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Exhibit 99.9
EXECUTION COPY
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MASTER PURCHASE AND SERVICING AGREEMENT
By and Between
NATIONAL CITY MORTGAGE CO.
(Seller and Servicer)
and
WACHOVIA BANK, NATIONAL ASSOCIATION
(Purchaser)
Dated as of May 1, 2006
Conventional Residential First Mortgage Loans
Wachovia Bank, National Association
and Successor Purchasers
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MASTER PURCHASE AND SERVICING AGREEMENT
This MASTER
PURCHASE AND SERVICING
AGREEMENT dated as of May 1, 2006, is
between WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as
purchaser and master servicer (the "Purchaser"), and NATIONAL CITY
MORTGAGE CO.,
an Ohio corporation, as a seller and servicer (the "Seller" or
"Servicer").
PRELIMINARY STATEMENT
WHEREAS, the Seller is engaged in the business, inter alia, of
making loans
to individuals,
the repayment of which is secured by a
first lien mortgage on
such individuals'
residences (each, a
"Mortgage Loan"),
and the Purchaser
is
engaged in the business, inter alia, of purchasing Mortgage Loans;
and
WHEREAS, the
Purchaser and the Seller desire to prescribe the manner
of
purchase by the Purchaser of such Mortgage Loans and the
management,
servicing
and control of such Mortgage Loans;
NOW,
THEREFORE,
in consideration of
the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the Purchaser and the Seller agree as
follows:
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
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ARTICLE I
DEFINITIONS
Whenever used herein,
the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Advance Monthly
Payment: Any payment or other recovery of principal and
interest on a Mortgage
Loan that is received
in advance of its
scheduled Due
Date and which is not a Principal Prepayment.
Affiliate: With
respect to any specified Person, any other Person
controlling, controlled by or under common control with such
specified Person.
Agency Transfer:
The sale or transfer
by Purchaser of some
or all of the
Mortgage Loans to
Fannie Mae under its
Cash Purchase
Program or its MBS
Swap
Program (Special
Servicing Option) or to Freddie Mac under its Freddie Mac Cash
Program or Gold PC Program, retaining the Seller as "servicer
thereunder".
Agreement: This Master
Purchase and
Servicing Agreement, including all
exhibits hereto, and all amendments hereof and supplements
hereto.
ALTA: The American Land Title Association or any successor.
Ancillary Income:
All fees derived from
the Mortgage
Loans, other than
Servicing Fees and prepayment fees, including but not limited to, late
charges,
fees received with respect to checks or bank drafts returned by the
related bank
for non-sufficient
funds, assumption
fees, optional
insurance
administrative
fees and all other incidental fees and charges.
Appraised Value:
With respect to any Mortgage Loan, the value of the
related Mortgaged
Property based upon
the appraisal made for the originator at
the time of the
origination of such
Mortgage Loan or the sale price of such
Mortgaged Property if
the proceeds of such
Mortgage Loan were used to purchase
such Mortgaged Property, whichever is less.
Approved Tax Service Contract Provider: A tax service contract provider
acceptable to Fannie Mae or Freddie Mac.
ARM
Loan: A Mortgage Loan
as to which the related Mortgage Note provides
that the Mortgage Interest Rate may be adjusted periodically.
Assignment and
Conveyance:
The form attached hereto as Exhibit L and
delivered by Seller as described in Section 2.1 hereof.
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Assignment of Mortgage: An assignment of a Mortgage, notice of
transfer, or
equivalent instrument,
in recordable
form, sufficient under the laws of the
jurisdiction wherein
the related
Mortgaged Property is located to reflect
of
record the sale of the
Mortgage Loan to the assignee named therein, which
assignment, notice of
transfer or equivalent
instrument may be in blanket form
where and as permitted by law.
Available Distribution Amount: With respect to any Remittance Date,
the sum
of (i) the balance
on deposit in the Collection Account as of the close of
business on the related Determination Date, minus all portions thereof which
represent either (A)
Advance Monthly
Payments unless the Seller shall elect to
distribute such
Advance Monthly
Payments in lieu of
making a Monthly
Advance
pursuant to
Section 5.3, (B) Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds
and Condemnation
Proceeds (and related interest payments)
received by the Seller after the related Principal Prepayment Period, or (C)
other amounts,
not included in (A) or (B) above,
which are reimbursable or
payable to the Seller
pursuant to Section 4.5, and (ii) Monthly Advances, if
any, made by the Seller pursuant to Section 5.3 for such Remittance
Date.
BPO:
A broker's price opinion with respect to a Mortgaged Property.
Business Day: Any day
other than (i) a Saturday or Sunday or (ii) a day on
which banking or savings and loan institutions in the State of North Carolina
are authorized
or obligated by law or
executive order to be
closed or (iii) a
day on which banking or savings and loan institutions in the State of Ohio are
authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related
Commitment Letter
on which the Purchaser from time to time shall purchase and the
Seller from time
to time shall sell,
the Mortgage
Loans listed on the related Mortgage Loan
Schedule.
Code: The Internal
Revenue Code of 1986,
as amended from time to time, or
any successor
statute thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto.
Collection Account: The account or accounts created and maintained
pursuant
to Section 4.4.
Commitment Letter:
With respect to any Mortgage Loan Package purchased and
sold on any Closing Date, the letter agreement entered into between Purchaser
and Seller (including
any exhibits schedules
and attachments
thereto) for the
related Transaction
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 Commitment
Letter may relate to
more than one Mortgage
Loan
Package to be
purchased on one or more Closing Dates hereunder. The terms of
each Commitment Letter are incorporated herein by reference.
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Condemnation Proceeds:
All awards or settlements in respect of a taking of
all or part of a Mortgaged Property by exercise of the power
of eminent domain
or condemnation.
Customary Servicing
Procedures:
As to any Mortgage
Loan, the
reasonable
mortgage servicing
practices of prudent
mortgage lending institutions that
service mortgage
loans of the same type as the Mortgage Loans in the
jurisdictions where
the Mortgaged
Properties are located. Compliance with the
requirements of either
the Fannie Mae Guides
or the Servicer
Guide shall be
deemed to compliance with Customary Servicing Procedures.
Custodian: The
Custodian (which may be the Purchaser) designated by
Purchaser to hold the Mortgage Files.
Cut-Off Date: The date set forth on the related Commitment
Letter.
Default: Any condition or circumstance that is, or with notice or
the lapse
of time or both, would become, an Event of Default.
Deleted Mortgage
Loan: A Mortgage
Loan replaced or to be
replaced with a
Qualified Substitute Mortgage Loan.
Determination Date:
With respect to any Remittance Date, the 15th day (or
if such 15th day is not a Business Day, the Business Day
immediately
preceding
such 15th day) of the month in which such Remittance Date
occurs.
Due
Date: With respect to
any Mortgage Loan, the day of the month on which
Monthly Payments on such Mortgage Loan are due, exclusive of any days of
grace.
. With respect to the Mortgage Loans for which payment from the
Mortgagor is due
on a day other than
the first day of the
month, such
Mortgage Loans will be
treated as if the
Monthly Payment is due
on the first day of the month of such
Due Date.
Due
Period: With respect
to any Remittance
Date, the period
beginning on
the second day of the month immediately preceding the month of such
Remittance
Date and ending on the first day of the month of such Remittance
Date.
Eligible Account:
An account or accounts maintained with a Qualified
Depository.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended from
time to time, or any successor statute thereto.
Escrow Account:
The separate
account or accounts
created and
maintained
pursuant to Section 4.6.
Escrow Payments:
With
respect to any Mortgage Loan, the amounts
constituting ground
rents, taxes, assessments, water rates, sewer rents,
municipal charges,
mortgage insurance premiums, if any, fire and hazard
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insurance premiums
and any other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to any Mortgage Loan and this
Agreement.
Event of Default: Any one of the conditions or circumstances
enumerated in
Section 8.1.
Fannie Mae: Formerly known as The Federal National Mortgage
Association or
any successor thereto..
Fannie Mae
Guides: The Fannie Mae Selling Guide and the Fannie Mae
Servicing Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation or any
successor.
FICO
Score: A statistical credit score obtained by mortgage lenders in
connection with
the loan application to help assess a borrower's credit
worthiness.
Fidelity Bond:
A fidelity
bond to be obtained by
the Seller pursuant
to
Section 4.13.
First Remittance
Date: For any Mortgage
Loans in a Mortgage Loan Package,
the date identified as such in the related Assignment and
Conveyance.
Freddie Mac: Formerly
known as The Federal Home Loan Mortgage Corporation
or any successor thereto.
Freddie Mac Guide: The Freddie Mac Single-Family Seller/Servicer Guide and
all amendments or additions thereto.
Index: With respect to
any ARM Loan, the index set forth in the applicable
Mortgage Note that is
added to the Margin to determine the Mortgage Interest
Rate on each Interest
Rate Adjustment Date. In the event the Index
becomes
unavailable for any
reason, the Seller
shall select an alternative index, in
accordance with the terms of the Mortgage Note, and such
alternative index shall
thereafter be the Index for such Mortgage loan.
Insurance Proceeds:
Proceeds of any
Mortgage Insurance
Policy, any title
policy, any hazard
insurance policy,
or any other insurance
policy covering a
Mortgage Loan or the related Mortgaged Property, including any amounts required
to be deposited in the
Collection
Account pursuant to Section 4.10, to the
extent such proceeds
are not to be applied
to the restoration
of the related
Mortgaged Property or
released to the
Mortgagor in accordance with Customary
Servicing Procedures.
Interest Change
Frequency: As to any
ARM Loan, the period of time between
each Interest Rate Adjustment Date, as set forth in the related
Mortgage Note.
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Interest Rate Adjustment Date: As to any ARM Loan, the date
specified in a
Mortgage Note on which the Mortgage Interest Rate for the related
Mortgage Loan
is subject to adjustment.
Interest Rate Decrease Maximum: As to any ARM Loan, the maximum
amount, if
any, that the Mortgage
Interest Rate can
adjust downwards
after any Interest
Rate Adjustment Date, determined in accordance with the related
Mortgage Note.
