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EXHIBIT 99.4
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MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
MERRILL LYNCH MORTGAGE LENDING, INC.
Purchaser
COUNTRYWIDE HOME LOANS, INC.
Seller and Servicer
Dated as of February 1, 2007
Fixed and Adjustable Rate Mortgage Loans
First Liens/Second Liens
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TABLE OF CONTENTS
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SECTION 1.
Definitions..................................................
1
SECTION 2. Agreement
to Purchase........................................ 19
SECTION 3. Mortgage
Loan Schedules...................................... 19
SECTION 4. Purchase
Price............................................... 19
SECTION 5. Examination
of Mortgage Files................................ 19
SECTION 6. Conveyance
from Seller to Initial Purchaser.................. 20
SECTION 7.
Representations, Warranties and Covenants of the Seller:
Remedies for Breach..........................................
22
SECTION 8.
Closing......................................................
35
SECTION 9. Closing
Documents............................................ 36
SECTION 10.
Costs........................................................
36
SECTION 11. Seller's Servicing
Obligations............................... 37
SECTION 12. Removal of Mortgage Loans from Inclusion under This
Agreement
Upon a Whole Loan Transfer or a Securitization Transaction on
One or More Reconstitution Dates.............................
37
SECTION 12A Compliance with Regulation
AB................................ 39
SECTION 13. The
Seller...................................................
51
SECTION 14.
Default......................................................
53
SECTION 15.
Termination..................................................
55
SECTION 16. Successor to the
Seller...................................... 55
SECTION 17. Financial
Statements......................................... 56
SECTION 18. Mandatory
Delivery........................................... 57
SECTION 19.
Notices......................................................
57
SECTION 20. Severability
Clause.......................................... 57
SECTION 21.
Counterparts.................................................
58
SECTION 22. Governing
Law................................................ 58
SECTION 23. Intention of the
Parties..................................... 58
SECTION 24. Successors and
Assigns....................................... 58
SECTION 25.
Waivers......................................................
59
SECTION 26.
Exhibits.....................................................
59
SECTION 27.
Nonsolicitation..............................................
59
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SECTION 28. General Interpretive
Principles.............................. 60
SECTION 29. Reproduction of
Documents.................................... 60
SECTION 30. Further
Agreements........................................... 60
SECTION 31. Protection of Confidential
Information....................... 60
SECTION 32.
Survival.....................................................
61
SECTION 33.
Conflicts....................................................
61
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EXHIBITS
EXHIBIT 1 SELLER'S
OFFICER'S CERTIFICATE
EXHIBIT 2
[RESERVED]
EXHIBIT 3 SECURITY
RELEASE CERTIFICATION
EXHIBIT 4 FORM OF
WARRANTY BILL OF SALE
EXHIBIT 5 CONTENTS OF
EACH MORTGAGE FILE
EXHIBIT 6 FORM OF
CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 7 FORM OF
ESCROW ACCOUNT CERTIFICATION
EXHIBIT 8 SERVICING
ADDENDUM
EXHIBIT 9 FORM OF
TRADE CONFIRMATION
EXHIBIT 10 ANNUAL CERTIFICATION
EXHIBIT 11 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
SCHEDULE I FINAL MORTGAGE LOAN SCHEDULE
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MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
This is a MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
(the
"Agreement"), dated as of February 1, 2007, by and between Merrill
Lynch
Mortgage Lending, Inc., having an office at 4 World Financial
Center, New York,
New York 10080 (the "Initial Purchaser", and the Initial Purchaser
or the
Person, if any, to which the Initial Purchaser has assigned its
rights and
obligations hereunder as Purchaser with respect to a Mortgage Loan
pursuant to
this Agreement, and each of their respective permitted successors
and assigns,
the "Purchaser") and Countrywide Home Loans, Inc., having an office
at 4500 Park
Granada, Calabasas, California 91302 (the "Seller").
WITNESSETH:
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to
time, from the
Seller, certain conventional fixed and adjustable rate residential
first lien
mortgage loans, (the "Mortgage Loans") as described herein on a
servicing-retained basis, and which shall be delivered in groups of
whole loans
on various dates as provided in the related Trade Confirmation
(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 Final Mortgage Loan
Schedule for
the related Mortgage Loan Package, which is to be annexed hereto on
each Closing
Date as Schedule I;
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 in a whole loan or
participation format or a
public or private mortgage-backed securities 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.
Adjustable Rate Mortgage Loan: A Mortgage Loan which provides for
the
adjustment of the Mortgage Interest Rate payable in respect
thereto.
Adjustment Date: With respect to each Adjustable Rate Mortgage
Loan,
the date set forth in the related Mortgage Note on which the
Mortgage Interest
Rate on such Adjustable Rate Mortgage Loan is adjusted in
accordance with the
terms of the related Mortgage Note.
Agency Transfer: The transfer or sale by the Purchaser of some or
all
of the Mortgage Loans to FNMA or FHLMC.
<PAGE>
Agreement: This Master Mortgage Loan Purchase and Servicing
Agreement
including all exhibits, schedules, amendments and supplements
hereto.
Appraised Value: With respect to any Mortgaged Property, the lesser
of
(i) the value thereof as determined by an appraisal made for the
originator of
the Mortgage Loan at the time of origination of the Mortgage Loan
by an
appraiser who met the minimum requirements of FNMA or FHLMC, and
(ii) the
purchase price paid for the related Mortgaged Property by the
Mortgagor with the
proceeds of the Mortgage Loan, provided, however, in the case of a
Refinanced
Mortgage Loan, such value of the Mortgaged Property is based solely
upon the
value determined by an appraisal made for the originator of such
Refinanced
Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan by an
appraiser who met the minimum requirements of FNMA or FHLMC.
Assignment of Mortgage: An individual 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 give record notice of the sale of the Mortgage to the
Purchaser.
Balloon Loan: A Mortgage Loan identified on the Mortgage Loan
Schedule
as a balloon mortgage loan.
Business Day: Any day other than a Saturday or Sunday, or a day
on
which banking and savings and loan institutions in the State of
California, or
the state in which the Seller's servicing operations are located,
or the State
of New York are authorized or obligated by law or executive order
to be closed.
Buydown Mortgage Loan: A Mortgage Loan in which buydown funds are
used
to pay a portion of the interest payable on the Mortgage Loan for a
specified
period of time.
Cash-Out Refinancing: A Refinanced Mortgage Loan the proceeds of
which
were in excess of the principal balance of any existing first
mortgage on the
related Mortgaged Property and related closing costs, and were used
to pay any
such existing first mortgage, related closing costs and subordinate
mortgages on
the related Mortgaged Property.
Closing Date: The date or dates on which the Purchaser from time
to
time shall purchase and the Seller from time to time shall sell to
the
Purchaser, the Mortgage Loans listed on the related Final Mortgage
Loan Schedule
with respect to the related Mortgage Loan Package.
Closing Documents: With respect to any Closing Date, the
documents
required pursuant to Section 9.
Code: The Internal Revenue Code of 1986, or any successor
statute
thereto.
Combined Loan-to-Value Ratio or CLTV: With respect to any
Mortgage
Loan, the fraction, expressed as a percentage, the numerator of
which is the sum
of (a) the original principal balance of the Mortgage Loan, plus
(b) the unpaid
principal balance of any related subordinate mortgage loan or loans
secured by
the Mortgaged Property, and the denominator of which is the
Appraised Value of
the related Mortgaged Property.
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Condemnation Proceeds: All awards, compensation and settlements
in
respect of a taking of all or part of a Mortgaged Property by
exercise of the
power of condemnation or the right of eminent domain.
Commission: The United States Securities and Exchange
Commission.
Convertible Mortgage Loan: A Mortgage Loan that by its terms
and
subject to certain conditions contained in the related Mortgage or
Mortgage Note
allows the Mortgagor to convert the adjustable Mortgage Interest
Rate on such
Mortgage Loan to a fixed Mortgage Interest Rate.
Credit Score: The credit score of the Mortgagor provided by an
organization providing credit scores at the time of the origination
of a
Mortgage Loan. If two credit scores are obtained, the Credit Score
shall be the
lower of the two credit scores. If three credit scores are
obtained, the Credit
Score shall be the middle of the three credit scores.
Custodial Account: One or more accounts created and maintained
pursuant to Exhibit 8, which accounts shall be held as a special
deposit by the
depository institution maintaining such accounts in a fiduciary
capacity,
separate and apart from its funds or general assets and shall not
be held in any
capacity that would create a debtor-creditor relationship between
the depository
institution maintaining the accounts and the Seller or
Purchaser.
Custodial Agreement: The agreement between the Initial Purchaser
and
the Custodian, governing the retention of the originals of the
Mortgage Loan
Documents.
Custodian: The custodian designated by the Initial Purchaser under
the
Custodial Agreement, or its successor in interest or assigns, or
any successor
to the Custodian under the Custodial Agreement.
Cut-off Date: The first day of the month in which the related
Closing
Date occurs or as otherwise set forth in the related Trade
Confirmation.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced
by a
Qualified Substitute Mortgage Loan.
Depositor: The depositor, as such term is defined in Regulation
AB,
with respect to any Securitization Transaction.
Determination Date: With respect to each Remittance Date, the
fifteenth (15th) day of the calendar month in which such Remittance
Date occurs
or, if such fifteenth (15th) day is not a Business Day, the
Business Day
immediately following such fifteenth (15th) day.
Due Date: The day of the calendar 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, the period
commencing 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.
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Eligible Account: A Custodial Account maintained with a
depository
institution whose deposits are insured by the Bank Insurance Fund
or the Savings
Association Insurance Fund of the FDIC, the unsecured and
uncollateralized debt
obligations of which shall be rated "AA" or better by S&P and
"Aa2" or better by
Moody's or in one of the two (2) highest short-term rating
categories by S&P or
by Moody's, as applicable, and which is either (i) a federal
savings and loan
association duly organized, validly existing and in good standing
under the
federal banking laws, (ii) an institution duly organized, validly
existing and
in good standing under the applicable banking laws of any state; or
(iii) a
national banking association duly organized, validly existing and
in good
standing under the federal banking laws.
