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Exhibit 99.9(b)
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EXECUTION COPY
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MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
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MORGAN STANLEY MORTGAGE CAPITAL INC.,
Purchaser
INDYMAC BANK, F.S.B.,
Seller
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Dated as of September 1, 2006
Conventional,
Adjustable and Fixed Rate,
Residential Mortgage Loans
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TABLE OF CONTENTS
Page
<S> <C> <C>
SECTION 1.
DEFINITIONS........................................................................1
SECTION 2. AGREEMENT TO
PURCHASE.............................................................14
SECTION 3. MORTGAGE
SCHEDULES................................................................14
SECTION 4. PURCHASE
PRICE....................................................................15
SECTION 5. EXAMINATION OF MORTGAGE
FILES.....................................................15
SECTION 6. CONVEYANCE FROM SELLER TO
PURCHASER...............................................16
SECTION 7. SERVICING OF THE MORTGAGE
LOANS...................................................18
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER........................19
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH......19
SECTION 10.
CLOSING...........................................................................38
SECTION 11. CLOSING
DOCUMENTS.................................................................39
SECTION 12.
COSTS.............................................................................41
SECTION 13. COOPERATION OF SELLER WITH A
RECONSTITUTION.......................................41
SECTION 14. THE
SELLER........................................................................43
SECTION 15. FINANCIAL
STATEMENTS..............................................................43
SECTION 16. MANDATORY DELIVERY; GRANT OF SECURITY
INTEREST....................................44
SECTION 17.
NOTICES...........................................................................44
SECTION 18. SEVERABILITY
CLAUSE...............................................................45
SECTION 19.
COUNTERPARTS......................................................................45
SECTION 20. GOVERNING
LAW.....................................................................45
SECTION 21. INTENTION OF THE
PARTIES..........................................................46
SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT..........................46
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SECTION 23.
WAIVERS...........................................................................46
SECTION 24.
EXHIBITS..........................................................................46
SECTION 25. GENERAL INTERPRETIVE
PRINCIPLES...................................................47
SECTION 26. REPRODUCTION OF
DOCUMENTS.........................................................47
SECTION 27. FURTHER
AGREEMENTS................................................................47
SECTION 28. RECORDATION OF ASSIGNMENTS OF
MORTGAGE............................................48
SECTION 29. NO
SOLICITATION...................................................................48
SECTION 30. WAIVER OF TRIAL BY
JURY...........................................................48
SECTION 31. SUBMISSION TO JURISDICTION;
WAIVERS...............................................48
SECTION 32. COMPLIANCE WITH REGULATION
AB.....................................................49
SECTION 33.
CONFIDENTIALITY...................................................................54
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EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B SERVICING AGREEMENT
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT H UNDERWRITING GUIDELINES
EXHIBIT I CONTENTS OF EACH CREDIT FILE
EXHIBIT J RECONSTITUTION REPRESENTATIONS
EXHIBIT K FORM OF BAILEE AGREEMENT
EXHIBIT L FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
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MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
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This MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (the
"Agreement"), dated as of September 1, 2006, by and between Morgan
Stanley
Mortgage Capital Inc., a New York corporation, having an office at
1585
Broadway, 10th Floor, New York, New York 10036 (the "Purchaser")
and IndyMac
Bank, F.S.B., a federal savings bank, having an office at 3465 E.
Foothill
Boulevard, Pasadena, California 91107 (the "Seller").
W I T N E S S E T H:
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WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to
time, from the
Seller, certain conventional, adjustable and fixed rate,
residential first
mortgage loans (the "Mortgage Loans") on a servicing retained basis
as
described herein, and which shall be delivered in pools of whole
loans (each,
a "Mortgage Loan Package") on various dates as provided herein
(each, a
"Closing Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a
residential
dwelling located in the jurisdiction indicated on the Mortgage Loan
Schedule
for the related Mortgage Loan Package;
WHEREAS, the Purchaser and the Seller wish to prescribe the
manner
of the conveyance, servicing and control of the Mortgage Loans;
and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage
Loans to one
or more purchasers as a whole loan transfer or a public or private,
rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable
consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Purchaser
and the Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms
shall have the respective meanings set forth below. Other
capitalized terms
used in this Agreement and not defined herein shall have the
respective
meanings set forth in the Servicing Agreement.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending
institutions
which service mortgage loans of the same type as such Mortgage Loan
in the
jurisdiction where the related Mortgaged Property is located and
incorporating
the Delinquency Collection Policies and Procedures.
Act: The National Housing Act, as amended from time to time.
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Adjustable Rate Mortgage Loan: A Mortgage Loan purchased
pursuant
to this Agreement, the Mortgage Interest Rate of which is adjusted
from time
to time in accordance with the terms of the related Mortgage
Note.
Affiliate: With respect to any specified Person, any other
Person
controlling or controlled by or under common control with such
specified
Person. For the purposes of this definition, "control" when used
with respect
to any specified Person means the power to direct the management
and policies
of such Person, directly or indirectly, whether through the
ownership of
voting securities, by contract or otherwise and the terms
"controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Fannie Mae Transfer or a Freddie Mac
Transfer.
Agreement: This Mortgage Loan Purchase and Warranties Agreement
and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, and its successors
in
interest.
Ancillary Income: All late charges, assumption fees, escrow
account benefits, reinstatement fees, and similar types of fees
arising from
or in connection with any Mortgage, to the extent not otherwise
payable to the
Mortgagor under applicable law or pursuant to the terms of the
related
Mortgage Note.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the
value of
the Mortgaged Property.
Appropriate Federal Banking Agency: As defined in Section
1813(q)
of Title 12 of the United States Code, as amended from time to
time.
Assignment and Conveyance Agreement: As defined in Subsection
6.01.
Assignment of Mortgage: An assignment of the Mortgage, notice
of
transfer or equivalent instrument in recordable form, sufficient
under the
laws of the jurisdiction wherein the related Mortgaged Property is
located to
reflect the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage
Loan or
(b) for which Monthly Payments of principal (not including the
payment due on
its stated maturity date) are based on an amortization schedule
that would be
insufficient to fully amortize the principal thereof by the stated
maturity
date of the Mortgage Loan.
Business Day: Any day other than (i) a Saturday or Sunday, or
(ii)
a day on which banking and savings and loan institutions, in (a)
the State of
New York, (b) the state in which the Seller's servicing operations
are located
or (c) the State in which the Custodian's operations are located,
are
authorized or obligated by law or executive order to be closed.
Closing Date: Shall have the meaning set forth in the
applicable
Purchase Price and Terms Agreement.
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Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange
Commission.
Condemnation Proceeds: All awards or settlements in respect of
a
Mortgaged Property, whether permanent or temporary, partial or
entire, by
exercise of the power of eminent domain or condemnation, to the
extent not
required to be released to a Mortgagor in accordance with the terms
of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate
Mortgage
Loan purchased pursuant to this Agreement which contains a
provision whereby
the Mortgagor is permitted to convert the Adjustable Rate Mortgage
Loan to a
fixed rate Mortgage Loan in accordance with the terms of the
related Mortgage
Note.
Co-op: A private, cooperative housing corporation, having only
one
class of stock outstanding, which owns or leases land and all or
part of a
building or buildings, including apartments, spaces used for
commercial
purposes and common areas therein and whose board of directors
authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with
respect
to a dwelling unit occupied by the Mortgagor and relating to the
stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing
corporation
and a collateral assignment of the related Co-op Lease.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit I annexed hereto, and any additional
documents required
to be added to the Credit File pursuant to this Agreement.
Custodial Account: The separate trust account created and
maintained pursuant to Section 2.04 of the Servicing Agreement
(with respect
to each Mortgage Loan, as specified therein).
Custodial Agreement: The agreement governing the retention of
the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage
and other
Mortgage Loan Documents. If more than one Custodial Agreement is in
effect at
any given time, all of the Individual Custodial Agreements shall
collectively
be referred to as the "Custodial Agreement."
Custodian: LaSalle Bank, National Association, or its successor
in
interest or permitted assigns, or any successor to the Custodian
under the
Custodial Agreement as therein provided. If at any time there is no
Custodial
Agreement in effect with respect to a Mortgage Loan, all references
to the
Custodian herein and in the Servicing Agreement shall be deemed to
refer to
the Purchaser (or its designee) with respect to such Mortgage
Loan.
Cut-off Date: Shall have the meaning set forth in the
applicable
Purchase Price and Terms Agreement.
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Deemed Material and Adverse Representation: Each representation
and warranty identified as such in Subsection 9.02 of this
Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage
Loan by the
Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Determination Date: The date specified in the Servicing
Agreement
(with respect to each Mortgage Loan as specified therein).
Due Date: The day of the month on which the Monthly Payment is
due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date and any
Mortgage
Loan, the period commencing on the second day of the month
immediately
preceding the month of the Remittance Date for such Mortgage Loan
and ending
on the first day of the month of the Remittance Date.
Equity Take-Out Refinanced Mortgage Loan: A Mortgage Loan used
to
refinance an existing mortgage loan, the proceeds of which were in
excess of
the outstanding principal balance of the existing mortgage
loan.
