Exhibit 99.10(b)
EXECUTION COPY
Morgan Stanley Mortgage Capital Inc.
and
Morgan Stanley Credit Corporation
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THIRD AMENDED AND RESTATED MASTER MORTGAGE
LOAN PURCHASE AGREEMENT
Dated as of
November 1, 2005
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Fixed, Adjustable Rate, and Pledged Asset Mortgage Loans
Seller Flow Delivery Program
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Table of Contents
Section 1.
Definitions......................................................5
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Section 2. Purchase of
Mortgage Loans......................................20
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Section 3. Delivery
Requirements...........................................21
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Section 4. Examination
of Mortgage Files...................................24
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Section 5.
Representations, Warranties and Agreements of
Seller............24
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Section 6.
Representations, Warranties and Agreements of
Purchaser.........36
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Section 7. Servicing
Obligations of Seller; Compliance with Regulation AB..38
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Section 8. Additional
Indemnification by the Seller; Third Party Claims....43
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Section 9. Intention
of the Parties........................................43
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Section 10.
Costs...........................................................43
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Section 11. Further Agreements of
Seller....................................43
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Section 12. Mandatory
Delivery..............................................43
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Section 13.
Termination.....................................................44
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Section 14. Seller's Right of First
Refusal.................................44
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Section 15. Severability
Clause.............................................44
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Section 16.
Waivers.........................................................44
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Section 17.
Survival........................................................44
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Section 18. Successor and Assigns: Assignment of Purchase
Agreement........45
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Section 19.
Notices.........................................................45
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Section 20.
Counterparts....................................................45
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Section 21. Entire
Agreement................................................45
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Section 22. Governing Law and
Amendments....................................46
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Section 23.
Exhibits........................................................46
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Section 24. General Interpretive
Principles.................................46
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Section 25. Reproduction of
Documents.......................................46
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Section 26.
Attorney-In-Fact................................................47
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Section 27.
Confidentiality.................................................47
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EXHIBIT 1 CONTENTS OF
EACH MORTGAGE FILE
EXHIBIT 2 FORM OF
AMENDED AND RESTATED MASTER SERVICING AGREEMENT
EXHIBIT 3 FORM OF
CUSTODIAL AGREEMENT
EXHIBIT 4 UNDERWRITING
GUIDE OF SELLER
EXHIBIT 5 FORM OF
CERTIFICATE OF SELLER
EXHIBIT 6 FORM OF
ASSIGNMENT FOR ADDITIONAL COLLATERAL AGREEMENTS
EXHIBIT 7 FORM OF
NOTICE OF ASSIGNMENT TO AND ACKNOWLEDGMENT BY
PURCHASER
EXHIBIT 8 FORM OF
WARRANTY BILL OF SALE
EXHIBIT 9 FORM OF
TRUST RECEIPT
EXHIBIT 10 FORM OF FINAL TRUST RECEIPT AND CERTIFICATION
EXHIBIT 11 FORM OF ANNUAL CERTIFICATION
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EXHIBIT 12 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
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THIRD AMENDED AND RESTATED MASTER MORTGAGE LOAN
PURCHASE AGREEMENT
This
is a THIRD AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE
AGREEMENT (this "Agreement"), dated as of November 1, 2005, by and
between
Morgan Stanley Mortgage Capital Inc., a New York corporation having
its
principal office at 1585 Broadway, New York, New York 10036, and
its
successors and assigns ("Purchaser"), and Morgan Stanley Credit
Corporation, a
Delaware corporation having its principal office at 2500 Lake Cook
Road,
Riverwoods, IL 60015 ("Seller").
PRELIMINARY STATEMENT
Seller and Purchaser are parties to that certain Amended and
Restated
Master Mortgage Loan Purchase Agreement, dated as of March 1, 2000
(the
"Original Purchase Agreement"), pursuant to which Seller may sell,
from time
to time, to Purchaser, and Purchaser may purchase, from time to
time, from
Seller, certain groups of fixed- and adjustable-rate, residential
first
mortgage loans (the "Mortgage Loans") as set forth therein (each
date on which
a closing of such a sale occurs is referred to as a "Closing Date")
on a
servicing-retained basis. In addition, Purchaser and Seller are
parties to
that certain Amended and Restated Master Servicing Agreement, dated
as of
November 1, 2005 (the "Servicing Agreement") pursuant to which
Seller services
and administers each Mortgage Loan for Purchaser, its successors
and assigns
from and after the respective Closing Date. At the present time,
Purchaser and
Seller desire to amend and restate the Original Purchase Agreement
as amended
and restated by the Amended and Restated Master Mortgage Loan
Purchase
Agreement dated as of March 1, 2000 and further amended and
restated by the
Second Amended and Restated Master Mortgage Loan Purchase Agreement
dated as
of February 1, 2004, to make certain modifications as set forth
herein.
NOW,
THEREFORE, in consideration of the premises and mutual
agreements
set forth herein, and for other good and valuable consideration,
the receipt
and sufficiency of which are hereby acknowledged, Purchaser and
Seller agree
as follows:
Section 1. Definitions.
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For
purposes of this Agreement, the following capitalized terms
shall
have the respective meanings set forth below. Other capitalized
terms used in
this Agreement and not defined herein shall have the respective
meanings set
forth in the form of Amended and Restated Master Servicing
Agreement.
"Additional Collateral": With respect to any Additional
Collateral
Mortgage Loan, the securities and other assets held in a Trading
Account
subject to a security interest securing such Additional Collateral
Mortgage
Loan.
"Additional Collateral Mortgage Loan": A Mortgage Loan secured
by
Additional Collateral in the form of a security interest in the
securities and
other assets held in a Trading
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Account and that is identified by Seller as an Additional
Collateral Mortgage
Loan as to which the Additional Collateral is still required to be
provided.
"Additional Collateral Pledge Agreement": With respect to each
Additional
Collateral Mortgage Loan, any pledge and security agreement and
account
control agreement in favor of Seller granting a security interest
and other
rights in a securities account to secure the related Mortgage
Loan.
"Adjustable Rate Mortgage Loan": A Mortgage Loan that provides for
the
adjustment of the Mortgage Interest Rate payable with respect
thereto in
accordance with the terms of the related Mortgage Note.
"Affiliate": With respect to any specified Person, any other
Person
controlling, controlled by or under common control with such
specified Person.
"Agreement": This Third Amended and Restated Master Mortgage
Loan
Purchase Agreement and all exhibits hereto, amendments hereof and
supplements
hereto.
"Appraised Value": With respect to any Mortgage Loan, the value of
the
related Mortgaged Property based upon the lesser of (i) the
appraisal, made
for the originator at the time of the origination of the Mortgage
Loan, and
(ii) if applicable, the sales price of the Mortgaged Property at
such time of
origination.