Eligible Investment: Any one or more of the obligations and
securities
listed below which investment provides for a date of maturity not
later than the
Remittance Date in each month:
(1) direct obligations of or obligations fully guaranteed by, (i)
the
United States of America, or (ii) any agency or instrumentality of
the
United States of America, the obligations of which are backed by
the
full faith and credit of the United States of America;
(2) federal funds, demand, money market, or time deposits in,
certificates of deposits of, or banker's acceptances issued by
any
depository institution or trust company incorporated or
organized
under the laws of the United States of America or any state
thereof,
subject to supervision and examination by federal and/or state
banking
authorities, and, at the time of such investment or contractual
commitment providing for such investment, whose commercial paper
or
other short-term debt obligations (or, in the case of a
depository
institution or trust company that is a subsidiary of a holding
company, the commercial paper or other short-term debt obligations
of
such holding company) is rated "P-1" by Moody's and "A-1" by
S&P and
whose long-term debt obligations (or, in the case of a
depository
institution that is a subsidiary of a holding company, the
long-term
debt obligations of such holding company) are rated at least "Aa2"
by
Moody's and "AA" by S&P (collectively, with all other
rating
categories set out in this paragraph, the "Investment
Ratings").
Notwithstanding the foregoing, Eligible Investments shall not
include
(i) "stripped securities," (ii) any investments which contractually
may return
less than the unpaid principal balance therefor, or (iii) a direct
purchase of
commercial paper from the issuer.
Escrow Account: One or more accounts created and maintained
pursuant
to Exhibit 8.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water charges, sewer rents, Primary Insurance Policy
premiums, fire
and hazard insurance premiums and other payments required to be
escrowed by the
Mortgagor with the Mortgagee pursuant to the terms of any Mortgage
Note or
Mortgage.
Event of Default: Any one of the events enumerated in
Subsection
14.01.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: The Federal Deposit Insurance Corporation, or any
successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation or any
successor
thereto.
Final Mortgage Loan Schedule: With respect to each Mortgage
Loan
Package, the schedule of Mortgage Loans to be annexed hereto as
Schedule I (or a
supplement thereto) on each Closing Date for the Mortgage Loan
Package delivered
on such Closing Date in both hard copy and floppy disk, such
schedule setting
forth the following information with respect to each Mortgage Loan
in the
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 state
and zip code;
(4) a code indicating
whether the Mortgaged Property is
owner-occupied;
(5) the type of
Residential Dwelling constituting the Mortgaged
Property;
(6) the original
months to maturity;
(7) the original date
of the Mortgage Loan and the remaining months
to maturity from the Cut-off Date, based on the original
amortization schedule;
(8) the Loan-to-Value
Ratio or Combined Loan-to-Value Ratio, if
applicable, at origination;
(9) the Mortgage
Interest Rate in effect immediately following the
Cut-off Date;
(10) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(11) the stated maturity date;
(12) the amount of the Monthly Payment at origination;
(13) the amount of the Monthly Payment as of the Cut-off Date;
(14) the last Due Date on which a Monthly Payment was actually
applied
to the unpaid Stated Principal Balance;
(15) the original principal amount of the Mortgage Loan;
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(16) the Stated Principal Balance of the Mortgage Loan as of the
close
of business on the Cut-off Date;
(17) with respect to each Adjustable Rate Mortgage Loan, the
first
Mortgage Interest Rate Adjustment Date and the number of months
between each Adjustment Date thereafter;
(18) with respect to each Adjustable Rate Mortgage Loan, the number
of
days prior to the origination date and each Adjustment Date
thereafter, whereby the Index is determined;
(19) with respect to each Adjustable Rate Mortgage Loan, the
Gross
Margin;
(20) with respect to each Adjustable Rate Mortgage Loan, the
Periodic
Rate Cap;
(21) with respect to each Adjustable Rate Mortgage Loan, the
Initial
Rate Cap;
(22) a code indicating the purpose of the loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out Refinancing);
(23) with respect to each Adjustable Rate Mortgage Loan, the
Maximum
Mortgage Interest Rate under the terms of the Mortgage Note;
(24) with respect to each Adjustable Rate Mortgage Loan, the
Minimum
Mortgage Interest Rate under the terms of the Mortgage Note;
(25) the Mortgage Interest Rate at origination;
(26) with respect to each Adjustable Rate Mortgage Loan, the
first
Adjustment Date immediately following the Cut-off Date;
(27) with respect to each Adjustable Rate Mortgage Loan, the Index
and
the number of decimal places to which the Index is rounded;
(28) a code indicating whether the Mortgage Loan is an Adjustable
Rate
Mortgage Loan or a Fixed Rate Mortgage Loan;
(29) a code indicating the documentation style (i.e., full,
alternative or reduced);
(30) a code indicating if the Mortgage Loan is subject to a
Primary
Insurance Policy or LPMI Policy;
(31) a code indicating whether the Mortgage Loan is a Buydown
Mortgage
Loan;
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(32) a code indicating the product type of the Mortgage Loan
(e.g.,
3/1, 5/1, 7/1, 10/1, 15 year fixed, 30 year fixed, 15/30
balloon,
Negative Amortization Mortgage Loan, etc.);
(33) code indicating whether the Mortgage Loan is subject to a
Prepayment Charge and the term of such Prepayment Charge;
(34) the Appraised Value of the Mortgaged Property;
(35) the sale price of the Mortgaged Property, if applicable;
(36) a code indicating whether the Mortgaged Property is subject to
a
second lien at origination of the First Lien Mortgage Loan;
(37) the Credit Score of the Mortgagor;
(38) the Mortgagor's debt to income ratio;
(39) the risk grade for each Mortgage Loan;
(40) with respect to each Adjustable Rate Mortgage Loan, the date
on
which the Monthly Payment is changed to the extent that it is
different than the Adjustment Date;
(41) with respect to each Adjustable Rate Mortgage Loan, to the
extent
that such Mortgage Loan is an Interest Only Mortgage Loan, the
number of months/years whereby the scheduled payment payable by
a
Mortgagor under the related Mortgage Note on each Due Date
includes only interest payments; and
(42) the total amount of Negative Amortization, if any, as of
the
related Cut-off Date.
With respect to the Mortgage Loan Package in the aggregate, the
Final Mortgage
Loan Schedule shall set forth the following information, as of the
related
Cut-off Date:
(43) the number of Mortgage Loans;
(44) the current principal balance of the Mortgage Loans;
(45) the weighted average Mortgage Interest Rate of the
Mortgage
Loans; and
(46) the weighted average maturity of the Mortgage Loans.
Schedule I hereto shall be supplemented as of each Closing Date to
reflect the
addition of the Final Mortgage Loan Schedule with respect to the
related
Mortgage Loan Package.
Final Recovery Determination: With respect to any defaulted
Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO
Property purchased
by the Seller
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pursuant to this Agreement), a determination made by the Seller
that all
Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which
the Seller, in its reasonable good faith judgment, expects to be
finally
recoverable in respect thereof have been so recovered. The Seller
shall maintain
records, prepared by a servicing officer of the Seller, of each
Final Recovery
Determination.
First Lien: With respect to each Mortgaged Property, the lien of
the
mortgage, deed of trust or other instrument securing a Mortgage
Note which
creates a first lien on the Mortgaged Property.
Fixed Rate Mortgage Loan: A Mortgage Loan with respect to which
the
Mortgage Interest Rate set forth in the Mortgage Note is fixed for
the term of
such Mortgage Loan.
Flood Zone Service Contract: A transferable contract maintained
for
the Mortgaged Property with a nationally recognized flood zone
service provider
for the purpose of obtaining the current flood zone status relating
to such
Mortgaged Property.
FNMA: Fannie Mae or any successor thereto.
Gross Margin: With respect to any Adjustable Rate Mortgage Loan,
the
fixed percentage amount set forth in the related Mortgage Note that
is added to
the Index on each Adjustment Date in accordance with the terms of
the related
Mortgage Note to determine the new Mortgage Interest Rate for such
Mortgage
Loan.
HUD: The United States Department of Housing and Urban Development
or
any successor thereto.
Index: With respect to any Adjustable Rate Mortgage Loan, the
index
set forth in the related Mortgage Note for the purpose of
calculating the
interest rate thereon.
Initial Closing Date: The Closing Date on which the Initial
Purchaser
purchases and the Seller sells the first Mortgage Loan Package
hereunder.
Initial Purchaser: Merrill Lynch Mortgage Lending, Inc., or any
successor.
Initial Rate Cap: With respect to each Adjustable Rate Mortgage
Loan
and the initial Adjustment Date therefor, a number of percentage
points per
annum that is set forth in the related Mortgage Note, which is the
amount by
which the Mortgage Interest Rate for such Adjustable Rate Mortgage
Loan may
increase or decrease on the initial Adjustment Date.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of
insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
Interest Only Mortgage Loan: A Mortgage Loan wherein only
monthly
payments of interest accruing on the unpaid principal balance of
such Mortgage
Loan are due for a period of time as set forth on the related
Mortgage Note, and
the unpaid principal balance is amortized for the remaining term of
the Mortgage
Loan.
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Liquidation Proceeds: Amounts, other than Insurance Proceeds
and
Condemnation Proceeds, received in connection with the liquidation
of a
defaulted Mortgage Loan through trustee's sale, foreclosure sale or
otherwise,
other than amounts received following the acquisition of REO
Property.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan as
of
any date of determination, the ratio on such date of the
outstanding principal
amount of the Mortgage Loan, to the Appraised Value of the
Mortgaged Property.
LPMI Fee: With respect to an LPMI Loan, the LPMI Fee Rate for
such
LPMI Loan times the Stated Principal Balance of the LPMI Loan as of
any date of
determination.
LPMI Fee Rate: The portion of the Mortgage Interest Rate relating
to
an LPMI Loan, which is set forth on the related Final Mortgage Loan
Schedule, to
be retained by the Seller to pay the premium due on the LPMI Policy
with respect
to such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the Seller
is
responsible for paying the premium due on the related LPMI Policy
with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan,
as set forth
on the related Final Mortgage Loan Schedule.
LPMI Policy: A policy of private mortgage guaranty insurance
relating
to a Mortgage Loan paid by the lender.
Master Servicer: With respect to any Securitization Transaction,
the
"master servicer," if any, identified in the related transaction
documents.
Maximum
Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Final
Mortgage Loan
Schedule and in the related Mortgage Note and is the maximum
interest rate to
which the Mortgage Interest Rate on such Mortgage Loan may be
increased on any
Adjustment Date.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation
organized and existing under the laws of the State of Delaware, or
any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS
Minimum Mortgage Interest Rate: With respect to each Adjustable
Rate
Mortgage Loan, a rate that is set forth on the related Final
Mortgage Loan
Schedule and in the related Mortgage Note and is the minimum
interest rate to
which the Mortgage Interest Rate on such Mortgage Loan may be
decreased on any
Adjustment Date.
MIN: The Mortgage Identification Number for any MERS Loan.
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MOM Loan: Any Loan as to which MERS is acting as mortgagee, solely
as
nominee for the originator of such Loan and its successors and
assigns.