Escrow Account: The separate account created and maintained
pursuant to Section 2.06 of the Servicing Agreement (with respect
to each
Mortgage Loan, as specified therein).
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer
rents,
municipal charges, mortgage insurance premiums, fire and hazard
insurance
premiums, condominium charges, and any other payments required to
be escrowed
by the Mortgagor with the mortgagee pursuant to the Mortgage or any
other
document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Fannie Mae: The Federal National Mortgage Association, or any
successor thereto.
Fannie Mae Guides: The Fannie Mae Sellers' Guide and the Fannie
Mae Servicers' Guide and all amendments or additions thereto.
Fannie Mae Transfer: As defined in Section 13 hereof.
FDIC: The Federal Deposit Insurance Corporation, and its
successors in interest.
Fitch: Fitch, Inc., and its successors in interest.
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FHA: The Federal Housing Administration, an agency within HUD,
and
its successors in interest, and including the Federal Housing
Commissioner and
the Secretary of Housing and Urban Development where appropriate
under the FHA
Regulations.
FHA Approved Mortgagee: A corporation or institution approved as
a
mortgagee by the FHA under the National Housing Act, and applicable
HUD
regulations, and eligible to own and service mortgage loans such as
the FHA
insured mortgage loans.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Freddie Mac Transfer: As defined in Section 13 hereof.
Gross Margin: With respect to each Adjustable Rate Mortgage
Loan,
the fixed percentage amount set forth in the related Mortgage Note
which
amount is added to the Index in accordance with the terms of the
related
Mortgage Note to determine on each Interest Rate Adjustment Date
the Mortgage
Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home
Ownership
and Equity Protection Act of 1994 ("HOEPA"), (b) with an "annual
percentage
rate" or total "points and fees" payable by the related Mortgagor
(as each
such term is calculated under HOEPA) that exceed the thresholds set
forth by
HOEPA and its implementing regulations, including 12 C.F.R. ss.
226.32(a)(1)(i) and (ii), (c) classified as a "high cost home,"
"threshold,"
"covered," (excluding New Jersey "Covered Home Loans" as that term
was defined
in clause (1) of the definition of that term in the New Jersey Home
Ownership
Security Act of 2002 that were originated between November 26, 2003
and July
7, 2004), "high risk home," "predatory" or similar loan under any
other
applicable state, federal or local law (or a similarly classified
loan using
different terminology under a law imposing heightened regulatory
scrutiny or
additional legal liability for residential mortgage loans having
high interest
rates, points and/or fees) or (d) categorized as High Cost pursuant
to the
then current Appendix E of Standard & Poor's Glossary. For
avoidance of doubt,
the parties agree that this definition shall apply to any law
regardless of
whether such law is presently, or in the future becomes, the
subject of
judicial review or litigation.
the then current Standard & Poor's Glossary (which is now
Version
5.6(d) Revised, Appendix E). For avoidance of doubt, the parties
agree that
this definition shall apply to any law regardless of whether such
law is
presently, or in the future becomes, the subject of judicial review
or
litigation.
HUD: The Department of (Housing and Urban Development, or any
federal agency or official thereof which may from time to time
succeed to the
functions thereof with regard to FHA Mortgage Insurance. The term
"HUD," for
purposes of this Agreement, is also deemed to include subdivisions
thereof
such as the FHA and Government National Mortgage Association.
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Index: The index indicated in the related Mortgage Note for
each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan,
proceeds
of insurance policies insuring the Mortgage Loan or the related
Mortgaged
Property.
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date, specified in the related Mortgage
Note and the
related Mortgage Loan Schedule, on which the Mortgage Interest Rate
is
adjusted.
Interim Funder: With respect to each MERS Designated Mortgage
Loan, the Person named on the MERS System as the interim funder
pursuant to
the MERS Procedures Manual.
Investor: With respect to each MERS Designated Mortgage Loan,
the
Person named on the MERS System as the investor pursuant to the
MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related
to
an Adjustable Rate Mortgage Loan which provides for an absolute
maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate
during the terms
of each Adjustable Rate Mortgage Loan shall not at any time exceed
the
Mortgage Interest Rate at the time of origination of such
Adjustable Rate
Mortgage Loan by more than the Lifetime Rate Cap set forth as an
amount per
annum on the related Mortgage Loan Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale
or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale
or
otherwise or the sale of the related Mortgaged Property if the
Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the
ratio (expressed as a percentage) of the outstanding principal
amount of the
Mortgage Loan as of the related origination date (unless otherwise
indicated),
to the lesser of (a) the Appraised Value of the Mortgaged Property
at
origination and (b) if the Mortgage Loan was made to finance the
acquisition
of the related Mortgaged Property, the purchase price of the
Mortgaged
Property.
Manufactured Home: A single family residential unit that is
constructed in a factory in sections in accordance with the
Federal
Manufactured Home Construction and Safety Standards adopted on July
15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as
amended in
2000, which preempts state and local building codes. Each unit is
identified
by the presence of a HUD Plate/Compliance Certificate label. The
sections are
then transported to the site and joined together and affixed to a
pre-built
permanent foundation (which satisfies the manufacturer's
requirements and all
state, county, and local building codes and regulations). The
manufactured
home is built on a non-removable, permanent frame chassis that
supports the
complete unit of walls, floors, and roof. The underneath part of
the home may
have running gear (wheels, axles, and brakes) that enable it to be
transported
to the permanent site. The wheels and hitch are removed prior to
anchoring the
unit to the permanent foundation. The manufactured home must be
classified as
real estate and taxed accordingly. The permanent foundation may be
on land
owned by the mortgager or may be on leased land.
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MERS: Mortgage Electronic Registration Systems, Inc., a
Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or
will take
such action as is necessary to cause MERS to be, the mortgagee of
record, as
nominee for the Seller, in accordance with the MERS Procedures
Manual and (b)
the Seller has designated or will designate the Purchaser as the
Investor on
the MERS System.
MERS Identification Number: The eighteen digit number
permanently
assigned to each MERS Designated Mortgage Loan.
MERS Procedures Manual: The MERS Procedures Manual, as it may
be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Moody's Investors Service, Inc., and its successors in
interest.
Mortgage: With respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a
Mortgage
Note, which creates a first lien on an unsubordinated estate in fee
simple in
real property securing the Mortgage Note; except that with respect
to real
property located in jurisdictions in which the use of leasehold
estates for
residential properties is a widely-accepted practice, the mortgage,
deed of
trust or other instrument securing the Mortgage Note may secure and
create a
first lien upon a leasehold estate of the Mortgagor. With respect
to a Co-op
Loan, the Security Agreement.
Mortgage File: The items pertaining to a particular Mortgage
Loan
referred to in Exhibit A annexed hereto, and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment
as set
forth in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject
of
this Agreement, each Mortgage Loan originally sold and subject to
this
Agreement being identified on the applicable Mortgage Loan
Schedule, which
Mortgage Loan includes without limitation the Mortgage File, the
Credit File,
the Servicing File, the Monthly Payments, Principal
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Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds,
and all other rights, benefits, proceeds and obligations arising
from or in
connection with such Mortgage Loan, excluding replaced or
repurchased mortgage
loans.
