MASTER MORTGAGE LOAN
PURCHASE AND SERVICING AGREEMENT
CITIGROUP GLOBAL
MARKETS REALTY CORP .
(Initial
Purchaser)
CITIMORTGAGE,
INC.
(Seller and
Servicer)
Fixed and Adjustable Rate
Residential Mortgage Loans
Dated and effective as of
February 1, 2005
Table of
Contents
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE
PRINCIPLES
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Section
1.01.
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Definitions.
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Section
1.02.
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General
Interpretive Principles.
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ARTICLE II
AGREEMENT TO PURCHASE
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Section
2.01.
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Agreement to
Purchase.
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ARTICLE III
MORTGAGE LOAN SCHEDULE
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Section
3.01.
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Mortgage Loan
Schedule.
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ARTICLE IV
PURCHASE PRICE
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Section
4.01.
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Purchase
Price.
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ARTICLE V
CONVEYANCE OF MORTGAGE LOANS;
POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS; DELIVERY OF
MORTGAGE LOAN DOCUMENTS; TRANSFER OF MORTGAGE LOANS
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Section
5.01.
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Conveyance of
Mortgage Loans; Possession of Mortgage Files.
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Section
5.02.
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Books and
Records.
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Section
5.03.
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Delivery of
Mortgage Loan Documents.
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Section
5.04.
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Examination of
Mortgage Files.
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Section
5.05.
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Transfer of
Mortgage Loans.
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Section
5.06.
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Whole Loan
Transfers, Agency Transfers or Pass-Through Transfers.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
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Section
6.01.
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Representations
and Warranties Regarding Individual Mortgage Loans.
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Section
6.02.
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Representations
and Warranties Regarding Seller.
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Section
6.03.
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Remedies for
Breach of Representations and Warranties.
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Section
6.04.
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Repurchase of
Mortgage Loans With Early Payment Defaults
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Section
6.05.
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Purchase Price
Protection
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ARTICLE VII
CLOSING
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Section
7.01.
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Closing.
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ARTICLE VIII
CLOSING DOCUMENTS
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Section
8.01.
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Closing
Documents.
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ARTICLE IX
COSTS
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Section
9.01.
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Costs.
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ARTICLE X
ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
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Section
10.01.
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Seller to Act
as Servicer.
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Section
10.02.
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Subservicing
Agreements Between Seller and Subservicers.
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Section
10.03.
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Successor
Subservicers.
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Section
10.04.
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Liability of
Seller.
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Section
10.05.
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No Contractual
Relationship Between Subservicers and Purchaser.
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Section
10.06.
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Subservicing
Accounts.
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Section
10.07.
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Realization
Upon Defaulted Mortgage Loans; Liquidation of Mortgage
Loans.
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Section
10.08.
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Collection of
Mortgage Loan Payments.
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Section
10.09.
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Establishment
of Custodial Account; Deposits in Custodial Account.
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Section
10.10.
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Withdrawals
From the Custodial Account.
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Section
10.11.
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Establishment
of Escrow Account; Deposits in Escrow Account.
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Section
10.12.
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Withdrawals
From Escrow Account.
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Section
10.13.
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Payment of
Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage
Insurance Policies.
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Section
10.14.
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Transfer of
Accounts.
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Section
10.15.
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Maintenance of
Hazard Insurance.
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Section
10.16.
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Fidelity Bond;
Errors and Omissions Insurance.
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Section
10.17.
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Title,
Management and Disposition of REO Property.
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Section
10.18.
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Maintenance of
Mortgage Impairment Insurance Policy.
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Section
10.19.
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Liquidation
Reports.
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ARTICLE XI
PAYMENTS TO PURCHASER
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Section
11.01.
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Distributions.
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Section
11.02.
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Statements to
Purchaser.
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Section
11.03.
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Monthly
Advances by Seller.
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ARTICLE XII
GENERAL SERVICING
PROCEDURE
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Section
12.01.
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Assumption
Agreements.
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Section
12.02.
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Satisfaction of
Mortgages and Release of Mortgage Files.
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Section
12.03.
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Servicing
Compensation.
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Section
12.04.
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Annual
Statement as to Compliance.
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Section
12.05.
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Annual
Independent Public Accountants' Servicing Report.
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Section
12.06.
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Purchaser's
Right to Examine Seller Records.
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Section
12.07.
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Seller Shall
Provide Access/Information as Reasonably Required.
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ARTICLE XIII
SELLER
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Section
13.01.
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Indemnification; Third Party Claims.
