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Exhibit 99.10b
EXECUTION COPY
Morgan
Stanley Mortgage Capital Inc.
and
Morgan
Stanley Credit Corporation
_____________________
THIRD
AMENDED AND RESTATED MASTER MORTGAGE
LOAN
PURCHASE AGREEMENT
Dated
as of November 1, 2005
______________________
Fixed,
Adjustable Rate, and Pledged Asset Mortgage Loans
Seller
Flow Delivery Program
Table of Contents
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Section
1.
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Definitions
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4
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Section
2.
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Purchase
of Mortgage Loans
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16
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Section
3.
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Delivery
Requirements.
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17
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Section
4.
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Examination
of Mortgage Files
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20
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Section
5.
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Representations,
Warranties and Agreements of Seller
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21
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Section
6.
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Representations,
Warranties and Agreements of Purchaser
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31
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Section
7.
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Servicing
Obligations of Seller; Compliance with Regulation
AB
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33
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Section
8.
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Additional
Indemnification by the Seller; Third Party Claims
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43
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Section
9.
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Intention
of the Parties
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43
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Section
10.
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Costs
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43
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Section
11.
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Further
Agreements of Seller
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43
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Section
12.
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Mandatory
Delivery
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43
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Section
13.
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Termination
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43
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Section
14.
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Seller’s
Right of First Refusal
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44
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Section
15.
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Severability
Clause
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44
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Section
16.
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Waivers
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44
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Section
17.
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Survival
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44
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Section
18.
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Successor
and Assigns: Assignment of Purchase
Agreement
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44
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Section
19.
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Notices
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45
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Section
20.
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Counterparts
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45
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Section
21.
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Entire
Agreement
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45
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Section
22.
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Governing
Law and Amendments
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45
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Section
23.
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Exhibits
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45
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Section
24.
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General
Interpretive Principles
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46
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Section
25.
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Reproduction
of Documents
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46
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Section
26.
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Attorney-In-Fact
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46
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Section
27.
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Confidentiality
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47
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EXHIBIT
1
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CONTENTS
OF EACH MORTGAGE FILE
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EXHIBIT
2
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FORM
OF AMENDED AND RESTATED MASTER SERVICING
AGREEMENT
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EXHIBIT
3
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FORM
OF CUSTODIAL AGREEMENT
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EXHIBIT
4
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UNDERWRITING
GUIDE OF SELLER
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EXHIBIT
5
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FORM
OF CERTIFICATE OF SELLER
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EXHIBIT
6
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FORM
OF ASSIGNMENT FOR ADDITIONAL COLLATERAL
AGREEMENTS
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EXHIBIT
7
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FORM
OF NOTICE OF ASSIGNMENT TO AND ACKNOWLEDGMENT BY
PURCHASER
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EXHIBIT
8
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FORM
OF WARRANTY BILL OF SALE
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EXHIBIT
9
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FORM
OF TRUST RECEIPT
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EXHIBIT
10
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FORM
OF FINAL TRUST RECEIPT AND CERTIFICATION
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EXHIBIT
11
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FORM
OF ANNUAL CERTIFICATION
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EXHIBIT
12
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SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
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PURCHASE AGREEMENT
This
is a THIRD AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE
AGREEMENT (this “Agreement”), dated as of November
1, 2005, by and between Morgan Stanley Mortgage Capital Inc.,
a New York corporation having its principal office at 1585
Broadway, New York, New York 10036, and its successors and
assigns (“Purchaser”), and Morgan Stanley Credit
Corporation, a Delaware corporation having its principal
office at 2500 Lake Cook Road, Riverwoods, IL 60015
(“Seller”).
PRELIMINARY STATEMENT
Seller
and Purchaser are parties to that certain Amended and Restated
Master Mortgage Loan Purchase Agreement, dated as of March 1,
2000 (the “Original Purchase Agreement”), pursuant
to which Seller may sell, from time to time, to Purchaser, and
Purchaser may purchase, from time to time, from Seller,
certain groups of fixed- and adjustable-rate, residential
first mortgage loans (the “Mortgage Loans”) as set
forth therein (each date on which a closing of such a sale
occurs is referred to as a “Closing Date”) on a
servicing-retained basis. In addition, Purchaser
and Seller are parties to that certain Amended and Restated
Master Servicing Agreement, dated as of November 1, 2005 (the
“Servicing Agreement”) pursuant to which Seller
services and administers each Mortgage Loan for Purchaser, its
successors and assigns from and after the respective Closing
Date. At the present time, Purchaser and Seller
desire to amend and restate the Original Purchase Agreement as
amended and restated by the Amended and Restated Master
Mortgage Loan Purchase Agreement dated as of March 1, 2000 and
further amended and restated by the Second Amended and
Restated Master Mortgage Loan Purchase Agreement dated as of
February 1, 2004, to make certain modifications as set forth
herein.
NOW,
THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as
follows:
Section 1.
Definitions .
For
purposes of this Agreement, the following capitalized terms
shall have the respective meanings set forth
below. Other capitalized terms used in this
Agreement and not defined herein shall have the respective
meanings set forth in the form of Amended and Restated Master
Servicing Agreement.
“Additional
Collateral”: With respect to any Additional
Collateral Mortgage Loan, the securities and other assets held
in a Trading Account subject to a security interest securing
such Additional Collateral Mortgage Loan.
“Additional
Collateral Mortgage Loan”: A Mortgage Loan
secured by Additional Collateral in the form of a security
interest in the securities and other assets held in a
Trading
Account
and that is identified by Seller as an Additional Collateral
Mortgage Loan as to which the Additional Collateral is still
required to be provided.
“Additional
Collateral Pledge Agreement”: With respect to
each Additional Collateral Mortgage Loan, any pledge and
security agreement and account control agreement in favor of
Seller granting a security interest and other rights in a
securities account to secure the related Mortgage
Loan.
“Adjustable
Rate Mortgage Loan”: A Mortgage Loan that
provides for the adjustment of the Mortgage Interest Rate
payable with respect thereto in accordance with the terms of
the related Mortgage Note.
“Affiliate”: With
respect to any specified Person, any other Person controlling,
controlled by or under common control with such specified
Person.
“Agreement”: This
Third Amended and Restated Master Mortgage Loan Purchase
Agreement and all exhibits hereto, amendments hereof and
supplements hereto.
“Appraised
Value”: With respect to any Mortgage Loan,
the value of the related Mortgaged Property based upon the
lesser of (i) the appraisal, made for the originator at the
time of the origination of the Mortgage Loan, and (ii) if
applicable, the sales price of the Mortgaged Property at such
time of origination.