Mortgage Loan Documents: The documents required to be delivered
to
the Custodian pursuant to Section 6.03 hereof with respect to any
Mortgage
Loan.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall
be
purchased by the Purchaser from the Seller from time to time on
each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage
Loan,
the annual rate of interest remitted to the Purchaser, which shall
be equal to
the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan
in the
related Mortgage Loan Package: (1) the Seller's Mortgage Loan
identifying
number; (2) the Mortgagor's first and last name; (3) the street
address of the
Mortgaged Property including the city, state and zip code; (4) a
code
indicating the Mortgagor's race and/or ethnicity; (5) a code
indicating
whether the Mortgagor is self-employed; (6) a code indicating
whether the
Mortgaged Property is owner-occupied, investment property or a
second home;
(7) the number and type of residential units constituting the
Mortgaged
Property (e.g. single family residence, a two- to four-family
dwelling,
condominium, planned unit development or cooperative); (8) the
original months
to maturity or the remaining months to maturity from the related
Cut-off Date,
in any case based on the original amortization schedule and, if
different, the
maturity expressed in the same manner but based on the actual
amortization
schedule; (9) the Loan-to-Value Ratio at origination; (10) the
Mortgage
Interest Rate as of the related Cut-off Date; (11) the date on
which the
Monthly Payment was due on the Mortgage Loan and, if such date is
not
consistent with the Due Date currently in effect, such Due Date;
(12) the
stated maturity date; (13) the amount of the Monthly Payment as of
the related
Cut-off Date; (14) the last payment date on which a payment was
actually
applied to the outstanding principal balance; (15) the original
principal
amount of the Mortgage Loan; (16) the principal balance of the
Mortgage Loan
as of the close of business on the related Cut-off Date, after
deduction of
payments of principal due and collected on or before the related
Cut-off Date;
(17) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate
Adjustment Date; (18) with respect to Adjustable Rate Mortgage
Loans, the
Gross Margin; (19) with respect to Adjustable Rate Mortgage Loans,
the
Lifetime Rate Cap under the terms of the Mortgage Note; (20) with
respect to
Adjustable Rate Mortgage Loans, a code indicating the type of
Index; (21) the
type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate); (22) a
code
indicating the purpose of the loan (i.e., purchase, rate and term
refinance,
equity take-out refinance); (23) a code indicating the
documentation style
(i.e. no documents, full, alternative or reduced, no income/no
asset, stated
income, no ration, reduced or NIV); (24) the loan credit
classification (as
described in the Underwriting Guidelines); (25) whether such
Mortgage Loan
provides for a Prepayment Penalty; (26) the Prepayment Penalty
period of such
Mortgage Loan, if applicable; (27) a description of the Prepayment
Penalty, if
applicable; (26) the Mortgage Interest Rate as of origination; (29)
the credit
risk score (FICO score); (30) the date of origination; (31) with
respect to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate
adjustment period;
(32) with respect to Adjustable Rate Mortgage Loans, the
Mortgage
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Interest Rate adjustment percentage; (33) with respect to
Adjustable Rate
Mortgage Loans, the Mortgage Interest Rate floor; (34) the Mortgage
Interest
Rate calculation method (i.e., 30/360, simple interest, other);
(35) with
respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap as
of the
first Interest Rate Adjustment Date; (36) a code indicating whether
the
Mortgage Loan is a Balloon Mortgage Loan; (37) the Due Date for the
first
Monthly Payment; (38) the original Monthly Payment due; (39) a code
indicating
whether the Mortgage Loan is covered by a PMI Policy and, if so,
identifying
the PMI Policy provider; (40) in connection with a condominium
unit, a code
indicating whether the condominium project where such unit is
located is
low-rise or high-rise; (41) delinquency status as of the related
Cut-off Date;
(42) asset verification (Y/N); (43) with respect to each Adjustable
Rate
Mortgage Loan, a code indicating whether the Mortgage Loan provides
for
negative amortization; (44) Appraised Value; (45) appraisal type;
(46)
automated valuation model (AVM); (47) appraisal date; (48) with
respect to the
related Mortgagor, the debt-to-income ratio; (49) the MERS
Identification
Number, if applicable; (50) whether the Mortgage Loan has Monthly
Payments
that are interest-only for a period of time, and the interest-only
period, if
applicable; (51) with respect to each Adjustable Rate Mortgage Loan
with
negative amortization, the negative amortization limit; and (52) a
code
indicating the PMI Policy provider and percentage of coverage, if
applicable.
With respect to the Mortgage Loans in the aggregate, the Mortgage
Loan
Schedule shall set forth the following information, as of the
related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding
principal balance of the Mortgage Loans; (3) the weighted average
Mortgage
Interest Rate of the Mortgage Loans; (4) the weighted average
maturity of the
Mortgage Loans; (5) the average principal balance of the Mortgage
Loans; (6)
the applicable Cut-off Date; and (7) the applicable Closing
Date.
Mortgage Note: The note or other evidence of the indebtedness of
a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not
a
Co-op Loan, the underlying real property (or leasehold estate, if
applicable)
securing repayment of the debt evidenced by a Mortgage Note. With
respect to a
Co-op Loan, the stock allocated to a dwelling unit in the
residential
cooperative housing corporation that was pledged to secure such
Co-op Loan and
the related Co-op Lease.
Mortgagor: The obligor on a Mortgage Note.
Non-Convertible Mortgage Loan: Any individual Adjustable Rate
Mortgage Loan purchased pursuant to this Agreement which does not
contain a
provision pursuant to which the Mortgagor may convert the
Adjustable Rate
Mortgage Loan to a Fixed Rate Mortgage Loan.
OCC: Office of the Comptroller of the Currency, and its
successors
in interest.
Officer's Certificate: A certificate signed by the Chairman of
the
Board or the Vice Chairman of the Board or a President or a Vice
President and
by the Treasurer or the Secretary or one of the Assistant
Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser
as
required by this Agreement.
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Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Seller, reasonably acceptable to the Purchaser,
provided that
any Opinion of Counsel relating to (a) the qualification of any
account
required to be maintained pursuant to this Agreement as an Eligible
Account,
(b) qualification of the Mortgage Loans in a REMIC or (c)
compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion
of Counsel)
an opinion of counsel who (i) is in fact independent of the Seller
and any
servicer of the Mortgage Loans, (ii) does not have any material
direct or
indirect financial interest in the Seller or any servicer of the
Mortgage
Loans or in an Affiliate of either and (iii) is not connected with
the Seller
or any servicer of the Mortgage Loans as an officer, employee,
director or
person performing similar functions.
OTS: Office of Thrift Supervision, and its successors in
interest.
Periodic Rate Cap: With respect to each Adjustable Rate
Mortgage
Loan, the provision of each Mortgage Note which provides for an
absolute
maximum amount by which the Mortgage Interest Rate therein may
increase or
decrease on an Interest Rate Adjustment Date above or below the
Mortgage
Interest Rate previously in effect.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust,
unincorporated organization, government or any agency or political
subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance
issued
by a Qualified Insurer.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the
fee,
if any, payable upon the prepayment, in whole or in part, of such
Mortgage
Loan, as set forth in the related Mortgage Note.
Prime Rate: The prime rate announced to be in effect from time
to
time, as published as the average rate in The Wall Street Journal
(Northeast
edition).
Principal Prepayment: Any payment or other recovery of
principal
on a Mortgage Loan which is received in advance of its scheduled
Due Date,
including any Prepayment Penalty or premium thereon and which is
not
accompanied by an amount of interest representing scheduled
interest due on
any date or dates in any month or months subsequent to the month
of
prepayment.
Purchase Price: The price paid on the related Closing Date by
the
Purchaser to the Seller in exchange for the Mortgage Loans
purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each pool
of
Mortgage Loans purchased pursuant to this Agreement the related
agreement
setting forth the general terms and conditions of the purchase
transaction and
identifying the Mortgage Loans to be purchased thereunder, by and
between the
Seller and the Purchaser.
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Purchaser: Morgan Stanley Mortgage Capital Inc., a New York
corporation, and its successors in interest and assigns, and any
successor to
the Purchaser under this Agreement as herein provided.
Qualified Correspondent: Any Person from which the Seller
purchased Mortgage Loans, provided that the following conditions
are
satisfied: (i) such Mortgage Loans were originated pursuant to an
agreement
between the Seller and such Person that contemplated that such
Person would
underwrite mortgage loans from time to time, for sale to the
Seller, in
accordance with underwriting guidelines designated by the Seller
("Designated
Guidelines") or guidelines that do not vary materially from such
Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in
clause (i) above and were acquired by the Seller within one hundred
eighty
(180) days after origination; (iii) either (x) the Designated
Guidelines were,
at the time such Mortgage Loans were originated, used by the Seller
in
origination of mortgage loans of the same type as the Mortgage
Loans for the
Seller's own account or (y) the Designated Guidelines were, at the
time such
Mortgage Loans were underwritten, designated by the Seller on a
consistent
basis for use by lenders in originating mortgage loans to be
purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage
Loans were
acquired by the Seller, pre-purchase or post-purchase quality
assurance
procedures (which may involve, among other things, review of a
sample of
mortgage loans purchased during a particular time period or through
particular
channels) designed to ensure that Persons from which it purchased
mortgage
loans properly applied the underwriting criteria designated by the
Seller.
Qualified Appraiser: An appraiser, duly appointed by the
Seller,
who had no interest, direct or indirect in the Mortgaged Property
or in any
loan made on the security thereof, and whose compensation was not
affected by
the approval or disapproval of the Mortgage Loan, and such
appraiser and the
appraisal made by such appraiser both satisfied the requirements of
Title XI
of the Financial Institutions Reform, Recovery, and Enforcement Act
of 1989
and the regulations promulgated thereunder, all as in effect on the
date the
Mortgage Loan was originated.
Qualified Insurer: An insurance company duly qualified as such
under the laws of the states in which the Mortgaged Properties are
located,
duly authorized and licensed in such states to transact the
applicable
insurance business and to write the insurance provided, approved as
an insurer
by Fannie Mae and Freddie Mac (or such other rating as may be
required by a
Rating Agency in connection with a Securitization Transaction in
order to
achieve the desired ratings for the securities to be issued in
connection with
such Securitization Transaction).