"Assignment": An assignment of the Mortgage, notice of transfer
or
equivalent instrument, sufficient under the laws of the
jurisdiction wherein
the related Mortgaged Property is located to reflect of record the
sale or
transfer of the Mortgage Loan, which assignment, notice of transfer
or
equivalent instrument may be in the form of one or more blanket
assignments
covering Mortgages securing Mortgaged Properties located in the
same county,
if permitted by applicable law and acceptable for recording by the
applicable
recording office. With respect to any Mortgage Loan registered with
MERS, an
Assignment shall include a notice of transfer sufficient under the
governing
instruments of MERS to reflect a transfer of the Mortgage Loan. An
Assignment
shall include, as applicable, such instruments as are necessary and
sufficient
under the laws of the jurisdiction where a Cooperative Apartment is
located to
reflect of record the sale or transfer of the Mortgage Loan and
security
interest in the Mortgaged Property affecting such Cooperative
Apartment.
"Assumed Principal Balance": With respect to any Mortgage Loan as
of any
date of determination (i) the outstanding principal balance as of
the Cut-off
Date, after application of principal payments due on or before such
date
whether or not received, minus (ii) all amounts previously
distributed to
Purchaser with respect to such Mortgage Loan representing (a)
payments or
other recoveries of principal, or (b) advances of principal made
pursuant to
Section 5.03 of the Amended and Restated Master Servicing
Agreement.
"Balloon Mortgage Loan": Any Mortgage Loan which by its original
terms or
any modifications thereof provides for amortization beyond its
scheduled
maturity date.
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"Business Day": Any day other than (i) a Saturday or Sunday, or
(ii) a
day on which banking or savings associations in the States of New
York or
Illinois are authorized or obligated by law or executive order to
be closed.
"Certificate of Seller": A certificate signed by the Secretary or
one of
the Assistant Secretaries of Seller, substantially in the form
attached hereto
as Exhibit 5.
"Closing Date": For each Transaction, the date on which Seller
actually
sells to Purchaser, and Purchaser actually purchases from Seller,
the Mortgage
Loans listed on the Final Mortgage Loan Schedule attached to the
respective
Warranty Bill of Sale.
"Closing Documents": (i) With respect to the Initial Closing Date,
the
following documents:
(A)
two counterparts of
this Agreement;
(B)
two counterparts of
the Amended and Restated Master Servicing
Agreement;
(C)
three counterparts of
the Custodial Agreement;
(D)
the Certificate of
Seller, dated as of the Initial Closing Date;
(E)
the Initial Custody
Receipt, dated the Initial Closing Date; and
(F)
ten (10) counterparts
of a power of attorney in the form of Exhibit
A to the Amended and Restated Master Servicing Agreement.
(ii) With respect to the Initial Closing Date and each subsequent
Closing
Date, the following documents:
(A)
the Final Mortgage
Loan Schedule for the related Transaction;
(B)
the initial Custody
Receipt (as defined in the Custody Agreement)
for the related Transaction, dated the Closing Date, with only
such
exceptions noted on Schedule B thereto as shall be acceptable
to
Purchaser;
(C)
the Warranty Bill of
Sale with respect to the Mortgage Loans for the
related Transaction, dated the Closing Date:
(D)
An original assignment
in the form of Exhibit 6 attached hereto of
the Additional Collateral Pledge Agreements with respect to the
Additional Collateral Mortgage Loans; and
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(E)
The assignment and
notice of transfer by Morgan Stanley Credit
Corporation of the security interest on the Trading Accounts
from
Seller to Purchaser.
"Commission": The United States Securities and Exchange
Commission
"Converted Mortgage Loan": A Convertible Mortgage Loan with respect
to
which the related Mortgagor has exercised its option to convert the
related
Mortgage Note from a Mortgage Note with an adjustable interest rate
to a
Mortgage Note with a fixed interest rate.
"Convertible Mortgage Loan": An Adjustable Rate Mortgage Loan with
a
Mortgage Note that contains an option of the Mortgagor to convert
the related
Mortgage Note from a Mortgage Note with an adjustable interest rate
to a
Mortgage Note with a fixed interest rate.
"Cooperative Apartment": A dwelling unit in a multi-dwelling
building
owned or leased by a cooperative housing corporation, which unit
the Mortgagor
has an exclusive right to occupy pursuant to the terms of a
proprietary lease
in accordance with the laws of the state in which the building is
located.
"Cooperative Loan": A Mortgage Loan evidenced by a Mortgage Note
and
secured by a first lien against (i) shares issued by a cooperative
housing
corporation and (ii) the related Mortgagors' leasehold interest in
the
Mortgagor's Cooperative Apartment. The security interest created in
the
Mortgagor's Cooperative Apartment and the proprietary lease shall
include the
following documentation, as required by the applicable laws of the
state in
which such Cooperative Apartment is located: (a) a security
agreement, (b) the
related UCC-1 Financing Statement, (c) an assignment of the
cooperative lease,
(d) the stock certificate evidencing ownership of such Cooperative
Apartment,
appropriately endorsed, or an equivalent stock power, (e) a
recognition
agreement, and (f) such other documents as are necessary and proper
for the
perfection of a lien against such Cooperative Apartment, all as are
required
under state law.
"Custodial Account":
The separate trust account or accounts created and
maintained pursuant to Section 4.04 of the Amended and Restated
Master
Servicing Agreement which shall be entitled "Morgan Stanley
Credit
Corporation, in trust for Morgan Stanley Mortgage Capital Inc.," or
such other
title as is requested by Purchaser.
"Custodial Agreement": The Custodial Agreement, among Seller,
Purchaser
and the Custodian for the retention of each Mortgage Note,
Mortgage,
Assignment and certain other portions of each Mortgage File,
substantially in
the form attached to this Agreement as Exhibit 3, as the same may
be amended,
modified, restated or supplemented from time to time.
"Custodian": The Custodian under the Custodial Agreement, or
its
successor.
"Cut-off Date": With respect to each Mortgage Loan, the first day
of the
month in which the related Closing Date occurs.
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"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced
by a
Qualified Substitute Mortgage Loan.
"Due
Date": As to any Mortgage Loan, the day each Monthly Payment is
due
on such Mortgage Loan, exclusive of any days of grace.
"Equity Refinanced Mortgage Loan": A Refinanced Mortgage Loan in
which
the Mortgagor used less than the entire amount of the proceeds (net
of any
closing costs, including discount and origination fees and prepaid
items) to
refinance an existing mortgage loan and any junior lien that
existed on the
related Mortgaged Property at the date of origination of the
Refinanced
Mortgage Loan.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Fannie Mae": Fannie Mae, f/k/a the Federal National Mortgage
Association, or any successor organization.
"Fannie Mae Guides": The Fannie Mae Sellers' Guide and the Fannie
Mae
Servicers' Guide, and all amendments or additions thereto."