Interest Rate Increase Maximum: As to any ARM Loan, the maximum
amount, if
any, that the Mortgage
Interest Rate can adjust upwards after any Interest Rate
Adjustment Date, determined in accordance with the related Mortgage
Note.
Late
Collections:
With respect to any
Mortgage Loan,
all amounts (other
than Monthly Advances) received during any Due Period, whether as late payments
of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds,
Condemnation
Proceeds, or otherwise, which represent late payments or
collections of Monthly
Payments due but
delinquent
for a previous Due Period and not previously
recovered.
Liquidated Mortgage
Loan: As to any Remittance Date, any Mortgage Loan in
respect of which the Seller has determined in accordance with the servicing
procedures specified
herein, as of the end of the related Due
Period that all
Liquidation Proceeds
that it expects to recover with respect to the disposition
of the related Mortgage Loan have been recovered.
Liquidation Expenses:
Out of pocket expenses (exclusive of overhead) which
are incurred by the Seller in connection with the liquidation of any Mortgage
Loan and not recovered
under any insurance
policy, such expenses including,
without limitation,
reasonable and
necessary legal fees and expenses actually
incurred and any related and unreimbursed expenditures for real estate
property
taxes or property
restoration,
preservation or insurance against casualty loss
or damage.
Liquidation Proceeds: Cash received in connection with the
liquidation of a
defaulted Mortgage
Loan, whether through the sale or assignment of the Mortgage
Loan, trustee's sale,
foreclosure sale or otherwise, or in connection with the
sale of the
Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Liquidation Report: The report described in Section 4.14.
Loan-to-Value Ratio:
With respect to any Mortgage Loan, the original
principal balance of
such Mortgage Loan
divided by the Appraised Value of the
related Mortgaged Property.
Loss
Mitigation Alternatives: Loss mitigation activities, including but
not
limited to modifications, assumptions, deeds-in-lieu, and
preforeclosure sales,
intended to reduce
the Purchaser's potential costs and losses that might
otherwise result from pursuing foreclosure on a delinquent Mortgage
Loan.
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Lost
Note Affidavit:
A lost note
affidavit in a form
acceptable
to the
Purchaser, that provides indemnification to the Purchaser and its
successors and
assigns for any costs or losses directly related to the absence of the
original
Mortgage Note.
Margin: With
respect to each ARM
Loan, the fixed
percentage
amount set
forth in the related
Mortgage Note as shown
in the attached
Exhibit A, which
amount is added on each Interest Rate Adjustment Date to the Index
in accordance
with the terms of the related Mortgage Note to determine the
Mortgage Interest
Rate for such Mortgage Loan.
Maturity Date: With
respect to any Mortgage Loan, the maturity date of the
related Mortgage Note and Mortgage, as specified therein.
Maximum Mortgage
Interest Rate: As to any ARM Loan,
the maximum rate
of
interest that may be charged at any time pursuant to the related
Mortgage Note.
MERS: Mortgage
Electronic
Registration
Systems, Inc., a subsidiary of
MERSCORP, Inc.
MERS
System: The electronic
mortgage registration system maintained by
MERS.
Minimum Mortgage
Interest Rate: As to any ARM Loan,
the minimum rate
of
interest, if any,
that may be
charged at any time pursuant to the related
Mortgage Note.
Monthly Advance: As defined in Section 5.3.
Monthly Payment: The scheduled monthly payment of principal and
interest on
a Mortgage Loan which
is payable
by a Mortgagor from time to time under the
related Mortgage Note.
Mortgage: The
mortgage, mortgage
deed, deed of trust, or other instrument
creating a first lien on or first priority ownership interest in an estate in
fee simple in real
property securing a
Mortgage Note
including any riders,
addenda, assumption agreements, or modifications relating
thereto.
Mortgage File: With respect to any Mortgage Loan, a file pertaining
to such
Mortgage Loan that contains the mortgage documents pertaining to such Mortgage
Loan which are
specified in Exhibit B attached hereto and any additional
mortgage documents pertaining to such Mortgage Loan required to be
added to such
mortgage file pursuant to this Agreement.
Mortgage Insurance Policy: With respect to any Mortgage Loan, the
policy of
mortgage guaranty
insurance (including all endorsements
thereto) issued
with
respect to such Mortgage Loan, if any, or any replacement
policy.
Mortgage Insurer: The named insurer under any Mortgage Insurance
Policy.
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Mortgage Interest
Rate: As to each
Mortgage Loan at any time, the annual
rate at which interest
accrues on such
Mortgage Loan at such
time pursuant to
the related Mortgage Note.
Mortgage Loan: An individual mortgage loan that is subject to
the terms of
this Agreement,
each such mortgage loan originally sold and subject to this
Agreement being
identified on the
Mortgage Loan Schedule
attached hereto as
Exhibit A.
Mortgage Loan Package:
A pool of Mortgage
Loans sold to the
Purchaser by
the Seller on a Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans to be
annexed hereto
as Exhibit
A on the Closing Date in both hard copy and floppy disk, such
schedule setting forth
at least the following
information with respect to each
Mortgage Loan
to the extent applicable: (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 type of occupancy (e.g. primary residence, etc.); (5) the type of
residential units constituting the Mortgaged Property; (6) the original months
to maturity or the
remaining months to
maturity from the
Cut-off Date, in any
case based on the original amortization schedule and, if different,
the maturity
expressed in the same manner but based on the actual amortization
schedule; (7)
the Loan-to-Value Ratio at origination; (8) the Mortgage Interest
Rate as of the
Cut-off Date;
(9) the stated
Maturity Date; (10) the amount of the
Monthly
Payment as of the
Cut-off Date; (11) the original principal amount of the
Mortgage Loan; (12)
the principal balance
of the Mortgage Loan as of the close
of business on the Cut-off Date, after deduction of payments of
principal due on
or before the Cut-off Date whether or not collected; (13) the Interest Rate
Adjustment Date; (14) the Margin; (15) the Interest Rate Increase
Maximum; (16)
the Maximum Mortgage
Interest Rate;
(17) a code indicating
the purpose of the
loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(18)
a code indicating the documentation style (i.e., full, alternative or reduced);
(19) a code indicated
if the Mortgage Loan
is subject to a Mortgage Insurance
Policy; and (20) the Appraised Value of the Mortgaged Property;.
With respect to
the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall
set forth
the following
information, as of the
Cut-off Date: (1) the
number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the
Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans;
(4) the weighted
average maturity of the Mortgage Loans; (5) the weighted
average months to roll; and (6) the weighted average Maximum
Mortgage Interest
Rate.
Mortgage Note:
The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders or addenda
thereto.
Mortgaged Property:
The property securing
a Mortgage Note pursuant to the
related Mortgage.
Mortgagor: The obligor on a Mortgage Note.
Officers' Certificate:
A certificate signed
by the Chairman of the Board,
the Vice Chairman of
the Board, the
President or a Vice
President and by
the
Treasurer, the
Secretary or one of the Assistant Treasurers or Assistant
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Secretaries of the
Seller, as
applicable,
and delivered to the Purchaser as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of
the Seller, reasonably acceptable to the Purchaser.
Pass-Through Rate:
With respect to each
Mortgage Loan, the annual rate at
which interest
thereon shall be remitted to the Purchaser pursuant to this
Agreement (which is the Mortgage Interest Rate less the Servicing
Fee Rate, and
which rate
shall be net of the cost of any lender-paid Mortgage Insurance
Policy), in each case
computed on the basis
of a 360-day year
consisting
of
twelve 30-day
months. For ARM Loans, the Pass-Through Rate may change in
accordance with changes in the Mortgage Interest Rate.
Pass-Through Transfer: The sale or other transfer (which may
include one or
more related,
intermediate transfers
(but not whole loan transfers) in a whole
loan format to one or more Affiliates of the Purchaser) of some or all of
the
Mortgage Loans to a
trust or another
Person as a part of a
transaction
that
involves (A) the sale of participation certificates evidencing an interest in
such Mortgage
Loans or (B) the public issuance or private placement of
securities evidencing
an interest in such Mortgage Loans, which securities also
may evidence an interest in other mortgage loans, may be issued through a REMIC
and may, as a condition to their issuance, be required to be rated
"AA/Aa" or
higher by the Rating Agencies.
Permitted Instruments:
Any one or more of the
following obligations or
securities:
(i) direct obligations
of, or obligations fully guaranteed as to
principal and
interest
by, the United States or any agency or
instrumentality
thereof, provided such
obligations are backed by the full
faith and credit of the United States;
(ii)
repurchase obligations
with respect to any security described in
clause (i) above,
provided that the unsecured long-term obligations of the
party agreeing to
repurchase
such obligations are at the time rated by
Standard & Poor's Rating Services, a division of McGraw-Hill
Companies, in
its
highest rating category;
(iii) federal
funds, certificates of deposit, time deposits and
bankers' acceptances
of any bank or trust company incorporated under the
laws
of the United States or any state, provided that the short-term
debt
obligations of such bank or trust company (or, in the case of the
principal
bank
in a bank holding
company system, the
long-term debt
obligations of
the
bank holding
company) at the date
of acquisition
thereof have been
rated by Standard
& Poor's Rating
Services, a division of McGraw-Hill
Companies, in its highest rating category;
(iv) commercial paper of any corporation incorporated under the laws
of
the United States or any state thereof which on the date of
acquisition
has
been rated by
Standard & Poor's Rating Services, a division of
McGraw-Hill Companies, in its highest short-term rating category;
and
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(v) any other
obligation or security
acceptable to Standard & Poor's
Rating Services,
a division of McGraw-Hill Companies, in respect of
mortgage pass-through certificates rated in its highest rating
category, as
evidenced by a letter from Standard & Poor's Corporation to
such effect.
Person: Any
individual,
corporation,
partnership,
joint
venture,
association,
joint-stock company,
trust, unincorporated organization or
government or any agency or political subdivision thereof.