Monthly Advance: The aggregate of the advances made by the Seller
on
any Distribution Date pursuant to Subsection 11.22 of the Servicing
Addendum.
Monthly Payment: With respect to any Mortgage Loan, the
scheduled
combined payment of principal and interest payable by a Mortgagor
under the
related Mortgage Note on each Due Date or, in the case of an
Interest Only
Mortgage Loan, as set forth on the related Final Mortgage Loan
Schedule, the
scheduled monthly payment of principal and/or interest as set forth
in the
related Mortgage Note.
Moody's: Moody's Investors Service, Inc. or its successor in
interest.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on Mortgaged Property securing the Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the
successors and assigns of such mortgagee or beneficiary.
Mortgage File: The items pertaining to a particular Mortgage
Loan
referred to in Exhibit 5 annexed hereto, and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement or the
related Trade
Confirmation.
Mortgage Interest Rate: With respect to each Fixed Rate Mortgage
Loan,
the fixed annual rate of interest provided for in the related
Mortgage Note and,
with respect to each Adjustable Rate Mortgage Loan, the annual rate
that
interest accrues on such Adjustable Rate Mortgage Loan from time to
time in
accordance with the provisions of the related Mortgage Note.
Mortgage Loan: Each first lien, residential mortgage loan,
sold,
assigned and transferred to the Purchaser pursuant to this
Agreement and the
related Trade Confirmation and identified on the Final Mortgage
Loan Schedule
annexed to this Agreement on such Closing Date, which Mortgage Loan
includes
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.
Mortgage Loan Documents: The following documents:
(1) The original Mortgage Note endorsed, "Pay to the order of
______________, without recourse" and signed in the name of the
Seller by
an
authorized officer of the Seller. If the Mortgage Loan was acquired
by
the
Seller in a merger or other type of acquisition, the endorsement
must
be
by "[Seller], successor [by merger to or in interest to, as
applicable]
[name of predecessor]"; and if the Mortgage Loan was acquired or
originated
by
the Seller while doing business under another name, the endorsement
must
be
by "[Seller], successor in interest to [previous name]." The
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Mortgage Note shall include all intervening endorsements showing a
complete
chain of title from the originator to the Seller;
(2) Except as provided below and for each Mortgage Loan that is not
a
MERS
Loan, the original recorded Mortgage, with evidence of
recording
thereon, or, if the original Mortgage has not yet been returned
from the
recording office, a copy of the original Mortgage certified by the
Seller
to
be a true copy of the original of the Mortgage that has been
delivered
for
recording in the appropriate recording office of the jurisdiction
in
which the Mortgaged Property is located and in the case of each
MERS Loan,
the
original Mortgage, noting the presence of the MIN of the Loan
and
either language indicating that the Mortgage Loan is a MOM Loan or
if the
Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and
the
assignment thereof to MERS, with evidence of recording
indicated
thereon, or a copy of the Mortgage certified by the public
recording office
in
which such Mortgage has been recorded;
(3) In the case of each Mortgage Loan that is not a MERS Loan,
the
original Assignment of each Mortgage, executed in blank. If the
Mortgage
Loan
was acquired by the Seller in a merger or other type of
acquisition,
the
assignment must be by "[Seller], successor [by merger to or in
interest
to,
as applicable] [name of predecessor]"; and in the event that
the
Mortgage Loan was acquired or originated by the Seller while doing
business
under another name, the assignment must be by "[Seller], successor
in
interest to [previous name]";
(4) The original policy of title insurance (or a preliminary
title
report if the original title insurance policy has not been received
from
the
title insurance company);
(5) Originals of any intervening assignments of the Mortgage,
with
evidence of recording thereon or, if the original intervening
assignment
has
not yet been returned from the recording office, a copy of such
assignment certified to be a true copy of the original of the
assignment
which has been sent for recording in the appropriate jurisdiction
in which
the
Mortgaged Property is located;
(6) With respect to a Mortgage Loan that, according to the
Final
Mortgage Loan Schedule, is covered by a primary mortgage insurance
policy,
the
original or a copy of the policy of primary mortgage insurance;
and
(7) Originals of all assumption and modification agreements, if
any.
Mortgage Loan Package: The Mortgage Loans listed on a Final
Mortgage
Loan Schedule, delivered to the Custodian and the Purchaser at
least five (5)
Business Days prior to the related Closing Date and attached to
this Agreement
as Schedule I on the related Closing Date.
Mortgage Note: The original executed note or other evidence of
the
Mortgage Loan indebtedness of a Mortgagor.
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Mortgaged Property: The Mortgagor's real property securing
repayment
of a related Mortgage Note, consisting of a fee simple interest in
a single or
contiguous parcel of real property improved by a Residential
Dwelling.
Mortgagor: The obligor on a Mortgage Note, the owner of the
Mortgaged
Property and the grantor or mortgagor named in the related Mortgage
and such
grantor's or mortgagor's successor's in title to the Mortgaged
Property.
Negative Amortization: With respect to each Negative
Amortization
Mortgage Loan, that portion of interest accrued at the Net Mortgage
Interest
Rate in any month which exceeds the Monthly Payment on the related
Mortgage Loan
for such month and which, pursuant to the terms of the related
Mortgage Note, is
added to the principal balance of the Mortgage Loan.
Negative Amortization Mortgage Loan: Each Adjustable Rate
Mortgage
Loan that is identified on the related Mortgage Loan Schedule as a
Mortgage Loan
that may be subject to Negative Amortization.
Net Mortgage Interest Rate: With respect to any Mortgage Loan (or
the
related REO Property), as of any date of determination, a per annum
rate of
interest equal to the then applicable Mortgage Interest Rate for
such Mortgage
Loan minus the Servicing Fee Rate and the LPMI Fee Rate, if
applicable.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or
proposed to be made in respect of a Mortgage Loan or REO Property
that, in the
good faith business judgment of the Seller, will not, or, in the
case of a
proposed Monthly Advance, would not be, ultimately recoverable from
related late
payments, Insurance Proceeds or Liquidation Proceeds on such
Mortgage Loan or
REO Property as provided herein.
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 Person on behalf of whom such
certificate is being
delivered.
Opinion of Counsel: A written opinion of counsel, who may be
salaried
counsel for the Person on behalf of whom the opinion is being
given, reasonably
acceptable to each Person to whom such opinion is addressed.
Payment Adjustment Date: With respect to each Negative
Amortization
Mortgage Loan, the date on which an adjustment to the Monthly
Payment pursuant
to the related Mortgage Note becomes effective.
Payment Clearing Account: An Eligible Account created and
maintained
pursuant to Exhibit 8.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan
and any Adjustment Date therefor, a number of percentage points per
annum that
is set forth in the related Mortgage Note, which is the maximum
amount by which
the Mortgage Interest Rate for
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such Adjustable Rate Mortgage Loan may increase (without regard to
the Maximum
Mortgage Interest Rate) or decrease (without regard to the Minimum
Mortgage
Interest Rate) on such Adjustment Date from the Mortgage Interest
Rate in effect
immediately prior to such Adjustment Date.
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Preliminary Mortgage Loan Schedule:
(1) the Seller's
Mortgage Loan identifying number;
(2) the Mortgagor's
first and last name;
(3) the Mortgage
Interest Rate at origination;
(4) the Mortgage
Interest Rate in effect immediately following the
Cut-off Date;
(5) the original
months to maturity;
(6) the original date
of the Mortgage Loan and the remaining months
to maturity from the Cut-off Date, based on the original
amortization schedule;
(7) the stated
maturity date;
(8) the amount of the
Monthly Payment at origination;
(9) the amount of the
Monthly Payment as of the Cut-off Date;
(10) the Stated Principal Balance of the Mortgage Loan as of the
close
of business on the Cut-off Date;
(11) a code indicating whether the Mortgaged Property is
owner-occupied;
(12) a code indicating the documentation style;
(13) a code indicating whether the Mortgaged Property is subject to
a
second lien at origination of the First Lien Mortgage Loan;
(14) the debt to income ratio; and
(15) the Credit Score.
Preliminary Servicing Period: With respect to any Mortgage Loans,
the
period commencing on the related Closing Date and ending on the
date the Seller
enters into Reconstitution Agreements which amend or restate the
servicing
provisions of this Agreement.
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Prepayment Charge: With respect to any Mortgage Loan, any
prepayment
penalty or premium thereon payable in connection with a principal
prepayment on
such Mortgage Loan pursuant to the terms of the related Mortgage
Note.
Prepayment Interest Shortfall Amount: With respect to any
Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment
in full or in
part during the related Principal Prepayment Period, which
Principal Prepayment
was applied to such Mortgage Loan in such calendar month preceding
the
Remittance Date related to the Principal Prepayment Period, the
amount of
interest (at the Net Mortgage Interest Rate) that would have
accrued on the
amount of such Principal Prepayment during the period commencing on
the date as
of which such Principal Prepayment was applied to such Mortgage
Loan and ending
on the last day of the Principal Prepayment Period, inclusive.
Primary Insurance Policy: A policy of primary mortgage guaranty
insurance issued by a Qualified Insurer.
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 Charge, 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.
Principal Prepayment Period: As to any Remittance Date, the
calendar
month preceding the month of such Remittance Date.
Purchase Price:
The price paid on the related Closing Date by the
Purchaser to the Seller pursuant to the related Trade Confirmation
in exchange
for the Mortgage Loans purchased on such Closing Date as calculated
as provided
in Section 4.
Qualified Correspondent: Any Person from which the Seller
purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such
Mortgage Loans were either (x) 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 or (y)
individually re-underwritten by the Seller to the Designated
Guidelines at the
time such Mortgage Loans were acquired by the Seller; (ii) 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 (iii) 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 either Persons from
which it
purchased mortgage loans properly applied the underwriting criteria
designated
by the Seller or the Mortgage Loans purchased by the Seller
substantially
complied with the Designated Guidelines.
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Qualified Depository: Any institution offering an Eligible
Account.
Qualified Insurer: Any insurer which meets the requirements of FNMA
or
FHLMC.