"Final Mortgage Loan Schedule": The list of Mortgage Loans for
a
Transaction, which list shall set forth the following information
with respect
to each Mortgage Loan:
(i)
the loan number;
(ii)
the Mortgagor's name;
(iii) the street address of the Mortgaged Property, including city,
state
and zip code;
(iv)
the Mortgage Interest Rate at origination;
(v)
for each Adjustable
Rate Mortgage Loan, the first Interest Rate
Adjustment Date and the first Payment Adjustment Date;
(vi)
for each Adjustable Rate Mortgage Loan, the Gross Margin;
(vii) for each Adjustable Rate Mortgage Loan, the Lifetime Rate
Cap;
(viii) for each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
(ix)
the original term to maturity;
(x)
the original principal
balance;
(xi)
the first payment date;
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(xii) the maturity date;
(xiii) the Monthly Payment in effect as of the related Cut-off
Date;
(xiv) the principal balance as of the related Cut-off Date, after
giving
effect to all payments of principal due on or before such date,
whether or not received;
(xv)
the Loan-to-Value Ratio as of the date origination;
(xvi) a code indicating whether the Mortgaged Property is occupied
by
Mortgagor;
(xvii) a code indicating the type of residential dwelling;
(xviii) a code indicating whether the Mortgage Loan is a
purchase
mortgage loan, rate/term refinance loan, limited cash-out loan
or
cash-out refinance loan;
(xix) a code indicating whether the Mortgage Loan is covered by a
Primary
Mortgage Insurance Policy;
(xx)
a code indicating whether the Mortgage Loan is a Limited
Documentation Mortgage Loan;
(xxi) a code indicating whether the Mortgage Loan is an
Additional
Collateral Mortgage Loan;
(xxii) for each Adjustable Rate Mortgage Loan, a code indicating
the type
of Index;
(xxiii) a code indicating whether the Mortgage Loan is a Balloon
Mortgage
Loan;
(xxv) the Servicing Fee Rate applicable to such Mortgage Loan, and
if
such Mortgage Loan is an Adjustable Rate Mortgage Loan whose
first
Interest Rate Adjustment has not occurred, the Servicing Fee
Rate
(if different) prior to the first Interest Rate Adjustment
Date;
(xxvi) a code indicating whether the Mortgage Loan is a
Convertible
Mortgage Loan;
(xxvii) a code indicating whether the Mortgagor is
self-employed;
(xxviii) a code indicating the value of the Mortgagor's assets
at
origination;
(xxix) Appraised Value; and
(xxx) a code indicating the Primary Mortgage Insurance Policy
provider
and percent of coverage, if applicable.
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Such schedule shall also set forth the weighted average of the
amounts
described under (iv) above for all of the Mortgage Loans. Such list
may be in
the form of more than one list, collectively setting forth all of
the
information required.
"Fixed Rate Mortgage Loan": A Mortgage Loan that provides for a
fixed
Mortgage Interest Rate over the term of the related Mortgage
Note.
"Freddie Mac": Freddie Mac, f/k/a the Federal Home Loan
Mortgage
Corporation, or any successor organization.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan,
the
fixed number of basis points set forth in the Final Mortgage Loan
Schedule
that is added to the Index on each Interest Rate Adjustment Due
Date in
accordance with the terms of the related Mortgage Note to determine
the
Mortgage Interest Rate for such Mortgage Loan, subject to any
applicable
Periodic Rate Cap and Lifetime Rate Cap.
"High Cost Loan": A Mortgage Loan classified as (a) a "high cost"
loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a
"high cost
home," "threshold," "covered," "high risk home," "predatory" or
similar loan
under any other applicable state, federal or local law (or a
similarly
classified loan using different terminology under a law imposing
heightened
regulatory scrutiny or additional legal liability for residential
mortgage
loans having high interest rates, points and/or fees).
"Index": With respect to each Adjustable Rate Mortgage Loan and
each
Interest Rate Adjustment Date, the index used to determine the
Mortgage
Interest Rate on such Adjustable Rate Mortgage Loan, as specified
in the
related Mortgage Note, in each case as available the number of days
prior to
any Interest Rate Adjustment Date set forth in the related Mortgage
Note,
which index may be (i) the average of the London Interbank Offered
Rates for
one- or six-month U.S. dollar deposits, as published in the "Money
Rates"
table of The Wall Street Journal or elsewhere (as specified in the
related
Mortgage Note) on the date or dates specified in such Mortgage Note
for the
determination of such rate, (ii) the weekly average of the closing
market bid
yields on actively traded U.S. Treasury securities adjusted to a
constant
maturity of one year, (iii) the weekly average or the monthly
average of
weekly average auction rates on U.S. Treasury bills with a maturity
of six
months, as published by the Board of Governors of the Federal
Reserve System
in Federal Reserve Statistical Release H.15. (519), (iv) the weekly
average of
the closing market bid yields on U.S. Treasury securities adjusted
to a
constant maturity of one (1) year, as published by the Board of
Governors of
the Federal Reserve System in Federal Reserve Statistical Release
H.15. (519),
(v) the weekly average of the closing market bid yields on U.S.
Treasury
securities adjusted to a constant maturity of five (5) years, as
published by
the Board of Governors of the Federal Reserve System in Federal
Reserve
Statistical Release H.15. (519), (vi) the prime rate specified in
the related
Mortgage Note, as published in the "Money Rates" table of The Wall
Street
Journal, or elsewhere (as specified in such Mortgage Note), (vii)
the monthly
weighted average cost of funds of members of the Federal Home Loan
Bank of San
Francisco, (viii) such other standard for determining the change in
the
interest rate as may be set
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forth in the related Mortgage Note, or (ix) if such index is not so
published
or is otherwise unavailable, such comparable alternative index
selected by
Seller in accordance with the terms of the Mortgage Notes and in
consultation
with Purchaser.
"Initial Closing Date": The first Closing Date to occur.
"Initial Custody Receipt": For each Transaction, the initial
Custody
Receipt, executed by the Purchaser or the Custodian with respect to
the
Mortgage Loans for such Transaction, substantially in the form of
Exhibit One
to the Custodial Agreement.
"Interest Rate Adjustment Date": With respect to each Adjustable
Rate
Mortgage Loan, the date on which the Mortgage Interest Rate is
adjusted in
accordance with the terms of the related Mortgage Note.
"Lifetime Rate Cap": With respect to each Adjustable Rate Mortgage
Loan,
the maximum Mortgage Interest Rate that may be borne thereby, as
set forth in
the related Mortgage Note.
"Limited Documentation Mortgage Loan": A Mortgage Loan that was
originated pursuant to a "limited documentation" or "easy
qualifier"
underwriting program.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage Loan,
as of
any date on which a determination thereof is made, the ratio on
such date of
the outstanding principal balance of such Mortgage Loan to the
Appraisal Value
of the related Mortgaged Property.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Monthly Payment": The scheduled monthly payment of interest and,
when
applicable, principal on a Mortgage Loan which is payable by a
Mortgagor from
time to time under the related Mortgage Note on every Due Date.
"Mortgage": The mortgage, trust deed or other instrument securing
the
respective Mortgage Loan, as the same may be amended, modified,
restated or
supplemented from time to time.
"Mortgage File": As to any Mortgage Loan, the mortgage, any
related
mortgage documents and, if the Mortgaged Property is a Cooperative
Apartment,
all documents relating to the security interest in a Cooperative
Apartment,
including but not limited to all paper, computer generated and
microfiche
records, pertaining to a particular Mortgage Loan which are
specified in
Exhibit 1 hereto and any additional documents required to be added
to the
Mortgage File pursuant to the Program Documents.