Qualified Substitute Mortgage Loan: A mortgage loan eligible to
be
substituted by the Seller for a Deleted Mortgage Loan which must,
on the date
of such substitution, (i) have an outstanding principal balance,
after
deduction of all scheduled payments due in the month of
substitution (or in
the case of a substitution of more than one mortgage loan for a
Deleted
Mortgage Loan, an aggregate principal balance), not in excess of
the
outstanding principal balance of the Deleted Mortgage Loan (the
amount of any
shortfall will be deposited in the Custodial Account by the Seller
in the
month of substitution); (ii) have a Mortgage Interest Rate not less
than and
not more than 1% greater than the Mortgage Interest Rate of the
Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater
than and
not more than one year less than that of the Deleted Mortgage Loan
(iv) be of
the same type as the Deleted
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Mortgage Loan (i.e., fixed rate or adjustable rate with same
Mortgage Interest
Rate Cap and Index); and (v) comply with each representation and
warranty
(respecting individual Mortgage Loans) set forth in Section 9
hereof.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's,
or
their respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements entered
into by the Seller and the Purchaser and/or certain third parties
on the
Reconstitution Date or Dates with respect to any or all of the
Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency
Transfer or a
Securitization Transaction pursuant to Section 13, including, but
not limited
to, a seller's warranties and servicing agreement with respect to a
Whole Loan
Transfer, and a pooling and servicing agreement and/or
seller/servicer
agreements and related custodial/trust agreement and documents with
respect to
a Securitization Transaction.
Reconstitution Date: As defined in Section 13.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. 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
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,
1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be
provided by
the Commission or its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of
Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions and
regulations,
rulings or pronouncements promulgated thereunder, as the foregoing
may be in
effect from time to time.
Remittance Date: The date specified in the Servicing Agreement
(with respect to each Mortgage Loan, as specified therein).
Repurchase Price: As defined in the related Purchase Price and
Terms Agreement.
RESPA: Real Estate Settlement Procedures Act, as amended from
time
to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1)
a
sale or other transfer of some or all of the Mortgage Loans
directly or
indirectly to an issuing entity in connection with an issuance of
publicly
offered or privately placed, rated or unrated mortgage-backed
securities or
(2) an issuance of publicly offered or privately placed, rated or
unrated
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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.
Security Agreement: The agreement creating a security interest
in
the stock allocated to a dwelling unit in the residential
cooperative housing
corporation that was pledged to secure such Co-op Loan and the
related Co-op
Lease.
Seller: IndyMac Bank, F.S.B., and its successors in interest.
Servicing Agreement: The Amended and Restated Servicing
Agreement,
attached as Exhibit L hereto, between the Purchaser and the Seller,
pursuant
to which the Seller will service the Mortgage Loans..
Servicing Fee: With respect to each Mortgage Loan subject to
the
Servicing Agreement, a fee payable monthly equal to one-twelfth of
the product
of (a) the Servicing Fee Rate and (b) the aggregate scheduled
principal
balance of such Mortgage Loan. Such fee shall be payable monthly
and shall be
pro-rated for any portion of a month during which the Mortgage Loan
is
serviced by the Seller under the Servicing Agreement. The
obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing
Fee is
payable solely from, the interest portion (including recoveries
with respect
to interest from Liquidation Proceeds, Condemnation Proceeds and
Insurance
Proceeds, to the extent permitted by this Agreement) of such
Monthly Payment
collected by the Seller, or as otherwise provided under this
Agreement.
Servicing Fee Rate: 37.5 basis points (0.375%) per annum or
such
other rate as may be set forth in the Purchase Price and Terms
Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller consisting of originals of all documents in
the
Mortgage File which are not delivered to the Purchaser or the
Custodian and
copies of the Mortgage Loan Documents set forth in Section 2 of the
Custodial
Agreement.
Sponsor: The sponsor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Ratings Services, a
division
of The McGraw-Hill Companies Inc., and its successors in
interest.
Standard & Poor's Glossary: The Standard & Poor's
LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan on any date
of
determination, (i) the principal balance of each Mortgage Loan at
the related
Cut-off Date after giving effect to payments of principal due on or
before
such date, whether or not received, minus (ii) all amounts
previously
distributed to the Purchaser with respect to the related Mortgage
Loan
representing payments or recoveries of principal on such Mortgage
Loan.
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Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of
the
indemnifications set forth in Subsections 9.03 and 14.01.
Static Pool Information: Static pool information as described
in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of
the
indemnifications set forth in Subsections 9.03 and 14.01.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the
Seller.
Underlying Mortgaged Property: With respect to each Co-op Loan,
the underlying real property owned by the related residential
cooperative
housing corporation.
Underwriting Guidelines: The underwriting guidelines of the
Seller, a copy of which is attached hereto as Exhibit H and a
then-current
copy of which shall be attached as an exhibit to the related
Assignment and
Conveyance.
VA Approved Lender: A lender which is approved by the VA to act
as
a lender in connection with the origination of VA guaranteed
mortgage loans.
Whole Loan Agreement: Any Reconstitution Agreement in respect of
a
Whole Loan Transfer.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller agrees to sell from time to time, and the Purchaser
agrees to purchase from time to time, Mortgage Loans having an
aggregate
principal balance on the Cut-off Date in an amount as set forth in
the related
Purchase Price and Terms Agreement, or in such other amount as
agreed by the
Purchaser and the Seller as evidenced by the actual aggregate
principal
balance of the Mortgage Loans accepted by the Purchaser on each
Closing Date.
SECTION 3. Mortgage Schedules.
The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the
Mortgage Loans
to be purchased on each Closing Date in accordance with the related
Purchase
Price and Terms Agreement and this Agreement (each, a "Preliminary
Mortgage
Schedule").
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The Seller is obligated to deliver those Mortgage Loans owned
by
the Seller pursuant to the original terms of the Seller's
commitment to the
Mortgagor. The Seller shall deliver the Mortgage Loan Schedule for
the
Mortgage Loans to be purchased on a particular Closing Date to the
Purchaser
at least two (2) Business Days prior to the related Closing Date.
The Mortgage
Loan Schedule shall be the related Preliminary Mortgage Schedule
with those
Mortgage Loans which have not been funded prior to the Closing Date
deleted.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan shall be the
percentage
of par as stated in the related Purchase Price and Terms Agreement
(subject to
adjustment as provided therein), multiplied by the aggregate
principal
balance, as of the related Cut-off Date, of the Mortgage Loans,
after
application of scheduled payments of principal due on or before the
related
Cut-off Date, whether or not collected. The initial principal
amount of the
Mortgage Loans shall be the aggregate principal balance of the
Mortgage Loans,
so computed as of the related Cut-off Date. If so provided in the
related
Purchase Price and Terms Agreement, portions of the Mortgage Loans
shall be
priced separately.
In addition to the Purchase Price as described above, the
Purchaser shall pay to the Seller, at closing, accrued interest on
the current
principal amount of the related Mortgage Loans as of the related
Cut-off Date
at the weighted average Mortgage Interest Rate of those Mortgage
Loans, net of
the Servicing Fee Rate, from the Cut-off Date through the day prior
to the
Closing Date, inclusive. The Purchase Price plus accrued interest
as set forth
in the preceding paragraph shall be paid to the Seller by wire
transfer of
immediately available funds to an account designated by the Seller
in writing.
The Purchaser shall be entitled to (1) all scheduled principal
due
after the related Cut-off Date, (2) all other recoveries of
principal
collected on or after the related Cut-off Date, (3) all payments of
interest
on the Mortgage Loans net of applicable Servicing Fees (minus that
portion of
any such payment which is allocable to the period prior to the
related Cut-off
Date), and (4) all Prepayment Penalties (unless the related
Purchase Price and
Terms Agreement indicates otherwise) collected on or after the
related Cut-off
Date (minus the portion of any such payment which is allocable to
the period
prior the related Cut-off Date). The outstanding principal balance
of each
Mortgage Loan as of the related Cut-off Date is determined after
application
of payments of principal due on or before the related Cut-off Date,
whether or
not collected, together with any unscheduled principal prepayments
collected
prior to the such Cut-off Date; provided, however, that payments of
scheduled
principal and interest paid prior to such Cut-off Date, but to be
applied on a
Due Date beyond the related Cut-off Date shall not be applied to
the principal
balance as of the related Cut-off Date. Such prepaid amounts shall
be the
property of the Purchaser. The Seller shall deposit any such
prepaid amounts
into the Custodial Account, which account is established for the
benefit of
the Purchaser for subsequent remittance by the Seller to the
Purchaser.
SECTION 5. Examination of Mortgage Files.
At least ten (10) Business Days prior to the related Closing
Date,
the Seller shall make the related Credit File available to the
Purchaser for
examination at such location as shall
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be agreed upon by the Seller and the Purchaser. Such examination of
the
Mortgage Files may be made by the Purchaser or its designee at any
reasonable
time before or after the related Closing Date. If the Purchaser
makes such
examination prior to the related Closing Date and determines, in
its sole
discretion, that any Mortgage Loans do not conform to any of the
requirements
set forth in the Purchase Price and Terms Agreement and Exhibit A
thereto, the
Purchaser may delete such Mortgage Loans from the related Mortgage
Loan
Schedule, and such Deleted Mortgage Loan (or Loans) may be replaced
by a
Qualified Substitute Mortgage Loan (or Loans) acceptable to the
Purchaser. The
Purchaser may, at its option and without notice to the Seller,
purchase some
or all of the Mortgage Loans without conducting any partial or
complete
examination. The fact that the Purchaser or its designee has
conducted or has
failed to conduct any partial or complete examination of the
Mortgage Files or
the Credit Files shall not impair in any way the Purchaser's (or
any of its
successor's) rights to demand repurchase, substitution or other
remedy as
provided in this Agreement. In the event that the Seller fails to
deliver the
Credit Files with respect to any Mortgage Loan, the Seller shall,
upon the
request of the Purchaser, repurchase such Mortgage Loan as the
price and in
the manner specified in Subsection 9.03.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans; Possession of
Servicing Files.