Qualified Substitute Mortgage Loan: A mortgage loan substituted for
a
Deleted Mortgage Loan pursuant to the terms of this Agreement which
must, on the
date of such substitution, (i) have an outstanding principal
balance, after
application of all scheduled payments of principal and interest due
during or
prior to the month of substitution, not in excess of the Stated
Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month
during which the substitution occurs, (ii) have a Mortgage Interest
Rate not
less than (and not more than one percentage point in excess of) the
Mortgage
Interest Rate of the Deleted Mortgage Loan, (iii) have a net
Mortgage Interest
Rate not less than (and not more than one percentage point in
excess of) the net
Mortgage Interest Rate of the Deleted Mortgage Loan, (iv) have a
remaining terms
to maturity not greater than (and not more than one year less than)
that of the
Deleted Mortgage Loan, (v) have the same Due Date as the Due Date
on the Deleted
Mortgage Loan, (vi) have a Loan-to-Value Ratio as of the date of
substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as
of such date, (vii) be covered under a Primary Insurance Policy if
such
Qualified Substitute Mortgage Loan has a Loan-to-Value Ratio in
excess of 80%,
(viii) conform to each representation and warranty set forth in
Subsection 7.02
of this Agreement and (ix) be the same type of mortgage loan (i.e.
fixed or
adjustable rate with the same Gross Margin and Index as the Deleted
Mortgage
Loan). In the event that one or more mortgage loans are substituted
for one or
more Deleted Mortgage Loans, the amounts described in clause (i)
hereof shall be
determined on the basis of aggregate principal balances, the
Mortgage Interest
Rates described in clause (ii) hereof shall be determined on the
basis of
weighted average Mortgage Interest Rates, the Net Mortgage Rates
described in
clause (iii) hereof shall be satisfied as to each such mortgage
loan, the terms
described in clause (iv) shall be determined on the basis of
weighted average
remaining terms to maturity, the Loan-to-Value Ratios described in
clause (vi)
hereof shall be satisfied as to each such mortgage loan and, except
to the
extent otherwise provided in this sentence, the representations and
warranties
described in clause (viii) hereof must be satisfied as to each
Qualified
Substitute Mortgage Loan or in the aggregate, as the case may
be.
Rate/Term Refinancing: A Refinanced Mortgage Loan, the proceeds
of
which are not in excess of the existing first mortgage loan on the
related
Mortgaged Property and related closing costs, and were used
exclusively to
satisfy the then existing first mortgage loan of the Mortgagor on
the related
Mortgaged Property and to pay related closing costs.
Reconstitution: Any Agency Transfer, 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
serviced
hereunder, in connection with a Whole Loan Transfer or a
Securitization
Transaction as provided in Section 12.
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<PAGE>
Reconstitution Date: The date or dates on which any or all of
the
Mortgage Loans serviced under this Agreement shall be removed from
this
Agreement and reconstituted as part of a Whole Loan Transfer or
Securitization
Transaction pursuant to Section 12 hereof.
Record Date: With respect to each Remittance Date, the last
Business
Day of the month immediately preceding the month in which such
Remittance Date
occurs.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which
were
not used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation
AB), 17 C.F.R. Sections 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
REMICs, which appear in Sections 860A through 860G of the Code, and
related
provisions, and proposed, temporary and final regulations and
published rulings,
notices and announcements promulgated thereunder, as the foregoing
may be in
effect from time to time.
Remittance Date: The eighteenth (18th) day of each month,
commencing
on the eighteenth day of the month next following the month in
which the related
Cut-off Date occurs, or if such eighteenth (18th) day is not a
Business Day, the
first Business Day immediately following such eighteenth (18th)
day.
REO Disposition: The final sale by the Seller of any REO
Property.
REO Property: A Mortgaged Property acquired as a result of the
liquidation of a Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to
(i) the Stated Principal Balance of such Mortgage Loan, plus (ii)
interest on
such Stated Principal Balance at the Mortgage Interest Rate from
and including
the last Due Date through which interest has been paid by or on
behalf of the
Mortgagor to the first day of the month following the 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 FNMA or FHLMC eligible condominium
project, or
(iv) a detached one-family dwelling in a planned unit development,
none of which
is a cooperative, mobile or manufactured home.
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Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: The sale or transfer of some or all of
the
Mortgage Loans to a trust to be formed as part of a
publicly-issued, rated,
mortgage pass-through transaction.
Seller Information: As defined in Section 12A.07(a).
Servicer: As defined in Section 12A.03(c).
Servicing Addendum: The terms and conditions attached hereto as
Exhibit 8 which will govern the servicing of the Mortgage Loans by
Seller during
the Preliminary Servicing Period.
Servicing Advances: All customary, reasonable and necessary
"out-of-pocket" costs and expenses incurred by the Seller in the
performance of
its servicing obligations, including, but not limited to, the cost
of (i)
preservation, restoration and repair of a Mortgaged Property, (ii)
any
enforcement or judicial proceedings with respect to a Mortgage
Loan, including
foreclosure actions, (iii) the management and liquidation of REO
Property, and
(iv) compliance with the obligations under this Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d)
of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the
annual servicing fee the Purchaser shall pay to the Seller, which
shall, for
each month, be equal to one-twelfth of the product of (a) the
Servicing Fee Rate
and (b) the unpaid principal balance of the Mortgage Loan. Such fee
shall be
payable monthly, computed on the basis of the same principal amount
and period
respectively 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 Section 11.5) of related Monthly Payment collected by the
Seller, or as
otherwise proved under Section 11.5. If the Preliminary Servicing
Period
includes any partial month, the Servicing Fee for such month shall
be pro rated
at a per diem rate based upon a 30-day month.
Servicing Fee Rate: The per annum rate set forth in the related
Trade
Confirmation at which the Servicing Fee accrues.
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.
S&P: Standard & Poor's Ratings Services, a Division of the
McGraw-Hill
Companies, Inc. or its successor in interest.
Stated Principal Balance: As to each Mortgage Loan as of any date
of
determination, (i) the principal balance of the Mortgage Loan as of
the Cut-off
Date after giving
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effect to payments of principal received on or before such date,
minus (ii) all
amounts previously distributed to the Purchaser with respect to the
related
Mortgage Loan representing payments or recoveries of principal,
plus (iii) the
cumulative amount of any Negative Amortization.
Static Pool Information: Static pool information as described in
Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is
not
responsible for the overall servicing (as "servicing" is commonly
understood by
participants in the mortgage-backed securities market) of Mortgage
Loans but
performs one or more discrete functions identified in Item 1122(d)
of Regulation
AB with respect to Mortgage Loans under the direction or authority
of the Seller
or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the
Seller or any Subservicer and is responsible for the performance
(whether
directly or through Subservicers or Subcontractors) of a
substantial portion of
the material servicing functions required to be performed by the
Seller under
this Agreement or any Reconstitution Agreement that are identified
in Item
1122(d) of Regulation AB; provided, however, that the term
"Subservicer" shall
not include any master servicer, or any special servicer engaged at
the request
of a Depositor, purchaser or investor in a Securitization
Transaction, nor any
"back-up servicer" or trustee performing servicing functions on
behalf of a
Securitization Transaction.
Sub-Servicing Agreement: The written contract between the Seller
and a
Subservicer relating to servicing and administration of certain
Mortgage Loans
as provided in Subsection 11.31 of this Agreement.
Tax Service Contract: A transferable contract maintained for
the
Mortgaged Property with a tax service provider for the purpose of
obtaining
current information from local taxing authorities relating to such
Mortgaged
Property.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the
Seller.
Trade Confirmation: With respect to any Mortgage Loan Package
purchased and sold on any Closing Date, the letter agreement
between the
Purchaser and the Seller, in the form annexed hereto as Exhibit 9
(including any
exhibits, schedules and attachments thereto), setting forth the
terms and
conditions of such transaction and describing the Mortgage Loans to
be purchased
by the Purchaser on such Closing Date. A Trade Confirmation may
relate to more
than one Mortgage Loan Package to be purchased on one or more
Closing Dates
hereunder.
Warranty Bill of Sale: A Warranty Bill of Sale with respect to
the
Mortgage Loans purchased on a Closing Date in the form annexed
hereto as Exhibit
4.
Whole Loan Transfer: The sale or transfer of some or all of the
Mortgage Loans to third parties pursuant to a Reconstitution
Agreement, other
than a Securitization Transaction or an Agency Transfer.
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SECTION 2. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, from time-to-time, Mortgage Loans
having an
aggregate principal balance on the related Cut-off Date in an
amount as set
forth in the related Trade Confirmation, 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 the
related Closing
Date. The obligation of the Purchaser to purchase any Mortgage Loan
from the
Seller on any particular Closing Date shall be subject to the
satisfaction of
the conditions precedent to the Purchaser's obligation to purchase
set forth in
Section 8.
SECTION 3. Mortgage Loan Schedules. Prior to the date on which
the
Seller and the Purchaser execute a Trade Confirmation, the Seller
shall provide
the Purchaser with the Preliminary Mortgage Loan Schedule. The
Seller shall
deliver the Final Mortgage Loan Schedule for a Mortgage Loan
Package to be
purchased on a particular Closing Date to the Purchaser on or prior
to the
related Closing Date.
SECTION 4. Purchase Price. The Purchase Price for each Mortgage
Loan
listed on the related Final Mortgage Loan Schedule shall be the
percentage of
par as stated in the related Trade Confirmation (subject to
adjustment as
provided therein), multiplied by its Stated Principal Balance as of
the related
Cut-off Date. If so provided in the related Trade Confirmation,
portions of the
Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the
Initial
Purchaser shall pay to the Seller, at closing, accrued interest on
the Stated
Principal Balance of each Mortgage Loan as of the related Cut-off
Date at the
Net Mortgage Interest Rate from the related Cut-off Date through
the day prior
to the related Closing Date, both inclusive.
The Purchaser shall own and be entitled to receive with respect
to
each Mortgage Loan purchased, (1) all scheduled principal due after
the related
Cut-off Date, (2) all other recoveries of principal collected after
the related
Cut-off Date (provided, however, that all scheduled payments of
principal due on
or before the related Cut-off Date and collected by the Seller
after the related
Cut-off Date shall belong to the Seller), and (3) 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
related Cut-off
Date). The Stated Principal Balance of each Mortgage Loan as of the
related
Cut-off Date is determined after application to the reduction of
principal of
payments of principal due on or before the related Cut-off Date
whether or not
collected. Therefore, for the purposes of this Agreement, payments
of scheduled
principal and interest prepaid for 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 (minus the applicable Servicing Fee) 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 remittance by the Seller to the Purchaser on the
first related
Remittance Date. All payments of principal and interest, less the
applicable
Servicing Fee, due on a Due Date following the related Cut-off Date
shall belong
to the Purchaser.