"Mortgage Interest Rate": The annual rate at which interest accrues
on
any Mortgage Loan, net of any premium on any related Primary
Mortgage
Insurance Policy and any continuing compensation paid to
correspondent
lenders; provided that, with respect to any Adjustable Rate
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Mortgage Loan, the term "Mortgage Interest Rate" shall mean the
annual rate
applicable thereto as the same may be adjusted on any Interest Rate
Adjustment
Date and subject to the limitations on such interest rate imposed
by the
Periodic Rate Cap and the Lifetime Rate Cap.
"Mortgage Loan": An individual Mortgage Loan, including but not
limited
to all documents included in the Mortgage File, Monthly Payments,
principal
prepayments, insurance proceeds, condemnation proceeds, liquidation
proceeds,
and any and all rights, benefits, proceeds and obligations arising
therefrom
or in connection therewith, and which is the subject of this
Agreement. Each
Mortgage Loan set forth on the Final Mortgage Loan schedule
attached to a
Warranty Bill of Sale will initially be subject to this Agreement,
commencing
on the respective Closing Date for the related Transaction.
"Mortgage Loan Documents": With respect to each Mortgage Loan,
the
documents specified in Section 3(b) of this Agreement, which
documents Seller
shall deliver to the Purchaser or Custodian pursuant thereto.
"Mortgage Loan Payments": With respect to each Mortgage Loan (i)
all
scheduled principal due after the related Cut-off-Date, (ii) all
other
recoveries of principal collected after the related Cut-off Date
and collected
by Seller after the related Cut-off Date, and (iii) all payments of
interest
on the Mortgage Loans at the Mortgage Loan Remittance Rate minus
that portion
of any such payment that is allocable to the period prior to the
related
Cut-Off Date; provided, however, that payments of scheduled
principal and
interest prepaid for a due date beyond the related Cut-off Date
shall not be
applied to the principal balance as of the related Cut-off Date and
that such
principal and such prepaid amounts (minus interest at the Servicing
Fee Rate)
shall constitute a part of the Mortgage Loan Payments, which
prepaid amounts
Seller shall deposit into the related Custodial Account established
for the
benefit of Purchaser for subsequent remittance by Seller to
Purchaser pursuant
to the Amended and Restated Master Servicing Agreement.
"Mortgage Loan Remittance Rate": With respect to each Mortgage
Loan, the
related Mortgage Interest Rate minus the Servicing Fee Rate.
"Mortgage Note": The note or other evidence of the indebtedness of
a
Mortgagor secured by a Mortgage.
"Mortgaged Property": The underlying real property securing
repayment of
a Mortgage Note, consisting of a fee simple or leasehold interest
in a single
parcel of real property improved by a residential dwelling or a
single
Cooperative Apartment including the stock certificates evidencing
ownership in
such Cooperative Apartment, the proprietary lease and all attendant
right,
title and interest thereto.
"Mortgagor": The obligor on a Mortgage Note.
"Payment Adjustment Date": With respect to each Adjustable Rate
Mortgage
Loan, the first date on which payments thereon may be adjusted and
all
subsequent such dates of
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adjustment, as set forth in the related Final Mortgage Loan
Schedule and in
the related Mortgage Note.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage
Loan
as to which the related Final Mortgage Loan Schedule indicates the
existence
of Periodic Rate Cap, the provision of the related Mortgage Note
that provides
for a maximum amount by which the Mortgage Interest Rate may
increase (or, if
so indicated on such Final Mortgage Loan Schedule, decrease) on an
Interest
Rate Adjustment Date above the Mortgage Interest Rate immediately
prior to
such Interest Rate Adjustment Date.
"Person": Any individual, corporation, partnership, limited
liability
company, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political
subdivision thereof.
"Preliminary Mortgage Loan Schedule": The initial list of Mortgage
Loans
for a proposed Transaction, which list shall set forth at least
the
information with respect to each Mortgage Loan described in items
(i), (ii),
(iv), (ix), (xii), (xiii), (xiv), (xvi), (xx), (xxi), (xxii) and
(xxiii) of
the definition of "Final Mortgage Loan Schedule". The Preliminary
Mortgage
Loan Schedule may be electronically delivered to Purchaser.
"Primary Mortgage Insurance Policy": With respect to each Mortgage
Loan,
the policy of primary mortgage insurance, if any, in effect as
indicated on
the related Final Mortgage Loan Schedule, or any replacement policy
therefor
obtained by Seller pursuant to the Amended and Restated Master
Servicing
Agreement.
"Program Documents": With respect to each Transaction, the
related
Purchase Price and Terms Letter, the related Warranty Bill of Sale,
the
Amended and Restated Master Servicing Agreement, the Custodial
Agreement, this
Agreement and each other document or instrument executed or
delivered by
Seller in connection with any of the foregoing.
"Purchase Price": With respect to each Mortgage Loan listed on the
Final
Mortgage Loan Schedule for a Transaction the price paid on the
related Closing
Date by Purchaser to Seller in exchange for such Mortgage Loan,
which amount
shall equal the sum of (i) the related Purchase Price Percentage
multiplied by
the unpaid principal balance of such Mortgage Loan as of the
related Cut-off
Date, after application of scheduled payments of principal due on
or before
such Cut-off Date whether or not collected, and (ii) interest
scheduled to
accrue on the unpaid principal balance of such Mortgage Loan at the
Mortgage
Loan Remittance Rate, from the related Cut-off Date to the day
prior to the
related Closing Date, inclusive.
"Purchase Price and Terms Letter": with respect to each
Transaction, the
letter agreement or agreements setting forth the general terms and
conditions
of such Transaction to be consummated as provided herein, with a
copy of the
related Preliminary Mortgage Loan Schedule, if requested by
Purchaser, by and
between Seller and Purchaser. The related Purchase Price and Terms
Letter
shall set forth among other matters, (i) the approximate dollar
amount of
Mortgage Loans for the related Transaction, (ii) the related
Cut-off Date,
(iii) the proposed
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Closing Date, (iv) the related Purchase Price Percentage, (v) the
related
Servicing Fee Rate, and (vi) the characteristics, including the
characteristics set forth in the related Warranty Bill of Sale, for
the
related Mortgage Loans, both individually and in the aggregate. All
of the
individual Purchase Price and Terms Letters shall be referred
to,
collectively, as the "Purchase Price and Terms Letter".
"Purchase Price Percentage": With respect to each Mortgage Loan,
the
percentage of par set forth in the related Purchase Price and Terms
Letter
(subject to adjustment as provided therein) at which Purchaser will
purchase
the Mortgage Loan from Seller on the Closing Date.