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Section
13.02.
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Merger or
Consolidation of Seller.
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Section
13.03.
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Limitation on
Liability of Seller and Others.
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Section
13.04.
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Seller Not to
Resign.
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ARTICLE XIV
DEFAULT
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Section
14.01.
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Events of
Default.
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Section
14.02.
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Waiver of
Defaults.
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ARTICLE XV
TERMINATION
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Section
15.01.
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Termination.
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ARTICLE XVI
MISCELLANEOUS PROVISIONS
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Section
16.01.
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Successor to
Seller.
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Section
16.02.
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Amendment.
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Section
16.03.
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Recordation of
Agreement.
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Section
16.04.
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Duration of
Agreement.
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Section
16.05.
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Governing
Law.
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Section
16.06.
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Notices.
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Section
16.07.
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Severability of
Provisions.
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Section
16.08.
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No
Partnership.
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Section
16.09.
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Execution;
Successors and Assigns.
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Section
16.10.
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Further
Assurances.
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Section
16.11.
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Execution;
Successors and Assigns.
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Section
16.12.
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Exhibits
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Section
16.13.
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No
Solicitation
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Section
16.14.
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Protection of
Mortgagor Personal Information
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Section
16.15.
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Severability of
Provisions.
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Section
16.16.
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Reproduction of
Documents.
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Section
16.17.
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Confidentiality
of Information.
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Section
16.18.
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Recordation of
Assignments of Mortgage.
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Section
16.19.
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No
Partnership.
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Section
16.20.
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Entire
Agreement.
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EXHIBITS
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EXHIBIT
A
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CONTENTS OF
MORTGAGE FILES
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EXHIBIT
B
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CUSTODIAL
ACCOUNT CERTIFICATION
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EXHIBIT
C
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CUSTODIAL
ACCOUNT LETTER AGREEMENT
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EXHIBIT
D
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REO ACCOUNT
CERTIFICATION
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EXHIBIT
E
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REO ACCOUNT
LETTER AGREEMENT
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EXHIBIT
F
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ESCROW ACCOUNT
CERTIFICATION
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EXHIBIT
G
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ESCROW ACCOUNT
LETTER AGREEMENT
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EXHIBIT
H
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FORM OF TERM
SHEET
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EXHIBIT
I
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FORM OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
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EXHIBIT
J
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MORTGAGE LOAN
DOCUMENTS
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EXHIBIT
K
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FORM OF MONTHLY
REPORT
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EXHIBIT
L
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WHOLE
LOAN/AGENCY/PASS-THROUGH TRANSFER INFORMATION
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EXHIBIT
M
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FORM OF
COMMITMENT LETTER
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EXHIBIT
N
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FORM OF
SARBANES-OXLEY CERTIFICATE
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MORTGAGE LOAN PURCHASE
AND SERVICING AGREEMENT
This is a
Master Mortgage Loan Purchase and Servicing Agreement (the
“Agreement”), dated and effective as of February 1,
2005, by and between CITIGROUP GLOBAL MARKETS REALTY CORP. (the
"Initial Purchaser," and the Initial Purchaser or the Person, if
any, to which the Initial Purchaser has assigned its rights and
obligations hereunder as Purchaser with respect to a Mortgage Loan,
and each of their respective successors and assigns, the
“Purchaser”), and CITIMORTGAGE, INC. (the
"Seller").
WITNESSETH:
WHEREAS,
Purchaser has agreed to purchase, from time to time, from Seller,
and Seller has agreed to sell, from time to time, to Purchaser,
certain fixed and adjustable rate residential mortgage loans (the
“Mortgage Loans”) on a non-recourse, servicing retained
basis, and which shall be delivered as whole loans on the date
provided herein (each a “Closing Date”);
WHEREAS, each
Mortgage Loan is secured by a mortgage, deed of trust or other
instrument creating a first on a residential dwelling located in
the jurisdiction indicated on the Mortgage Loan Schedule to be
provided to Purchaser on the Closing Date; and
WHEREAS,
Purchaser and Seller wish to prescribe the manner of the purchase,
conveyance, management, servicing and control of the Mortgage
Loans.
NOW THEREFORE,
in consideration of the premises and the mutual agreements
hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Purchaser and Seller agree as follows:
ARTICLE
I
DEFINITIONS; GENERAL
INTERPRETIVE PRINCIPLES
Section
1.01.
Definitions.
Whenever used
herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Adjustable Rate Mortgage Loan
: A Mortgage Loan which provides for
adjustments to the Mortgage Interest Rate from time to time in
accordance with the terms of the related Mortgage Note.