“Assignment”: An
assignment of the Mortgage, notice of transfer or equivalent
instrument, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect
of record the sale or transfer of the Mortgage Loan, which
assignment, notice of transfer or equivalent instrument may be
in the form of one or more blanket assignments covering
Mortgages securing Mortgaged Properties located in the same
county, if permitted by applicable law and acceptable for
recording by the applicable recording office. With
respect to any Mortgage Loan registered with MERS, an
Assignment shall include a notice of transfer sufficient under
the governing instruments of MERS to reflect a transfer of the
Mortgage Loan. An Assignment shall include, as
applicable, such instruments as are necessary and sufficient
under the laws of the jurisdiction where a Cooperative
Apartment is located to reflect of record the sale or transfer
of the Mortgage Loan and security interest in the Mortgaged
Property affecting such Cooperative Apartment.
“Assumed
Principal Balance”: With respect to any
Mortgage Loan as of any date of determination (i) the
outstanding principal balance as of the Cut-off Date, after
application of principal payments due on or before such date
whether or not received, minus (ii) all amounts previously
distributed to Purchaser with respect to such Mortgage Loan
representing (a) payments or other recoveries of principal, or
(b) advances of principal made pursuant to Section 5.03 of the
Amended and Restated Master Servicing Agreement.
“Balloon
Mortgage Loan”: Any Mortgage Loan which by
its original terms or any modifications thereof provides for
amortization beyond its scheduled maturity date.
“Business
Day”: Any day other than (i) a Saturday or
Sunday, or (ii) a day on which banking or savings associations
in the States of New York or Illinois are authorized or
obligated by law or executive order to be closed.
“Certificate
of Seller”: A certificate signed by the Secretary or one
of the Assistant Secretaries of Seller, substantially in the
form attached hereto as Exhibit 5 .
“Closing
Date”: For each Transaction, the date on
which Seller actually sells to Purchaser, and Purchaser
actually purchases from Seller, the Mortgage Loans listed on
the Final Mortgage Loan Schedule attached to the respective
Warranty Bill of Sale.
“Closing
Documents”: (i) With respect to the Initial
Closing Date, the following documents:
(A) two
counterparts of this Agreement;
(B) two
counterparts of the Amended and Restated Master Servicing
Agreement;
(C) three
counterparts of the Custodial Agreement;
(D) the
Certificate of Seller, dated as of the Initial Closing
Date;
(E) the
Initial Custody Receipt, dated the Initial Closing Date;
and
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(F)
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ten
(10) counterparts of a power of attorney in the form of Exhibit A
to the Amended and Restated Master Servicing
Agreement.
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(ii)
With respect to the Initial Closing Date and each subsequent
Closing Date, the following documents:
(A) the
Final Mortgage Loan Schedule for the related
Transaction;
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(B)
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the
initial Custody Receipt (as defined in the Custody Agreement) for
the related Transaction, dated the Closing Date, with only such
exceptions noted on Schedule B thereto as shall be acceptable to
Purchaser;
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(C)
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the
Warranty Bill of Sale with respect to the Mortgage Loans for the
related Transaction, dated the Closing Date:
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(D)
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An
original assignment in the form of Exhibit 6 attached hereto
of the Additional Collateral Pledge Agreements with respect to the
Additional Collateral Mortgage Loans; and
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(E)
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The
assignment and notice of transfer by Morgan Stanley Credit
Corporation of the security interest on the Trading Accounts from
Seller to Purchaser.
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“Commission”:
The United States Securities and Exchange
Commission
“Converted Mortgage Loan”: A Convertible Mortgage Loan
with respect to which the related Mortgagor has exercised its
option to convert the related Mortgage Note from a Mortgage Note
with an adjustable interest rate to a Mortgage Note with a fixed
interest rate.
“Convertible
Mortgage Loan”: An Adjustable Rate Mortgage Loan with a
Mortgage Note that contains an option of the Mortgagor to
convert the related Mortgage Note from a Mortgage Note with an
adjustable interest rate to a Mortgage Note with a fixed
interest rate.
“Cooperative
Apartment”: A dwelling unit in a multi-dwelling building
owned or leased by a cooperative housing corporation, which
unit the Mortgagor has an exclusive right to occupy pursuant
to the terms of a proprietary lease in accordance with the
laws of the state in which the building is
located.
“Cooperative
Loan”: A Mortgage Loan evidenced by a Mortgage Note and
secured by a first lien against (i) shares issued by a
cooperative housing corporation and (ii) the related
Mortgagors' leasehold interest in the Mortgagor's Cooperative
Apartment. The security interest created in the
Mortgagor's Cooperative Apartment and the proprietary lease
shall include the following documentation, as required by the
applicable laws of the state in which such Cooperative
Apartment is located: (a) a security agreement, (b) the
related UCC-1 Financing Statement, (c) an assignment of the
cooperative lease, (d) the stock certificate evidencing
ownership of such Cooperative Apartment, appropriately
endorsed, or an equivalent stock power, (e) a recognition
agreement, and (f) such other documents as are necessary and
proper for the perfection of a lien against such Cooperative
Apartment, all as are required under state law.
“Custodial
Account”: The separate trust account or accounts created
and maintained pursuant to Section 4.04 of the Amended and
Restated Master Servicing Agreement which shall be entitled
“Morgan Stanley Credit Corporation, in trust for Morgan
Stanley Mortgage Capital Inc.,” or such other title as
is requested by Purchaser.
“Custodial
Agreement”: The Custodial Agreement, among Seller,
Purchaser and the Custodian for the retention of each Mortgage
Note, Mortgage, Assignment and certain other portions of each
Mortgage File, substantially in the form attached to this
Agreement as Exhibit 3 , as the same may be amended,
modified, restated or supplemented from time to
time.
“Custodian”:
The Custodian under the Custodial Agreement, or its
successor.
“Cut-off
Date”: With respect to each Mortgage Loan, the first day
of the month in which the related Closing Date
occurs.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan.
“Due
Date”: As to any Mortgage Loan, the day each Monthly
Payment is due on such Mortgage Loan, exclusive of any days of
grace.
“Equity
Refinanced Mortgage Loan”: A Refinanced Mortgage Loan in
which the Mortgagor used less than the entire amount of the
proceeds (net of any closing costs, including discount and
origination fees and prepaid items) to refinance an existing
mortgage loan and any junior lien that existed on the related
Mortgaged Property at the date of origination of the
Refinanced Mortgage Loan.
“Exchange
Act”: The Securities Exchange Act of 1934, as
amended.
“Fannie
Mae”: Fannie Mae, f/k/a the Federal National Mortgage
Association, or any successor organization.