Principal Prepayment:
Any payment or other recovery of principal on a
Mortgage Loan
(other than Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds)
which is received in
advance of its
scheduled Due Date,
including any prepayment penalty or premium thereon to the extent
received, and
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: With respect to any Remittance Date, the
calendar month preceding the month in which such Remittance Date
occurs.
Purchase Date: As to any Agency Transfer, Pass-Through Transfer or Whole
Loan Transfer,
the date on which the
sale or transfer
of Mortgage Loans is
effective.
Purchase Price:
The price paid on the related Closing Date, by the
Purchaser to the Seller pursuant to the related
Commitment
Letter in exchange
for the Mortgage
Loans purchased on such Closing Date as provided
in Section
2.1.
Purchase Price Percentage: As to each Mortgage Loan, that
percentage of par
paid by the Purchaser
for such Mortgage Loan
as set forth in the Mortgage Loan
Schedule.
Purchaser: Wachovia
Bank, National Association and all successors in
interest pursuant to Section 7.6 hereof.
Qualified Depository:
(i) a depository, the long-term unsecured debt
obligations of which are rated by Moody's Investors Service,
Inc. or Standard
&
Poor's Ratings Group (or a comparable rating agency) in one of its
three highest
rating categories; (ii) the corporate trust department of a
national bank; (iii)
a depository which
fully insures the Collection Account and the Escrow Account
with insurance
provided
by the FDIC; or (iv) Wachovia Bank, National
Association.
Qualified Substitute
Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must,
on the date of
such substitution, (i) have an outstanding principal balance, after
deduction of
all scheduled
payments due in the
month of substitution
(or in the case of
a
substitution of more
than one mortgage loan
for a Deleted Mortgage
Loan, an
aggregate principal balance), not in excess of the outstanding
principal balance
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of the Deleted
Mortgage Loan (the amount of any shortfall will be deposited in
the Collection Account by the Seller in the month of substitution);
(ii) have a
Mortgage Interest
Rate not less than the
Mortgage Interest
Rate and not more
than 1% greater than the Mortgage Interest Rate of the Deleted
Mortgage Loan;
(iii) have a remaining
term to maturity not
greater than and not more than one
year less than that of the Deleted Mortgage Loan; (iv) be of the same type as
the deleted Mortgage Loan (e.g., if the Deleted Mortgage Loan is a
3/1 ARM Loan,
the substituted
loan must be a 3/1
adjustable rate mortgage loan with the same
Mortgage Interest Rate
caps); (v) have a
Loan-to-Value Ratio
not in excess of
the Loan-to-Value
Ratio of the Deleted Mortgage Loan; and (vi) comply with each
representation and warranty (respecting individual Mortgage Loans) set
forth in
Section 3.1 hereof.
Rating Agency: Any nationally recognized statistical credit rating
agency,
including but not
limited to Moody's
Investors Service,
Inc, and Standard &
Poor's Ratings Group.
Reconstitution
Agreements: The agreement or agreements entered into by the
Purchaser, the Seller, Fannie Mae or Freddie Mac or certain third
parties on the
Reconstitution Date(s)
with respect to ten
(10) or more of the Mortgage Loans
(unless otherwise agreed to by the Purchaser and the Seller), in
connection with
a Pass-Through Transfer, Whole-Loan Transfer or an Agency
Transfer as set forth
in Section 7.6, including, but not limited to, (i) a Fannie Mae
Mortgage Selling
and Servicing
Contract, a Pool Purchase Contract, and any and all servicing
agreements and
tri-party agreements reasonably required by Fannie Mae with
respect to a Fannie Mae Transfer, (ii) a Purchase Contract and all purchase
documents associated
therewith as set forth in the Freddie Mac Sellers' &
Servicers' Guide, and any and all servicing agreements and tri-party
agreements
reasonably required by
Freddie Mac with respect to a Freddie Mac Transfer, and
(iii) a Pooling and Servicing Agreement and/or a subservicing/master servicing
agreement and related
custodial/trust
agreement and related documents with
respect to a Pass-Through Transfer.
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 an Agency Transfer, Whole Loan Transfer or a
Pass-Through Transfer pursuant to Section 7.6 hereof. On such date
or dates, the
Mortgage Loans
transferred shall
cease to be covered by this Agreement and the
Seller's servicing
responsibilities
shall cease under this Agreement with
respect to the related transferred Mortgage Loans.
Record Date: With respect to any Remittance Date, the last Business Day of
the month preceding the month of such Remittance Date.
Remittance Date:
The 18th day (or if
such 18th day is not a Business Day,
the first Business
Day immediately preceding such 18th day) of any month,
beginning for the
Mortgage Loans in any
Mortgage Loan Package with the First
Remittance Date identified in the related Assignment and
Conveyance.
REO
Property: A Mortgaged
Property acquired in foreclosure or by deed
in
lieu of foreclosure, as described in Section 4.14.
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REO
Servicing Fee: The fee
payable to Seller or Servicer for marketing and
management of REO Property, as described in Section 4.14(c).
Repurchase Price: As defined in Section 3.3(b).
Securities
Act: The Securities Act of 1933, as amended
from time to time,
or any successor statute thereto.
Seller: National
City Mortgage Co., or its successor in interest
or any
successor to the Seller under this Agreement appointed as herein
provided.
Servicer Guide: The
Wachovia Bank Residential Master Servicing Servicer
Guide, formerly
known as the First
Union National Bank Residential Master
Servicing Servicer
Guide, as amended from
time to time
(available on-line
at
http://www.umservicing.com).
Servicing Advances: All customary, reasonable and necessary "out of
pocket"
costs and expenses
(including reasonable
attorneys'
fees and disbursements)
incurred by
the Seller in the performance of its servicing obligations
hereunder, including,
but not limited to, the cost of (i) the
preservation,
restoration and
protection of the Mortgaged Property, (ii) any enforcement or
judicial proceedings,
including
foreclosures,
(iii)
the management and
liquidation of the REO Property, and (iv) compliance with the
obligations under
Section 4.8.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the
annual fee payable to the Seller as compensation for servicing and
administering
such Mortgage Loan. Such fee shall, for a period of one full month,
be equal to
one-twelfth of the product of (i) the Servicing Fee Rate times (ii)
the
outstanding principal balance of such Mortgage Loan. Such fee shall
be payable
monthly and shall be computed on the basis of the same principal
amount and
period respecting which any related interest payment on such
Mortgage Loan is
computed. The Servicing Fee is payable solely from the interest
portion
(including recoveries with respect to interest from Late
Collections, to the
extent permitted by Section 4.5) of such Monthly Payment or from
Late
Collections collected by the Seller, or as otherwise provided under
Sections
4.5, 4.14 and 6.3, and only at the time of and with respect to
those Mortgage
Loans for which payment is in fact made of the entire amount of the
Monthly
Payment.
Servicing Fee Rate: As to each Mortgage Loan, the annual rate at which
the
Servicing Fee with
respect to such
Mortgage Loan will be
calculated,
as set
forth in the Mortgage Loan Schedule.
Stated Principal
Balance: As to each Mortgage Loan (i) the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect
to
payments of principal due on or before such date, whether or not
received, minus
(ii) all amounts
previously distributed
to the Purchaser
with respect to
the
related Mortgage
Loan representing payments or recoveries of principal or
advances in lieu thereof.
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Sub-Servicer: Any Person who services a Mortgage Loan pursuant to a
Sub-Servicing Agreement.
Sub-Servicing Agreement: Any contract between the Seller and a
Sub-Servicer
relating to
servicing or administration of one or more Mortgage Loans as
provided in Section 4.1(d).
Transaction: A
specific transaction
for the sale and purchase of Mortgage
Loans under this Agreement, evidenced by a Commitment
Letter and an
Assignment
and Conveyance.
Underwriting Guidelines: As defined in Section 3.1(bb).
Unpaid Principal Balance: As to each Mortgage Loan that was not a
Qualified
Substitute Mortgage
Loan, as of any date of determination, (i) the outstanding
principal balance
of such Mortgage Loan as of the Cut-Off Date, after
application of
payments due on or before the Cut-Off Date, minus (ii) the
principal portion of
all payments made by or on behalf of the Mortgagor (other
than Monthly Advances)
that were not due on
or before the Cut-Off
Date. As to
each Mortgage Loan that was a Qualified Substitute Mortgage Loan,
as of any date
of determination, (i) the outstanding principal balance of such
Mortgage Loan as
of the date of substitution of the application of payments due on
or before such
date, minus (ii) the
principal portion of
all payments made by or on behalf of
the Mortgagor (other than Monthly Advances) that were not due on or
before such
date.
Vice
President: With respect to the Seller, any vice president,
whether or
not designated
by a number or a word
or words added before
or after the title
"vice president."
Whole Loan
Transfer: The sale or other transfer of some or all of the
Mortgage Loans in a
whole loan and/or
participation
certificate
format to a
third party, which sale or transfer is not a Pass-Through
Transfer.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE
FILES; BOOKS AND RECORDS; DELIVERY OF MORTGAGE LOAN
DOCUMENTS; RECORDATION OF ASSIGNMENTS OF MORTGAGE
Section 2.1
Conveyance of Mortgage Loans; Possession of Mortgage
Files;
Purchase Price
The
Seller, simultaneously
with the payment of
the Purchase
Price shall
execute and deliver to the Purchaser an Assignment and Conveyance with respect
to the related
Mortgage Loan Package in the form attached hereto as Exhibit L.
Pursuant to Section
2.3, on or prior to the related Closing Date, the Seller
shall have delivered
the Mortgage Loan
Documents for each Mortgage Loan in the
Mortgage Loan Package to the Purchaser or its designated
Custodian.
The
Seller's execution and
delivery of an Assignment and Conveyance shall
be deemed to sell,
transfer, assign, set over and convey to the Purchaser,
without recourse, but subject to the terms and provisions of this
Agreement, all
the right,
title and interest of the Seller in and to the
related Mortgage
Loans.
The
documents comprising
each Mortgage File that are not required to be so
tendered to the Purchaser pursuant to Section 2.3 are and shall be
held in trust
by the Seller for the benefit of the Purchaser as the owner thereof, and the
Seller's possession
of such documents so held by the Seller is
at the will of
the Purchaser for the sole purpose of servicing the related
Mortgage Loan, and
such holding and possession by the Seller is in a custodial
capacity only.