"Qualified Correspondent": Any Person from which the Seller
purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the
Seller and
such Person that contemplated that such Person would underwrite
mortgage loans
from time to time, for sale to the Seller, in accordance with
underwriting
guidelines designated by the Seller ("Designated Guidelines") or
guidelines
that do not vary materially from such Designated Guidelines; (ii)
such
Mortgage Loans were in fact underwritten as described in clause (i)
above and
were acquired by the Seller within 180 days after origination;
(iii) either
(x) the Designated Guidelines were, at the time such Mortgage Loans
were
originated, used by the Seller in origination of mortgage loans of
the same
type as the Mortgage Loans for the Seller's own account or (y) the
Designated
Guidelines were, at the time such Mortgage Loans were underwritten,
designated
by the Seller on a consistent basis for use by lenders in
originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed,
at the time
such Mortgage Loans were acquired by the Seller, pre-purchase or
post-purchase
quality assurance procedures (which may involve, among other
things, review of
a sample of mortgage loans purchased during a particular time
period or
through particular channels) designed to ensure that Persons from
which it
purchased mortgage loans properly applied the underwriting criteria
designated
by the Seller.
"Qualified Substitute Mortgage Loan": A Mortgage Loan substituted
by
Seller for a Deleted Mortgage Loan which must, on the date of
such
substitution (i) have an outstanding principal balance, after
deduction of all
scheduled payments due in the month of substitution (or in the case
of a
substitution of more than one mortgage loan for a Deleted Mortgage
Loan, an
aggregate principal balance), not in excess of the outstanding
principal
balance of the Deleted Mortgage Loan (the amount of any shortfall
to be
deposited into the Custodial Account by Seller in the month of
substitution
pursuant to Section 4.04 (vii) of the Amended and Restated Master
Servicing
Agreement), (ii) have a Mortgage Interest Rate which is within one
percent
(1%) per annum 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, and (iv) comply with each representation and
warranty
set forth Section 5(b) of this Agreement.
"Reconstitution": Any Securitization Transaction or Whole Loan
Transfer.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to
time, and subject to such clarification and interpretation as have
been
provided by the Commission in the adopting release
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<PAGE>
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70
Fed. Reg.
1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or
as may be
provided by the Commission or its staff from time to time.
"Refinanced Mortgage Loan": A Mortgage Loan that was made to a
Mortgagor
who owned the Mortgaged Property prior to the origination of such
Mortgage
Loan and the proceeds of which (net of any closing costs, including
discount
and origination fees and prepaid items) were used in whole or part
to satisfy
an existing mortgage.
"Securities Act": The Securities Act of 1933, as amended.
"Securitization Transfer": Any transaction involving either (1) a
sale or
other transfer of some or all of the Mortgage Loans directly or
indirectly to
an issuing entity in connection with an issuance of publicly
offered or
privately placed, rated or unrated mortgage-backed securities or
(2) an
issuance of publicly offered or privately placed, rated or unrated
securities,
the payments on which are determined primarily by reference to one
or more
portfolios of residential mortgage loans consisting, in whole or in
part, of
some or all of the Mortgage Loans.
"Servicing Criteria": The "servicing criteria" set forth in Item
1122(d)
of Regulation AB, as such may be amended from time to time.
"Servicing Fee": With respect to any Mortgage Loan and any
Remittance
Date, the fee payable monthly to Seller, as servicer, under Section
7.03 of
the Amended and Restated Master Servicing Agreement.
"Servicing Fee Rate": With respect to each Mortgage Loan, the rate
per
annum set forth in the related Final Mortgage Loan Schedule as the
"Servicing
Fee Rate".
"Static Pool Information": Static pool information as described in
Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
"Subcontractor": Any vendor, subcontractor or other Person that is
not
responsible for the overall servicing (as "servicing" is commonly
understood
by participants in the mortgage-backed securities market) of
Mortgage Loans
but performs one or more discrete functions identified in Item
1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or
authority
of the Seller or a Subservicer.
"Subsequent Purchaser": Any Person that acquires an interest in
a
Mortgage Loan from Purchaser.
"Subservicer": Any Person that services Mortgage Loans on behalf of
the
Seller or any Subservicer and is responsible for the performance
(whether
directly or through Subservicers or Subcontractors) of a
substantial portion
of the material servicing functions required to be performed by the
Seller
under this Agreement or any Reconstitution Agreement that are
identified in
Item 1122(d) of Regulation AB.
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<PAGE>
"Surety Bond Issuer": Shall mean AMBAC Assurance Corporation or
any
successor thereto.
"Third-Party Originator": Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the
Seller.
"Trading Account": With respect to any Additional Collateral
Mortgage
Loan as to which a Additional Collateral Pledge Agreement was made,
the
account in which is held the securities and other assets that are
subject to
such Additional Collateral Pledge Agreement.
"Transaction": The sale by Seller to Purchaser, and the purchase
by
Purchaser from Seller, of one or more Mortgage Loans on a Closing
Date, as
evidenced by the execution and delivery by Seller to Morgan Stanley
Mortgage
Capital, Inc. as the initial Purchaser, of the Warranty Bill of
Sale.
"Underwriting Guide": The Underwriting Guide of Seller attached
hereto as
Exhibit 4, as amended, modified, restated or --------- supplemented
from time
to time.
"Warranty Bill of Sale": The warranty bill of sale executed and
delivered
by Seller to Purchaser on a Closing Date, evidencing the sale of
the related
Mortgage Loans by Seller to Purchaser and setting forth certain
representations and warranties of Seller with respect thereto, in
the form
attached hereto as Exhibit 8.
"Whole Loan Transfer": Any sale or transfer of some or all of
the
Mortgage Loans, other than a Securitization Transaction.
Section 2. Purchase of Mortgage Loans.
---------------------------
(a)
Sale and Conveyance of Mortgage Loans. From time to time Seller
may
offer to sell to Purchaser, and Purchaser may elect to purchase
form Seller,
Mortgage Loans in one or more Transactions pursuant to the terms
and
conditions of the Program Documents. The agreement of Seller to
sell to
Purchaser and of Purchaser to purchase from Seller, Mortgage Loans
on a
particular Closing Date shall be evidenced by the execution of a
Purchase
Price and Terms Letter. The obligation of Purchaser to purchase any
Mortgage
Loan from Seller on any particular Closing Date shall be subject to
the
satisfaction of the conditions precedent to Purchaser's obligation
to purchase
set forth in Section 2(b). The sale of each Mortgage Loan shall be
reflected
in Seller's balance sheet and other financial statements as a sale
of assets
by Seller.
(b)
Conditions of Closing. On each respective Closing Date (i)
Seller
will sell, transfer, assign, set over and convey to purchaser
without
recourse, all of the right, title and interest of Seller in and to
the
Mortgage Loans included in such Transaction, including all Mortgage
Loan
Payments, and (ii) Purchaser shall pay to Seller, by wire transfer
of
immediately available funds to the account of Seller, the Purchase
Price for
each Mortgage Loan included in
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such Transaction, subject to the satisfaction of the following
conditions to
Purchaser's obligation to purchase the Mortgage Loans:
(A)
All of the
representation and warranties of Seller under the Program
Documents shall be true and correct in all material respects as
of
the Closing Date, and no event shall have occurred that, with
notice
or the passage of time, would constitute a default under any
Program
Document, including an Event of Default under the Amended and
Restated Master Servicing Agreement;
(B)
Purchaser shall have
received, or Purchaser's attorneys shall have
received in escrow, the Closing Documents, in such forms as are
agreed upon and as are acceptable to Purchaser, duly executed by
all
signatories other than Purchaser required pursuant to the
respective
terms thereof:
(C)
Seller shall have
delivered and released to Purchaser or the
Custodian all documents required under the Program Documents;
and
(D)
Seller shall have
complied with all other terms and conditions of
this Agreement.