“Fannie
Mae Guides”: The Fannie Mae Sellers’
Guide and the Fannie Mae Servicers’ Guide, and all
amendments or additions thereto.”
“Final
Mortgage Loan Schedule”: The list of Mortgage Loans for
a Transaction, which list shall set forth the following
information with respect to each Mortgage Loan:
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(ii)
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the
Mortgagor's name;
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(iii)
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the
street address of the Mortgaged Property, including city, state and
zip code;
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(iv)
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the
Mortgage Interest Rate at origination;
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(v)
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for
each Adjustable Rate Mortgage Loan, the first Interest Rate
Adjustment Date and the first Payment Adjustment Date;
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(vi)
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for
each Adjustable Rate Mortgage Loan, the Gross Margin;
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(vii)
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for
each Adjustable Rate Mortgage Loan, the Lifetime Rate
Cap;
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(viii)
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for
each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
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(ix)
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the
original term to maturity;
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(x)
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the
original principal balance;
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(xi)
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the
first payment date;
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(xiii)
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the
Monthly Payment in effect as of the related Cut-off
Date;
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(xiv)
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the
principal balance as of the related Cut-off Date, after giving
effect to all payments of principal due on or before such date,
whether or not received;
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(xv)
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the
Loan-to-Value Ratio as of the date origination;
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(xvi)
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a
code indicating whether the Mortgaged Property is occupied by
Mortgagor;
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(xvii)
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a
code indicating the type of residential dwelling;
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(xviii)
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a
code indicating whether the Mortgage Loan is a purchase mortgage
loan, rate/term refinance loan, limited cash-out loan or cash-out
refinance loan;
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(xix)
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a
code indicating whether the Mortgage Loan is covered by a Primary
Mortgage Insurance Policy;
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(xx)
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a
code indicating whether the Mortgage Loan is a Limited
Documentation Mortgage Loan;
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(xxi)
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a
code indicating whether the Mortgage Loan is an Additional
Collateral Mortgage Loan;
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(xxii)
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for
each Adjustable Rate Mortgage Loan, a code indicating the type of
Index;
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(xxiii)
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a
code indicating whether the Mortgage Loan is a Balloon Mortgage
Loan;
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(xxv)
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the
Servicing Fee Rate applicable to such Mortgage Loan, and if such
Mortgage Loan is an Adjustable Rate Mortgage Loan whose first
Interest Rate Adjustment has not occurred, the Servicing Fee Rate
(if different) prior to the first Interest Rate Adjustment
Date;
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(xxvi)
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a
code indicating whether the Mortgage Loan is a Convertible Mortgage
Loan;
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(xxvii)
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a
code indicating whether the Mortgagor is
self-employed;
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(xxviii)
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a
code indicating the value of the Mortgagor’s assets at
origination;
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(xxx)
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a
code indicating the Primary Mortgage Insurance Policy provider and
percent of coverage, if applicable.
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Such
schedule shall also set forth the weighted average of the amounts
described under (iv) above for all of the Mortgage
Loans. Such list may be in the form of more than one
list, collectively setting forth all of the information
required.
“Fixed
Rate Mortgage Loan”: A Mortgage Loan that provides for a
fixed Mortgage Interest Rate over the term of the related
Mortgage Note.
“Freddie
Mac”: Freddie Mac, f/k/a the Federal Home Loan Mortgage
Corporation, or any successor organization.
“Gross
Margin”: With respect to each Adjustable Rate Mortgage
Loan, the fixed number of basis points set forth in the Final
Mortgage Loan Schedule that is added to the Index on each
Interest Rate Adjustment Due Date in accordance with the terms
of the related Mortgage Note to determine the Mortgage
Interest Rate for such Mortgage Loan, subject to any
applicable Periodic Rate Cap and Lifetime Rate
Cap.
“High
Cost Loan”: A Mortgage Loan classified as (a)
a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994 or (b) a “high cost
home,” “threshold,” “covered,”
“high risk home,” “predatory” or
similar loan under any other applicable state, federal or
local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory
scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or
fees).
“Index”:
With respect to each Adjustable Rate Mortgage Loan and each
Interest Rate Adjustment Date, the index used to determine the
Mortgage Interest Rate on such Adjustable Rate Mortgage Loan,
as specified in the related Mortgage Note, in each case as
available the number of days prior to any Interest Rate
Adjustment Date set forth in the related Mortgage Note, which
index may be (i) the average of the London Interbank Offered
Rates for one- or six-month U.S. dollar deposits, as published
in the “Money Rates” table of The Wall Street
Journal or elsewhere (as specified in the related
Mortgage Note) on the date or dates specified in such Mortgage
Note for the determination of such rate, (ii) the weekly
average of the closing market bid yields on actively traded
U.S. Treasury securities adjusted to a constant maturity of
one year, (iii) the weekly average or the monthly average of
weekly average auction rates on U.S. Treasury bills with a
maturity of six months, as published by the Board of Governors
of the Federal Reserve System in Federal Reserve Statistical
Release H.15. (519), (iv) the weekly average of the closing
market bid yields on U.S. Treasury securities adjusted to a
constant maturity of one (1) year, as published by the Board
of Governors of the Federal Reserve System in Federal Reserve
Statistical Release H.15. (519), (v) the weekly average of the
closing market bid yields on U.S. Treasury securities adjusted
to a constant maturity of five (5) years, as published by the
Board of Governors of the Federal Reserve System in Federal
Reserve Statistical Release H.15. (519), (vi) the prime rate
specified in the related Mortgage Note, as published in the
“Money Rates” table of The Wall Street
Journal , or elsewhere (as specified in such Mortgage
Note), (vii) the monthly weighted average cost of funds of
members of the Federal Home Loan Bank of San Francisco, (viii)
such other standard for determining the change in the interest
rate as may be set
forth
in the related Mortgage Note, or (ix) if such index is not so
published or is otherwise unavailable, such comparable
alternative index selected by Seller in accordance with the
terms of the Mortgage Notes and in consultation with
Purchaser.
“Initial
Closing Date”: The first Closing Date to
occur.
“Initial
Custody Receipt”: For each Transaction, the initial
Custody Receipt, executed by the Purchaser or the Custodian
with respect to the Mortgage Loans for such Transaction,
substantially in the form of Exhibit One to the Custodial
Agreement.
“Interest
Rate Adjustment Date”: With respect to each Adjustable
Rate Mortgage Loan, the date on which the Mortgage Interest
Rate is adjusted in accordance with the terms of the related
Mortgage Note.
“Lifetime
Rate Cap”: With respect to each Adjustable Rate Mortgage
Loan, the maximum Mortgage Interest Rate that may be borne
thereby, as set forth in the related Mortgage
Note.