Upon
the execution and delivery hereof, the legal and beneficial
ownership of each
Mortgage Note, each
Mortgage, and each of
the other documents
comprising the
Mortgage File with
respect to each Mortgage Loan is vested in the Purchaser and
the ownership of all
records and documents
with respect to each
Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be held and maintained,
in trust, by the
Seller
at the will of the
Purchaser in such
custodial capacity
only. The documents
comprising each
Mortgage File so held by the Seller shall be readily available
to the Purchaser and shall be segregated from the other books and
records of the
Seller and shall be
appropriately
marked to clearly
reflect the sale of the
related Mortgage Loan to the Purchaser. The Seller shall release its
custody of
any such documents only in accordance with written instructions from the
Purchaser unless
such release is required as incidental to the Seller's
servicing of the
Mortgage Loans or is in connection with a repurchase or
substitution of any Mortgage Loan pursuant to Section 3.3.
On
the Closing Date,
Purchaser shall pay to
Seller for the Mortgage Loans
the sum of (i) the Stated Principal Balance of the Mortgage Loans
multiplied by
the Purchase Price Percentage, plus (ii) an amount equal to
accrued interest on
the Mortgage Loans at the Mortgage Interest Rate, from and
including the Cut-Off
Date through
and including the day before the Closing
Date. The payment by
Purchaser shall
be made by wire
transfer before 4:00pm, Eastern Time, in
immediately available
funds to an account designated by Seller. If any
miscalculation is
reflected in the purchase price for the Mortgage Loans, the
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<PAGE>
party benefiting from
such error shall pay an amount sufficient to correct the
error. The Purchaser
shall own and be
entitled to receive with respect to each
Mortgage Loan purchased, (1) all scheduled principal due after the
Cut-off Date,
(2) all other recoveries of principal collected after the Cut-off Date
(provided, however,
that all scheduled
payments of principal
due on or before
the Cut-off Date and collected by the Seller after the Cut-off Date
shall belong
to the Seller), and
(3) all payments of
interest on the
Mortgage Loans
minus
that portion of any such interest payment that is allocable to the
period prior
to the Cut-off Date.
The Unpaid Principal
Balance of each
Mortgage Loan as of
the Cut-off Date is determined after application to the reduction of
principal
of payments
of principal due on or before the 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 Cut-off Date shall not
be applied to the principal balance as of the Cut-off Date. Such
prepaid amounts
shall be the property of the Purchaser. All payments of principal and
interest
due on a Due Date following the Cut-off Date shall belong to the
Purchaser.
Section 2.2 Books and Records
The
Seller shall be responsible for maintaining, and shall maintain, a
complete set of books and records for each Mortgage Loan that shall be clearly
marked to reflect the
ownership of each
Mortgage Loan by the
Purchaser.
Any
funds received on or
in connection
with a Mortgage
Loan shall be held by
the
Seller in trust for the benefit of the Purchaser as the beneficial
owner of the
Mortgage Loans.
Record title to each
Mortgage and the related Mortgage Note as of the
related Closing Date shall be in the name of the Seller; provided,
however, that
if a Mortgage has been recorded in the name of MERS or its
designee, the
Seller
is shown as the owner of the related Mortgage Loan on the records of MERS
for
purposes of the
system of recording transfers of beneficial ownership of
mortgages maintained by MERS. Notwithstanding the foregoing,
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.
All rights
arising out of the
Mortgage Loans including, but not limited to, all funds
received by the Seller after the applicable Cut-Off Date on or in connection
with a Mortgage Loan
as provided
in Article IV hereof
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
Article IV hereof
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 purchase on the Purchaser's
business records, tax returns and financial statements,
and as a sale of
assets
on the Seller's business records, tax returns and financial
statements.
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<PAGE>
Section 2.3
Delivery of Mortgage Loan Documents Regarding Mortgage Loans;
Assignments of Mortgage
(a)
At least ten Business
Days prior to the
Closing Date (or as otherwise
specified in the Commitment Letter) the Seller has delivered
or will deliver to
the Purchaser (or its
designated Custodian)
pursuant to written
instructions
from the Purchaser each of the following documents with respect to
each Mortgage
Loan:
(i) The original Mortgage Note, endorsed "Pay to the order of
________________,
without recourse," and
signed in the name of the Seller
by
an authorized
officer, with all intervening endorsements showing a
complete chain of
title from the
originator of such
Mortgage Loan to the
Seller, or a Lost Note
Affidavit with a copy of the original Mortgage Note
attached. In the event that the Mortgage Loan was acquired by the
Seller in
a
merger, the
endorsement
must be by " ,
successor by merger to [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
endorsement must be by " , formerly known as [previous name]."
(ii) The original Mortgage, with evidence of recording
thereon, or a
copy
thereof certified by the public recording office in which such
Mortgage has been recorded, or if the original Mortgage has
been delivered
for
recording to the appropriate public recording office of the
jurisdiction in which
the Mortgaged
Property is located but has not yet
been
returned to the Seller by such recording office, a true copy of such
original Mortgage so
certified by the Seller, together with a certificate
of
the Seller certifying
that such original Mortgage has been so delivered
to
such recording office.
(iii) A certified true
copy of an original
Assignment of
Mortgage,
from
the Seller to
________________ (or
to MERS, as nominee
for Wachovia
Bank, National
Association,
if so specified in the related Commitment
Letter), so certified by the Seller, which assignment shall be in form
and
substance acceptable for recording; provided, however, that if the
related
Mortgage has been
recorded in the name of MERS, no Assignment of Mortgage
will
be required to be prepared or delivered and, instead, the Seller
shall
take
all actions as are necessary to cause the Purchaser to be shown as
the
owner of the related
Mortgage Loan on the
records of MERS for purposes of
the
system of recording
transfers of beneficial ownership of mortgages
maintained by MERS. In the event that the Mortgage Loan was
acquired by the
Seller in a merger,
the Assignment of Mortgage must be by " , successor by
merger to [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 of Mortgage
must be by " _____ ,
formerly known as
[previous name]."
(iv) The original Mortgage Insurance Policy, if any, or certificate
of
primary mortgage guaranty insurance, if any; or if the Seller
customarily
maintains data regarding primary mortgage insurance in electronic
form, the
Seller shall deliver
electronic data regarding primary mortgage insurance
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<PAGE>
coverage, including
the name or code of the primary Mortgage Insurer, the
certificate number and
the percent of coverage to Purchaser within thirty
days
after the Closing Date;
(v) The original policy of title insurance and all applicable
endorsements thereto
(or copies thereof
certified by the title
insurer),
provided that if any
such original policy
of title insurance has
not yet
been
received by the Seller, the Seller may have delivered to the
Purchaser
a
true, correct and complete copy of such policy, a title insurance
binder,
or a
commitment for the
issuance of such
policy, and an insured
closing
agreement, if applicable.
(vi) Originals
of all intervening Assignments of Mortgage, with
evidence of recording
thereon (or copies
thereof certified by
the public
recording office in which such Assignments of Mortgage have been
recorded),
showing a complete
chain of title from the originator to the Seller (or to
MERS, if applicable), provided that if any such original intervening
Assignment of Mortgage has been delivered for recording to the
appropriate
public recording office of the jurisdiction in which the Mortgaged
Property
is
located but has not yet been returned to the Seller by such recording
office, the Seller may
have delivered to the Purchaser a true copy of such
original Assignment of Mortgage so certified by the Seller,
together with a
certificate of the
Seller certifying
that such original Assignment of
Mortgage has been so
delivered to such recording office.
(vii) Originals, or
copies thereof
certified by the public recording
office in which such documents have been recorded, if applicable, of all
assumption and modification agreements, if any.
Whenever a true copy of a document is required to be delivered to the
Purchaser pursuant to
this Section 2.3(a),
the following form of certification
is permitted:
"Certified true copy
of the original which has been transmitted
for recordation. ____________________, By
________________________."
(b)
Promptly following the Closing Date, Seller shall deliver for
recording
to the appropriate
public recording office of the jurisdiction in which the
Mortgaged Property
is located, and shall cause to be duly recorded, each
original Assignment
of Mortgage referred to in Section 2.03(a)(iii). All
recording fees
relating to the
recordation
of the Assignments of Mortgage,
together with any fees for title policy endorsements and
continuations, shall be
paid by Seller
from its own
funds. If any such Assignment of Mortgage is
returned unrecorded to Seller because of any defect therein,
Seller shall cause
such defect to be
cured and such
Assignment of
Mortgage to be recorded in
accordance with this Section.
(c)
Within 30 days following receipt thereof, the Seller shall deliver to
the Purchaser or Custodian, if so directed by Purchaser, the
following documents
with respect to each Mortgage Loan:
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(i) for each Mortgage
Loan in respect of which the Seller previously
tendered to the Purchaser only a certified true, correct and complete copy
of
the original Mortgage pursuant to Section 2.03(a)(ii) and the
certificate referred
to therein,
the original of such Mortgage, with
evidence of recording thereon,
(ii) for each Mortgage Loan in respect of which the Seller
previously
tendered to the Purchaser only a copy of the policy of title
insurance or a
title insurance binder or commitment pursuant to Section 2.03(a)(v), the
original policy of title insurance with respect to such Mortgage
Loan,
(iii) for each Mortgage Loan in respect of which the Seller
previously
tendered to the Purchaser only a certified true, correct and complete copy
of
any original
intervening
Assignment
of Mortgage
pursuant to
Section
2.03(a)(vi) and the certificate referred to therein, the original of such
intervening Assignment of Mortgage, with evidence of recording
thereon, and
(iv) for each Mortgage Loan in respect of which the Seller
previously
tendered to the Purchaser only a certified, true, correct and
complete copy
of
the Assignment
of Mortgage
referred to in Section
2.03(a)(iii),
the
original of such
Assignment
of Mortgage, with evidence of recording
thereon.
