECTION 5. EXAMINATION OF MORTGAGE FILES.
In addition to any rights granted to the Purchaser hereunder to
underwrite the Mortgage Loans and review
the Mortgage Loan Documents prior to
the related Closing Date, the Seller shall,
prior to the related Closing Date,
make the Mortgage Files available to the
Purchaser for examination at the
Seller's offices. Such examination may be
made by the Purchaser or its designee,
at its expense, at any reasonable time
before the related Closing Date. Such
underwriting by the Purchaser or its
designee shall not impair or diminish the
rights of the Purchaser or any of its
successors under this Agreement with
respect to a breach of the representations
and warranties contained in this
Agreement. The fact that the Purchaser or
its designee has conducted or has
failed to conduct any partial or complete
examination of the Mortgage Files
shall not affect the Purchaser's or any of
its successors' rights to demand
repurchase or other relief or remedy
provided for in this Agreement.
SECTION 6. DELIVERY OF MORTGAGE LOAN DOCUMENTS.
Subsection 6.01 Possession of Mortgage Files.
The contents of each Mortgage File required to be retained by
the
Servicer to service the Mortgage Loans
pursuant to this Agreement and thus not
delivered to the Purchaser or its designee
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 each such
Mortgage File is at the will of the
Purchaser for the sole purpose of
facilitating servicing of the Mortgage Loans
pursuant to this Agreement, and such
retention and possession by the Servicer
shall be in a custodial capacity only. The
ownership of each Mortgage Note, each
Mortgage and the contents of each Mortgage
File is vested in the Purchaser and
the ownership of all records and documents
with respect to the related Mortgage
Loan prepared by or which come into the
possession of the Servicer shall
immediately vest in the Purchaser and shall
be retained and maintained, in
trust, by the Servicer at the will of the
Purchaser in such custodial capacity
only. The Mortgage File retained by the
Servicer with respect to each Mortgage
Loan pursuant to this Agreement shall be
appropriately identified in the
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<PAGE>
Servicer's computer system to reflect
clearly the ownership of such related
Mortgage Loan by the Purchaser. The
Servicer shall release from its custody the
contents of any Mortgage File retained by
it only in accordance with this
Agreement, except when such release is
required in connection with a repurchase
of any such Mortgage Loan pursuant to
Subsection 7.03 of this Agreement or if
required under applicable law or court
order. The Servicer shall deliver to the
Purchaser copies of any documents in a
Mortgage File reasonably requested by the
Purchaser within two (2) days after the
date of such request at the expense of
the Purchaser.
Subsection 6.02 Books and Records.
All rights arising out of the Mortgage Loans including, but not
limited
to, all funds received by the Servicer
after the Cut-off Date on or in
connection with a Mortgage Loan as provided
in Section 2 shall be vested in the
Purchaser, subject to this Agreement;
provided, however, that all such funds
received on or in connection with a
Mortgage Loan as provided in Section 2 shall
be received and held by the Servicer in
trust for the benefit of the Purchaser
as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
As more fully set forth in Section 20, it is the express intention
of
the parties that the transactions
contemplated by this Agreement be, and be
construed as, a sale of the Mortgage Loans
by the Seller and not a pledge of the
Mortgage Loans by the Seller to the
Purchaser to secure a debt or other
obligation of the Seller. Consequently, the
sale of each Mortgage Loan shall be
reflected as a purchase on the Purchaser's
business records, tax returns and
financial statements, and as a sale of
assets on the Seller's business records,
tax returns and financial statements.
Subsection 6.03 Delivery of Mortgage Loan Documents.
With respect to each Mortgage Loan, the Seller shall deliver
and
release to the Purchaser, its designee or
the Custodian, (a) at least five (5)
Business Days prior to the related Closing
Date (or such later date as the
Purchaser may reasonably request), the
original Mortgage Note endorsed in blank
and the original Assignment of Mortgage
assigned in blank and (b) the other
Mortgage Loan Documents no later than sixty
(60) days following the related
Closing Date, subject to the following
paragraph. All documents shall be
original documents or, in the case of
Mortgage Loan Documents delivered for
recording, either the original recorded
documents or clerk-certified copies.