“Limited
Documentation Mortgage Loan”: A Mortgage Loan that was
originated pursuant to a “limited documentation”
or “easy qualifier” underwriting
program.
“Loan-to-Value
Ratio” or “LTV”: With respect to any
Mortgage Loan, as of any date on which a determination thereof
is made, the ratio on such date of the outstanding principal
balance of such Mortgage Loan to the Appraisal Value of the
related Mortgaged Property.
“MERS”:
Mortgage Electronic Registration Systems, Inc.
“Monthly
Payment”: The scheduled monthly payment of interest and,
when applicable, principal on a Mortgage Loan which is payable
by a Mortgagor from time to time under the related Mortgage
Note on every Due Date.
“Mortgage”:
The mortgage, trust deed or other instrument securing the
respective Mortgage Loan, as the same may be
amended, modified, restated or supplemented from time to
time.
“Mortgage
File”: As to any Mortgage Loan, the mortgage, any
related mortgage documents and, if the Mortgaged Property is a
Cooperative Apartment, all documents relating to the security
interest in a Cooperative Apartment, including but not limited
to all paper, computer generated and microfiche records,
pertaining to a particular Mortgage Loan which are specified
in Exhibit 1 hereto and any additional documents
required to be added to the Mortgage File pursuant to the
Program Documents.
“Mortgage
Interest Rate”: The annual rate at which interest
accrues on any Mortgage Loan, net of any premium on any
related Primary Mortgage Insurance Policy and any continuing
compensation paid to correspondent lenders; provided that,
with respect to any Adjustable Rate
Mortgage
Loan, the term “Mortgage Interest Rate” shall mean
the annual rate applicable thereto as the same may be adjusted
on any Interest Rate Adjustment Date and subject to the
limitations on such interest rate imposed by the Periodic Rate
Cap and the Lifetime Rate Cap.
“Mortgage
Loan”: An individual Mortgage Loan, including but not
limited to all documents included in the Mortgage File,
Monthly Payments, principal prepayments, insurance proceeds,
condemnation proceeds, liquidation proceeds, and any and all
rights, benefits, proceeds and obligations arising therefrom
or in connection therewith, and which is the subject of this
Agreement. Each Mortgage Loan set forth on the
Final Mortgage Loan schedule attached to a Warranty Bill of
Sale will initially be subject to this Agreement, commencing
on the respective Closing Date for the related
Transaction.
“Mortgage
Loan Documents”: With respect to each Mortgage Loan, the
documents specified in Section 3(b) of this Agreement,
which documents Seller shall deliver to the Purchaser or
Custodian pursuant thereto.
“Mortgage
Loan Payments”: With respect to each Mortgage Loan (i)
all scheduled principal due after the related Cut-off-Date,
(ii) all other recoveries of principal collected after the
related Cut-off Date and collected by Seller after the related
Cut-off Date, and (iii) all payments of interest on the
Mortgage Loans at the Mortgage Loan Remittance Rate minus that
portion of any such payment that is allocable to the period
prior to the related Cut-Off Date; provided ,
however , that payments of scheduled principal and
interest prepaid for a due date beyond the related Cut-off
Date shall not be applied to the principal balance as of the
related Cut-off Date and that such principal and such prepaid
amounts (minus interest at the Servicing Fee Rate) shall
constitute a part of the Mortgage Loan Payments, which prepaid
amounts Seller shall deposit into the related Custodial
Account established for the benefit of Purchaser for
subsequent remittance by Seller to Purchaser pursuant to the
Amended and Restated Master Servicing Agreement.
“Mortgage
Loan Remittance Rate”: With respect to each
Mortgage Loan, the related Mortgage Interest Rate minus the
Servicing Fee Rate.
“Mortgage
Note”: The note or other evidence of the indebtedness of
a Mortgagor secured by a Mortgage.
“Mortgaged
Property”: The underlying real property securing
repayment of a Mortgage Note, consisting of a fee simple or
leasehold interest in a single parcel of real property
improved by a residential dwelling or a single Cooperative
Apartment including the stock certificates evidencing
ownership in such Cooperative Apartment, the proprietary lease
and all attendant right, title and interest
thereto.
“Mortgagor”:
The obligor on a Mortgage Note.
“Payment
Adjustment Date”: With respect to each Adjustable Rate
Mortgage Loan, the first date on which payments thereon may be
adjusted and all subsequent such dates of
adjustment,
as set forth in the related Final Mortgage Loan Schedule and
in the related Mortgage Note.
“Periodic
Rate Cap”: With respect to each Adjustable Rate Mortgage
Loan as to which the related Final Mortgage Loan Schedule
indicates the existence of Periodic Rate Cap, the provision of
the related Mortgage Note that provides for a maximum amount
by which the Mortgage Interest Rate may increase (or, if so
indicated on such Final Mortgage Loan Schedule, decrease) on
an Interest Rate Adjustment Date above the Mortgage Interest
Rate immediately prior to such Interest Rate Adjustment
Date.
“Person”:
Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency
or political subdivision thereof.
“Preliminary
Mortgage Loan Schedule”: The initial list of Mortgage
Loans for a proposed Transaction, which list shall set forth
at least the information with respect to each Mortgage Loan
described in items (i), (ii), (iv), (ix), (xii), (xiii),
(xiv), (xvi), (xx), (xxi), (xxii) and (xxiii) of the
definition of “Final Mortgage Loan
Schedule”. The Preliminary Mortgage Loan
Schedule may be electronically delivered to
Purchaser.
“Primary
Mortgage Insurance Policy”: With respect to each
Mortgage Loan, the policy of primary mortgage insurance, if
any, in effect as indicated on the related Final Mortgage Loan
Schedule, or any replacement policy therefor obtained by
Seller pursuant to the Amended and Restated Master Servicing
Agreement.
“Program
Documents”: With respect to each Transaction, the
related Purchase Price and Terms Letter, the related Warranty
Bill of Sale, the Amended and Restated Master Servicing
Agreement, the Custodial Agreement, this Agreement and each
other document or instrument executed or delivered by Seller
in connection with any of the foregoing.
“Purchase
Price”: With respect to each Mortgage Loan listed on the
Final Mortgage Loan Schedule for a Transaction the price paid
on the related Closing Date by Purchaser to Seller in exchange
for such Mortgage Loan, which amount shall equal the sum of
(i) the related Purchase Price Percentage multiplied by the
unpaid principal balance of such Mortgage Loan as of the
related Cut-off Date, after application of scheduled payments
of principal due on or before such Cut-off Date whether or not
collected, and (ii) interest scheduled to accrue on the unpaid
principal balance of such Mortgage Loan at the Mortgage Loan
Remittance Rate, from the related Cut-off Date to the day
prior to the related Closing Date, inclusive.