The
Seller shall forward to the Custodian original documents
evidencing an
assumption, modification, consolidation or extension of any
Mortgage Loan within
one week 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 one week of its execution, and shall provide the original
of
any document submitted
for recordation or a copy of such document certified by
the appropriate public
recording office to be a true and complete
copy of the
original within thirty (30) days of its receipt of the recorded
document.
In
the event that the original (or a copy thereof certified by the public
recording office
in which such document has been recorded) of any of the
Mortgage Loan
documents described in
Section 2.3(a) (except
the Assignment of
Mortgage) cannot be
delivered on the related Closing Date due to a delay in the
public recording
office, the Seller shall deliver or cause
to be delivered to
the Purchaser a certified true and correct copy of such
documents,
and if the
original (or a copy thereof certified by the public
recording office in which
such document has been
recorded) of any such
document is not
delivered to the
Purchaser within 180
days after the subject Closing Date, the related Mortgage
Loan shall, upon the
request of the Purchaser, be repurchased by the Seller
at
the Repurchase Price as described in Section 3.3(b).
(d)
Notwithstanding
the foregoing,
the parties agree that
some or all of
the Mortgage Loans
subject to this
Agreement may be registered on the MERS
System, either through the recordation of a Mortgage showing MERS
as nominee for
the originating
lender or by the
recordation
of an Assignment of Mortgage
showing MERS as assignee. The Seller and the Purchaser
hereby acknowledge
that
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MERS will have no
beneficial interest in
any such Mortgage
Loan and that the
registration of such a
Mortgage Loan with MERS will not in any way
affect the
rights, title, interest, obligations, or responsibilities of the parties
under
this Agreement, except as expressly provided in this Section 2.3.
The Seller and
the Purchaser agree to
cooperate in all ways necessary to effectuate the use of
the MERS System for the purpose of facilitating the transfer of such Mortgage
Loans, and
notwithstanding
any other provisions of this Agreement to the
contrary, agree to
accept such
documentation and evidence of transfer provided
by MERS under its operating documents to accomplish the transfer of
ownership in
such Mortgage Loans.
For any Mortgage Loan
previously
registered on the
MERS
System and previously
originated
in the name of or
assigned to MERS, (i)
the
Seller shall not be required to deliver any Assignment of Mortgage as
described
in Section
2.3(a)(iii); (ii) the
Seller shall initiate
with MERS electronic
transmissions of MERS
identification
numbers and such other information as
required by MERS, and such electronic transmissions shall identify
the Purchaser
as the owner of such
Mortgage Loan;
and (iii) the
Seller shall pay any fees
charged by MERS in
connection with the
electronic
transfer of evidence of
ownership to the Purchaser. If the Commitment Letter specifies that
the Mortgage
Loans are to be assigned to MERS but any Mortgage Loan has not
previously
been
assigned to MERS or
registered in the MERS
System, then (i) the Seller shall
prepare and record an Assignment of Mortgage as described in
Section 2.3(a)(iii)
and shall promptly
transmit the recording
information to Purchaser and MERS as
required by MERS;
(ii) the Seller
shall create MERS identification numbers
relating to each such Mortgage Loan in the manner required by MERS
(or shall use
MERS identification
numbers provided by Purchaser); (iii) the Seller shall
initiate with MERS electronic transmissions of MERS
identification numbers
and
such other information
as required by MERS, and such electronic transmissions
shall identify the
Purchaser as the owner of such Mortgage Loan; and (iv) the
Seller shall pay any fees charged by MERS in connection with the
registration of
such Mortgage Loan on the MERS System and the electronic transfer
of evidence of
ownership to the Purchaser.
Section 2.4 Closing Documents
(a)
On or before the initial Closing Date, the Seller shall submit to the
Purchaser fully executed originals of the following documents:
(i) this Agreement, in four counterparts;
(ii) an Officer's
Certificate,
in the form of Exhibit
G-2 hereto,
including all attachments thereto;
(iii) an Opinion of Counsel to the Seller, in the form of Exhibit G-1
hereto;
(b)
The Closing Documents
for the Loans to be
purchased on each Closing
Date (including
the initial Closing Date) shall consist of fully executed
originals of the following documents:
(i) the related Commitment Letter;
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<PAGE>
(ii) if any of the Mortgage Loans has at any time been subject
to any
security interest, pledge or hypothecation for the benefit of any
Person, a
Security Release Certification, in the form of Exhibit K hereto,
executed
by
such Person;
(iii) 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
(iv) an Assignment and Conveyance, in the form of Exhibit L
hereto.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.]
20
<PAGE>
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE SELLER CONCERNING MORTGAGE LOANS;
REPURCHASE OF MORTGAGE LOANS
Section 3.1
Individual Mortgage Loans
The
Seller hereby
represents and warrants to and agrees with the Purchaser
that, as to each Mortgage Loan as of the related Closing Date:
(a)
The information
with respect to such
Mortgage Loan set forth on the
Mortgage Loan Schedule is complete, true and correct. In addition, the Seller
shall deliver with
respect to such
Mortgage Loan
complete, true and correct
electronic information
for each "required"
field and, as applicable, for each
"optional" field as described in the schedule attached as Exhibit
A-1.
(b)
The Mortgage and the Mortgage Note have not been assigned or pledged,
and, immediately
prior to the transfer
thereof to the
Purchaser pursuant to
Section 2.1, the Seller had good and marketable title thereto, and
the Seller is
the sole owner and
holder of such
Mortgage Loan free and
clear of any and all
liens, claims,
encumbrances,
participation
interests,
equities,
pledges,
charges, or security
interests of any
nature and has full right and authority,
subject to no interest or participation of, or agreement with, any other
party,
to sell and assign
such Mortgage
Loan pursuant to this Agreement. Upon the
transfer thereof to the Purchaser pursuant to Section 2.1, the
Seller will have
taken all actions
necessary on its part to be taken so that the Purchaser
will
have good indefeasible title to, and will be sole owner of, the
Mortgage and the
Mortgage Note,
free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges, or security interests
of
any nature, subject to bankruptcy, insolvency, moratorium, reorganization and
similar laws
relating or limiting the enforcement of creditor's rights
generally.
(c)
The Mortgage is a valid, subsisting and enforceable
first lien on the
Mortgaged Property
including all buildings, fixtures, installations and
improvements to the Mortgaged Property, and the Mortgaged Property is free
and
clear of all
encumbrances and liens
having parity with or priority
over the
first lien of the
Mortgage except for
(i) the lien of
current real
property
taxes and assessments
not yet due and payable, (ii) covenants, conditions and
restrictions, rights
of way, easements,
mineral right
reservations and
other
matters of public
record as of the date of recording of such Mortgage, such
exceptions generally
being acceptable under prudent mortgage lending standards
or specifically
reflected in the appraisal made in connection with the
origination of such
Mortgage Loan, and (iii) other matters to which like
properties are commonly subject that do not materially interfere
with the value,
use, enjoyment or marketability of the Mortgaged Property. There
are no security
agreements, chattel mortgages, or equivalent documents related to
the Mortgage.
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<PAGE>
(d)
The terms of the Mortgage and the Mortgage Note have not been
impaired,
waived, altered,
or modified in any
respect, except by a written instrument
which has been recorded, if necessary, to protect the interest of the
Purchaser
and which has been delivered to the Purchaser. The substance of any such
alteration or
modification
is reflected on the
Mortgage Loan Schedule and has
been approved, to the extent necessary, by the Mortgage Insurer, if
any, and the
insurer under the applicable mortgage title insurance policy.
(e)
No instrument of release, waiver, alteration, or modification has
been
executed in connection
with such Mortgage Loan, and no Mortgagor has been
released, in whole or in part, except in connection with an
assumption agreement
which has been
approved by the Mortgage Insurer, if any, and which is part of
the Mortgage
File and has been
delivered to the
Purchaser,
and the terms of
which are reflected in the Mortgage Loan Schedule.
(f)
There is no
default, breach, violation, or event of acceleration
existing under the
Mortgage or the
Mortgage Note, and no event has occurred
which, with the
passage of time or with notice and the expiration of any grace
or cure period, would constitute such a default, breach,
violation, or event
of
acceleration, and
neither the Seller nor any seller or servicer, has waived any
such default,
breach, violation, or event of acceleration. All taxes,
governmental assessments (including assessments payable in future
installments),
insurance premiums,
leasehold payments, or ground rents which previously became
due and owing in respect of or affecting the related Mortgaged Property have
been paid, or an escrow of funds has been established for the items
identified
in the Mortgage Loan Schedule in an amount sufficient to pay for
every such item
which remains unpaid and which has been assessed but is not yet due
and payable.
The Seller has not advanced funds, or induced, solicited, or knowingly
received
any advance
of funds by a party other than the Mortgagor, directly or
indirectly, for the
payment of any amount required by the Mortgage or the
Mortgage Note.
(g)
The Mortgaged Property
is free of material
damage and in good repair,
and there is no
proceeding pending
or threatened for the total or partial
condemnation of the Mortgaged Property, nor has any notice of any such
pending
or threatened
proceeding been received, so as to adversely impair the
value or
marketability of the Mortgaged Property.
(h)
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) which are, or may be, liens prior or equal to, or
coordinate with, the lien of the related Mortgage.
(i)
All of the
improvements
which were included for the purpose of
determining the Appraised Value of the Mortgaged Property were completed at the
time that such Mortgage Loan was originated and lie wholly within
the boundaries
and building restriction lines of such Mortgaged Property. Except
for de minimis
encroachments
permitted by either the Fannie Mae Guides (MBS Special Servicing
Option), no
improvements on
adjoining properties
encroach upon the
Mortgaged
Property. No
improvement located on
or being part of the Mortgaged Property is
in violation
of any applicable zoning law or regulation. All inspections,
licenses, and
certificates
required to be made or
issued with respect to
all
occupied portions of
the Mortgaged Property
(including all such
improvements
which were included for the purpose of determining the Appraised Value) and,
22
<PAGE>
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 and the Mortgaged
Property is lawfully
occupied under applicable law.