The Seller, simultaneously with the delivery of the Mortgage
Loans
Schedule with respect to the related Mortgage Loan Package to be
purchased on
each Closing Date, shall execute and deliver an Assignment and
Conveyance
Agreement in the form attached hereto as Exhibit G (the "Assignment
and
Conveyance Agreement"). The Seller shall cause the Servicing File
retained by
the Seller pursuant to this Agreement to be appropriately
identified in the
Seller's computer system and/or books and records, as appropriate,
to clearly
reflect the sale of the related Mortgage Loan to the Purchaser. The
Seller
shall release from its custody the contents of any Servicing File
retained by
it only in accordance with this Agreement or the Servicing
Agreement.
Subsection 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date
shall
be in the name of the Seller, an Affiliate of the Seller, the
Purchaser or one
or more designees of the Purchaser, as the Purchaser shall
select.
Notwithstanding the foregoing, each Mortgage and related Mortgage
Note shall
be possessed solely by the Purchaser or the appropriate designee of
the
Purchaser, as the case may be. All rights arising out of the
Mortgage Loans
including, but not limited to, all funds received by the Seller
after the
related Cut-off Date, net of any funds due the Seller, on or in
connection
with a Mortgage Loan shall be vested in the Purchaser or one or
more designees
of the Purchaser; provided, however, that all funds received on or
in
connection with a Mortgage Loan shall be received and held by the
Seller in
trust for the benefit of the Purchaser or the appropriate designee
of the
Purchaser, as the case may be, as the owner of the Mortgage Loans
pursuant to
the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the
Seller's
balance sheet and other financial statements as a sale of assets by
the
Seller.
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The Seller shall be responsible for maintaining, and shall
maintain, a complete set of books and records for each Mortgage
Loan which
shall be marked clearly to reflect the ownership of each Mortgage
Loan by the
Purchaser. In particular, the Seller shall maintain in its
possession,
available for inspection by the Purchaser, and shall deliver to the
Purchaser
upon demand, evidence of compliance with all federal, state and
local laws,
rules and regulations, and requirements of Fannie Mae or Freddie
Mac,
including but not limited to documentation as to the method used
in
determining the applicability of the provisions of the National
Flood
Insurance Act of 1968, as amended, to the Mortgaged Property,
documentation
evidencing insurance coverage and periodic inspection reports, as
required by
the Servicing Agreement and Fannie Mae Guides. To the extent that
original
documents are not required for purposes of realization of
Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Seller may be in
the form
of microfilm or microfiche so long as the Seller complies with
the
requirements of the Fannie Mae Guides.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller or its designee shall deliver and release to the
Custodian no later than five (5) Business Days prior to the related
Closing
Date those documents and instruments in the Mortgage File for each
Mortgage
Loan that are required to be delivered to the Custodian pursuant to
the
Custodial Agreement.
The Custodian shall certify its receipt of all such Mortgage
Loan
Documents required to be delivered pursuant to the Custodial
Agreement for the
related Closing Date, as evidenced by the certification and trust
receipt of
the Custodian in the form annexed to the Custodial Agreement. The
Seller shall
comply with the terms of the Custodial Agreement and the Purchaser
shall pay
all fees and expenses of the Custodian from and after the Closing
Date.
The Seller shall forward to the Custodian, or to such other
Person
as the Purchaser shall designate in writing, original documents
evidencing an
assumption, modification, consolidation or extension of any
Mortgage Loan
entered into in accordance with this Agreement within two weeks of
their
execution, provided, however, that the Seller shall provide the
Custodian, or
to such other Person as the Purchaser shall designate in writing,
with a
certified true copy of any such document submitted for recordation
within two
(2) weeks of its execution, and shall promptly provide the original
of any
document submitted for recordation or a copy of such document
certified by the
appropriate public recording office to be a true and complete copy
of the
original within one hundred twenty (120) days of its submission
for
recordation.
In the event any document required to be delivered to the
Custodian pursuant to the preceding paragraph, including an
original or copy
of any document submitted for recordation to the appropriate public
recording
office, is not so delivered to the Custodian, or to such other
Person as the
Purchaser shall designate in writing, within one hundred twenty
(120) days
following the related Closing Date (other than with respect to the
Assignments
of Mortgage which shall be delivered to the Custodian in blank on
or prior to
the Closing Date and recorded subsequently by the Purchaser or its
designee),
and in the event that the Seller does not cure such failure within
thirty (30)
days of discovery or receipt of written notification of such
failure from the
Purchaser, the related Mortgage Loan shall, upon the request of the
Purchaser,
be repurchased by the Seller at the price and in the manner
specified in
Subsection 9.03. The
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foregoing repurchase obligation shall not apply in the event that
the Seller
cannot deliver such original or copy of any document submitted for
recordation
to the appropriate public recording office within the specified
period due to
a delay caused by the recording office in the applicable
jurisdiction;
provided that (i) the Seller shall deliver an Officer's Certificate
of a
servicing officer of the Seller, confirming that such documents
have been
delivered for recording, (upon request of the Purchaser and
delivery by the
Purchaser to the Seller of a schedule of the related Mortgage
Loans, the
Seller shall reissue and deliver to the Purchaser or its designee
said
officer's certificate relating to the related Mortgage Loans), and
(ii) such
document is delivered within twelve (12) months of the Closing
Date.
The Seller shall pay all initial recording fees, if any, for
the
Assignments of Mortgage up to $30 per Mortgage Loan and any other
fees or
costs in transferring all original documents to the Custodian or,
upon written
request of the Purchaser, to the Purchaser or the Purchaser's
designee.
Notwithstanding the foregoing, Seller shall not be required to pay
recording
fees in connection with any Mortgage Loan secured by a Mortgaged
Property
located in the State of California, or any other state, provided
that Seller
shall, upon request of the Purchaser and at the Seller's expense,
cause to be
furnished to the Purchaser and its designees an opinion of counsel
reasonably
satisfactory to the Purchaser to the effect that recordation is not
necessary
in such states to protect the Purchaser's (or its designees')
interest in such
Mortgage Loans. If such opinion of counsel is not available by the
Closing
Date, the Seller will pay $30 per Mortgage Loan, to be netted from
the
Purchase Price on the Closing Date. The Purchaser or the
Purchaser's designee
shall be responsible for recording the Assignments of Mortgage.
Subsection 6.04 Quality Control Procedures.
The Seller shall, or shall have an internal quality control
program that verifies in a manner consistent with accepted
industry
procedures, on a regular basis, the existence and accuracy of the
legal
documents, credit documents, property appraisals, and underwriting
decisions.
The program shall include evaluating and monitoring the overall
quality of the
Seller's loan production and the servicing activities of the
Seller. The
program is to ensure that the Mortgage Loans are originated and
serviced in
accordance with Accepted Servicing Practices and the Underwriting
Guidelines,
guard against dishonest, fraudulent, or negligent acts, and guard
against
errors and omissions by officers, employees, or other authorized
persons.
Subsection 6.05 MERS Designated Mortgage Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the
Purchaser as the
Investor and the Custodian as custodian, and no Person shall be
listed as
Interim Funder on the MERS System. In addition, on or prior to the
related
Closing Date, the Seller shall provide the Custodian and the
Purchaser with a
MERS Report listing the Purchaser as the Investor, the Custodian as
custodian
and no Person as Interim Funder with respect to each MERS
Designated Mortgage
Loan.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the
Purchaser
on a servicing retained basis.
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The Purchaser shall retain the Seller as independent contract
servicer of the Mortgage Loans pursuant to and in accordance with
the terms
and conditions contained in the Servicing Agreement. The Purchaser
and Seller
shall execute the Servicing Agreement on the Closing Date.
Pursuant to the Servicing Agreement, the Seller shall begin
servicing the Mortgage Loans on behalf of the Purchaser and shall
be entitled
to the Servicing Fee and any Ancillary Income with respect to such
Mortgage
Loans from the related Closing Date until the termination of the
Servicing
Agreement with respect to any of the Mortgage Loans as set forth in
the
Servicing Agreement. The Seller shall service the Mortgage Loans in
accordance
with the terms of the Servicing Agreement.
SECTION 8. Representations, Warranties and Covenants of the
Purchaser
Subsection 8.01 Representations and Warranties Regarding the
Purchaser.
The Purchaser represents, warrants and covenants to the Seller
that as of the date hereof and as of each Closing Date that the
execution,
delivery and performance by the Purchaser of this Agreement has
been duly and
validly authorized by all necessary corporate action. This
Agreement
constitutes a legal, valid and enforceable obligation of the
Purchaser.