Adjustment Date : With respect to each Adjustable Rate Mortgage
Loan, the date set forth in the related Mortgage Note on which the
Mortgage Interest Rate on the Mortgage Loan is adjusted in
accordance with the terms of the Mortgage Note.
Agency Transfer : The sale or transfer by the Purchaser of some
or all of the Mortgage Loans to Fannie Mae or Freddie
Mac.
Agreement : This Master Mortgage Loan Purchase and
Servicing Agreement, including all exhibits hereto, and all
amendments hereof and supplements hereto.
Appraised
Value : As to any
Mortgage Loan, the value of the related Mortgaged Property based
upon the appraised value at the origination of the Mortgage Loan or
the sales price of the Mortgaged Property, whichever is less;
pro-vided, however, that in the case of a Refinanced Mortgage Loan,
such value is based solely upon the appraised value at the time of
origination of such Refinanced Mortgage Loan.
Assignment
of Mortgage : An
assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, that when properly completed and
recorded, is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the
sale of the Mortgage Loan to Purchaser.
BIF :
The Bank Insurance Fund, or any successor thereto.
Business
Day : Any day other than
(i) a Saturday or Sunday, or (ii) a day on which banking or savings
and loan institutions in the States of New York or Missouri are
authorized or obligated by law or executive order to be
closed.
Buydown
Agreement : An agreement
between the Seller and a Mortgagor, or an agreement among the
Seller, a Mortgagor and a seller of a Mortgaged Property or a third
party with respect to a Mortgage Loan which provides for the
application of Buydown Funds.
Buydown
Funds : Amounts delivered
to the Seller by a Mortgagor, seller of a Mortgaged Property, the
Seller or third party in connection with a Buydown Mortgage
Loan.
Buydown
Mortgage Loan : An
individual Mortgage Loan which is subject to the terms of a Buydown
Agreement as indicated on the Mortgage Loan Schedule.
Buydown
Period : The period of
time when a Buydown Agreement is in effect with respect to a
related Buydown Mortgage Loan.
Citibank : Citibank (West), FSB and any successors or
assigns.
Closing
Date : The date or dates
on which the Purchaser from time to time shall purchase and the
Seller from time to time shall sell to the Purchaser, the Mortgage
Loans listed on the related Mortgage Loan Schedule or such other
date as may be mutually agreed to by Seller and
Purchaser.
Closing
Documents : With respect
to any Closing Date, the documents required pursuant to Section
8.01.
Commitment
Letter : With respect to
the Mortgage Loan Package purchased and sold on any Closing Date,
the letter agreement between the Purchaser and the Seller, in the
form annexed hereto as Exhibit M (including any exhibits, schedules
and attachments thereto), setting forth the terms and conditions of
such transaction and describing the Mortgage Loans to be purchased
by the Purchaser on such Closing Date.
Condemnation Proceeds : All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property, whether
permanent or temporary, partial or entire, by exercise of the power
of condemnation or the right of eminent domain to the extent not
required to be released to the related Mortgagor in accordance with
the terms of the related Mortgage Loan documents.
Convertible Mortgage Loan
: Any Adjustable Rate Mortgage Loan
purchased pursuant to this Agreement as to which the related
Mortgage Note permits the Mortgagor to convert the Mortgage
Interest Rate on such Mortgage Loan to a fixed Mortgage Interest
Rate.
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.
Co-op Stock : With respect to a Co-op Loan, the single
outstanding class of stock, partnership interest or other ownership
instrument in the related residential cooperative housing
corporation.
Custodial
Account : The separate
account or accounts created and maintained pursuant to Section
10.09.
Customary
Servicing Procedures :
Procedures (including collection procedures) that comply with
applicable federal, state and local law and the requirements of the
Fannie Mae Single Family Servicing Guide for MBS pool mortgages and
the Seller customarily employs and exercises in servicing and
administering mortgage loans for its own account and which are in
accordance with accepted mort-gage servicing practices of prudent
lending institutions.
Cut-off
Date : The date
referenced as such in the applicable Commitment Letter and
confirmed in the related Term Sheet.
Deleted
Mortgage Loan : A
Mortgage Loan replaced or to be replaced with a Qualified
Substitute Mortgage Loan in accordance with this
Agreement.
Determination Date : The fifteenth (15 th ) day of each
month, commencing on the fifteenth (15 th ) day of the
month next following the month in which the related Cut-off Date
occurs, or if such fifteenth (15 th ) day is not a
Business Day, the Business Day following such fifteenth (15
th ) day.