SECTION 5. Examination of Mortgage Files. In addition to the
rights
granted to the Initial Purchaser under the related Trade
Confirmation to
underwrite the Mortgage Loans and review the Mortgage Files prior
to the Closing
Date, prior to the related Closing Date, the Seller
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shall (a) deliver to the Custodian in escrow, for examination with
respect to
each Mortgage Loan to be purchased on such Closing Date, the
related Mortgage
File, including the Assignment of Mortgage, pertaining to each
Mortgage Loan, or
(b) make the related Mortgage File available to the Initial
Purchaser for
examination at the Seller's offices or such other location as shall
otherwise be
agreed upon by the Initial Purchaser and the Seller. Such
examination may be
made by the Initial Purchaser or its designee at any reasonable
time before or
after the related Closing Date. If the Initial Purchaser makes such
examination
prior to the related Closing Date and identifies any Mortgage Loans
that do not
conform to the terms of the related Trade Confirmation, such
Mortgage Loans may,
at the Initial Purchaser's option, be rejected for purchase by the
Initial
Purchaser. If not purchased by the Initial Purchaser, such Mortgage
Loans shall
be deleted from the related Final Mortgage Loan Schedule and may be
replaced by
a Qualified Substitute Mortgage Loan pursuant to Section 7. The
Initial
Purchaser may, at its option and without notice to the Seller,
purchase all or
part of any Mortgage Loan Package without conducting any partial or
complete
examination. The fact that the Initial Purchaser has conducted or
has determined
not to conduct any partial or complete examination of the Mortgage
Files shall
not affect the Initial Purchaser's (or any of its successors')
rights to demand
repurchase or other relief or remedy provided for in this
Agreement.
SECTION 6. Conveyance from Seller to Initial Purchaser.
Subsection 6.01. Conveyance of Mortgage Loans; Possession of
Servicing
Files.
The Seller, simultaneously with the payment of the Purchase
Price,
shall execute and deliver to the Initial Purchaser a Warranty Bill
of Sale with
respect to the related Mortgage Loan Package in the form attached
hereto as
Exhibit 4. The Servicing File retained by the Seller with respect
to each
Mortgage Loan pursuant to this Agreement shall be appropriately
identified in
the Seller's computer system to reflect clearly the sale of such
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, except when such release is required in connection with
a repurchase
of any such Mortgage Loan pursuant to Subsection 7.03 or 7.04.
In addition, in connection with the assignment of any MERS Loan,
the
Seller agrees that on or prior to each Closing Date it will cause,
at its own
expense, the MERS System to indicate that the related Mortgage
Loans have been
assigned by the Seller to the Purchaser in accordance with this
Agreement by
including in such computer files the information required by the
MERS System to
identify the Purchaser as owner of such Mortgage Loans.
Subsection 6.02. Books and Records.
Record title to each Mortgage and the related Mortgage Note as of
the
related Closing Date shall be in the name of the Seller, the
Purchaser, the
Custodian or one or more designees of the Purchaser, as the
Purchaser shall
designate. Notwithstanding the foregoing, beneficial ownership of
each Mortgage
and the related Mortgage Note shall be vested solely in the
Purchaser or the
appropriate designee of the Purchaser, as the case may be. Except
with respect
to the servicing rights related to the Mortgage Loans, which is
retained by the
Seller, 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
on or in
connection with a Mortgage Loan as provided in
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Section 4 shall be vested in the Purchaser or one or more designees
of
the Purchaser; provided, however, that all such funds received on
or in
connection with a Mortgage Loan as provided in Section 4 shall be
received and
held by the Seller in trust for the benefit of the Purchaser or the
assignee of
the Purchaser, as the case may be, as the owner of the Mortgage
Loans pursuant
to the terms of this Agreement.
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 sale on the
Seller's business
records, tax returns and financial statements.
Subsection 6.03. Delivery of Mortgage Loan Documents.
The Seller shall from time to time in connection with each
Closing
Date, at least five (5) Business Days prior to such Closing Date,
or such other
period as agreed to by the Seller and the Purchaser, deliver in
escrow to the
Custodian the Mortgage Loan Documents with respect to each Mortgage
Loan to be
purchased and sold on the related Closing Date and set forth on the
related
Preliminary Mortgage Loan Schedule delivered with such Mortgage
Loan Documents.
The Custodian shall certify its receipt of all such Mortgage
Loan
Documents for the related Closing Date, pursuant to an initial
custody receipt
and initial certification of the Custodian.
The Seller shall forward to the Custodian 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
with a certified true copy of any such document submitted for
recordation within
two weeks of its execution, and shall provide the original of any
document
submitted for recordation or a copy of such document certified by
the Seller to
be a true and complete copy of the original within one hundred and
eighty (180)
days of its submission for recordation. To the extent that the
Seller cannot
deliver any original documents within the time specified due to a
delay in the
recording office, Seller may deliver an Officer's Certificate
describing the
additional time expected to receive such documents from the
recording office.
Notwithstanding the foregoing, the Seller shall not be deemed to be
in breach of
this Agreement if its failure to deliver to the Purchaser any
missing Mortgage
Loan Document within the time specified above is due solely to (i)
the failure
of the applicable recorder's office to return a missing Mortgage
Loan Document
that was sent for recording or (ii) the failure of the title
insurer to issue
and deliver the original mortgagee title policy, except where such
refusal to
issue the policy is based on a claim that the title insurer is
under no
obligation to issue such policy.
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SECTION 7. Representations, Warranties and Covenants of the
Seller:
Remedies for Breach.
Subsection 7.01. Representations and Warranties Respecting the
Seller.
The Seller represents, warrants and covenants to the Purchaser as
of
the date hereof and as of each respective Closing Date or as of
such date
specifically provided herein or in the applicable Warranty Bill of
Sale:
(i) The Seller is duly organized, validly existing and in good
standing under the laws of the state of New York and is in good
standing under
the laws of each state in which any Mortgaged Property is located
to the extent
necessary to ensure the enforceability of each Mortgage Loan and
the servicing
of the Mortgage Loan in accordance with the terms of this Agreement
or is
otherwise exempt under applicable law from such qualification or is
otherwise
not required under applicable law to effect such qualification. No
licenses or
approvals obtained by the Seller have been suspended or revoked by
any court,
administrative agency, arbitrator or governmental body and no
proceedings are
pending which might result in such suspension or revocation;
(ii) The Seller has the full power and authority to hold each
Mortgage
Loan, to sell each Mortgage Loan, and to execute, deliver and
perform, and to
enter into and consummate, all transactions contemplated by this
Agreement. The
Seller has duly authorized the execution, delivery and performance
of this
Agreement, has duly executed and delivered this Agreement, and this
Agreement,
assuming due authorization, execution and delivery by the
Purchaser, constitutes
a legal, valid and binding obligation of the Seller, enforceable
against it in
accordance with its terms except as the enforceability thereof may
be limited by
bankruptcy, insolvency or reorganization;
(iii) The execution and delivery of this Agreement by the Seller
and
the performance of and compliance with the terms of this Agreement
will not
violate the Seller's articles of incorporation or by-laws or
constitute a
default under or result in a breach or acceleration of, any
material contract,
agreement or other instrument to which the Seller is a party or
which may be
applicable to the Seller or its assets;
(iv) The Seller is not in violation of, and the execution and
delivery
of this Agreement by the Seller and its performance and compliance
with the
terms of this Agreement will not constitute a violation with
respect to, any
order or decree of any court or any order or regulation of any
federal, state,
municipal or governmental agency having jurisdiction over the
Seller or its
assets, which violation might have consequences that would
materially and
adversely affect the condition (financial or otherwise) or the
operation of the
Seller or its assets or might have consequences that would
materially and
adversely affect the performance of its obligations and duties
hereunder;
(v) The Seller is an approved seller/servicer for FNMA or FHLMC
in
good standing and is a HUD approved mortgagee pursuant to Section
203 of the
National Housing Act. No event has occurred, including but not
limited to a
change in insurance coverage, which
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would make the Seller unable to comply with FNMA, FHLMC or HUD
eligibility
requirements or which would require notification to FNMA, FHLMC or
HUD;
(vi) 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;
(vii) There are no actions or proceedings against, or
investigations
of, the Seller before any court, administrative agency or other
tribunal (A)
that prohibit its entering into this Agreement, (B) seeking to
prevent the sale
of the Mortgage Loans or the consummation of the transactions
contemplated by
this Agreement or (C) that prohibit or materially and adversely
affect the
performance by the Seller of its obligations under, or the validity
or
enforceability of, this Agreement;
(viii) No consent, approval, authorization or order of any court
or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of, or compliance by the Seller with,
this Agreement
or the consummation of the transactions contemplated by this
Agreement, except
for such consents, approvals, authorizations or orders, if any,
that have been
obtained prior to the related Closing Date;
(ix) 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;
(x) Neither this Agreement nor any written statement, report or
other
document prepared and furnished by the Seller pursuant to this
Agreement or in
connection with the transactions contemplated hereby contains any
untrue
statement of material fact or omits to state a material fact
necessary to make
the statements contained herein or therein not misleading;
(xi) The consideration received by the Seller upon the sale of
the
Mortgage Loans constitutes fair consideration and reasonably
equivalent value
for such Mortgage Loans;
(xii) The Seller is
solvent and will not be rendered insolvent by the
consummation of the transactions contemplated hereby. The Seller is
not
transferring any Mortgage Loan with any intent to hinder, delay or
defraud any
of its creditors; and
(xiii) The Seller is in good standing, and will comply in all
material
respects with the rules and procedures of MERS in connection with
the servicing
of the MERS Loans for as long as such Mortgage Loans are registered
with MERS.