SECTION 9. Representations, Warranties and Covenants of the
Seller; Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser
that as of the date hereof and as of the Closing Date:
(a) Due Organization and Authority. The Seller is a federal
savings bank duly organized, validly existing and in good standing
under the
laws of its jurisdiction of incorporation or formation and has all
licenses
necessary to carry on its business as now being conducted and is
licensed,
qualified and in good standing in each state wherein it owns or
leases any
material properties or where a Mortgaged Property is located, if
the laws of
such state require licensing or qualification in order to conduct
business of
the type conducted by the Seller, and in any event the Seller is in
compliance
with the laws of any such state to the extent necessary to ensure
the
enforceability of the related Mortgage Loan and the servicing of
such Mortgage
Loan in accordance with the terms of this Agreement and the
Servicing
Agreement; the Seller has the full corporate power, authority and
legal right
to hold, transfer and convey the Mortgage Loans and to execute and
deliver
this Agreement and to perform its obligations hereunder and
thereunder; the
execution, delivery and performance of this Agreement (including
all
instruments of transfer to be delivered pursuant to this Agreement)
by the
Seller and the consummation of the transactions contemplated hereby
and
thereby have been duly and validly authorized; this Agreement and
all
agreements contemplated hereby have been duly executed and
delivered and
constitute the valid, legal, binding and enforceable obligations of
the
Seller, regardless of whether such enforcement is sought in a
proceeding in
equity or at law; and all requisite corporate action has been taken
by the
Seller to make this Agreement and all agreements contemplated
hereby valid and
binding upon the Seller in accordance with their terms;
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(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary
course of
business of the Seller, and the transfer, assignment and conveyance
of the
Mortgage Notes and the Mortgages by the Seller pursuant to this
Agreement are
not subject to the bulk transfer or any similar statutory
provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by
the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation
of the
transactions contemplated hereby, nor the fulfillment of or
compliance with
the terms and conditions of this Agreement, will conflict with or
result in a
breach of any of the terms, conditions or provisions of the
Seller's charter,
by-laws or other organizational documents or any legal restriction
or any
agreement or instrument to which the Seller is now a party or by
which it is
bound, or constitute a default or result in an acceleration under
any of the
foregoing, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Seller or its property is subject,
or result
in the creation or imposition of any lien, charge or encumbrance
that would
have an adverse effect upon any of its properties pursuant to the
terms of any
mortgage, contract, deed of trust or other instrument, or impair
the ability
of the Purchaser to realize on the Mortgage Loans, impair the value
of the
Mortgage Loans, or impair the ability of the Purchaser to realize
the full
amount of any insurance benefits accruing pursuant to this
Agreement;
(d) Ability to Service. Seller has the facilities, procedures,
and
experienced personnel necessary for the sound servicing of mortgage
loans of
the same type as the Mortgage Loans. The Seller is duly qualified,
licensed,
registered and otherwise authorized under all applicable federal,
state and
local laws, and regulations, if applicable, meets the minimum
capital
requirements set forth by HVD, the OTS, the OCC or the FDIC, if
applicable,
and is in good standing to enforce, originate, sell mortgage loans
to, and
service mortgage loans in the jurisdiction wherein the Mortgaged
Properties
are located;
(e) Reasonable Servicing Fee. The Seller acknowledges and
agrees
that the Servicing Fee represents reasonable compensation for
performing such
services and that the entire Servicing Fee shall be treated by the
Seller, for
accounting and tax purposes, as compensation for the servicing
and
administration of the Mortgage Loans pursuant to this Agreement and
the
Servicing Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe,
nor
does it have any reason or cause to believe, that it cannot perform
each and
every covenant contained in this Agreement. The Seller is solvent
and the sale
of the Mortgage Loans will not cause the Seller to become
insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder,
delay or
defraud any of Seller's creditors;
(g) No Litigation Pending. There is no action, suit, proceeding
or
investigation pending or threatened against the Seller, before any
court,
administrative agency or other tribunal asserting the invalidity of
this
Agreement, seeking to prevent the consummation of any of the
transactions
contemplated by this Agreement or which, either in any one instance
or in the
aggregate, may result in any material adverse change in the
business,
operations, financial condition, properties or assets of the
Seller, or in any
material impairment of the right or ability of
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the Seller to carry on its business substantially as now conducted,
or in any
material liability on the part of the Seller, or which would draw
into
question the validity of this Agreement or the Mortgage Loans or of
any action
taken or to be taken in connection with the obligations of the
Seller
contemplated herein, or which would be likely to impair materially
the ability
of the Seller to perform under the terms of this Agreement;
(h) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court
or
governmental agency or body including HUD, the FHA or the
Department of
Veterans Affairs is required for the execution, delivery and
performance by
the Seller of or compliance by the Seller with this Agreement or
the Mortgage
Loans, the delivery of a portion of the Mortgage Files to the
Custodian or the
sale of the Mortgage Loans or the consummation of the
transactions
contemplated by this Agreement, or if required, such approval has
been
obtained prior to the related Closing Date;
(i) Selection Process. The Mortgage Loans were selected from
among
the outstanding one- to four-family mortgage loans in the Seller's
portfolio
at the related Closing Date as to which the representations and
warranties set
forth in Subsection 9.02 could be made and such selection was not
made in a
manner so as to affect adversely the interests of the
Purchaser;
(j) Delivery to the Custodian. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be
delivered
with respect to each Mortgage Loan pursuant to the Custodial
Agreement, shall
be delivered to the Custodian all in compliance with the specific
requirements
of the Custodial Agreement. With respect to each Mortgage Loan, the
Seller
will be in possession of a complete Mortgage File in compliance
with Exhibit A
hereto, except for such documents as will be delivered to the
Custodian;
(k) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description
of the pool
characteristics for the applicable Mortgage Loan Package delivered
pursuant to
Section 11 on the related Closing Date in the form attached as
Exhibit B to
each related Assignment and Conveyance Agreement;
(l) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other
document
furnished or to be furnished pursuant to this Agreement or any
Reconstitution
Agreement or in connection with the transactions contemplated
hereby
(including any Securitization Transaction or Whole Loan Transfer)
contains or
will contain any untrue statement of fact or omits or will omit to
state a
fact necessary to make the statements contained herein or therein
not
misleading;
(m) No Brokers. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to
any
commission or compensation in connection with the sale of the
Mortgage Loans;
(n) Sale Treatment. The Seller expects to be advised by its
independent certified public accountants that under generally
accepted
accounting principles the transfer of the Mortgage Loans will be
treated as a
sale on the books and records of the Seller and the Seller has
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determined that the disposition of the Mortgage Loans pursuant to
this
Agreement will be afforded sale treatment for tax and accounting
purposes;
(o) Owner of Record. The Seller is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note,
except for the
Assignments of Mortgage which have been sent for recording, and
upon
recordation the Seller will be the owner of record of each Mortgage
and the
indebtedness evidenced by each Mortgage Note, and upon the sale of
the
Mortgage Loans to the Purchaser, the Seller will retain the
Mortgage Files
with respect thereto in trust only for the purpose of servicing
and
supervising the servicing of each Mortgage Loan;
(p) Reasonable Purchase Price. The consideration received by
the
Seller upon the sale of the Mortgage Loans under this Agreement
constitutes
fair consideration and reasonably equivalent value for the Mortgage
Loans; and
(q) Seller's Origination. The Seller's decision to originate
any
mortgage loan or to deny any mortgage loan application is an
independent
decision based upon the Underwriting Guidelines, and is in no way
made as a
result of Purchaser's decision to purchase, or not to purchase, or
the price
Purchaser may offer to pay for, any such mortgage loan, if
originated.
Subsection 9.02 Representations and Warranties Regarding
Individual Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser
that,
as to each Mortgage Loan, as of the related Closing Date for such
Mortgage
Loan:
(a) Mortgage Loans as Described. The information set forth in
the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to
the
related Closing Date for the Mortgage Loan under the terms of the
Mortgage
Note have been made and credited. No payment required under the
Mortgage Loan
is 30 days or more delinquent nor has any payment under the
Mortgage Loan been
30 days or more delinquent at any time since the origination of the
Mortgage
Loan;
(c) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental
assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or
ground rents which previously became due and owing have been paid,
or an
escrow of funds has been established in an amount sufficient to pay
for every
such item which remains unpaid and which has been assessed but is
not yet due
and payable. The Seller has not advanced funds, or induced,
solicited or
knowingly received any advance of funds by a party other than the
Mortgagor,
directly or indirectly, for the payment of any amount required
under the
Mortgage Loan, except for interest accruing from the date of the
Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever is
earlier,
to the day which precedes by one month the related Due Date of the
first
installment of principal and interest;
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(d) Original Terms Unmodified. The terms of the Mortgage Note
and
Mortgage have not been impaired, waived, altered or modified in any
respect,
from the date of origination except by a written instrument which
has been
recorded, if necessary to protect the interests of the Purchaser,
and which
has been delivered to the Custodian or to such other Person as the
Purchaser
shall designate in writing, and the terms of which are reflected in
the
related Mortgage Loan Schedule. The substance of any such waiver,
alteration
or modification has been approved by the issuer of any related PMI
Policy and
the title insurer, if any, to the extent required by the policy,
and its terms
are reflected on the related Mortgage Loan Schedule, if applicable.