“Purchase
Price and Terms Letter”: with respect to each
Transaction, the letter agreement or agreements setting forth
the general terms and conditions of such Transaction to be
consummated as provided herein, with a copy of the related
Preliminary Mortgage Loan Schedule, if requested by Purchaser,
by and between Seller and Purchaser. The related
Purchase Price and Terms Letter shall set forth among other
matters, (i) the approximate dollar amount of Mortgage Loans
for the related Transaction, (ii) the related Cut-off Date,
(iii) the proposed
Closing
Date, (iv) the related Purchase Price Percentage,
(v) the related Servicing Fee Rate, and (vi) the
characteristics, including the characteristics set forth in
the related Warranty Bill of Sale, for the related Mortgage
Loans, both individually and in the aggregate. All
of the individual Purchase Price and Terms Letters shall be
referred to, collectively, as the “Purchase Price and
Terms Letter”.
“Purchase
Price Percentage”: With respect to each Mortgage Loan,
the percentage of par set forth in the related Purchase Price
and Terms Letter (subject to adjustment as provided therein)
at which Purchaser will purchase the Mortgage Loan from Seller
on the Closing Date.
“Qualified
Correspondent”: Any Person from which the Seller
purchased Mortgage Loans, provided that the following
conditions are satisfied: (i) such Mortgage Loans
were originated pursuant to an agreement between the Seller
and such Person that contemplated that such Person would
underwrite mortgage loans from time to time, for sale to the
Seller, in accordance with underwriting guidelines designated
by the Seller (“Designated Guidelines”) or
guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the
Seller within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans
were originated, used by the Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the
Seller’s own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten,
designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such
Mortgage Loans were acquired by the Seller, pre-purchase or
post-purchase quality assurance procedures (which may involve,
among other things, review of a sample of mortgage loans
purchased during a particular time period or through
particular channels) designed to ensure that Persons from
which it purchased mortgage loans properly applied the
underwriting criteria designated by the Seller.
“Qualified
Substitute Mortgage Loan”: A Mortgage Loan substituted
by Seller for a Deleted Mortgage Loan which must, on the date
of such substitution (i) have an outstanding principal
balance, after deduction of all scheduled payments due in the
month of substitution (or in the case of a substitution of
more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding
principal balance of the Deleted Mortgage Loan (the amount of
any shortfall to be deposited into the Custodial Account by
Seller in the month of substitution pursuant to Section 4.04
(vii) of the Amended and Restated Master Servicing Agreement),
(ii) have a Mortgage Interest Rate which is within one percent
(1%) per annum of the Deleted Mortgage Loan, (iii) have a
remaining term to maturity not greater than (and not more than
one year less than) that of the Deleted Mortgage Loan, and
(iv) comply with each representation and warranty set forth
Section 5(b) of this Agreement.
“Reconstitution”:
Any Securitization Transaction or Whole Loan
Transfer.
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities
(Regulation AB), 17 C.F.R. §§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.
“Refinanced
Mortgage Loan”: A Mortgage Loan that was made to a
Mortgagor who owned the Mortgaged Property prior to the
origination of such Mortgage Loan and the proceeds of which
(net of any closing costs, including discount and origination
fees and prepaid items) were used in whole or part to satisfy
an existing mortgage.
“Securities
Act”: The Securities Act of 1933, as
amended.
“Securitization
Transfer”: Any transaction involving either (1) a sale
or other transfer of some or all of the Mortgage Loans
directly or indirectly to an issuing entity in connection with
an issuance of publicly offered or privately placed, rated or
unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by
reference to one or more portfolios of residential mortgage
loans consisting, in whole or in part, of some or all of the
Mortgage Loans.
“Servicing
Criteria”: The “servicing criteria” set
forth in Item 1122(d) of Regulation AB, as such may be amended
from time to time.
“Servicing
Fee”: With respect to any Mortgage Loan and any
Remittance Date, the fee payable monthly to Seller, as
servicer, under Section 7.03 of the Amended and Restated
Master Servicing Agreement.
“Servicing
Fee Rate”: With respect to each Mortgage Loan, the rate
per annum set forth in the related Final Mortgage Loan
Schedule as the “Servicing Fee Rate”.
“Static
Pool Information”: Static pool information as described
in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
“Subcontractor”:
Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as
“servicing” is commonly understood by participants
in the mortgage-backed securities market) of Mortgage Loans
but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to Mortgage Loans under
the direction or authority of the Seller or a
Subservicer.
“Subsequent
Purchaser”: Any Person that acquires an interest in a
Mortgage Loan from Purchaser.
“Subservicer”:
Any Person that services Mortgage Loans on behalf of the
Seller or any Subservicer and is responsible for the
performance (whether directly or through Subservicers or
Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Seller
under this Agreement or any Reconstitution Agreement that are
identified in Item 1122(d) of Regulation AB.
“Surety Bond
Issuer”: Shall mean AMBAC Assurance
Corporation or any successor thereto.
“Third-Party
Originator”: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the
Seller.
“Trading
Account”: With respect to any Additional Collateral
Mortgage Loan as to which a Additional Collateral Pledge
Agreement was made, the account in which is held the
securities and other assets that are subject to such
Additional Collateral Pledge Agreement.
“Transaction”:
The sale by Seller to Purchaser, and the purchase by Purchaser
from Seller, of one or more Mortgage Loans on a Closing Date,
as evidenced by the execution and delivery by Seller to Morgan
Stanley Mortgage Capital, Inc. as the initial Purchaser, of
the Warranty Bill of Sale.
“Underwriting
Guide”: The Underwriting Guide of Seller attached hereto
as Exhibit 4 , as amended, modified, restated or
supplemented from time to time.
“Warranty
Bill of Sale”: The warranty bill of sale executed and
delivered by Seller to Purchaser on a Closing Date, evidencing
the sale of the related Mortgage Loans by Seller to Purchaser
and setting forth certain representations and warranties of
Seller with respect thereto, in the form attached hereto as
Exhibit 8 .
“Whole
Loan Transfer”: Any sale or transfer of some or all of
the Mortgage Loans, other than a Securitization
Transaction.
Section
2.
Purchase of Mortgage Loans .