(c)
Record Title and Possession of Mortgage Files. From and after
the
sale of each Mortgage Loan, the contents of the related Mortgage
File and all
rights, benefits, proceeds and obligations arising therefrom or in
connection
therewith, shall be transferred to, and assumed by, Purchaser. All
rights,
arising out of each Mortgage Loan, including, but not limited to,
all funds
received on or in connection with such Mortgage Loans and all
records or
documents with respect to such Mortgage Loan prepared by or which
come into
the possession of Seller shall be received and held by Seller in
trust for the
benefit of Purchaser as the owner of the Mortgage Loan. Any portion
of the
Mortgage File held by Seller for servicing purposes shall be
appropriately
marked to clearly reflect ownership of the Mortgage Loan by
Purchaser and
Seller shall promptly release such portion of the Mortgage File to
Purchaser,
when Seller's servicing needs no longer necessitate retaining such
documents.
Section 3. Delivery Requirements.
----------------------
(a)
Final Mortgage Loan Schedules. On or before the date on which
Seller
and Purchaser execute a Purchase Price and Terms Letter, Seller
shall provide
Purchaser with the respective Preliminary Mortgage Loan Schedule.
Not less
than one (1) Business Day prior to the related Closing Date, Seller
either (i)
shall deliver the related Final Mortgage Loan Schedule to Purchaser
or (ii)
shall deliver to Purchaser all information with respect to the
Mortgage Loans
to be sold to Purchaser on such Closing Date that is necessary to
enable
Purchaser to prepare the related Final Mortgage Loan Schedule,
which
information shall be delivered on a computer disk on a
machine-readable tape
or in such other format as Purchaser may reasonably specify.
(b)
Delivery of Mortgage Loan Documents. Seller is currently in
possession of the following original Mortgage Loan Documents for
each Mortgage
Loan:
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<PAGE>
(A) the original Mortgage Note bearing all intervening
endorsements,
endorsed "Pay to the order of _________, without recourse" and
signed in the
name of the Seller by an authorized officer. To the extent that
there is no
room on the face of the Mortgage Notes for endorsements, the
endorsement may
be contained on an allonge, if state law so allows and the
custodian is so
advised by the Seller that state law so allows; and
(B) the original Mortgage with evidence of recording thereon. If
in
connection with any Mortgage Loan, the Seller cannot deliver or
cause to be
delivered the original Mortgage with evidence of recording thereon
on or prior
to the Closing Date because of a delay caused by the public
recording office
where such Mortgage has been delivered for recordation or because
such
Mortgage has been lost or because such public recording office
retains the
original recorded Mortgage, the Seller shall deliver or cause to be
delivered
to the custodian, a photocopy of such Mortgage, together with (i)
in the case
of a delay caused by the public recording office, an Officer's
Certificate of
the Seller stating that such Mortgage has been dispatched to the
appropriate
public recording office for recordation and that the original
recorded
Mortgage or a copy of such Mortgage certified by such public
recording office
to be a true and complete copy of the original recorded Mortgage
will be
promptly delivered to the custodian upon receipt thereof by the
Seller; or
(ii) in the case of a Mortgage where a public recording office
retains the
original recorded Mortgage or in the case where a Mortgage is lost
after
recordation in a public recording office, a copy of such Mortgage
certified by
Seller to be a true and complete copy of the original recorded
Mortgage;
(D) The original policy of title insurance, if applicable (or a
preliminary title report if the original title insurance policy has
not been
received from the title insurance company or if a preliminary title
report is
the documentation required by Seller).
(E) the originals of all assumption, modification, consolidation
or
extension agreements, if any, with evidence of recording
thereon;
(F) the original Assignment of Mortgage for each Mortgage Loan,
executed in blank and in form and substance acceptable for
recording;
(G) the originals of all intervening assignments of mortgage
with
evidence of recording thereon, or if any such intervening
assignment has not
been returned from the applicable recording office or has been lost
or if such
public recording office retains the original recorded assignments
of mortgage,
the Seller shall deliver or cause to be delivered to the custodian,
a
photocopy of such intervening assignment, together with (i) in the
case of a
delay caused by the public recording office, an Officers
Certificate of the
Seller stating that such intervening assignment of mortgage has
been
dispatched to the appropriate public recording office for
recordation and that
such original recorded intervening assignment of mortgage or a copy
of such
intervening assignment of mortgage certified by the appropriate
public
recording office to be a true and complete copy of the original
recorded
intervening assignment of mortgage will be promptly delivered to
the custodian
upon receipt thereof by the Seller; or (ii) in the case of an
intervening
assignment where a public recording office retains the original
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<PAGE>
recorded intervening assignment or in the case where an intervening
assignment
is lost after recordation in a public recording office, a copy of
such
intervening assignment certified by Seller to be a true and
complete copy of
the original recorded intervening assignment;
(H) With respect to the Additional Collateral Mortgage Loan, a
copy
of any related pledge, security or control agreement, as the case
may be.
(I) With respect to the Additional Collateral Mortgage Loan, a
copy
of any filed UCC-1 financing statements or, if the UCC-1 has not
yet been
returned from the recording office, a copy of such UCC-1 which has
been
delivered for recording and an original form UCC-3 assignment, if
applicable.
If (1) the original Mortgage was not delivered pursuant to
clause
(B) above, (2) any original intervening assignment was not
delivered pursuant
to clause (F) above or (3) the original title insurance policy was
not
delivered pursuant to clause (C) above, Seller shall use reasonable
efforts to
promptly secure the delivery of such originals and shall cause such
originals
to be delivered to Purchaser or the Custodian promptly upon receipt
thereof.
If any such document is not so delivered to Purchaser or the
Custodian within
one hundred eighty (180) days following the Closing Date (or such
longer
period of time as may be necessitated solely as a result in delays
caused by a
party other than the Seller), the related Mortgage Loan shall, upon
the
request of Purchaser, (i) be repurchased by Seller at the price
specified in
Section 5(c), or (ii) be replaced by a Qualified Substitute
Mortgage Loan (the
election of (i) or (ii) being at the option of Purchaser), provided
that the
Purchaser gives the Seller notice within ten (10) days of the
expiration of
such delivery period.
No Assignment of Mortgage evidencing the transactions
contemplated
hereby shall be recorded by Seller unless required by law.
Purchaser may at
its option and expense (including recordation fees) prepare and
record any
Assignment of Mortgage.
From and after the related Closing Date, Seller, as bailee (the
"Bailee"), shall continue to hold the Mortgage Files as custodian
and bailee
for the Purchaser, the owner of the related Mortgage Loans, and
shall issue in
the name of the Purchaser or its designee, a trust receipt in the
form of
Exhibit 9 hereto (the "Trust Receipt") evidencing the ownership of
the
Mortgage Loans related thereto.