In the event that such original or copy of any Mortgage Loan
Document
is not so delivered to the Purchaser or its
designee within one hundred eighty
(180) days following the related Closing
Date, and in the event that the Seller
does not cure such failure within sixty
(60) days after 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 a
price and in the manner specified in
Subsection 7.03. The foregoing repurchase
obligation shall not apply in the event the
Seller cannot cause the Servicer to
deliver such original or clerk-certified
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 the Seller
shall cause the Servicer instead to
deliver a recording receipt of such
recording office or, if such recording
receipt is not available, an Officer's
Certificate of a servicing officer of the
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<PAGE>
Servicer, confirming that such document has
been accepted for recording and that
the Servicer shall immediately deliver such
document upon receipt; and, provided
further, that if the Seller cannot cause
the Servicer to deliver such original
or clerk-certified copy of any document
submitted for recordation to the
appropriate public recording office within
the specified time for any reason
within one hundred eighty (180) days after
receipt of written notification of
such failure from the Purchaser, the Seller
shall repurchase the related
Mortgage Loan at the price and in the
manner specified in Subsection 7.03.
To the extent received by it, the Servicer shall promptly forward
to
the Purchaser, or its designee, original
documents evidencing an assumption,
modification, consolidation or extension of
any Mortgage Loan entered into in
accordance with this Agreement.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS; REMEDIES
FOR
BREACH.
Subsection 7.01 Representations and Warranties Regarding
Individual
Mortgage Loans.
The Seller and, solely if specified below, the Servicer, hereby
represent and warrant to the Purchaser
that, as to each Mortgage Loan included
in the related Mortgage Loan Package, as of
the related Closing Date or such
other date specified herein:
(a) The information set forth in the Mortgage Loan Schedule
annexed to the related Acknowledgment and Conveyance Agreement and
the
related Mortgage Loan Documents is true, correct and complete in
all
material respects.
(b) There are no defaults by the Seller, the Servicer or any
prior originator in complying with the terms of the Mortgage, and
all
taxes, ground rents, governmental assessments, insurance
premiums,
leasehold payments, water, sewer and municipal charges which
previously
became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed
item
which remains unpaid and which has been assessed but is not yet due
and
payable.
(c) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except
by
written instruments which have been recorded in the applicable
public
recording office required by law or if necessary to maintain the
lien
priority of the Mortgage, and which have been delivered to the
Purchaser; the substance of any such waiver, alteration or
modification
has been approved by the insurer under the Primary Mortgage
Insurance
Policy, if any, by the title insurer, to the extent required by
the
related policy, and is reflected on the related Mortgage Loan
Schedule.
No other instrument of waiver, alteration or modification has
been
executed, and no Mortgagor has been released, in whole or in
part,
except in connection with an assumption agreement approved by
the
insurer under the Primary Mortgage Insurance Policy, if any, by
the
title insurer, to the extent required by the policy, and which
assumption agreement is a part of the Mortgage File and is
reflected on
the related Mortgage Loan Schedule.
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<PAGE>
(d) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense,
including,
without limitation, the defense of usury, nor will the operation of
any
of the terms of the Mortgage Note and the Mortgage, or the exercise
of
any right thereunder, render either the Mortgage Note or the
Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including,
without
limitation, the defense of usury, and no such right of
rescission,
set-off, counterclaim or defense has been asserted with respect
thereto; and the Mortgagor was not a debtor in any state or
federal
bankruptcy or insolvency proceeding at the time the Mortgage Loan
was
originated.
(e) All buildings or other customarily insured improvements
upon the Mortgaged Property are insured by an insurer generally
acceptable to Fannie Mae, Freddie Mac and prudent mortgage
lending
institutions against loss by fire, hazards of extended coverage
and
such other hazards as are provided for in the Fannie Mae Guides
and
Freddie Mac Guide as well as all additional requirements set
forth
herein, pursuant to an insurance policy conforming to the
requirements
of Customary Servicing Procedures and providing coverage in an
amount
equal to the lesser of (i) the full insurable value of the
Mortgaged
Property or (ii) the outstanding principal balance owing on the
Mortgage Loan. If the Mortgaged Property is a condominium unit, it
is
included under the coverage afforded by a blanket policy. All
such
insurance policies are in full force and effect and contain a
standard
mortgagee clause naming the originator of the Mortgage Loan,
its
successors and assigns as mortgagee and all premiums thereon have
been
paid. If the Mortgaged Property is in an area identified on a
flood
hazard map or flood insurance rate map issued by the Federal
Emergency
Management Agency as having special flood hazards (and such
flood
insurance has been made available), a flood insurance policy
meeting
the requirements of the current guidelines of the Federal
Insurance
Administration is in effect which policy conforms to the
requirements
of Fannie Mae or Freddie Mac. The Mortgage obligates the
Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost
and
expense, and on the Mortgagor's failure to do so, authorizes the
holder
of the Mortgage to maintain such insurance at the Mortgagor's cost
and
expense and to seek reimbursement therefor from the Mortgagor.