(a)
Sale and Conveyance of Mortgage Loans . From time to
time Seller may offer to sell to Purchaser, and Purchaser may
elect to purchase form Seller, Mortgage Loans in one or more
Transactions pursuant to the terms and conditions of the
Program Documents. The agreement of Seller to sell
to Purchaser and of Purchaser to purchase from Seller,
Mortgage Loans on a particular Closing Date shall be evidenced
by the execution of a Purchase Price and Terms
Letter. The obligation of Purchaser to purchase any
Mortgage Loan from Seller on any particular Closing Date shall
be subject to the satisfaction of the conditions precedent to
Purchaser's obligation to purchase set forth in Section
2(b) . The sale of each Mortgage Loan shall be
reflected in Seller's balance sheet and other financial
statements as a sale of assets by Seller.
(b)
Conditions of Closing . On each respective Closing Date
(i) Seller will sell, transfer, assign, set over and convey to
purchaser without recourse, all of the right, title and
interest of Seller in and to the Mortgage Loans included in
such Transaction, including all Mortgage Loan Payments, and
(ii) Purchaser shall pay to Seller, by wire transfer of
immediately available funds to the account of Seller, the
Purchase Price for each Mortgage Loan included in
such
Transaction, subject to the satisfaction of the
following conditions to Purchaser's obligation to
purchase the Mortgage Loans:
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(A)
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All
of the representation and warranties of Seller under the Program
Documents shall be true and correct in all material respects as of
the Closing Date, and no event shall have occurred that, with
notice or the passage of time, would constitute a default under any
Program Document, including an Event of Default under the Amended
and Restated Master Servicing Agreement;
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(B)
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Purchaser
shall have received, or Purchaser's attorneys shall have received
in escrow, the Closing Documents, in such forms as are agreed upon
and as are acceptable to Purchaser, duly executed by all
signatories other than Purchaser required pursuant to the
respective terms thereof:
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(C)
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Seller
shall have delivered and released to Purchaser or the Custodian all
documents required under the Program Documents; and
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(D)
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Seller
shall have complied with all other terms and conditions of this
Agreement.
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(c)
Record Title and Possession of Mortgage Files
. From and after the sale of each Mortgage Loan,
the contents of the related Mortgage File and all rights,
benefits, proceeds and obligations arising therefrom or in
connection therewith, shall be transferred to, and assumed by,
Purchaser. All rights, arising out of each Mortgage
Loan, including, but not limited to, all funds received on or
in connection with such Mortgage Loans and all records or
documents with respect to such Mortgage Loan prepared by or
which come into the possession of Seller shall be received and
held by Seller in trust for the benefit of Purchaser as the
owner of the Mortgage Loan. Any portion of the
Mortgage File held by Seller for servicing purposes shall be
appropriately marked to clearly reflect ownership of the
Mortgage Loan by Purchaser and Seller shall promptly release
such portion of the Mortgage File to Purchaser, when Seller's
servicing needs no longer necessitate retaining such
documents.
Section
3.
Delivery Requirements.
(a)
Final Mortgage Loan Schedules. On or before
the date on which Seller and Purchaser execute a Purchase
Price and Terms Letter, Seller shall provide Purchaser with
the respective Preliminary Mortgage Loan
Schedule. Not less than one (1) Business Day prior
to the related Closing Date, Seller either (i) shall deliver
the related Final Mortgage Loan Schedule to Purchaser or (ii)
shall deliver to Purchaser all information with respect to the
Mortgage Loans to be sold to Purchaser on such Closing Date
that is necessary to enable Purchaser to prepare the related
Final Mortgage Loan Schedule, which information shall be
delivered on a computer disk on a machine-readable tape or in
such other format as Purchaser may reasonably
specify.
(b)
Delivery of Mortgage Loan Documents . Seller
is currently in possession of the following original Mortgage
Loan Documents for each Mortgage Loan:
(A) the
original Mortgage Note bearing all intervening endorsements,
endorsed “Pay to the order of _________, without
recourse” and signed in the name of the Seller by an
authorized officer. To the extent that there is no
room on the face of the Mortgage Notes for endorsements, the
endorsement may be contained on an allonge, if state law so
allows and the custodian is so advised by the Seller that
state law so allows; and
(B) the
original Mortgage with evidence of recording
thereon. If in connection with any Mortgage Loan,
the Seller cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or
prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered
for recordation or because such Mortgage has been lost or
because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be
delivered to the custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the Seller
stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that
the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be
promptly delivered to the custodian upon receipt thereof by
the Seller; or (ii) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in
the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by
Seller to be a true and complete copy of the original recorded
Mortgage;
(D) The
original policy of title insurance, if applicable (or a
preliminary title report if the original title insurance
policy has not been received from the title insurance company
or if a preliminary title report is the documentation required
by Seller).
(E) the
originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording
thereon;
(F) the
original Assignment of Mortgage for each Mortgage Loan,
executed in blank and in form and substance acceptable for
recording;
(G) the
originals of all intervening assignments of mortgage with
evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording
office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the
Seller shall deliver or cause to be delivered to the
custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public
recording office, an Officers Certificate of the Seller
stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be
promptly delivered to the custodian upon receipt thereof by
the Seller; or (ii) in the case of an intervening assignment
where a public recording office retains the
original
recorded
intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by
Seller to be a true and complete copy of the original recorded
intervening assignment;
(H) With
respect to the Additional Collateral Mortgage Loan, a copy of
any related pledge, security or control agreement, as the case
may be.
(I) With
respect to the Additional Collateral Mortgage Loan, a copy of
any filed UCC-1 financing statements or, if the UCC-1 has not
yet been returned from the recording office, a copy of such
UCC-1 which has been delivered for recording and an original
form UCC-3 assignment, if applicable.
If
(1) the original Mortgage was not delivered pursuant to clause
(B) above, (2) any original intervening assignment was not
delivered pursuant to clause (F) above or (3) the original
title insurance policy was not delivered pursuant to clause
(C) above, Seller shall use reasonable efforts to promptly
secure the delivery of such originals and shall cause such
originals to be delivered to Purchaser or the Custodian
promptly upon receipt thereof. If any such document
is not so delivered to Purchaser or the Custodian within one
hundred eighty (180) days following the Closing Date (or such
longer period of time as may be necessitated solely as a
result in delays caused by a party other than the Seller), the
related Mortgage Loan shall, upon the request of Purchaser,
(i) be repurchased by Seller at the price specified in Section
5(c), or (ii) be replaced by a Qualified Substitute Mortgage
Loan (the election of (i) or (ii) being at the option of
Purchaser), provided that the Purchaser gives the Seller
notice within ten (10) days of the expiration of such delivery
period.
No
Assignment of Mortgage evidencing the transactions
contemplated hereby shall be recorded by Seller unless
required by law. Purchaser may at its option and
expense (including recordation fees) prepare and record any
Assignment of Mortgage.