At the Purchaser's request, the Bailee shall issue, within 2
Business Days from such request, a final trust receipt and
certification
evidencing the Purchaser's ownership of the related Mortgage Loans
in the form
of Exhibit 10 hereto (the "Final Trust Receipt and Certification"),
which
Final Trust Receipt and Certification shall have attached thereto a
list of
document exceptions, if any, based upon the documents to be
contained in the
Mortgage File as listed above.
Upon 3 Business Days prior written notice from the Purchaser to
the
Bailee, the Bailee shall deliver or cause to be delivered to the
Purchaser or
any party designated in such notice, the Mortgage Files, and shall
release
them to the Purchaser or its designee in accordance
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<PAGE>
with the directions of the Purchaser. Such delivery date(s) shall
herein be
known as release date(s) (each, a "Release Date").
In the event that the Bailee fails to deliver any Mortgage File,
or
any component thereof, in connection with the Purchaser's
instructions, the
Bailee shall indemnify the Purchaser for and hold the Purchaser
harmless
against any and all liability, costs and expenses (including
attorneys' fees)
arising out of such failure to deliver any Mortgage File.
From
and after the Closing Date and until the applicable Release
Date, the Bailee shall maintain continuous custody and control of
the Mortgage
Files as custodian and bailee for the Purchaser.
(c)
Purchaser hereby acknowledges that Seller may register the
Mortgages
subject to this Agreement with MERS as a nominee for Seller, either
through
the recordation of a mortgage or deed of trust which shows MERS as
a nominee
for Seller or by the recordation of an Assignment which shows MERS
as a
nominee for Seller, for purposes of facilitating the transfer of
the Mortgage
Loan and/or Mortgage Loan Documents. Purchaser and Seller hereby
acknowledge
that MERS will have no beneficial interest in the Mortgage Loan and
that the
registration of the Mortgage Loan with MERS will not in any way
affect the
rights, title, interest, obligations or responsibilities of
Purchaser and
Seller under the terms of this Agreement. Purchaser and Seller
agree to
cooperate in all ways necessary to effectuate the use of MERS for
the purpose
of facilitating the transfer of applicable Mortgage Loan Documents,
and
withstanding any other provisions in 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 the
Mortgage
Loan.
Section 4. Examination of Mortgage Files.
------------------------------
Prior to the respective Closing Date, Seller, shall make available
to
Purchaser, for examination, the Mortgage File pertaining to each
related
Mortgage Loan at the offices of Seller, or such other location as
Seller and
Purchaser shall mutually designate. Such examination may be made by
Purchaser
of the related Mortgage Loan at any time before the related Closing
Date and
may be made by Purchaser or any prospective Subsequent Purchaser of
such
Mortgagee Loan at any time after such Closing Date. If Purchaser
makes such
examination prior to the Closing Date and identifies any Mortgage
Loan that
does not conform to the terms of the Purchase Price and Terms
Letter, such
Mortgage Loan shall be deleted from the Final Mortgage Loan
Schedule and may
be replaced by a substitute Mortgage Loan that conforms to the
terms of the
Purchase Price and Terms Letter and that is reasonably acceptable
to
Purchaser. Purchaser may, at its option and without notice to
Seller, purchase
all or part of the Mortgage Loans for a Transaction without
conducting any
partial or complete examination. The failure or omission by
Purchaser or any
Subsequent Purchaser of the Mortgage Loans to conduct any partial
or complete
examination of the Mortgage Files shall not affect Purchaser's
rights to
demand repurchase or other relief as provided under any Program
Document.
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<PAGE>
Section 5. Representations, Warranties and Agreements of
Seller.
-----------------------------------------------------
(a)
Seller represents and warrants to Purchaser that as of the date
hereof and as of each respective Closing Date (or as of such other
date or
dates as may be expressly set forth below);
(i) Seller is duly incorporated, validly existing and in good
standing as a corporation under the laws of the State of Delaware.
Seller
has
full power and authority, corporate and otherwise, to own its
properties and conduct its business as presently conducted by it,
and to
enter into and perform its obligations under the Program Documents
and to
sell
each Mortgage Loan. To the extent material to Purchaser's
rights
hereunder, Seller holds all material licenses necessary to carry on
its
business as now being conducted and is licensed in, qualified to
transact
business in and is in good standing under the laws of each state in
which
any
Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the
type
conducted by Seller, and in any event Seller was and is in
compliance
with the laws of any
such state to the extent necessary to ensure the
enforceability of each Mortgage Loan.
(ii) This Agreement, the Amended and Restated Master Servicing
Agreement and the Custodial Agreement have been duly authorized,
executed
and
delivered by Seller, and assuming the due authorization,
execution
and
delivery thereof by Purchaser and the enforceability thereof
against
Purchaser, constitutes the legal, valid and binding agreement of
Seller,
enforceable against Seller in accordance with its terms, except as
the
enforceability thereof may be limited by bankruptcy,
insolvency,
liquidation, moratorium, reorganization or other similar laws
affecting
the
rights of creditors generally or by general principles of
equity,
regardless of whether enforcement is sought in a proceeding in
equity or
at
law.
(iii) As of the respective Closing Date, the related Purchased
Price
and
Terms Letter has been duly authorized, executed and delivered
by
Seller, and such Purchase Price and Terms letter, assuming the
due
authorization, execution and delivery thereof by Purchaser and
the
enforceability thereof against Purchaser, constitutes the legal,
valid
and
binding agreement of Seller, enforceable against Seller in
accordance
with
its terms, except as the enforceability thereof may be limited
by
bankruptcy, insolvency, liquidation, moratorium, reorganization or
other
similar laws affecting the rights of creditors generally or by
general
principles of equity, regardless of whether enforcement is sought
in a
proceeding in equity or at law.
(iv) As of the respective Closing Date, the related Warranty Bill
of
Sale
has been duly authorized, executed and delivered by Seller, and
such
Warranty Bill of Sale constitutes the legal, valid and binding
agreement
of
Seller, enforceable against Seller in accordance with its
terms,
except as the enforceability thereof may be limited by
bankruptcy,
insolvency, liquidation, moratorium, reorganization or other
similar laws
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<PAGE>
affecting the rights of creditors generally or by general
principles of
equity, regardless of whether enforcement is sought in a proceeding
in
equity or at law.
(v) the representations and warranties made by Seller under the
Amended and Restated Master Servicing Agreement and the related
Warranty
Bill
of Sale are true and correct in all material respects as of the
respective Closing Date.
(vi) Neither the delivery of the Mortgage Loans to Purchaser,
nor
the
sale of the Mortgage Loans to Purchaser, nor the execution or
delivery of the Program Documents, nor the consummation of any of
the
Transactions herein or therein contemplated, nor the fulfillment of
the
terms hereof or thereof, will result in the breach of any term
or
provision of the certificate of incorporation or by-laws of Seller,
or
conflict with, result in a material breach or cause an acceleration
of or
constitute a default under any material term of any material
indenture or
other material agreement or instrument to which Seller is a party
or by
which Seller is bound, or any statute, order or regulation
applicable to
Seller of any court, regulatory body, administrative agency,
government
body
or arbitrator having jurisdiction over Seller.