(f) 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, fair housing or disclosure laws applicable to the
origination and servicing of the Mortgage Loans have been
complied
with; the Servicer maintains, and shall maintain, evidence of
such
compliance as required by applicable law or regulation and shall
make
such evidence available for inspection at the Servicer's office
during
normal business hours upon reasonable advance notice.
(g) The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part (other than as
to
Principal Prepayments in full which may have been received on or
after
the related Cut-off Date and prior to the related Closing Date),
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 satisfaction, cancellation,
subordination,
rescission or release. Neither the Seller nor the Servicer has
waived
the performance by the Mortgagor of any action, if the
Mortgagor's
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<PAGE>
failure to perform such action would cause the Mortgage Loan to be
in
default, and neither the Seller nor the Servicer has waived any
default.
(h) The Mortgage is a valid, existing, perfected and
enforceable first lien on the Mortgaged Property, including all
improvements on the Mortgaged Property, free and clear of all
adverse
claims, liens and encumbrances having priority over the lien of
the
Mortgage, subject only to (i) the lien of current real property
taxes
and assessments not yet due and payable, (ii) covenants, conditions
and
restrictions, rights of way, easements and other matters of the
public
record as of the date of recording being acceptable to mortgage
lending
institutions generally and either (A) specifically referred to in
the
lender's
title insurance policy delivered to the originator of the
Mortgage Loan or (B) which do not adversely affect the Appraised
Value
of the Mortgaged Property and (iii) other matters to which like
properties are commonly subject which do not individually or in
the
aggregate materially interfere with the benefits of the
security
intended to be provided by 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, existing and enforceable first lien and first priority
security interest on the property described therein and the Seller
has
the full right to sell and assign the same to the Purchaser.
With
respect to any Cooperative Loan, the Security Agreement 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 Corporation for
unpaid
assessments representing the Mortgagor's pro rata share of the
related
residential Cooperative 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.
(i) The Mortgage Note, the related Mortgage and, in the case
of a Cooperative Loan, the related Security Agreement, are original
and
genuine and each is the legal, valid and bind ing obligation of
the
maker thereof, enforceable in all respects in accordance with its
terms
except as enforceability may be limited by (i) bankruptcy,
insolvency,
liquidation, receivership, moratorium, reorganization or other
similar
laws affecting the enforcement of the rights of creditors and
(ii)
general principles of equity, whether enforcement is sought in
a
proceeding in equity or at law and the Seller has taken all
action
necessary to transfer such rights of enforceability to the
Purchaser.
(j) All parties to the Mortgage Note, the Mortgage and, in the
case of a Cooperative Loan, the related Security Agreement, had
the
legal capacity to enter into the Mortgage Loan and to execute
and
deliver the Mortgage Note and the Mortgage, and the Mortgage Note
and
the Mortgage have been duly and properly executed by such
parties.
Either the Mortgagor is a natural person or the related co-borrower
or
guarantor is a natural person.
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<PAGE>
(k) The proceeds of the Mortgage Loan have been fully
disbursed to or for the account of the Mortgagor and there is
no
obligation for the Mortgagee to advance additional funds 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 have
been
paid, and the Mortgagor is not entitled to any refund of any
amounts
paid or due to the Mortgagee pursuant to the Mortgage Note or
Mortgage.
(l) The Seller and all other 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) in compliance with any and all
applicable "doing business" and licensing requirements of the laws
of
the state wherein the Mortgaged Property is located.
(m) With respect to each Mortgage Loan, (i) the Mortgage Loan
is covered by an ALTA or CLTA lender's title insurance policy,
acceptable to Fannie Mae or Freddie Mac, issued by a title
insurer
acceptable to Fannie Mae or Freddie Mac and qualified to do
business in
the jurisdiction where the Mortgaged Property is located,
insuring
(subject to the exceptions contained in (h)(i), (ii) and (iii)
above)
the Seller, its successors and assigns as to the first priority
lien of
the Mortgage in the original principal amount of the Mortgage Loan
and,
with respect to any Adjustable Rate Mortgage Loan, against any loss
by
reason of the invalidity or unenforceability of the lien resulting
from
the provisions of the Mortgage providing for adjustment in the
Mortgage
Interest Rate or Monthly Payment or (ii) in the case of any
Mortgage
Loan secured by a Mortgaged Property located in a jurisdiction
where
title insurance policies are generally not available, an opinion
of
counsel of the type customarily rendered in such jurisdiction in
lieu
of title insurance is instead received. For each Mortgage Loan
covered
by a title insurance policy, (i) the Seller and its successors
and
assigns are the sole insureds of such lender's title insurance
policy,
and such lender's title insurance policy is in full force and
effect
and will be in full force and effect upon the consummation of
the
transactions contemplated by this Agreement and will inure to
the
benefit of the Purchaser and its assigns without any further act
and
(ii) no claims have been made under such lender's title
insurance
policy, and the Seller has not done, by act or omission, anything
which
would impair the coverage of such lender's title insurance
policy.