(j)
The Seller, its
Affiliates,
and any prior
parties that have had
any
interest in the Mortgage, whether as mortgagee, assignee, pledgee,
or otherwise,
are (or, during the
period in which they held and disposed of such interest,
were) (i) in compliance with any and all applicable
licensing requirements of
the laws of the state
wherein the
Mortgaged Property is located and (ii)
are
either (A) organized under the laws of such state, (B) qualified to do business
in such state, (C)
federal savings and loan associations or national banks
having principal offices in such state, (D) not doing business in
such state, or
(E) not required to qualify to do business in such state.
(k)
As of the Closing
Date, such
Mortgage Loan is not more than 30 days
delinquent in payment
of principal and
interest and such Mortgage Loan has not
been more than 30 days delinquent in payment of principal and
interest since its
origination.
(l)
On or prior to the Closing Date, the Seller has, in accordance with
Section 2.3(a),
delivered to the
Purchaser originals of
each of the documents
with respect to such Mortgage Loan specified in Section 2.3(a) (or
the documents
specified therein
permitted to be delivered in lieu thereof) and the other
documents in the Mortgage File. There are no custodial agreements in effect
adversely affecting the right or ability of the Seller to make the
deliveries of
such documents.
Each of the
documents with respect to such Mortgage Loan
specified in
Section 2.3(a), Exhibit B hereto or in the Mortgage File is
genuine, true, correct
and complete and has not been altered or modified in any
way except as noted in the Mortgage File, and each is duly executed and in
due
and proper form, and is in form acceptable to Fannie Mae or Freddie
Mac.
(m)
The Mortgage Note and the Mortgage are genuine, and each is the legal,
valid and binding
obligation
of the maker
thereof and each party assuming
liability therefor,
enforceable in
accordance with its
terms, except as
such
enforcement may
be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of
creditors' rights
generally and except that the equitable remedy of specific
performance and other
equitable remedies are
subject to the discretion of the courts. All parties to
the Mortgage Note and
the Mortgage had legal
capacity to execute
the Mortgage
Note and the Mortgage
and convey the estate
therein purported to
be conveyed,
and the Mortgage Note and the Mortgage have been duly and properly
executed by
such parties or
pursuant to a valid power-of-attorney. The Mortgagor is a
natural person
who is a party
to the Mortgage Note and the Mortgage in an
individual capacity or in the capacity of trustee.
(n)
The transfer of the Mortgage Note and the Mortgage as and in the
manner
contemplated by the Commitment Letter, and this Agreement is
sufficient fully to
transfer to the Purchaser all right, title and interest of the
Seller thereto as
note holder and
mortgagee,
subject to bankruptcy, insolvency, moratorium,
reorganization and
similar laws
relating to or
limiting the
enforcement
of
creditors' rights
generally.
The Mortgage has been duly assigned and the
Mortgage Note has been duly endorsed as provided in Section 2.3(a).
If required,
23
<PAGE>
the Assignment
of Mortgage delivered to the Purchaser pursuant to Section
2.3(a)(iii) is in recordable form and is acceptable for recording
under the laws
of the applicable jurisdiction.
(o)
Any and all requirements of any applicable federal, state, or local
law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity,
predatory and
abusive lending,
or disclosure laws applicable to national banks or their
operating subsidiaries
in connection with the origination of such Mortgage Loan
have been complied
with, and the Seller shall maintain, in its possession,
available for the Purchaser's inspection, and shall deliver to the Purchaser
or
its designee upon demand, evidence of compliance with all such
requirements. The
consummation of the
transactions
contemplated by this Agreement will not cause
the violation of any such laws.
(p)
The proceeds of such Mortgage Loan have been fully disbursed,
there is
no requirement
for, and the Seller shall not make any, future advances
thereunder. Any
future advances made prior to the Cut-Off Date have been
consolidated with the
principal balance secured by the Mortgage, and such
principal balance,
as consolidated, bears a single interest rate and single
repayment term
reflected on the Mortgage Loan Schedule. Other than as provided
in Section 5.3, there
is no obligation
on the part of the
Seller or any other
party to make payments
in addition to those made by the Mortgagor. The Unpaid
Principal Balance as of the Cut-Off Date does not exceed the
original principal
amount of such Mortgage Loan. Any and all requirements as to completion of any
on-site or off-site
improvements and as to
disbursements
of any escrow
funds
therefor have been
complied with. All costs, fees and expenses incurred in
making, or closing or recording such Mortgage Loan have been
paid.
(q)
Such Mortgage
Loan is covered
by an ALTA
mortgage title insurance
policy (and for ARM Loans, has an adjustable rate mortgage
endorsement,
which
endorsement is
substantially in the form of ALTA Form 6.1 or 6.2) or such
other
generally used and
acceptable form of
policy or insurance,
all with such form
and content as are
acceptable to Fannie Mae or Freddie Mac (with environmental
lien endorsement,
condominium
endorsement,
PUD endorsement, and other
endorsements required
by Fannie Mae or Freddie Mac, to the extent applicable),
issued by and the valid and binding obligation of a title insurer
acceptable to
Fannie Mae or Freddie Mac and qualified to do business in the
jurisdiction where
the Mortgaged Property
is located, insuring
the Seller, and its successors and
assigns, as to the first priority lien of the Mortgage in the
original principal
amount of such Mortgage Loan, and such mortgage
title insurance policy is in
full force and effect.
(r)
All improvements upon
the Mortgaged Property
are insured 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 Section
4.10 by an insurer
acceptable
to
Fannie Mae or Freddie
Mac. If the Mortgaged Property is located in an area
identified in the Federal Register by the Federal Emergency
Management Agency as
having special flood hazards (and such flood insurance has been
made available),
such Mortgaged Property is covered by flood insurance. Each
individual insurance
policy has been validly issued and is in full force and
effect. The Seller
has
caused to be performed
any and all acts
required to
preserve the rights and
interests of the Purchaser in all insurance policies required by
this Agreement,
24
<PAGE>
including, without
limitation,
notification
of insurers,
and assignment of
policies or interests
therein. Each
individual
insurance policy contains a
standard mortgagee clause naming the Seller, and its successors and
assigns, as
mortgagee and loss
payee. All premiums
thereon have been paid. The Mortgage
obligates the Mortgagor to maintain all such insurance at the
Mortgagor's
cost
and expense, and upon the Mortgagor's failure to do so, authorizes
the holder of
the Mortgage to obtain and maintain such insurance at the
Mortgagor's
cost and
expense and to seek
reimbursement therefor
from the Mortgagor,
and the Seller
has not acted
or failed to act so as to impair the coverage of any such
insurance policy or the validity, binding effect and enforceability
thereof.
(s)
There is no valid offset, defense, counterclaim or right of
rescission
as to any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid
principal of or
interest on such Mortgage Note. All the
applicable terms of
the Mortgage
Notes relating to ARM Loans pertaining to
adjustments of the Mortgage Interest Rates and the Monthly
Payments and payment
adjustments in
connection
therewith are
enforceable
and will not affect
the
priority of the Mortgage lien.
(t)
Each Mortgage Loan was
originated by the
Seller; or by a
savings and
loan association,
savings bank, commercial bank, credit union, insurance
company, or similar
institution that is supervised and examined by a Federal or
state authority;
or by a mortgagee
approved by the
Secretary of Housing and
Urban Development
pursuant to Sections 203 and 211 of the National Housing Act.
Immediately prior to
the conveyance of such
Mortgage Loan by the Seller to the
Purchaser, the Seller shall have title to such Mortgage Loan.
(u)
Principal payments on
such Mortgage Loan
commenced no more than sixty
days after funds were
disbursed in
connection with such
Mortgage Loan. The
Mortgage Note requires
a Monthly Payment that
is sufficient to fully
amortize
the original
principal balance over the remaining term thereof and to pay
interest at the Mortgage Interest Rate. Such Mortgage Loan does not contain
terms or provisions that would result in negative amortization.
(v)
Such Mortgage Loan is a conventional residential mortgage loan having
an original term to maturity of not more than thirty years and
thirty-one
days
as set forth on the Mortgage Loan Schedule, with interest payable in arrears
on
the first day of each month. As to any ARM Loan, (1) on the Closing Date and
until the next Interest Rate Adjustment Date, the Mortgage
Interest Rate is
and
shall be as set forth on the Mortgage Loan Schedule; and (2) on the initial
Interest Rate
Adjustment Date set
forth in the Mortgage Loan Schedule, and on
the Interest Rate Adjustment Dates occurring every year thereafter,
the Mortgage
Interest Rate is subject to adjustment to a new Mortgage
Interest Rate equal
to
the then current
Index plus the Gross
Margin, rounded to the nearest
.125%,
subject to the Maximum
Mortgage Interest
Rate, the Minimum
Mortgage Interest
Rate, the Interest Rate Increase Maximum and the Interest Rate
Decrease Maximum.
(w)
The Mortgage contains customary and enforceable provisions which
render
the rights and
remedies of the holder
thereof adequate for the realization
against the Mortgaged Property of the benefits of the security,
including (i) in
the case of a Mortgage
designated as a deed of trust, by trustee's sale, and
25
<PAGE>
(ii) otherwise by judicial foreclosure. There is no homestead,
dower, curtesy,
or other exemption or
right available to the Mortgagor or any other person that
would interfere
with the right to sell
the Mortgaged
Property at a
trustee's
sale or the right to foreclose the Mortgage. The Mortgage contains
customary and
enforceable provisions
for the acceleration of the payment of the Unpaid
Principal Balance
of such Mortgage Loan in the event all or any part of the
related Mortgaged
Property is sold or otherwise transferred without the prior
consent of the
mortgagee or assignee
thereunder. The
Mortgage Note is not and
has not been secured
by any collateral,
pledged account, or other security
except the lien of the Mortgage.
(x)
If 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 such Mortgage, and no fees or expenses are
or will become payable
by the Purchaser to the trustee under the deed of trust,
except in connection with a trustee's sale after default by the
Mortgagor.