Subsection 7.02. 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:
(i) The information set forth in the related Final Mortgage
Loan
Schedule is complete, true and correct in all material
respects;
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<PAGE>
(ii) The Mortgage Loan is in compliance with all requirements
set
forth in the related Trade Confirmation, and the characteristics of
the related
Mortgage Loan Package as set forth in the related Trade
Confirmation are true
and correct;
(iii) All payments required to be made up to and excluding the
related
Cut-off Date for such Mortgage Loan under the terms of the Mortgage
Note have
been made; the Seller has not advanced funds, or induced, solicited
or knowingly
received any advance of funds from a party other than the owner of
the related
Mortgaged Property, directly or indirectly, for the payment of any
amount
required by the Mortgage Note or Mortgage; and there has been no
more than one
delinquency of thirty (30) days, exclusive of any period of grace,
in any
payment by the Mortgagor thereunder during the last twelve
months;
(iv) There are no delinquent taxes, ground rents, water charges,
sewer
rents, assessments, insurance premiums, leasehold payments,
including
assessments payable in future installments or other outstanding
charges
affecting the related Mortgaged Property;
(v) The terms of the Mortgage Note and the Mortgage have not
been
impaired, waived, altered or modified in any respect, except by
written
instruments, recorded in the applicable public recording office if
necessary to
maintain the lien priority of the Mortgage, and which have been
delivered to the
Custodian, the Purchaser, or the Purchaser's designee; the
substance of any such
waiver, alteration or modification has been approved by the insurer
under the
Primary Insurance Policy or LPMI Policy, if any, and the title
insurer, to the
extent required by the related policy, and is reflected on the
related Final
Mortgage Loan Schedule. No 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 Insurance Policy or LPMI Policy, if any, the title insurer,
to the
extent required by the policy, and which assumption agreement has
been delivered
to the Custodian and the terms of which are reflected in the
related Final
Mortgage Loan Schedule;
(vi) The Mortgage Note and the Mortgage are not subject to any
right
of rescission, set-off, counterclaim or defense, including 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 the
Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission,
set-off, counterclaim or defense, including the defense of usury
and no such
right of rescission, set-off, counterclaim or defense has been
asserted with
respect thereto;
(vii) All buildings upon the Mortgaged Property are insured by
an
insurer acceptable to FNMA or FHLMC against loss by fire, hazards
of extended
coverage and such other hazards as are customary in the area where
the Mortgaged
Property is located, pursuant to insurance policies conforming to
the
requirements of the Servicing Addendum. All such insurance policies
contain a
standard mortgagee clause naming the Seller, 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 FNMA or
FHLMC. The Mortgage obligates the Mortgagor thereunder to maintain
all such
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<PAGE>
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
Mortgagor's cost and expense and to seek reimbursement therefor
from the
Mortgagor;
(viii) 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,
disclosure laws and all applicable predatory and abusive lending
laws applicable
to the origination and servicing of mortgage loans of a type
similar to the
Mortgage Loans have been complied with;
(ix) The Mortgage has not been satisfied, cancelled, 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 satisfaction, cancellation,
subordination,
rescission or release;
(x) The related Mortgage is properly recorded and is a valid,
existing
and enforceable (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Seller to be a
First Lien (as
reflected on the Final Mortgage Loan Schedule),, on the Mortgaged
Property,
including all improvements on the Mortgaged Property 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 being
acceptable to
mortgage lending institutions generally and specifically referred
to in the
lender's title insurance policy delivered to the originator of the
Mortgage Loan
and which do not adversely affect the Appraised Value of the
Mortgaged Property,
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, existing and enforceable (A) first
lien and
first priority security interest with respect to each Mortgage Loan
which is
indicated by the Seller to be a First Lien (as reflected on the
Final Mortgage
Loan Schedule on the property described therein and the Seller has
full right to
sell and assign the same to the Purchaser. Except as set forth on
the
Preliminary Mortgage Loan Schedule and Final Mortgage Loan
Schedule, the
Mortgaged Property was not, as of the date of origination of the
Mortgage Loan,
subject to a mortgage, deed of trust, deed to secure debt or other
security
instrument creating a lien subordinate to the lien of the
Mortgage;
(xi) The Mortgage Note and the related Mortgage are genuine and
each
is the legal, valid and binding obligation of the maker thereof,
enforceable in
accordance with its terms;
(xii) At origination, all parties to the Mortgage Note and the
Mortgage had 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. The
Mortgagor is
a natural person;
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<PAGE>
(xiii) 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;
(xiv) The Seller is the sole legal, beneficial and equitable owner
of
the Mortgage Note and the Mortgage. The Seller has full right and
authority
under all governmental and regulatory bodies having jurisdiction
over such
Seller, subject to no interest or participation of, or agreement
with, any
party, to transfer and sell the Mortgage Loan to the Purchaser
pursuant to this
Agreement free and clear of any encumbrance or right of others,
equity, lien,
pledge, charge, mortgage, claim, participation interest or security
interest of
any nature (collectively, a "Lien"); and immediately upon the
transfers and
assignments herein contemplated, the Seller shall have transferred
and sold all
of its right, title and interest in and to each Mortgage Loan and
the Purchaser
will hold good, marketable and indefeasible title to, and be the
owner of, each
Mortgage Loan subject to no Lien;
(xv) All parties which have had any interest in the Mortgage
Loan,
whether as originator, mortgagee, assignee, pledgee or otherwise,
are (or,
during the period in which they held and disposed of such interest,
were): (A)
organized under the laws of such state, or (B) qualified to do
business in such
state, or (C) federal savings and loan associations or national
banks having
principal offices in such state, or (D) not doing business in such
state so as
to require qualification or licensing, or (E) not otherwise
required to be
licensed in such state;
(xvi) The Mortgage Loan is covered by a lender's title
insurance
policy generally acceptable to FNMA or FHLMC, issued by a Qualified
Insurer
qualified to do business in the jurisdiction where the Mortgaged
Property is
located, insuring (subject to the exceptions contained above in
(x)(a) and (d))
the Seller, its successors and assigns as to the first priority
lien of the
Mortgage in the original principal amount of the Mortgage Loan and,
with respect
to any Adjustable Rate Mortgage Loan, against any loss by reason of
the
invalidity or unenforceability of the lien resulting from the
provisions of the
Mortgage providing for adjustment in the Mortgage Interest Rate and
Monthly
Payment and Negative Amortization provisions of the related
Mortgage Note, if
any. Additionally, such lender's title insurance policy
affirmatively insures
ingress and egress to and from the Mortgaged Property, and against
encroachments
by or upon the Mortgaged Property or any interest therein. The
Seller is the
sole insured of such lender's title insurance policy, and such
lender's title
insurance policy is in full force and effect and will be in full
force and
effect upon the consummation of the transactions contemplated by
this Agreement.
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;
(xvii) 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,
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<PAGE>
violation or event of acceleration, and the Seller has not waived
any default,
breach, violation or event of acceleration;
(xviii) 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 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;
(xix) 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;
(xx) The Mortgage Loan was originated by the Seller or by a
savings
and loan association, a savings bank, a commercial bank or similar
banking
institution which is supervised and examined by a federal or state
authority, or
by a mortgagee approved as such by the Secretary of HUD, or by a
mortgage banker
or mortgage broker which was, at the time of origination of the
Mortgage Loan,
duly organized, validly existing, licensed and otherwise qualified
to originate
mortgage loans and to transact business in and was in good standing
under the
laws of the state where the related Mortgage Loan was originated
and such
Mortgage Loan conforms with the Seller's underwriting
guidelines;
(xxi) Payments on the Mortgage Loan shall commence (with respect
to
any newly originated Mortgage Loans) or commenced no more than
sixty (60) days
after the proceeds of the Mortgage Loan were disbursed. The
Mortgage Loan bears
interest at the Mortgage Interest Rate. With respect to each
Mortgage Loan, the
Monthly Payments are (A) in the case of a Fixed Rate Mortgage Loan,
sufficient
to fully amortize the original principal balance over the original
term thereof
and to pay interest at the related Mortgage Interest Rate, (B) in
the case of an
Adjustable Rate Mortgage Loan, changed on each Adjustment Date, and
in any case,
are sufficient to fully amortize the original principal balance
over the
original term thereof and to pay interest at the related Mortgage
Interest Rate,
(C) in the case of a Balloon Loan, are based on a fifteen (15) or
thirty (30)
year amortization schedule, as set forth in the related Mortgage
Note, and a
final monthly payment substantially greater than the preceding
monthly payment
which is sufficient to amortize the remaining principal balance of
the Balloon
Loan and to pay interest at the related Mortgage Interest Rate, (D)
in the case
of an Interest Only Mortgage Loan as set forth on the Final
Mortgage Loan
Schedule, after the initial interest only period as set forth on
the related
Mortgage Note, such Interest Only Mortgage Loan requires Monthly
Payments
sufficient to fully amortize the unpaid principal balance of the
Mortgage Loan
over the remaining term of the Mortgage Loan, [and (E) in the case
of a Negative
Amortization Mortgage Loan, a Monthly Payment that is sufficient
during the
period following each Payment Adjustment Date, to fully amortize
the outstanding
principal balance as of the first day of such period over the then
remaining
terms of such Mortgage Note] [Need to Discuss]. The Index for each
Adjustable
Rate Mortgage Loan is as set forth in the related Mortgage Note. No
Mortgage
Loan is a Convertible Mortgage Loan;
(xxii) The origination and collection practices used by the
Seller
with respect to each Mortgage Note and Mortgage have been in all
respects legal,
proper, prudent and customary
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in the mortgage origination and servicing industry. The Mortgage
Loan has been
serviced by the Seller and any predecessor servicer in accordance
with the terms
of the Mortgage Note. With respect to any Mortgage Loan which
provides for an
adjustable interest rate, all rate adjustments have been performed
in accordance
with the terms of the related Mortgage Note or subsequent
modifications, if any.
With respect to escrow deposits and Escrow Payments, if any, 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. No escrow deposits or Escrow
Payments or
other charges or payments due the Seller have been capitalized
under any
Mortgage or the related Mortgage Note and no such escrow deposits
or Escrow
Payments are being held by the Seller for any work on a Mortgaged
Property which
has not been completed;
(xxiii) The Mortgaged Property is free of damage and waste and
there
is no proceeding pending or, to the best of the Seller's knowledge,
threatened
for the total or partial condemnation thereof nor is such a
proceeding currently
occurring;
(xxiv) 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, (a) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by
judicial foreclosure. At the time of origination of the Mortgage
Loan and as of
the Closing Date, the Mortgaged Property has not and is not 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 available to the Mortgagor which would interfere with the
right to
sell the Mortgaged Property at a trustee's sale or the right to
foreclose the
Mortgage.