No
Mortgagor has been released, in whole or in part, except in
connection with an
assumption agreement, approved by the issuer of any related PMI
Policy and the
title insurer, to the extent required by the policy, and which
assumption
agreement is part of the Mortgage Loan File delivered to the
Custodian or to
such other Person as the Purchaser shall designate in writing and
the terms of
which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right
of
rescission, set-off, counterclaim or defense, including without
limitation the
defense of usury, nor will the operation of any of the terms of the
Mortgage
Note or the Mortgage, or the exercise of any right thereunder,
render either
the Mortgage Note or the Mortgage unenforceable, in whole or in
part and no
such right of rescission, set-off, counterclaim or defense has been
asserted
with respect thereto, and no Mortgagor was a debtor in any state or
Federal
bankruptcy or insolvency proceeding at the time the Mortgage Loan
was
originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage,
all
buildings or other improvements upon the Mortgaged Property are
insured by a
generally acceptable insurer against loss by fire, hazards of
extended
coverage and such other hazards as are provided for in the
Underwriting
Guidelines, as well as all additional requirements set forth in
Section 2.10
of the Servicing Agreement. If required by the National Flood
Insurance Act of
1968, as amended, each Mortgage Loan is covered by a flood
insurance policy
meeting the requirements of the current guidelines of the Federal
Insurance
Administration as in effect which policy conforms with the
Underwriting
Guidelines, as well as all additional requirements set forth in
Section 2.10
of the Servicing Agreement. All individual insurance policies
contain a
standard mortgagee clause naming the Seller and its successors and
assigns as
mortgagee, and all premiums thereon have been paid. The Mortgage
obligates the
Mortgagor thereunder to maintain the hazard insurance policy at
the
Mortgagor's cost and expense, and on the Mortgagor's failure to do
so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at
such Mortgagor's cost and expense, and to seek reimbursement
therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor
has been
given an opportunity to choose the carrier of the required hazard
insurance,
provided the policy is not a "master" or "blanket" hazard insurance
policy
covering a condominium, or any hazard insurance policy covering the
common
facilities of a planned unit development. The hazard insurance
policy is the
valid and binding obligation of the insurer, is in full force and
effect, and
will be in full force and effect and inure to the benefit of the
Purchaser
upon the consummation of the transactions contemplated by this
Agreement. The
Seller has not engaged in, and has no knowledge of the Mortgagor's
having
engaged in, any act or omission which would impair the coverage of
any such
policy, the benefits of the endorsement provided for herein, or the
validity
and binding effect of either including, without limitation, no
unlawful fee,
commission, kickback or other unlawful compensation or value of any
kind has
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been or will be received, retained or realized by any attorney,
firm or other
person or entity, and no such unlawful items have been received,
retained or
realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements
of
any federal, state or local law including, without limitation,
usury,
truth-in-lending, real estate settlement procedures, consumer
credit
protection, equal credit opportunity, disclosure laws, predatory,
fair lending
or abusive lending laws applicable to the Mortgage Loan, including,
without
limitation, any provisions relating to the Illinois Interest Act
and
Prepayment Penalties have been complied with, the consummation of
the
transactions contemplated hereby will not involve the violation of
any such
laws or regulations, and the Seller shall maintain in its
possession,
available for the Purchaser's inspection, and shall deliver to the
Purchaser
upon demand, evidence of compliance with all such requirements.
This
representation and warranty is a Deemed Material and Adverse
Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in
part, and the
Mortgaged Property has not been released from the lien of the
Mortgage, in
whole or in part, nor has any instrument been executed that would
effect any
such release, cancellation, subordination or rescission. The Seller
has not
waived the performance by the Mortgagor of any action, if the
Mortgagor's
failure to perform such action would cause the Mortgage Loan to be
in default,
nor has the Seller waived any default resulting from any action or
inaction by
the Mortgagor;
(i) Location and Type of Mortgaged Property. As to Mortgage
Loans
that are not Co-op Loans and that are not secured by an interest in
a
leasehold estate, the Mortgaged Property is located in the state
identified in
the related Mortgage Loan Schedule and consists of a single parcel
of real
property with a detached single family residence erected thereon,
or a
townhouse, or a two-to four-family dwelling, or an individual
condominium unit
in a condominium project, or an individual unit in a planned unit
development
or a de minimis planned unit development, provided, however, that
no residence
or dwelling is a mobile home, log home, geodesic dome or other
unique property
type. As of the date of origination, no portion of the Mortgaged
Property was
used for commercial purposes, and, since the date of origination no
portion of
the Mortgaged Property has been used for commercial purposes,
except as
permitted under the Underwriting Standards. In the case of any
Mortgaged
Properties that are manufactured homes (a "Manufactured Home
Mortgage Loan"),
(i) such Manufactured Home Mortgage Loan conforms with the
applicable Fannie
Mae or Freddie Mac requirements regarding mortgage loans related
to
manufactured dwellings, (ii) the related manufactured dwelling is
permanently
affixed to the land, (iii) the related manufactured dwelling and
the related
land are subject to a Mortgage properly filed in the appropriate
public
recording office and naming Seller as mortgagee, (iv) the
applicable laws of
the jurisdiction in which the related Mortgaged Property is located
will deem
the manufactured dwelling located on such Mortgaged Property to be
a part of
the real property on which such dwelling is located, and (v) such
Manufactured
Home Mortgage Loan is (x) a qualified mortgage under Section
860G(a)(3) of the
Internal Revenue Code of 1986, as amended and (y) secured by
manufactured
housing treated as a single family residence under Section
25(e)(10) of the
Code. As of the date of origination, no portion of the Mortgaged
Property was
used for commercial purposes, and since the date of origination, no
portion of
the Mortgaged
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Property has been used for commercial purposes; provided, that
Mortgaged
Properties which contain a home office shall not be considered as
being used
for commercial purposes as long as the Mortgaged Property has not
been altered
for commercial purposes and is not storing any chemicals or raw
materials
other than those commonly used for homeowner repair, maintenance
and/or
household purposes;
(j) Valid First Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien on the Mortgaged Property,
including all
buildings and improvements on the Mortgaged Property and all
installations and
mechanical, electrical, plumbing, heating and air conditioning
systems located
in or annexed to such buildings, and all additions, alterations
and
replacements made at any time with respect to the foregoing. The
lien of the
Mortgage is subject only to:
(A) the lien of current real property taxes and assessments
not yet due and payable;
(B) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date
of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage
Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b)
which do not adversely affect the Appraised Value of the
Mortgaged
Property set forth in such appraisal; and
(C) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property.
Any security agreement, chattel mortgage or equivalent document
related to and
delivered in connection with the Mortgage Loan establishes and
creates a
valid, subsisting, enforceable and perfected first lien and first
priority
security interest on the property described therein and the Seller
has full
right to sell and assign the same to the Purchaser.
With respect to any Co-op Loan, the related Mortgage is a valid,
subsisting
and enforceable first priority security interest on the related
cooperative
shares securing the Mortgage Note, subject only to (a) liens of the
related
residential cooperative housing corporation for unpaid
assessments
representing the Mortgagor's pro rata share of the related
residential
cooperative housing corporation's payments for its blanket
mortgage, current
and future real property taxes, insurance premiums, maintenance
fees and other
assessments to which like collateral is commonly subject and (b)
other matters
to which like collateral is commonly subject which do not
materially interfere
with the benefits of the security interest intended to be provided
by the
related Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a
Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal,
valid and
binding obligation of the maker thereof enforceable in
25
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accordance with its terms (including, without limitation, any
provisions
therein relating to Prepayment Penalties). All parties to the
Mortgage Note,
the Mortgage and any other such related agreement had legal
capacity to enter
into the Mortgage Loan and to execute and deliver the Mortgage
Note, the
Mortgage and any such agreement, and the Mortgage Note, the
Mortgage and any
other such related agreement have been duly and properly executed
by other
such related parties. No fraud, error, omission, misrepresentation,
negligence
or similar occurrence with respect to a Mortgage Loan has taken
place on the
part of the Seller in connection with the origination of the
Mortgage Loan or
in the application of any insurance in relation to such Mortgage
Loan. No
fraud, error, omission, misrepresentation, negligence or similar
occurrence
with respect to a Mortgage Loan has taken place on the part of any
Person,
including without limitation, the Mortgagor, any appraiser, any
builder or
developer, or any other party involved in the origination of the
Mortgage Loan
or in the application for any insurance in relation to such
Mortgage Loan. The
Seller has reviewed all of the documents constituting the Servicing
File and
has made such inquiries as it deems necessary to make and confirm
the accuracy
of the representations set forth herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully
disbursed and
there is no requirement for future advances thereunder, and any and
all
requirements as to completion of any on-site or off-site
improvement and as to
disbursements of any escrow funds therefor have been complied with.