(n) There is no default, breach, violation or event of
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 permitting acceleration, and neither the Seller
nor
the Servicer has waived any default, breach, violation or event
permitting acceleration.
(o) There are no, and, as of the related Closing Date, neither
the Seller nor the Servicer has received any notice of any,
mechanics'
or similar liens or claims filed for work, labor or material (and
no
rights are outstanding that under law could give rise to such
lien)
affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage.
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<PAGE>
(p) All improvements which were considered in determining the
Appraised Value of the related 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.
(q) The Mortgage Loan was originated by a commercial bank or
similar banking institution which is supervised and examined by
a
federal or state authority, or by a mortgagee approved by the
Secretary
of HUD.
(r) Principal payments on the Mortgage Loan commenced no more
than sixty (60) days after the proceeds of the Mortgage Loan
were
disbursed. The Mortgage Loans identified on the related Mortgage
Loan
Schedule have an original term to maturity of not more than thirty
(30)
years, with interest payable in arrears on the first day of the
month.
As to each Adjustable Rate Mortgage Loan, on each applicable
Adjustment
Date, the Mortgage Interest Rate will be adjusted to equal the sum
of
the Index plus the applicable Gross Margin, rounded up or down
as
provided in the Mortgage Note; provided, however, that the
Mortgage
Interest Rate will not increase or decrease by more than the
Initial
Rate Cap on the first Adjustment Date or the Periodic Rate
Cap/Floor on
any subsequent Adjustment Date, and will in no event exceed the
Lifetime Rate Cap. Each Mortgage Note evidencing a Mortgage Loan
that
is not both an Adjustable Rate Mortgage Loan and a Balloon
Mortgage
Loan requires a Monthly Payment which is sufficient to amortize
the
original principal balance fully over the original term thereof and
to
pay interest at the related Mortgage Interest Rate. Each Mortgage
Note
evidencing an Adjustable Rate Mortgage Loan that is not a
Balloon
Mortgage Loan requires a Monthly Payment which is sufficient (i)
during
the period prior to the first adjustment to the Mortgage Interest
Rate,
to amortize the original principal balance fully over the original
term
thereof and to pay interest at the related Mortgage Interest Rate,
and
(ii) during the period following each Adjustment Date, to amortize
the
outstanding principal balance fully as of the first day of such
period
over the then remaining term of such Mortgage Note and to pay
interest
at the related Mortgage Interest Rate. No Mortgage Note evidencing
an
Adjustable Rate Mortgage Loan permits negative amortization.
Interest
on the Mortgage Note is calculated on the basis of a 360day
year
consisting of twelve 30-day months. Unless otherwise indicated on
the
Mortgage Loan Schedule, no Mortgage Loan is a Convertible
Mortgage
Loan.
(s) There
is no proceeding pending or, to the Seller's
knowledge, threatened for the total or partial condemnation of
the
Mortgaged Property and such property is in good repair and 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.
(t) The Mortgage and related Mortgage Note contain 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. To the
best
21
<PAGE>
of the Seller's knowledge, following the date of origination of
the
Mortgage Loan, the Mortgaged Property has not been subject to
any
bankruptcy proceeding or foreclosure proceeding and the Mortgagor
has
not filed for protection under applicable bankruptcy laws. There is
no
homestead or other exemption or right available to the Mortgagor or
any
other person 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.
(u) The Mortgage Note and Mortgage are on forms acceptable to
Fannie Mae or Freddie Mac.
(v) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the
Mortga
ged Property and the security interest of any applicable
security
agreement or chattel mortgage referred to in (h) above.
(w) The Mortgage File contains an appraisal of the related
Mortgaged Property, in a form acceptable to Fannie Mae or Freddie
Mac,
and such appraisal complies with the requirements of FIRREA, and
was
made and signed, prior to the approval of the Mortgage Loan
application, by a Qualified Appraiser.