(xxv) The Mortgagor has not notified the Seller and the Seller has
no
knowledge of any relief requested or allowed to the Mortgagor under
the
Servicemembers Civil Relief Act;
(xxvi) The Mortgage Loan was underwritten in accordance with
the
underwriting standards of the Seller in effect at the time the
Mortgage Loan was
originated; and the Mortgage Note and Mortgage are on forms
acceptable to FNMA
or FHLMC;
(xxvii) The Mortgage Note is not and has not been secured by
any
collateral except the lien of the corresponding Mortgage on the
Mortgaged
Property and the security interest of any applicable security
agreement or
chattel mortgage referred to in (x) above;
(xxviii) The Mortgage File contains an appraisal of the related
Mortgaged Property which satisfied the standards of FNMA or FHLMC
and was made
and 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, whose compensation is not affected by the approval or
disapproval of
the Mortgage Loan and who met the minimum qualifications of FNMA or
FHLMC. Each
appraisal of the Mortgage Loan was made in accordance with the
relevant
provisions of the Financial Institutions Reform, Recovery, and
Enforcement Act
of 1989;
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<PAGE>
(xxix) 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;
(xxx) No Mortgage Loan contains provisions pursuant to which
Monthly
Payments are (a) paid or partially paid with funds deposited in any
separate
account established by the Seller, the Mortgagor, or anyone on
behalf of the
Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains any
other similar provisions which may constitute a "buydown"
provision. The
Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(xxxi) The Mortgagor has received all disclosure materials required
by
applicable law with respect to the making of fixed rate mortgage
loans in the
case of Fixed Rate Mortgage Loans, and adjustable rate mortgage
loans in the
case of Adjustable Rate Mortgage Loans and rescission materials
with respect to
Refinanced Mortgage Loans;
(xxxii) No Mortgage Loan was made in connection with (a) the
construction or rehabilitation of a Mortgaged Property or (b)
facilitating the
trade-in or exchange of a Mortgaged Property;
(xxxiii) No Mortgage Loan is (a) a Section 32 Mortgage Loan under
the
provisions of the Homeownership and Equity Protection Act of 1994,
as amended,
or (b) a "high cost", "abusive", "predatory", "home loan",
"Oklahoma Section 10"
or "high risk" mortgage loan (or a similarly designated loan using
different
terminology) under any applicable federal, state or local law. No
Mortgage Loan
is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in
the then current Standard & Poor's LEVELS(R) Glossary which is
now Version
5.6(d) Revised, Appendix E);
(xxxiv) Each Mortgage Loan with an LTV at origination in excess of
80%
is and will be subject to a Primary Mortgage Insurance Policy,
issued by a
Qualified Insurer, which insures that portion of the Mortgage Loan
in excess of
the portion of the Appraised Value of the Mortgaged Property
required by FNMA.
All provisions of such Primary Insurance Policy have been and are
being complied
with, such policy is in full force and effect, and all premiums due
thereunder
have been paid. Any Mortgage subject to any such Primary Insurance
Policy
obligates the Mortgagor thereunder to maintain such insurance and
to pay all
premiums and charges in connection therewith. The Mortgage Interest
Rate for the
Mortgage Loan does not include any such insurance premium;
(xxxv) At origination, the Mortgaged Property was 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. At
origination, no
improvement located on or being part of any Mortgaged Property is
in violation
of any applicable zoning law or regulation;
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<PAGE>
(xxxvi) No error, omission, misrepresentation, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of the
Seller, or to the best of Seller's knowledge, any other 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 of any insurance in relation to such Mortgage Loan;
(xxxvii) Each original Mortgage was recorded or is in the process
of
being recorded, in the appropriate jurisdictions wherein such
recordation is
necessary to perfect the lien thereof as against creditors of the
Seller. All
intervening assignments of the original Mortgage (other than the
assignment to
the Purchaser) have been recorded, or are in the process of being
recorded, in
the appropriate jurisdictions wherein such recordation is necessary
to perfect
the lien thereof as against creditors of the Seller. 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;
(xxxviii) Any principal advances made to the Mortgagor prior to
the
Cut-off Date have been consolidated with the outstanding principal
amount
secured by the Mortgage, and the secured principal amount, as
consolidated,
bears a single interest rate and single repayment term. The lien of
the Mortgage
securing the consolidated principal amount is expressly insured as
having first
lien priority with respect to each Mortgage Loan which is indicated
by the
Seller to be a First Lien (as reflected on the Final Mortgage Loan
Schedule), by
a title insurance policy, an endorsement to the policy insuring the
mortgagee's
consolidated interest or by other title evidence acceptable to FNMA
or FHLMC.
The consolidated principal amount does not exceed the original
principal amount
of the Mortgage Loan;
(xxxix) If the Residential Dwelling on the Mortgaged Property is
a
condominium unit or a unit in a planned unit development (other
than a de
minimis planned unit development) such condominium or planned unit
development
project meets the eligibility requirements of FNMA or FHLMC;
(xl) Each Mortgage Loan originated in the state of Texas pursuant
to
Article XVI, Section 50(a)(6) of the Texas Constitution (a "Texas
Refinance
Loan") has been originated in compliance with the provisions of
Article XVI,
Section 50(a)(6) of the Texas Constitution, Texas Civil Statutes
and the Texas
Finance Code. With respect to each Texas Refinance Loan that is a
Cash-Out
Refinancing, the related Mortgage Loan Documents state that the
Mortgagor may
prepay such Texas Refinance Loan in whole or in part without
incurring a
Prepayment Charge. The Seller does not collect any such Prepayment
Charges in
connection with any such Texas Refinance Loan;
(xli) To the extent required by the Seller's underwriting
guidelines,
the source of the down payment with respect to each Mortgage Loan
has been fully
verified by the Seller;
(xlii) Interest on each Mortgage Loan is calculated on the basis of
a
360-day year consisting of twelve 30-day months;
(xliii) To the best of the Seller's knowledge, the Mortgaged
Property
is in material compliance with all applicable environmental laws
pertaining to
environmental hazards
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including, without limitation, asbestos, and neither the Seller
nor, to the
Seller's knowledge, the related Mortgagor, has received any notice
of any
violation or potential violation of such law;
(xliv) The Seller shall, at its own expense, cause each Mortgage
Loan
to be covered by a "life of loan" Tax Service Contract which is
assignable to
the Purchaser or its designee at no cost to the Purchaser or its
designee;
provided however, that if the Seller fails to purchase such Tax
Service
Contract, the Seller shall be required to reimburse the Purchaser
for all costs
and expenses incurred by the Purchaser in connection with the
purchase of any
such Tax Service Contract;
(xlv) Each Mortgage Loan is covered by a "life of loan" Flood
Zone
Service Contract which is assignable to the Purchaser or its
designee at no cost
to the Purchaser or its designee or, for each Mortgage Loan not
covered by such
Flood Zone Service Contract, the Seller agrees to purchase such
Flood Zone
Service Contract;
(xlvi) None of the Adjustable Rate Mortgage Loans include an option
to
convert to a Fixed Rate Mortgage Loan;
(xlvii) The Mortgage Loan was selected from among the
outstanding
first or second lien mortgage loans of similar type in the Seller's
portfolio on
the related Closing Date and such selection was not made in a
manner so as to
affect materially and adversely the interests of the Purchaser,
except that this
representation shall not apply to any particular Mortgage Loan for
which
Purchaser has requested the inclusion of, or exclusion from, a
Mortgage Loan
Package, or with respect to the Purchaser's criteria for purchasing
the Mortgage
Loans;
(xlviii) Each Mortgage Loan constitutes a "qualified mortgage"
under
Section 860G(a)(3)(A) of the Code and Treasury Regulation
Section
1.860G-2(a)(1);
(xlix) No Mortgagor was required to purchase any single premium
credit
insurance policy (e.g., life, mortgage, disability, accident,
unemployment, or
health insurance product) or debt cancellation agreement as a
condition of
obtaining the extension of credit;
(l) The Mortgage Loan Documents with respect to each Mortgage
Loan
subject to Prepayment Charges specifically authorizes such
Prepayment Charges to
be collected and such Prepayment Charges are permissible and
enforceable in
accordance with the terms of the related Mortgage Loan Documents
and applicable
law (except to the extent that the enforceability thereof may be
limited by
bankruptcy, insolvency, moratorium, receivership and other similar
laws relating
to creditors' rights generally or the collectability thereof may be
limited due
to acceleration in connection with a foreclosure);
(li) No Mortgage Loan had an LTV or a CLTV in excess of 100% at
origination;
(lii) [Reserved];
(liii) No Mortgage Loan made on or after October 1, 2002 and prior
to
March 7, 2003 is subject to the Georgia Fair Lending Act (OGCA
Sections 7 6A 1,
et. seq.);
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(liv) No Mortgage Loan had an original term to maturity of more
than
thirty (30) years;
(lv) Each Mortgage contains a provision for the acceleration of
the
payment of the unpaid principal balance of the related Mortgage
Loan in the
event the related Mortgaged Property is sold without the prior
consent of the
mortgagee thereunder;
(lvi) The Seller and any predecessor servicer has fully furnished,
in
accordance with the Fair Credit Reporting Act and its implementing
regulations,
accurate and complete information (e.g., favorable and unfavorable)
on its
borrower credit files to Equifax, Experian and Trans Union Credit
Information
Company (three of the credit repositories), on a monthly basis;
(lvii) Each Mortgage Note is comprised of one original promissory
note
and each such promissory note constitutes an "instrument" for
purposes of
section 9-102(a)(65) of the UCC;
(lviii) No predatory or deceptive lending practices, including but
not
limited to, the extension of credit to the mortgagor without regard
for the
mortgagor's ability to repay the Mortgage Loan and the extension of
credit to
the mortgagor which has no apparent benefit to the mortgagor, were
employed by
the originator of the Mortgage Loan in connection with the
origination of the
Mortgage Loan; and
(lix) The Seller has complied with all applicable anti-money
laundering laws and regulations, including without limitation the
Bank Secrecy
Act, as amended by the USA Patriot Act of 2001 (collectively, the
"Anti-Money
Laundering Laws"). With respect to the Mortgage Loans originated by
the Seller,
the Seller has established an anti-money laundering compliance
program as
required by the applicable Anti-Money Laundering Laws, has
conducted the
requisite due diligence in connection with the origination of each
Mortgage Loan
by the Seller for purposes of the applicable 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
and verify the identification of the applicable Mortgagor for
purposes of the
applicable Anti-Money Laundering Laws.
Subsection 7.03. Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and
warranties
set forth in Subsections 7.01 and 7.02 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 lack of examination of
any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a
breach of any of
the foregoing representations and warranties which materially and
adversely
affects the value of the Mortgage Loans or the interest of the
Purchaser (or
which materially and adversely affects the interests of the
Purchaser in the
related Mortgage Loan in the case of a representation and warranty
relating to a
particular Mortgage Loan), the party discovering such breach shall
give prompt
written notice to the other.
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Within sixty (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 a Mortgage Loan or the Mortgage
Loans, 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, at the
Purchaser's
option, repurchase such Mortgage Loan at the Repurchase Price. In
the event that
a breach shall involve any representation or warranty set forth in
Subsection
7.01 and such breach cannot be cured within sixty (60) days of the
earlier of
either discovery by or notice to the Seller of such breach, all of
the Mortgage
Loans shall, at the Purchaser's option, be repurchased by the
Seller at the
Repurchase Price. The Seller may, assuming that Seller has a
Qualified
Substitute Mortgage Loan, rather than repurchase the Mortgage Loan
as provided
above, remove such Mortgage Loan and substitute in its place a
Qualified
Substitute Mortgage Loan or Loans; provided that such substitution
shall not
violate any REMIC Provisions. If the Seller has no Qualified
Substitute Mortgage
Loan, it shall repurchase the deficient Mortgage Loan. Any
repurchase of a
Mortgage Loan(s) pursuant to the foregoing provisions of this
Subsection 7.03
shall occur on a date designated by the Purchaser and shall be
accomplished by
wire transfer of the amount of the Repurchase Price to an account
designated by
the Purchaser in writing.