From
and after the related Closing Date, Seller, as bailee (the
“ Bailee ”), shall continue to hold the
Mortgage Files as custodian and bailee for the Purchaser, the
owner of the related Mortgage Loans, and shall issue in the
name of the Purchaser or its designee, a trust receipt in the
form of Exhibit 9 hereto (the “ Trust
Receipt ”) evidencing the ownership of the Mortgage
Loans related thereto.
At
the Purchaser’s request, the Bailee shall issue, within
2 Business Days from such request, a final trust receipt and
certification evidencing the Purchaser’s ownership of
the related Mortgage Loans in the form of Exhibit 10
hereto (the “ Final Trust Receipt and
Certification ”), which Final Trust Receipt and
Certification shall have attached thereto a list of document
exceptions, if any, based upon the documents to be contained
in the Mortgage File as listed above.
Upon
3 Business Days prior written notice from the Purchaser to the
Bailee, the Bailee shall deliver or cause to be delivered to
the Purchaser or any party designated in such notice, the
Mortgage Files, and shall release them to the Purchaser or its
designee in accordance
with
the directions of the Purchaser. Such delivery
date(s) shall herein be known as release date(s) (each, a
“ Release Date ”).
In
the event that the Bailee fails to deliver any Mortgage File,
or any component thereof, in connection with the
Purchaser’s instructions, the Bailee shall indemnify the
Purchaser for and hold the Purchaser harmless against any and
all liability, costs and expenses (including attorneys’
fees) arising out of such failure to deliver any Mortgage
File.
From
and after the Closing Date and until the applicable Release
Date, the Bailee shall maintain continuous custody and control
of the Mortgage Files as custodian and bailee for the
Purchaser.
(c) Purchaser
hereby acknowledges that Seller may register the Mortgages
subject to this Agreement with MERS as a nominee for Seller,
either through the recordation of a mortgage or deed of trust
which shows MERS as a nominee for Seller or by the recordation
of an Assignment which shows MERS as a nominee for Seller, for
purposes of facilitating the transfer of the Mortgage Loan
and/or Mortgage Loan Documents. Purchaser and
Seller hereby acknowledge that MERS will have no beneficial
interest in the Mortgage Loan and that the registration of the
Mortgage Loan with MERS will not in any way affect the rights,
title, interest, obligations or responsibilities of Purchaser
and Seller under the terms of this
Agreement. Purchaser and Seller agree to cooperate
in all ways necessary to effectuate the use of MERS for the
purpose of facilitating the transfer of applicable Mortgage
Loan Documents, and withstanding any other provisions in this
Agreement to the contrary, agree to accept such documentation
and evidence of transfer provided by MERS under its operating
documents to accomplish the transfer of ownership in the
Mortgage Loan.
Section 4.
Examination of Mortgage Files
.
Prior
to the respective Closing Date, Seller, shall make available
to Purchaser, for examination, the Mortgage File pertaining to
each related Mortgage Loan at the offices of Seller, or such
other location as Seller and Purchaser shall mutually
designate. Such examination may be made by Purchaser of the
related Mortgage Loan at any time before the related Closing
Date and may be made by Purchaser or any prospective
Subsequent Purchaser of such Mortgagee Loan at any time after
such Closing Date. If Purchaser makes such
examination prior to the Closing Date and identifies any
Mortgage Loan that does not conform to the terms of the
Purchase Price and Terms Letter, such Mortgage Loan shall be
deleted from the Final Mortgage Loan Schedule and may be
replaced by a substitute Mortgage Loan that conforms to the
terms of the Purchase Price and Terms Letter and that is
reasonably acceptable to Purchaser. Purchaser may,
at its option and without notice to Seller, purchase all or
part of the Mortgage Loans for a Transaction without
conducting any partial or complete examination. The
failure or omission by Purchaser or any Subsequent Purchaser
of the Mortgage Loans to conduct any partial or complete
examination of the Mortgage Files shall not affect Purchaser's
rights to demand repurchase or other relief as provided under
any Program Document.
Section
5.
Representations, Warranties and Agreements of Seller
.
(a) Seller
represents and warrants to Purchaser that as of the date
hereof and as of each respective Closing Date (or as of such
other date or dates as may be expressly set forth
below);
(i)
Seller is duly incorporated, validly existing and in good
standing as a corporation under the laws of the State of
Delaware. Seller has full power and authority,
corporate and otherwise, to own its properties and conduct its
business as presently conducted by it, and to enter into and
perform its obligations under the Program Documents and to
sell each Mortgage Loan. To the extent material to Purchaser's
rights hereunder, Seller holds all material licenses necessary
to carry on its business as now being conducted and is
licensed in, qualified to transact business in and is in good
standing under the laws of each state in which any Mortgaged
Property is located if the laws of such state require
licensing or qualification in order to conduct business of the
type conducted by Seller, and in any event Seller was and is
in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of each Mortgage
Loan.
(ii)
This Agreement, the Amended and Restated Master Servicing
Agreement and the Custodial Agreement have been duly
authorized, executed and delivered by Seller, and assuming the
due authorization, execution and delivery thereof by Purchaser
and the enforceability thereof against Purchaser, constitutes
the legal, valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, liquidation, moratorium, reorganization or other
similar laws affecting the rights of creditors generally or by
general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at
law.
(iii)
As of the respective Closing Date, the related Purchased Price
and Terms Letter has been duly authorized, executed and
delivered by Seller, and such Purchase Price and Terms letter,
assuming the due authorization, execution and delivery thereof
by Purchaser and the enforceability thereof against Purchaser,
constitutes the legal, valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms,
except as the enforceability thereof may be limited by
bankruptcy, insolvency, liquidation, moratorium,
reorganization or other similar laws affecting the rights of
creditors generally or by general principles of equity,
regardless of whether enforcement is sought in a proceeding in
equity or at law.
(iv)
As of the respective Closing Date, the related Warranty Bill
of Sale has been duly authorized, executed and delivered by
Seller, and such Warranty Bill of Sale constitutes the legal,
valid and binding agreement of Seller, enforceable against
Seller in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, liquidation, moratorium, reorganization or other
similar laws
affecting
the rights of creditors generally or by general principles of
equity, regardless of whether enforcement is sought in a
proceeding in equity or at law.
(v)
the representations and warranties made by Seller under the
Amended and Restated Master Servicing Agreement and the
related Warranty Bill of Sale are true and correct in all
material respects as of the respective Closing
Date.