(x) In the event the Mortgage constitutes a deed of trust, a
trustee, 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.
(y) 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, nor does it contain any "buydown"
provision which is currently in effect.
(z) 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 mortgage e
thereunder.
(aa) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of mortgage
loans
of the same type as the Mortgage Loan and rescission materials
required
by applicable law if the Mortgage Loan is a Re financed Mortgage
Loan
and has acknowledged receipt of such materials to the extent
required
by applicable law and such documents will remain in the Mortgage
File.
(bb) Each Mortgage Loan with an LTV at origination in excess
of 80%, if any, will be subject to a Primary Mortgage Insurance
Policy,
issued by an insurer acceptable to Fannie Mae or Freddie Mac at
the
time of origination, which insures that portion of the Mortgage
Loan in
excess of the portion of the Appraised Value of the Mortgaged
Property
as required by Fannie Mae and Freddie Mac guidelines. All
provisions of
such Primary Mortgage Insurance Policy have been and are being
complied
22
<PAGE>
with, such policy is in full force and effect, and all premiums
due
thereunder have been paid. Any Mortgage subject to any such
Primary
Mortgage Insurance Policy obligates the Mortgagor thereunder to
maintain such
insurance and to pay all premiums and charges in
connection therewith at least until the LTV of such Mortgage Loan
is
reduced to less than 80%. The Mortgage Interest Rate for the
Mortgage
Loan does not include any such insurance premium. No Mortgage
Loan
requires payment of such premiums, in whole or in part, by the
Purchaser.
(cc) As of the date of origination of the Mortgage Loan, (i)
the Mortgaged Property is lawfully occupied under applicable law,
(ii)
all inspections, licenses and certificates required to be made
or
issued with respect to all occupied portions of the Mortgaged
Property
and, with respect to the use and occupancy of the same, including
but
not limited to certificates of occupancy, have been made or
obtained
from the appropriate authorities and (iii) no improvement located
on or
part of the Mortgaged Property is in violation of any zoning law
or
regulation.
(dd) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in
which
the Mortgaged Property is located.
(ee) All payments required to be made prior to the related
Cut-off Date for such Mortgage Loan under the terms of the
Mortgage
Note have been made, the Mortgage Loan has not been dishonored,
there
are no material defaults under the terms of the Mortgage Loan and
no
Mortgage Loan has been thirty (30) days or more delinquent in
the
twelve (12) month period immediately prior to the related Cut-off
Date.
(ff) None of the Seller, the Servicer or any prior originator
or servicer has advanced funds, or induced, solicited or
knowingly
received any advance from any party other than the Mortgagor,
directly
or indirectly, for the payment of any amount due under the
Mortgage
Loan.
(gg) With respect to each Mortgage Loan, the Seller is in
possession of a complete Mortgage File except for the documents
which
have been delivered to the Purchaser or which have been submitted
for
recording and not yet returned.
(hh) Immediately prior to the payment of the related Purchase
Price, the Seller was the sole owner and holder of the Mortgage
Loans
and the indebtedness evidenced by the Mortgage Note. The
Mortgage
Loans, including
the Mortgage Note and the Mortgage, were not assigned
or pledged by the Seller and the Seller had good and marketable
title
thereto, and the Seller had full right to transfer and sell the
Mortgage Loans to the Purchaser free and clear of any
encumbrance,
participation interest, lien, equity, pledge, claim or security
interest and had full right and authority subject to no interest
or
participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans. Following the sale of
the
Mortgage Loans, 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 monitor, possess and control the Mortgage Loan except
in
connection with the servicing of the Mortgage Loan by the Servicer
as
set forth in this Agreement. After the related Closing Date,
neither
23
<PAGE>
the Seller nor the Servicer will have any right to modify or alter
the
terms of the sale of the Mortgage Loans and neither the Seller nor
the
Servicer will have any obligation or right to repurchase the
Mortgage
Loans, except as provided in this Agreement or as otherwise agreed
to
by the Seller, the Servicer and the Purchaser.
(ii) Any future advances made prior to the related 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
Fannie
Mae and Freddie Mac. The consolidated principal amount does not
exceed
the original principal amount of the Mortgage Loan.
(jj) The Mortgage Loan was underwritten in accordance with the
Underwriting Guidelines in effect at the time of origination
with
exceptions thereto exercised in a reasonable manner, which
exceptions
will have no material adverse effects on the Purchaser.