Due
Date : With respect to
each Remittance Date, the day of the month of the related
Remittance Date on which each Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
Due
Period : With respect to
each Remittance Date, the period beginning on the second day of the
month preceding the month of the Remittance Date, and ending on the
first day of the month in which the Remittance Date
occurs.
Escrow
Account : The separate
account or accounts created and maintained pursuant to Section
10.11.
Escrow
Payments : The amounts
constituting ground rents, taxes, assessments, water rates,
mortgage insurance pre-miums, fire and hazard insurance premiums
and other payments required to be escrowed by the Mortgagor with
the Mortgagee pursuant to any Mortgage Loan.
Event of
Default : Any one of the
conditions or circumstances enumerated in Section 14.01.
Fannie
Mae : The entity formerly
known as the Federal National Mortgage Association or any successor
thereto.
Fannie Mae
Guides : The Fannie Mae
Sellers’ Guide and the Fannie Mae Servicers’ Guide, all
amendments and additions thereto, including, but not limited to,
future updates thereof and any waivers obtained by Seller.
FDIC :
The Federal Deposit Insurance Corporation or any successor
organization.
Fidelity
Bond : A fidelity bond
required to be obtained by Seller pursuant to Section
10.16.
FIRREA : The Financial Institutions Reform, Recovery,
and Enforcement Act of 1989.
Fixed Rate Mortgage Loan : A Mortgage Loan purchased pursuant to this
Agreement which bears a fixed Mortgage Interest Rate during the
life of the loan.
Freddie
Mac : The entity formerly
known as the Federal Home Loan Mortgage Corporation or any
successor thereto.
GAAP :
Generally accepted accounting principles, consistently
applied.
Gross Margin : With respect to any Adjustable Rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage
Note and the related Mortgage Loan Schedule that is added to the
Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note to determine the new Mortgage Interest Rate
for such Mortgage Loan.
HUD :
The United States Department of Housing and Urban Development or
any successor thereto.
Index : With respect to any Adjustable Rate Mortgage
Loan, the index identified on the Mortgage Loan Schedule and set
forth in the related Mortgage Note for the purpose of calculating
the Mortgage Interest Rate thereon.
Initial
Purchaser : Citigroup
Global Markets Realty Corp., or any successor thereto.
Insurance
Proceeds : With respect
to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgage Property.
Interest Only Mortgage Loan
: A Mortgage Loan that only requires
payments of interest for a period of time specified in the related
Mortgage Note.
Liquidation
Proceeds : Amounts (other
than Insurance Proceeds and REO Disposi-tion Proceeds) received in
connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of the Mortgage Loan,
trustee's sale, fore-closure sale or other-wise.
Loan-to-Value Ratio or LTV : With respect to any Mortgage
Loan, the original principal balance of such Mortgage Loan divided
by the Appraised Value of the related Mortgaged
Property.
Maximum Mortgage Interest Rate
: With respect to each Adjustable
Rate Mortgage Loan, a rate that is set forth on the related
Mortgage Loan Schedule and in the related Mortgage Note and is the
maximum interest rate to which the Mortgage Interest Rate on such
Mortgage Loan may be increased on any Adjustment Date.
MERS :
Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Mortgage Loan : Any Mortgage Loan registered with MERS on the
MERS System.
MERS System : The system of recording transfers of mortgages
electronically maintained by MERS.
MIN :
The Mortgage Identification Number for any MERS Mortgage
Loan.
Minimum Mortgage Interest Rate
: With respect to each Adjustable
Rate Mortgage Loan, a rate that is set forth on the related
Mortgage Loan Schedule and in the related Mortgage Note and is the
minimum interest rate to which the Mortgage Interest Rate on such
Mortgage Loan may be decreased on any Adjustment Date.
MOM Loan : Any Mortgage Loan as to which MERS is acting
as mortgagee, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns.
Monthly Advance : The payment required to be made by Seller with
respect to any Remittance Date pursuant to Section
11.03.
Monthly
Payment : With respect to
any Mortgage Loan, the scheduled payment of principal and/or
interest payable by a Mortgagor under the related Mortgage Note on
each Due Date.
Moody’s : Moody’s Investor Service, Inc., and any
successor thereto.
Mortgage : With respect to any Mortgage Loan that is not
a Co-op Loan, the mortgage, deed of trust or other instru-ment
creating a first lien on, or first priority ownership interest in,
an estate in fee simple in real property securing a Mortgage Note,
including any rider incorporated by reference therein. With respect
to a Co-op Loan, the related Security Agreement.