(y)
The Mortgaged
Property consists of a single parcel of real property
separately assessed
for tax purposes, upon which is erected a detached
or an
attached one-to-four family residence, or an individual condominium unit,
or an
individual unit in a planned unit development. Such residence,
dwelling, or unit
is not (i) a unit in a cooperative apartment, (ii) a property constituting
part
of a syndication,
(iii) a time share
unit, (iv) a property the Mortgagor's
ownership interest in
which consists of a leasehold estate, provided that the
Mortgagor's ownership
interest may include a ground lease if the Mortgaged
Property is in a location where ground leases are common, such
ground lease does
not impair the value of the Mortgaged Property or the lien of the
Mortgage, and
such ground
lease is acceptable to Fannie Mae, (v) a mobile home or (vi) a
recreational vehicle.
(z)
The Loan-to-Value Ratio of such Mortgage Loan is either (i) not
greater
than 80% or (ii) greater than 80% but not greater than 95% and the
Mortgage Loan
is insured as to
payment defaults
to the extent required by Fannie Mae for
mortgage loans
purchased by it under a Mortgage
Insurance Policy. Any such
Mortgage Insurance
Policy is issued by a Mortgage Insurer licensed to do
business in the state in which the Mortgaged Property is located and
acceptable
to Fannie Mae or Freddie Mac as of the Closing Date. Such Mortgage Insurance
Policy insures the
named insured and its
successors
and assigns and
provides
coverage at least until the Mortgage Loan meets the requirements of Fannie Mae
for the termination of such coverage. All provisions of such Mortgage
Insurance
Policy have been and are being complied with; such policy is valid and in
full
force and effect and all premiums due thereunder have been paid. If
the Mortgage
Loan is subject to a Mortgage Insurance Policy, the Mortgagor is
obligated under
the Mortgage to
maintain such
insurance and pay all premiums and charges in
connection therewith,
and the Mortgage
Interest Rate for such Mortgage Loan as
set forth on the Mortgage Loan Schedule is net of any such
insurance premium.
The Seller has no knowledge of any condition or circumstance relating to such
Mortgage Loan that
would indicate that the current appraised value of the
Mortgaged Property is
less than the Appraised Value at the origination of
such
Mortgage Loan.
26
<PAGE>
(aa)
No action has been taken or omitted by the Seller, and no event has
occurred and no state
of facts exists or has existed on or prior to the Closing
Date (whether
or not known to the
Seller on or prior to such date) which has
resulted or will result in an exclusion from, denial of, or defense to
coverage
under the Mortgage Insurance Policy with respect to such Mortgage Loan,
including, without limitation, any exclusions, denials, or defenses which
would
limit or reduce the availability of the timely payment of the full
amount of the
loss otherwise due
thereunder to the insured, whether arising out of actions,
representations,
errors, omissions,
negligence,
or fraud of the
Seller, the
related Mortgagor,
or any party involved
in the application for such coverage,
including the
appraisal,
plans and specifications and other exhibits or
documents submitted therewith to the insurer under such insurance
policy, or for
any other reason under
such coverage,
but not including the failure of such
insurer to pay by reason of such insurer's breach of such insurance policy or
such insurer's financial inability to pay.
(bb)
Such Mortgage Loan was
underwritten generally
in accordance with the
underwriting
guidelines of the Mortgage Loan's originator in effect at the
time
such Mortgage Loan was originated and is substantially in
conformity with Fannie
Mae or Freddie Mac general "A" underwriting guidelines and was
underwritten to a
"full documentation"
or "alternative documentation" underwriting program
acceptable to
Fannie Mae or Freddie Mac (collectively, the "Underwriting
Guidelines"). If such Mortgage Loan is within conforming loan size
limits, it is
eligible for sale to Fannie Mae or Freddie Mac.
(cc)
There exist no
deficiencies in excess
of $200 with respect to escrow
deposits and payments,
if such are required,
for which customary
arrangements
for repayment thereof
have not been made or which the Seller expects not to be
cured, and no escrow
deposits or payments
of other charges or payments due the
Seller have been
capitalized under the
Mortgage or the
Mortgage Note. With
respect to each Mortgage, Seller has within the last twelve
months (unless such
Mortgage Loan was
originated
within such
twelve-month
period) analyzed the
required Escrow
Payments for each Mortgage Loan and adjusted the amount of such
payments so that, assuming all required payments are timely made,
any deficiency
will be eliminated on or before the first anniversary of such analysis,
or any
overage will be
refunded to the
Mortgagor, in
accordance
with RESPA and any
other applicable
law. The Mortgagor with respect to such Mortgage Loan is
required to make customary escrow payments unless such Mortgagor
paid a fee at
the closing of the Mortgage Loan to waive the escrow
requirement.
(dd)
Such Mortgage
Loan does not have a
shared appreciation
feature or
other contingent
interest feature, and no ARM Loan is convertible to
a fixed
Mortgage Interest
Rate. The Mortgage Loan is not a graduated payment Mortgage
Loan. No Mortgage
Loan was made in
connection
with (a) the
construction
or
rehabilitation of a Mortgaged Property (provided, however, that a Mortgage Loan
may be a permanent
loan that has been
modified from a
construction loan)
(b)
facilitating the trade-in or exchange of a Mortgaged Property.
(ee)
No statement, report,
or other document constituting a part of the
Mortgage File, and no certificate, document, or other instrument delivered to
Purchaser pursuant
hereto or in connection herewith, contains any untrue
statement of fact or
omits to state a fact
necessary to make the statements
contained therein not misleading.
27
<PAGE>
(ff)
The origination,
servicing and collection practices, if any, used by
the Seller with respect to such Mortgage Loan have been in all
material respects
legal, proper,
prudent and customary
in the mortgage origination and servicing
business.
(gg)
As to each ARM
Loan, the Mortgagor has received all disclosure
materials, if any,
required by
applicable
law with respect to the making of
adjustable-rate
mortgage loans
and the Mortgagor has executed one or more
statements acknowledging such receipt.
(hh)
All amounts received
with respect to such Mortgage Loan after the
Cut-Off Date and required to be deposited in the Collection Account
have been so
deposited in the
Collection
Account and are, as of
the Closing Date,
in the
Collection Account.
(ii)
The appraisal report with respect to the Mortgaged Property contained
in the Mortgage File (i) was signed prior to the approval of the
application for
such Mortgage Loan by a qualified appraiser, duly appointed by the
originator of
such Mortgage Loan,
who had no interest,
direct or indirect, in
the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected
by the approval or disapproval of such application and (2)
otherwise meets the requirements of the Fannie Mae Guides (MBS
Special Servicing
Option). Any Mortgage
Loan with an original
principal balance of $650,000 or
higher must
have at least one full appraisal on the Uniform Residential
Appraisal form (Fannie Mae Form 1004).
(jj)
Each Mortgage Note relating to an ARM Loan has been timely and
appropriately
adjusted, if such
adjustment
is required,
and the respective
Mortgagor timely and appropriately advised.
(kk)
Such Mortgage Loan is being serviced by Seller or under a
Sub-Servicing Agreement with a Sub-Servicer.
(ll)
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.
(mm)
The Mortgagor has not notified Seller, and Seller has no knowledge,
of
any relief requested or allowed to the Mortgagor under the
Servicemembers
Civil
Relief Act.
(nn)
No Mortgage Loan was selected for inclusion under this Agreement from
Seller's portfolio of
comparable loans on any basis that would be intentionally
adverse to the interest of Purchaser.
(oo)
The payment
history provided by the Seller to the Purchaser with
respect to such Mortgage Loan is true, complete and correct.
28
<PAGE>
(pp)
The Seller has no knowledge of any circumstances or condition with
respect to
the Mortgage, the Mortgaged Property, the Mortgagor or the
Mortgagor's credit
standing that can reasonably be expected to cause the
Mortgage Loan to be an
unacceptable
investment,
cause the Mortgage Loan to
become delinquent, or adversely affect the value of the Mortgage
Loan.
(qq)
The Mortgaged Property
is lawfully occupied under applicable law. All
inspections, licenses
and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to
certificates of
occupancy, have been made or obtained from the appropriate
authorities.
(rr)
If the Mortgaged
Property is a
condominium
unit or a planned
unit
development (other
than a de minimis planned unit development) such condominium
or planned unit
development project
meets the eligibility requirements for
Fannie Mae or Freddie Mac.
(ss)
No error, omission,
misrepresentation,
negligence, fraud or
similar
occurrence with
respect to a Mortgage
Loan has taken place
on the part of the
Seller or the Mortgagor in connection with the origination or servicing of
the
Mortgage Loan or on the part of any appraiser, builder, developer or any other
person involved in the origination of the Mortgage Loan.
(tt)
Since the date of
origination of the
Mortgage Loan,
the Mortgaged
Property has not been
subject to any bankruptcy proceeding or foreclosure
proceeding and the
Mortgagor has not filed for protection under applicable
bankruptcy laws.
No Mortgagor was at
the time of
origination of the
Mortgage
Loan, or to the best of Seller's knowledge is currently, a debtor
in any federal
or state bankruptcy or insolvency proceeding.
(uu)
The Mortgaged Property
is in material
compliance with all applicable
environmental laws
pertaining
to environmental hazards including, without
limitation, asbestos,
and neither the Seller nor to the Seller's knowledge, the
related Mortgagor,
has received any notice of any violation or potential
violation of such law.
(vv)
No Mortgage
Loan that is a cash-out refinancing is secured by
Mortgaged Property in the State of Texas.
(ww)
No Mortgage Loan is a simple interest Mortgage Loan.
(xx)
No Mortgagor was
required to purchase
any credit life,
disability,
accident or health
insurance product as a
condition of obtaining the extension
of credit.
No Mortgagor obtained a prepaid single premium credit life,
disability,
accident or
health insurance policy in connection with the
origination of the Mortgage Loan. None of the proceeds of the
Mortgage Loan were
used to finance single-premium credit life insurance policies.
(yy)
The Seller has obtained a life of loan, transferable real estate tax
service contract with an Approved Tax Service Contract Provider on
each Mortgage
Loan and such contract is assignable without penalty, premium or cost to the
Purchaser. Such Tax
Service Contract shall contain complete and accurate
information with respect to the Mortgage Loan and the Mortgaged
Property.