(kk) With respect to a Mortgage Loan that is not a Cooperative
Loan and is 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 parcel of real property
with a
detached single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit, or an
individual unit in a planned unit development; provided, however,
that
any condominium project or planned unit development generally
conforms
with the Underwriting Guidelines regarding such dwellings (or
underlying Cooperative Property, in the case of a Cooperative
Loan),
and except as set forth in the related Mortgage Loan Schedule,
no
residence or dwelling is a mobile home or manufactured dwelling. As
of
the date of origination, no portion of the Mortgaged Property was
used
for commercial purposes and, to the Seller's knowledge, 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.
(ll) If the Mortgaged Property is a condominium unit or a
planned unit development (other than a de minimis planned unit
development) such condominium or planned unit development project
meets
Fannie Mae or Freddie Mac eligibility requirements for sale to
Fannie
Mae or Freddie Mac, as the case may be, or is located in a
condominium
or planned unit development project which has received Fannie Mae
or
Freddie Mac
project approval or as to which Fannie Mae's and Freddie
Mac's eligibility requirements have been waived.
24
<PAGE>
(mm) The Seller used no adverse selection procedures in
selecting the Mortgage Loan from among the outstanding first
lien,
residential mortgage loans owned by it which were available for
inclusion in the Mortgage Loans.
(nn) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(oo) With respect to each Mortgage whe re a lost note
affidavit has been delivered to the Purchaser or its designee in
place
of the related Mortgage Note, the related Mortgage Note is no
longer in
existence. Each such lost note affidavit is substantially in the
form
attached hereto as Exhibit 5.
(pp) No fraud was committed by the Seller or the Servicer or,
to the Seller's or the Servicer's knowledge, any other person
in
connection with the origination of the Mortgage Loan.
(qq) The origination practices used by the Seller and the
collection and servicing practices used by the Servicer with
respect to
each Mortgage Loan have been in all respects legal, proper, prudent
and
customary in the mortgage origination and servicing industry and
the
collection and servicing practices used by the Servicer have
been
acceptable to Fannie Mae and Freddie Mac.
(rr) The Mortgagor is not in bankruptcy and is not insolvent
and neither the Seller nor the Servicer have any knowledge of
any
circumstances or condition with respect to the Mortgage, the
Mortgaged
Property, the Mortgago r or the Mortgagor's credit standing that
could
reasonably be expected to cause investors to regard the Mortgage
Loan
as an unacceptable investment, cause the Mortgage Loan to
become
delinquent or materially adversely affect the value or the
marketability of the Mortgage Loan.
(ss) The Mortgagor has not notified the Seller or the
Servicer, and neither the Seller nor the Servicer has knowledge of
any
relief requested by the Mortgagor under the Servicemembers Civil
Relief
Act.
(tt) No Mortgage Loan was made in connection with (i) the
construction or rehabilitation of a Mortgaged Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property.
(uu) To the best of the Seller's knowledge, there exists no
violation of any local, state or federal environmental law, rule
or
regulation in respect of the Mortgaged Property which violation has
had
or would have a material adverse effect on the market value of
such
Mortgaged Property. There is no pending action or proceeding
directly
involving any Mortgaged Property of which the Seller or the
Servicer is
aware in which compliance with any environmental law, rule or
regulation is an issue.
(vv) No action, inaction, or event has occurred and no state
of affairs 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, Primary Mortgage
Insurance
25
<PAGE>
Policy (if any) 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 the Servicer or any designee of the
Seller
or the Servicer or any corporation in which the Seller, the
Servicer or
any officer, director, or employee of the Seller or the Servicer
had a
financial interest at the time of placement of such insurance.
(ww) With respect to any ground lease to which a Mortgaged
Property may be subject: (A) the Mortgagor is the owner of a valid
and
subsisting leasehold interest under such ground lease; (B) such
ground
lease is in full force and effect, unmodified and not supplemented
by
any writing or otherwise; (C) all rent, additional rent and
other
charges reserved therein have been fully paid to the extent payable
as
of
the related Closing Date; (D) the Mortgagor enjoys the quiet
and
peaceful possession of the leasehold estate; (E) the Mortgagor is
not
in default under any of the terms of such ground lease, and, to
the
best of the Seller's knowledge, there are no circumstances which,
with
the passage of time or the giving of notice, or both, would result
in a
default under such ground lease; (F) the lessor under such ground
lease
is not in default under any of the terms or provisions of such
ground
lease on the part of the