(vii) There are no actions, proceedings or investigations
pending
or,
to Seller's knowledge, threatened against Seller that, in
Seller's
judgment, if determined adversely to Seller, would prevent the
consummation of any of the Transactions or would materially and
aversely
affect the interests of Purchaser in the Mortgage Loans, taken as
a
whole, the validity or enforceability of any of the Program
Documents or
the
ability of Seller to fulfill the terms of any of the Program
Documents.
(viii) Seller has complied with all applicable anti-money
laundering
laws
and regulations, including without limitation, the USA Patriot
Act
of
2001.
(b)
Seller hereby represents and warrants to Purchaser, as to each
Mortgage Loan as of each respective Closing Date or such other date
as may be
specified below, that:
(i) The information set forth in the Final Mortgage Loan Schedule
is
true
and correct in all material respects.
(ii) As of the related Closing Date, the Mortgage Loan is not
delinquent in payment
more than 29 days and the Mortgage Loan has not
been
dishonored; there are no material defaults under the terms of
the
Mortgage Loan; Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than the
owner
of
the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage
Loan.
(iii) With respect to those Mortgage Loans which are required
to
deposit funds into an escrow account for payment of taxes,
assessments,
insurance premiums and similar items as they become due, there are
no
delinquent taxes, ground rents, water charges, sewer rents,
assessments
or
other outstanding charges which constitute a lien on
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<PAGE>
the
related Mortgaged Property, and all escrow deposits have been
collected, are under the control of Seller, and have been applied
to the
payment of such items in a timely fashion, in accordance with
such
Mortgage. With respect to those Mortgage Loans for which escrow
deposits
are
not required, to Seller's knowledge, there are no delinquent taxes
or
other outstanding charges affecting the related Mortgaged Property
which
constitute a lien on the related Mortgaged Property.
(iv) The terms of the Mortgage Note and the Mortgage have not
been
impaired, waived, altered or modified in any respect, except by
written
instruments contained in the Mortgage File, approved, if necessary,
by
the
insurer under any Primary Mortgage Insurance Policy and recorded
in
all
places necessary to maintain the first priority of the lien,
the
substance of which waiver, alteration or modification is reflected
on the
Final Mortgage Loan Schedule. No Mortgagor has been released, in
whole or
in
part, except by operation of law or in connection with an
assumption
agreement which assumption agreement is part of the Mortgage File
and the
terms of which are reflected in the Final Mortgage Loan
Schedule.
(v) Neither the Mortgage Note nor the Mortgage is subject to
any
right of rescission, set-off, counterclaim or defense, including
the
defense of usury, nor will the operation of any of the terms of
the
Mortgage Note and the Mortgage, or the exercise of any right
thereunder,
render the Mortgage unenforceable, in whole or in part, or subject
to any
right of rescission, set-off, counterclaim or defense, including
the
defense of usury and, to Seller's knowledge, no such right of
rescission,
set-off, counterclaim or defense has been asserted by any Person
with
respect thereto.
(vi) All buildings upon the Mortgaged Property are required to
be
insured by a generally acceptable insurer against loss by fire,
hazards
of
extended coverage and such other hazards as are customarily
included
in
extended coverage in the area where the Mortgaged Property is
located,
pursuant to standard property insurance policies in compliance
with
Seller's policies as from time to time in effect. To the best
knowledge
of
Seller, all such property policies are in effect. On the date
of
origination, such standard property policies contained a
standard
mortgage clause naming Seller or the originator of the Mortgage
Loan and
their respective successors in interest as mortgagee and to the
best
knowledge of Seller, such clause is still in effect and, to
Seller's
knowledge, all premiums due thereon have been paid. If the
Mortgaged
Property is located in an area identified by the Federal
Emergency
Management Agency as having special flood hazards under the
National
Flood Insurance Act of 1994, as amended, such Mortgaged Property
is
covered by flood insurance in the amount required under the
National
Flood Insurance Act of 1994. The Mortgage obligates the Mortgagor
to
maintain such insurance, authorizes the holder of the Mortgage
to
maintain such insurance at Mortgagor's cost and expense should
the
Mortgagor fail to do so and to seek reimbursement therefor from
the
Mortgagor.
(vii) At the time of origination of such Mortgage Loan and
thereafter, all requirements of any federal or state law,
including,
without limitation, usury, truth-in-
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<PAGE>
lending, real estate settlement procedures, consumer credit
protection,
equal credit opportunity or disclosure laws required to be complied
with
by
Seller as the originator of the Mortgage Loan and applicable to
the
Mortgage Loan have been complied with in all material respects.
(viii) The Mortgage has not been satisfied as of the Closing
Date,
canceled or subordinated, in whole, or rescinded, and the
Mortgaged
Property has not been released from the lien of the Mortgage, in
whole or
in
part (except for a release that does not materially impair the
security of the Mortgage Loan or release the effect of which is
reflected
in
the loan-to-value ratio for the Mortgage Loan as set forth in
the
Final Mortgage Loan Schedule), nor to Seller's knowledge has
any
instrument been executed that would effect any such release,
cancellation, subordination or rescission.
(ix) Ownership of the Mortgaged Property is held in fee simple
or
leasehold estate. With respect to Mortgage Loans that are secured
by a
leasehold estate, to Seller's knowledge: (i) the lease is valid, in
full
force and effect, and conforms to all of Fannie Mae's requirements
for
leasehold estates; (ii) all rents and other payments due under the
lease
have
been paid; (iii) the lessee is not in default under any provision
of
the
lease; (iv) the term of the lease exceeds the maturity date of
the
related Mortgage Loan by at least five (5) years; and (v) the terms
of
the
lease provide a Mortgagee with an opportunity to cure any
defaults.
Except as permitted by the fifth sentence of this paragraph (ix),
the
Mortgage is a valid, subsisting and enforceable first lien on
the
Mortgaged Property, including all buildings on the Mortgaged
Property and
all
installations and mechanical, electrical, plumbing, heating and
air
conditioning systems affixed to such buildings, and all
additions,
alterations and replacements made at any time with respect to
the
foregoing securing the Mortgage Note's original principal balance.
The
Mortgage and the Mortgage Note do not contain any evidence on their
face
of
any security interest or other interest or right thereto. Such lien
is
free
and clear of all adverse claims, liens and encumbrances having
priority over the first lien of the Mortgage subject only to (1)
the lien
of
non-delinquent current real property taxes and assessments not yet
due
and
payable, (2) covenants, conditions and restrictions, rights of
way,
easements and other matters reflected in the public record as of
the date
of
recording which are acceptable to mortgage lending institutions
generally, or which are specifically referred to in the lender's
title
insurance policy delivered to the originator of the Mortgage Loan
and
either (A) which are referred to or otherwise considered in the
appraisal
made
for the originator of the Mortgage Loan, or (B) which do not in
the
aggregate adversely affect the Appraised Value of the Mortgaged
Property
as
set forth in such appraisal, and (3) other matters to which
like
properties are commonly subject which do not in the aggregate
materially
interfere with the benefits of the security intended to be provided
by
the
Mortgage or the use, enjoyment, value or marketability of the
related
Mortgaged Property. Any