At the time of repurchase of any deficient Mortgage Loan, the
Purchaser and the Seller shall arrange for the reassignment of the
repurchased
Mortgage Loan to the Seller and the delivery to the Seller of any
documents held
by the Custodian relating to the repurchased Mortgage Loan. In the
event the
Repurchase Price is deposited in the Custodial Account, the Seller
shall,
simultaneously with such deposit, give written notice to the
Purchaser that such
deposit has taken place. Upon such repurchase the related Final
Mortgage Loan
Schedule shall be amended to reflect the withdrawal of the
repurchased Mortgage
Loan from this Agreement.
As to any Deleted Mortgage Loan for which the Seller substitutes
a
Qualified Substitute Mortgage Loan or Loans, the Seller shall
effect such
substitution by delivering to the Purchaser for such Qualified
Substitute
Mortgage Loan or Loans the Mortgage Loan Documents with the
Mortgage Note
endorsed as required herein. The Seller shall deposit in the
Custodial Account
the Monthly Payment less the Servicing Fee due on such Qualified
Substitute
Mortgage Loan or Loans in the month following the date of such
substitution.
Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the
month of substitution will be retained by the Seller. For the month
of
substitution, distributions to the Purchaser will include the
Monthly Payment
due on such Deleted Mortgage Loan in the month of substitution, and
the Seller
shall thereafter be entitled to retain all amounts subsequently
received by the
Seller in respect of such Deleted Mortgage Loan. The Seller shall
give written
notice to the Purchaser that such substitution has taken place and
shall amend
the Final Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage
Loan from the terms of this Agreement and the substitution of the
Qualified
Substitute Mortgage Loan. Upon such substitution, such Qualified
Substitute
Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all
respects, and the Seller shall be deemed to have made with respect
to such
Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the
covenants, representations and warranties set forth in Subsections
7.01 and
7.02.
For any month in which the Seller substitutes one or more
Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Seller
will determine the amount (if any) by which the aggregate principal
balance of
all such Qualified Substitute Mortgage
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Loans as of the date of substitution is less than the aggregate
Stated Principal
Balance of all such Deleted Mortgage Loans (after application of
scheduled
principal payments due in the month of substitution). An amount
equal to the
product of the amount of such shortfall multiplied by the
Repurchase Price shall
be distributed by the Seller in the month of substitution pursuant
to the
Servicing Addendum. Accordingly, on the date of such substitution,
the Seller
will deposit from its own funds into the Custodial Account an
amount equal to
such amount.
In addition to such cure, repurchase and substitution obligation,
the
Seller shall indemnify the Purchaser and hold it harmless against
any losses,
damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and
related costs, judgments, and other costs and expenses resulting
from any claim,
demand, defense or assertion based on or grounded upon, or
resulting from, a
breach of the Seller's representations and warranties contained in
Subsections
7.01 and 7.02. It is understood and agreed that the obligations of
the Seller
set forth in this Subsection 7.03 to cure, substitute for or
repurchase a
defective Mortgage Loan and to indemnify the Purchaser as provided
in this
Subsection 7.03 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 7.01 or
7.02 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 the
relevant provisions of this Agreement.
Subsection 7.04. Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to the Seller as
of
the date hereof and as of each respective Closing Date or as of
such date
specifically provided herein or in the applicable Warranty Bill of
Sale:
(i) The Purchaser has all requisite power and authority to enter
into
and perform the obligations to be performed by it under this and
any other
documents necessary to effectuate the purchase of the Mortgage
Notes by the
Purchaser, and to consummate the transactions contemplated hereby
and thereby,
including, without limitation, full authority to buy, assume, and
accept from
the Seller the Mortgage Loans;
(ii) This Agreement constitutes the legal, valid and binding
obligation of the Purchaser enforceable against the Purchaser in
accordance with
its terms (subject to bankruptcy, insolvency, reorganization,
moratorium or
similar laws affecting creditor's rights generally); and
(iii) Neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated
hereby is
prohibited by, or requires the Purchaser to obtain any consent,
authorization,
approval or registration under any law, statute, rule, regulation,
judgment,
order writ, injunction or decree which is binding upon
Purchaser.
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Subsection 7.05. Indemnification by the Purchaser.
The Purchaser shall indemnify the Seller and hold it 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 Purchaser's representations and
warranties
contained in Subsection 7.05 above.
SECTION 8. Closing. The closing for each Mortgage Loan Package
shall
take place on the related Closing Date. At the Purchaser's option,
the closing
shall be either: by telephone, confirmed by letter or wire as the
parties shall
agree, or conducted in person, at such place as the parties shall
agree.
The closing for the Mortgage Loans to be purchased on each
Closing
Date shall be subject to each of the following conditions:
(a) all of the
representations and warranties of the Seller under
this
Agreement 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, the related Trade Confirmation or the related
Warranty
Bill of Sale;
(b) the Initial
Purchaser shall have received, or the Initial
Purchaser's attorneys shall have received in escrow, all
Closing
Documents as specified in Section 9, 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;
(c) the Seller shall
have delivered and released the Mortgage Loan
Documents to the Custodian;
(d) all other terms
and conditions of this Agreement shall have been
complied with; and
(e) all of the
representations and warranties of the Purchaser under
this Agreement 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.
Subject to the foregoing conditions, the Initial Purchaser shall
pay
to the Seller on the related Closing Date the Purchase Price, plus
accrued
interest pursuant to Section 4, by wire transfer of immediately
available funds
to the account designated by the Seller.
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SECTION 9. Closing Documents.
(a) On or before the Initial Closing Date, the Seller shall submit
to
the Initial Purchaser fully executed originals of the following
documents:
1. this
Agreement, in four counterparts;
2. a Custodial
Account Certification in the form attached as
Exhibit 6 hereto;
3. as Escrow
Account Certification in the form attached as
Exhibit 7 hereto;
4. evidence of
the existence of the Payment Clearing Account;
5. an Officer's
Certificate, in the form of Exhibit 1 hereto,
including all attachments thereto; and
6. the Seller's
underwriting guidelines.
(b) The Closing Documents for the Mortgage Loans to be purchased
on
each Closing Date shall consist of fully executed originals of the
following
documents:
1. the related
Trade Confirmation;
2. the related
Final Mortgage Loan Schedule;
3. an Officer's
Certificate, in the form of Exhibit 1 hereto,
including all attachments thereto;
4. a Security
Release Certification, in the form of Exhibit 3
hereto executed by any Person, as requested by the Initial
Purchaser, if any of the Mortgage Loans are subject to any
security interest immediately prior to the related Closing
Date, pledge or hypothecation for the benefit of such
Person;
5. 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; and
6. a Warranty
Bill of Sale in the form of Exhibit 4 hereto.
SECTION 10. Costs. The Purchaser shall pay any commissions due
its
salesmen and the legal fees and expenses of its attorneys. All
other costs and
expenses incurred in connection with the transfer and delivery of
the Mortgage
Loans, including without limitation
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recording fees, fees for title policy endorsements and
continuations, fees for
recording Assignments of Mortgage and the Seller's attorney's fees,
shall be
paid by the Seller.
SECTION 11. Seller's Servicing Obligations. The Seller, as
independent
contract servicer, shall service and administer the Mortgage Loans
during the
Preliminary Servicing Period in accordance with the terms and
provisions set
forth in the Servicing Addendum attached as Exhibit 8, which
Servicing Addendum
is incorporated herein by reference.
SECTION 12. Removal of Mortgage Loans from Inclusion under This
Agreement Upon a Whole Loan Transfer or a Securitization
Transaction on One or
More Reconstitution Dates.
The Seller and the Initial Purchaser agree that with respect to
some
or all of the Mortgage Loans, the Initial Purchaser may effect no
more than
three (3) of either:
(1) Whole Loan Transfers; and/or
(2) Securitization Transactions.
With respect to each Whole Loan Transfer or Securitization
Transaction, as the case may be, entered into by the Initial
Purchaser, the
Seller agrees:
(1) to cooperate
reasonably with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due
diligence procedures including participating in meetings with
rating agencies, bond insurers and such other parties as the
Purchaser shall designate and participating in meetings with
prospective purchasers of the Mortgage Loans or interests
therein
and providing information reasonably requested by such
purchasers;
(2) to execute all
Reconstitution Agreements provided that (i) such
Reconstitution Agreements are reasonably acceptable to the
Seller, and (ii) each of the Seller and the Purchaser is given
an
opportunity to review and reasonably negotiate in good faith
the
content of such documents not specifically referenced or
provided
for herein, and (iii) such Reconstitution Agreements do not
materially diminish Seller' rights or materially increase the
Seller's responsibilities as stated in this Agreement;
(3) with respect to
any Whole Loan Transfer or Securitization
Transaction, the Seller shall make the representations and
warranties regarding the Seller if such Whole Loan Transfer or
Securitization Transaction occurs within 12 months of the
related
Closing Date;
(4) to deliver to the
Purchaser for inclusion in any prospectus or
other offering material such publicly available information
regarding the Seller,
its financial condition and its most
recently publicly disclosed mortgage loan delinquency,
foreclosure and loss experience as shall be requested by the
Purchaser and any additional information which the Seller is
capable of
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providing without unreasonable effort or expense and the Seller
shall indemnify and hold harmless the Purchaser, each affiliate
designated by the Purchaser and each person who controls the
Purchaser or such affiliate from and against any and all
losses,
claims, damages and liabilities arising from, with respect to
information provided by the Seller pursuant to this Section 12,
information on the Final Mortgage Loan Schedule and information
that is otherwise correctly derived from or based on such Final
Mortgage Loan Schedule (collectively, the "Seller
Information"),
any untrue statement or alleged untrue statement of a material
fact contained in the Seller Information, or caused by any
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 under which they were
made, not misleading; provided however, the Seller shall not
indemnify the Purchaser for any error, omission, misstatement,
or
other errors in Seller Information that are attributable to or
caused by the Purchaser or its agents; provided further, that
the
Purchaser, shall indemnify and hold harmless the Seller, each
affiliate designated by the Seller and each person who controls
the Seller or such affiliate from and against any and all
losses,
claims, damages and liabilities arising from, with respect to
information that is not Seller Informa