29
<PAGE>
(zz)
The Seller has obtained a life of loan, transferable flood
certification contract
for each Mortgage
Loan and such contract
is assignable
without penalty,
premium or cost to the
Purchaser.
Such flood
certification
contract shall be maintained in the Mortgage File and shall contain
complete and
accurate information
with respect to the Mortgage Loan and the Mortgaged
Property.
(aaa) Each original
Mortgage was recorded and, except for those Mortgage
Loans subject to the MERS System, all subsequent assignments of the original
Mortgage (other than
the assignment to the Purchaser) have been recorded in the
appropriate
jurisdictions wherein
such recordation is necessary to perfect the
lien thereof, or is in the process of being recorded.
(bbb) Each Mortgage
Loan has a non-zero
FICO Score,
and such FICO
Score
shall be at least as high as the minimum FICO Score referenced in
the Commitment
Letter (including any attachment or exhibit thereto).
(ccc) The Mortgage Loan is not subject to a prepayment penalty,
prepayment
charge or other restriction on the prepayment of such Mortgage Loan
prior to the
maturity date thereof.
(ddd) No Mortgage Loan is (a) subject to, covered by or in
violation of the
provisions of the Home
Ownership and Equity
Protection Act of 1994, as amended
("HOEPA"), (b)
classified
as "high cost", "covered", "high risk home",
"threshold", or
"predatory" loans under any other applicable state, federal, or
local law, including
any predatory or abusive lending laws (or similarly
classified loans using
different terminology
under a law imposing
heightened
scrutiny or additional
legal liability for
residential
mortgage loans
having
high interest rates, points and/or fees), (c) in violation of any
state or local
law or ordinance
similar to HOEPA, or
(d) classified as a
"High Cost Loan" or
"Covered Loan" as defined in the S&P LEVELS Glossary.
(eee) The Company is in compliance with all applicable anti-money
laundering laws and regulations, including the relevant
provisions of the
Bank
Secrecy Act,
as amended by the USA
Patriot Act of 2001 and its implementing
regulations, and
related government
rules and regulations
(collectively, the
"Patriot Act"); the Company has established an anti-money
laundering
compliance
program and with respect to the Patriot Act has (i) developed
internal policies,
procedures and
controls reasonably
designed to prevent it
from being used for
money laundering or
the financing of terrorist activities, (ii) designated a
compliance officer,
(iii) implemented an
ongoing employee training program and
(iv) developed an independent audit function to test the compliance
program.
(fff) No predatory
or deceptive lending practices, including but not
limited to, the extension of credit to the applicable Mortgagor without regard
for said Mortgagor's
ability to repay the
Mortgage Loan and the
extension of
credit to said Mortgagor which has no apparent benefit to said Mortgagor,
were
employed by
the originator of the Mortgage Loan in connection with the
origination of the Mortgage Loan. Each Mortgage Loan is in
compliance with
the
anti-predatory lending
eligibility
for purchase
requirements of Fannie
Mae's
Guide.
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(ggg) No Mortgage Loan secured by owner occupied real property or an
owner
occupied manufactured
home located in the
State of Georgia was
originated (or
modified) on or after October 1, 2002 through and including March
6, 2003.
(hhh) No Mortgage Loan
(a) is secured by property located in the State of
New York; (b) had an
unpaid principal
balance at
origination
of $300,000 or
less, and (c) has an
application
date on or after April
1, 2003, the terms of
which Mortgage
Loan equal or exceed either the APR or the points and fees
threshold for "high-cost home loans," as defined in Section
6-L of the New York
State Banking Law.
(iii) To the knowledge of Sller and National City Bank of Indiana
("NCBI"),
no Mortgagor was
encouraged
or required,
by Seller or National
City Bank of
Indiana ("NCBI") or
any other originator
to Seller and National
City Bank of
Indiana ("NCBI"), to select a Mortgage Loan product offered by
Seller or NCBI or
such other originator to Seller and National City Bank of Indiana
("NCBI") which
is a higher cost product designed for less creditworthy borrowers,
unless at the
time of the Mortgage
Loan's origination,
(i) such Mortgagor did not qualify
taking into account
credit history and
debt to income ratios
for a lower cost
credit product then offered by Seller or NCBI or such other
originator to Seller
and National City Bank of Indiana ("NCBI"), or (ii) such Mortgagor
selected a
higher cost
product based on product parameters and such Mortgagor's
preferences.
(jjj) Each Mortgage Loan fully conforms to all underwriting
guidelines and
other requirements of
Fannie Mae and Freddie Mac other than with respect to the
original principal amount. The Mortgage Loan was underwritten in
accordance with
the Underwriting
Guidelines
in effect at the time the Mortgage Loan was
originated.
(kkk) To the knowledge of Sller and National City Bank of Indiana
("NCBI"),
all fees and charges
(including finance
charges) and whether
or not financed,
assessed, collected or
to be collected in connection with the origination and
servicing of each Loan
have been disclosed
in writing to the Mortgagor in
accordance with applicable state and federal laws and regulations
applicable to
Seller or NCBI or other originator to Seller and National City Bank
of Indiana
("NCBI") in connection with the origination of Mortgage Loans.
.
(lll) All points and fees related to each Mortgage Loan were disclosed in
writing to the related Mortgagor in accordance with applicable
state and federal
law and regulation.
Except in the case of a Mortgage Loan in an original
principal amount
of less than $60,000 which would have resulted in an
unprofitable
origination, no
related Mortgagor was
charged "points and
fees"
(whether or not financed) in an amount greater than 5% of the principal
amount
of such loan, such 5%
limitation is calculated in accordance with Fannie Mae's
anti-predatory lending
requirements
as set forth in the
Fannie Mae Selling
Guide.
(mmm) The Company will transmit full-file credit reporting data for each
Mortgage Loan pursuant to Fannie Mae Guide Announcement 95-19 and
for each Loan,
Company agrees it
shall report
one of the
following statuses each month as
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<PAGE>
follows: new
origination,
current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off.
(nnn) Each imaged document represents a true, complete, and correct
copy of
the original
document in all respects, including, but not limited to, all
signatures conforming
with signatures
contained in the original document, no
information having
been added or deleted,
and no imaged document
having been
manipulated or altered in any manner. Each imaged document is clear
and legible,
including, but not
limited to, accurate reproductions of photographs. No
original documents have been or will be altered in any manner.
(ooo) The destruction
of any original
document or the inability of Seller
to produce a copy of such original document upon request shall not
cause (i) any
delay in the enforcement of the Mortgage Loan, (ii) any inability
to collect all
amounts due under the Mortgage Loan, including without limitation,
in connection
with a foreclosure
or other sale of the Mortgaged Property, (iii) private
institutional
investors to
regard the Mortgage Loan as an unacceptable
investment or adversely affect the value or marketability
of the Mortgage Loan,
or (iv) any claims from holders of mortgage-backed securities collateralized by
the Mortgage Loan.
(ppp) With
respect to each Mortgage Loan, the Seller has fully and
accurately furnished
complete information
on the related borrower credit files
to Equifax, Experian
and Trans Union Credit Information Company, in accordance
with the Fair Credit Reporting Act and its implementing
regulations.
Section 3.2
Representations of the Seller
The
Seller hereby
represents and warrants to the Purchaser that as of each
Closing Date or as of such date specifically provided herein:
(a)
The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and is an
operating subsidiary
of National City Bank of Indiana. As a national bank
operating subsidiary,
it is regulated by the
Office of the
Comptroller of the
Currency and is subject to all applicable laws and regulations. Seller is duly
authorized to carry on
its business
as now being
conducted as an operating
subsidiary of a national bank, and in any event the Seller is in
compliance with
all applicable laws to the extent necessary to ensure the
enforceability of
the
related Mortgage Loan in accordance with the terms of this
Agreement; the Seller
has the corporate
power and authority to hold each Mortgage Loan, to sell each
Mortgage Loan,
to enter into, execute and deliver this Agreement, and all
documents and instruments executed and delivered pursuant
hereto and to perform
its obligations in accordance therewith; the execution, delivery
and performance
of this Agreement
by the Seller and the consummation of the transactions
contemplated hereby, including, without limitation, the repurchase obligations
hereinafter contained,
have been duly and
validly authorized;
this Agreement
evidences the valid, binding and enforceable obligations of the Seller; and
all
requisite corporate
action has been taken
by the Seller to make this Agreement
valid and binding upon the Seller in accordance with its terms.
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<PAGE>
(b)
No consent, approval, authorization, or order of any court or
governmental agency or
body relating to the
transactions
contemplated by this
Agreement and
the transfer of legal title to the Mortgage Loans to the
Purchaser, is required as to the Seller or, if required, such
consent, approval,
authorization, or order has been or will, prior to the Closing
Date, be obtained
except for any
recordations
of Assignments of the Mortgages to or for the
benefit of the Purchaser pursuant to this Agreement.
(c)
The consummation of
the transactions
contemplated by this
Agreement,
including without
limitation the
transfer and assignment of the Mortgage Loans
to or for the benefit
of the Purchaser pursuant to this Agreement and the
fulfillment of or compliance with the terms and conditions of this Agreement,
are in the ordinary
course of business of the Seller and will not result in the
breach of any term or provision of the articles of incorporation or by-laws of
the Seller or result in the breach of any term or provision of, or
conflict with
or constitute a default under, or result in the acceleration of any obligation
under, any agreement,
indenture, loan or
credit agreement, or other instrument
to which the Seller or its property is subject, or result in the violation of
any law, rule, regulation, order, judgment, or decree to which the
Seller or its
property is subject.
(d)
There is no action, suit, proceeding or investigation pending or to
the
Seller's knowledge,
threatened
against the Seller which, either in any one
instance or in the aggregate, is likely to result in any
material impairment of
the right or ability of the Seller to carry on its business
substantially as now
conducted, or any
material liability to the Seller,
or any material
adverse
change in the
financial condition
of the Seller, or which would draw into
question the validity of this Agreement, or the Mortgage Loans, or
of any action
taken or to
be taken in connection with the obligations of