All costs,
fees and expenses incurred in making or closing the Mortgage Loan
and the
recording of the Mortgage were paid, and the Mortgagor is not
entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership. The Seller is the sole owner of record and
holder
of the Mortgage Loan and the indebtedness evidenced by each
Mortgage Note and
upon the sale of the Mortgage Loans to the Purchaser, the Seller
will retain
the Mortgage Files or any part thereof with respect thereto not
delivered to
the Custodian, the Purchaser or the Purchaser's designee, in trust
only for
the purpose of servicing and supervising the servicing of each
Mortgage Loan.
The Mortgage Loan is not assigned or pledged, and the Seller has
good,
indefeasible and marketable title thereto, and has full right to
transfer and
sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance,
equity, participation interest, lien, pledge, charge, claim or
security
interest, and has full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell and
assign each
Mortgage Loan pursuant to this Agreement and following the sale of
each
Mortgage Loan, the Purchaser will own such Mortgage Loan free and
clear of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Seller intends to relinquish all rights to
possess,
control and monitor the Mortgage Loan. After the Closing Date, the
Seller will
have no right to modify or alter the terms of the sale of the
Mortgage Loan
and the Seller will have no obligation or right to repurchase the
Mortgage
Loan, except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in
the
Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or,
during the period in which they held and disposed of such interest,
were) (1)
in compliance with any and all applicable licensing requirements of
the laws
of the state wherein the Mortgaged Property is located, and (2)
either (i)
organized under the laws of such state, or (ii) qualified to do
business in
such state, or (iii) a
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federal savings and loan association, a savings bank or a national
bank having
a principal office in such state, or (3) not doing business in such
state;
(o) LTV, PMI Policy. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV
in excess
of 80% is insured as to payment defaults by a PMI Policy. Any PMI
Policy in
effect covers the related Mortgage Loan for the life of such
Mortgage Loan.
All provisions of such PMI Policy have been and are being complied
with, such
policy is in full force and effect, and all premiums due thereunder
have been
paid. No action, inaction, or event has occurred and no state of
facts exists
that has, or will result in the exclusion from, denial of, or
defense to
coverage. Any Mortgage Loan subject to a PMI Policy obligates the
Mortgagor
thereunder to maintain the PMI Policy and to pay all premiums and
charges in
connection therewith. The Mortgage Interest Rate for the Mortgage
Loan as set
forth on the Mortgage Loan Schedule is net of any such insurance
premium;
(p) Title Insurance. With respect to a Mortgage Loan which is
not
a Co-op Loan, the Mortgage Loan is covered by an ALTA lender's
title insurance
policy, or other generally acceptable form of policy or insurance
acceptable
to Fannie Mae or Freddie Mac and each such title insurance policy
is issued by
a title insurer acceptable to Fannie Mae or Freddie Mac and
qualified to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
the Seller, its successors and assigns, as to the first priority
lien of the
Mortgage in the original principal amount of the Mortgage Loan (or
to the
extent a Mortgage Note provides for negative amortization, the
maximum amount
of negative amortization in accordance with the Mortgage), subject
only to the
exceptions contained in clauses (1) and (2) of paragraph (j) of
this
Subsection 9.02, and in the case of Adjustable Rate Mortgage Loans,
against
any loss by reason of the invalidity or unenforceability of the
lien resulting
from the provisions of the Mortgage providing for adjustment to the
Mortgage
Interest Rate and Monthly Payment. Where required by state law or
regulation,
the Mortgagor has been given the opportunity to choose the carrier
of the
required mortgage title insurance. Additionally, such lender's
title insurance
policy affirmatively insures ingress and egress, and against
encroachments by
or upon the Mortgaged Property or any interest therein. The Seller,
its
successor and assigns, are the sole insureds of such lender's title
insurance
policy, and such lender's title insurance policy is valid and
remains in full
force and effect and will be in force and effect upon the
consummation of the
transactions contemplated by this Agreement. No claims have been
made under
such lender's title insurance policy, and no prior holder of the
related
Mortgage, including the Seller, has done, by act or omission,
anything which
would impair the coverage of such lender's title insurance policy,
including
without limitation, no unlawful fee, commission, kickback or other
unlawful
compensation or value of any kind has been or will be received,
retained or
realized by any attorney, firm or other person or entity, and no
such unlawful
items have been received, retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet 30 days or
more delinquent, there is no default, breach, violation or event
which would
permit acceleration existing under the Mortgage or the Mortgage
Note and no
event which, with the passage of time or with notice and the
expiration of any
grace or cure period, would constitute a default, breach, violation
or event
which would permit acceleration, and neither the Seller nor any of
its
affiliates nor any of their respective predecessors, have waived
any default,
breach, violation or event which would permit acceleration;
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(r) No Mechanics' Liens. There are no mechanics' or similar
liens
or claims which have been filed for work, labor or material (and no
rights are
outstanding that under law could give rise to such liens) affecting
the
related Mortgaged Property which are or may be liens prior to, or
equal or
coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All
improvements
which were considered in determining the Appraised Value of the
Mortgaged
Property lay wholly within the boundaries and building restriction
lines of
the Mortgaged Property, and no improvements on adjoining properties
encroach
upon the Mortgaged Property. No improvement located on or being
part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination; Payment Terms. The Mortgage Loan was
originated
by a mortgagee approved by the Secretary of Housing and Urban
Development
pursuant to Sections 203 and 211 of the National Housing Act, a
savings and
loan association, a savings bank, a commercial bank, credit union,
insurance
company or other similar institution which is supervised and
examined by a
federal or state authority. Principal payments on the Mortgage Loan
commenced
no more than seventy days after funds were disbursed in connection
with the
Mortgage Loan. The Mortgage Interest Rate as well as the Lifetime
Rate Cap and
the Periodic Cap are as set forth on the related Mortgage Loan
Schedule.
Unless specified on the Mortgage Loan Schedule as an interest only
loan or a
Balloon Mortgage Loan, the Mortgage Note is payable in equal
monthly
installments of principal and interest, which installments of
interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change
due to the
adjustments to the Mortgage Interest Rate on each Interest Rate
Adjustment
Date, with interest calculated and payable in arrears, sufficient
to amortize
the Mortgage Loan fully by the stated maturity date, over an
original term of
not more than fifteen years from commencement of amortization.
Unless
otherwise specified on the related Mortgage Loan Schedule, the
Mortgage Loan
is payable on the first day of each month. There are no Convertible
Mortgage
Loans which contain a provision allowing the Mortgagor to convert
the Mortgage
Note from an adjustable interest rate Mortgage Note to a fixed
interest rate
Mortgage Note;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of
the holder
thereof adequate for the realization against the Mortgaged Property
of the
benefits of the security provided thereby, including, (i) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise
by judicial foreclosure. Upon default by a Mortgagor on a Mortgage
Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property
pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to
deliver
good and merchantable title to the Mortgaged Property. There is no
homestead
or other exemption available to a Mortgagor which would interfere
with the
right to sell the Mortgaged Property at a trustee's sale or the
right to
foreclose the Mortgage, subject to applicable federal and state
laws and
judicial precedent with respect to bankruptcy and right of
redemption or
similar law;
(v) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten substantially in accordance with the
Seller's
Underwriting Guidelines (a copy of which is attached hereto as
Exhibit H),
subject to the exception guidelines and processes they include. The
Mortgage
Note and Mortgage are on forms acceptable to Freddie Mac or
Fannie
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<PAGE>
Mae and no representations have been made to a Mortgagor that are
inconsistent
with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. As of the related
Closing
Date the Mortgaged Property is lawfully occupied under applicable
law. All
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect
to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have
been made
or obtained from the appropriate authorities. Unless otherwise
specified on
the Mortgage Loan Schedule, the Mortgagor represented at the time
of
origination of the Mortgage Loan that the Mortgagor would occupy
the Mortgaged
Property as the Mortgagor's primary residence;
(x) No Additional Collateral. The Mortgage Note is not and has
not
been secured by any collateral except the lien of the corresponding
Mortgage
and the security interest of any applicable security agreement or
chattel
mortgage referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a
deed
of trust, a trustee, authorized and duly qualified under applicable
law to
serve as such, has been properly designated and currently so serves
and is
named in the Mortgage, and no fees or expenses are or will become
payable by
the Purchaser to the trustee under the deed of trust, except in
connection
with a trustee's sale after default by the Mortgagor;
(z) Acceptable Investment. There are no circumstances or
conditions with respect to the Mortgage, the Mortgaged Property,
the
Mortgagor, the Mortgage File or the Mortgagor's credit standing
that can
reasonably be expected to cause private institutional investors who
invest in
prime mortgage loans similar to the Mortgage Loan to regard the
Mortgage Loan
as an unacceptable investment, cause the Mortgage Loan to become
delinquent,
or adversely affect the value or marketability of the Mortgage
Loan, or cause
the Mortgage Loans to prepay during any period materially
faster
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