(vi)
Neither the delivery of the Mortgage Loans to Purchaser, nor
the sale of the Mortgage Loans to Purchaser, nor the execution
or delivery of the Program Documents, nor the consummation of
any of the Transactions herein or therein contemplated, nor
the fulfillment of the terms hereof or thereof, will result in
the breach of any term or provision of the certificate of
incorporation or by-laws of Seller, or conflict with, result
in a material breach or cause an acceleration of or
constitute a default under any material term of any material
indenture or other material agreement or instrument to which
Seller is a party or by which Seller is bound, or any statute,
order or regulation applicable to Seller of any court,
regulatory body, administrative agency, government body or
arbitrator having jurisdiction over Seller.
(vii) There
are no actions, proceedings or investigations pending or, to
Seller's knowledge, threatened against Seller that, in
Seller's judgment, if determined adversely to Seller, would
prevent the consummation of any of the Transactions or would
materially and aversely affect the interests of Purchaser in
the Mortgage Loans, taken as a whole, the validity or
enforceability of any of the Program Documents or the ability
of Seller to fulfill the terms of any of the Program
Documents.
(viii) Seller
has complied with all applicable anti-money laundering laws
and regulations, including without limitation, the USA Patriot
Act of 2001.
(b) Seller
hereby represents and warrants to Purchaser, as to each
Mortgage Loan as of each respective Closing Date or such other
date as may be specified below, that:
(i)
The information set forth in the Final Mortgage Loan Schedule
is true and correct in all material respects.
(ii)
As of the related Closing Date, the Mortgage Loan is not
delinquent in payment more than 29 days and the Mortgage Loan
has not been dishonored; there are no material defaults under
the terms of the Mortgage Loan; Seller has not advanced funds,
or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the Mortgaged
Property subject to the Mortgage, directly or indirectly, for
the payment of any amount required by the Mortgage
Loan.
(iii)
With respect to those Mortgage Loans which are required to
deposit funds into an escrow account for payment of taxes,
assessments, insurance premiums and similar items as they
become due, there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments or other outstanding charges
which constitute a lien on
the
related Mortgaged Property, and all escrow deposits have been
collected, are under the control of Seller, and have been
applied to the payment of such items in a timely fashion, in
accordance with such Mortgage. With respect to
those Mortgage Loans for which escrow deposits are not
required, to Seller's knowledge, there are no delinquent taxes
or other outstanding charges affecting the related Mortgaged
Property which constitute a lien on the related Mortgaged
Property.
(iv)
The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except
by written instruments contained in the Mortgage File,
approved, if necessary, by the insurer under any Primary
Mortgage Insurance Policy and recorded in all places necessary
to maintain the first priority of the lien, the substance of
which waiver, alteration or modification is reflected on the
Final Mortgage Loan Schedule. No Mortgagor has been
released, in whole or in part, except by operation of law or
in connection with an assumption agreement which assumption
agreement is part of the Mortgage File and the terms of which
are reflected in the Final Mortgage Loan
Schedule.
(v)
Neither the Mortgage Note nor the Mortgage is subject to any
right of rescission, set-off, counterclaim or defense,
including the defense of usury, nor will the operation of any
of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the
defense of usury and, to Seller's knowledge, no such right of
rescission, set-off, counterclaim or defense has been asserted
by any Person with respect thereto.
(vi)
All buildings upon the Mortgaged Property are required to be
insured by a generally acceptable insurer against loss by
fire, hazards of extended coverage and such other hazards as
are customarily included in extended coverage in the area
where the Mortgaged Property is located, pursuant to standard
property insurance policies in compliance with Seller's
policies as from time to time in effect. To the
best knowledge of Seller, all such property policies are in
effect. On the date of origination, such standard
property policies contained a standard mortgage clause naming
Seller or the originator of the Mortgage Loan and their
respective successors in interest as mortgagee and to the best
knowledge of Seller, such clause is still in effect and, to
Seller's knowledge, all premiums due thereon have been
paid. If the Mortgaged Property is located in an
area identified by the Federal Emergency Management Agency as
having special flood hazards under the National Flood
Insurance Act of 1994, as amended, such Mortgaged Property is
covered by flood insurance in the amount required under the
National Flood Insurance Act of 1994. The Mortgage
obligates the Mortgagor to maintain such insurance, authorizes
the holder of the Mortgage to maintain such insurance at
Mortgagor's cost and expense should the Mortgagor fail to do
so and to seek reimbursement therefor from the
Mortgagor.
(vii) At
the time of origination of such Mortgage Loan and thereafter,
all requirements of any federal or state law, including,
without limitation, usury, truth-in-
lending,
real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be
complied with by Seller as the originator of the Mortgage Loan
and applicable to the Mortgage Loan have been complied with in
all material respects.
(viii) The
Mortgage has not been satisfied as of the Closing Date,
canceled or subordinated, in whole, or rescinded, and the
Mortgaged Property has not been released from the lien of the
Mortgage, in whole or in part (except for a release that does
not materially impair the security of the Mortgage Loan or
release the effect of which is reflected in the loan-to-value
ratio for the Mortgage Loan as set forth in the Final Mortgage
Loan Schedule), nor to Seller's knowledge has any instrument
been executed that would effect any such release,
cancellation, subordination or rescission.
(ix)
Ownership of the Mortgaged Property is held in fee simple or
leasehold estate. With respect to Mortgage Loans
that are secured by a leasehold estate, to Seller's knowledge:
(i) the lease is valid, in full force and effect, and conforms
to all of Fannie Mae's requirements for leasehold estates;
(ii) all rents and other payments due under the lease have
been paid; (iii) the lessee is not in default under any
provision of the lease; (iv) the term of the lease exceeds the
maturity date of the related Mortgage Loan by at least five
(5) years; and (v) the terms of the lease provide a Mortgagee
with an opportunity to cure any defaults. Except as
permitted by the fifth sentence of this paragraph (ix), the
Mortgage is a valid, subsisting and enforceable first lien on
the Mortgaged Property, including all buildings on the
Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems
affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing
securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not
contain any evidence on their face of any security interest or
other interest or right thereto. Such lien is free
and clear of all adverse claims, liens and encumbrances having
priority over the first lien of the Mortgage subject only to
(1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions, rights of way, easements and other matters
reflected in the public record as of the date of recording
which are acceptable to mortgage lending institutions
generally, or which are specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and either (A) which are referred to or
otherwise considered in the appraisal made for the originator
of the Mortgage Loan, or (B) which do not in the aggregate
adversely affect the Appraised Value of the Mortgaged Property
as set forth in such appraisal, and (3) other matters to which
like properties are commonly subject which do not in the
aggregate materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged
Property. Any security agreement, chattel mortgage
or equivalent document related to and del
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