Mortgagee : The mortgagee or beneficiary named in the
Mortgage and the successors and assigns of such mortgagee or
beneficiary.
Mortgage
File : The mortgage
documents pertaining to a particular Mortgage Loan which are
specified in Exhibit A hereto and any additional documents required
to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Interest Rate : With
respect to each Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan from time to time in accordance with
the provisions of 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 related Mortgage Loan Schedule. The term Mortgage Loan
includes, without limitation, the contents of the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds, REO Disposition Proceeds
and all other rights, benefits, proceeds and obligations arising
from or in connection with such Mortgage Loan.
Mortgage
Loan Documents : The
documents listed in Exhibit J hereto pertaining to any Mortgage
Loan.
Mortgage
Loan Package : The
Mortgage Loans listed on a Mortgage Loan Schedule and purchased by
the Purchaser on the related Closing Date.
Mortgage
Loan Remittance Rate : As
to each Mortgage Loan, the annual rate of interest payable to
Purchaser, which shall be equal to the related Mortgage Interest
Rate minus the related Servicing Fee Rate.
Mortgage Loan Schedule : With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans to be delivered annexed to the
related Term Sheet as Exhibit A on the related Closing Date,
setting forth the following information with respect to each
Mortgage Loan in the related Mortgage Loan Package:
(i) the Seller’s Mortgage Loan identifying
number;
(ii) the Mortgagor’s name;
(iii) the street address of the Mortgaged Property
including the state and zip code;
(iv) a code indicating whether the Mortgaged Property
is owner-occupied;
(v) the type of residential property constituting
the Mortgaged Property;
(vi) a code indicating whether the Mortgaged Property
securing the Mortgage is held in fee simple or subject to a
leasehold estate;
(vii) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization
schedule;
(viii) the Loan-to-Value Ratio at
origination;
(ix) the Mortgage Interest Rate at origination and as
of the Cut-off Date;
(x) the Mortgage Loan origination date;
(xi) the paid through date;
(xii) the stated maturity date of the Mortgage Loan
and of the First Lien, if applicable;
(xiii) the amount of the Monthly Payment as of the
Cut-off Date;
(xiv) the original principal amount of the Mortgage
Loan as of the date of origination;
(xv) the Stated Principal Balance of the Mortgage
Loan as of the Cut-off Date;
(xvi) a code indicating the purpose of the Mortgage
Loan (i.e., purchase, rate and term refinance, equity take-out
refinance);
(xvii) for non-conforming loans only, a code indicating
the documentation style (i.e. full, alternative or
reduced);
(xviii) the number of times during the twelve (12) month
period preceding the Closing Date that any Monthly Payment has been
received thirty (30) or more days after its Due Date;
(xix) the date on which the first payment is
due;
(xx) a code indicating whether or not the Mortgage
Loan is insured as to payment defaults by a Primary Mortgage
Insurance Policy; and, in the case of any Mortgage Loan which is
insured as to payment defaults by a Primary Mortgage Insurance
Policy, the name of the provider of such Primary Mortgage Insurance
Policy;
(xxi) a code indicating whether or not the Mortgage
Loan is the subject of a Prepayment Penalty;
(xxii) the Primary Mortgage Insurance Policy
certificate number, if applicable;
(xxiii) the Primary Mortgage Insurance Policy coverage
percentage, if applicable;
(xxiv) a code indicating the credit score of the
Mortgagor at the time of origination of the Mortgage
Loan;
(xxv) the loan type (i.e. fixed, adjustable; 2/28,
3/27, 5/25, etc.);
(xxvi) with respect to each Adjustable Rate Mortgage
Loan, the first Adjustment Date and the Adjustment Date
frequency;
(xxvii) with respect to each Adjustable Rate Mortgage
Loan, the Gross Margin;
(xxviii) with respect to each Adjustable Rate Mortgage
Loan, the Maximum Mortgage Interest Rate under the terms of the
Mortgage Note;
(xxix) with respect to each Adjustable Rate Mortgage
Loan, the Minimum Mortgage Interest Rate under the terms of the
Mortgage Note;
(xxx) with respect to each Adjustable Rate Mortgage
Loan, the Periodic Rate Cap;
(xxxi) with respect to each Adjustable Rate Mortgage
Loan, the first Adjustment Date immediately following the related
Cut-off Date;
(xxxii) with respect to each Adjustable Rate Mortgage
Loan, the Index;
(xxxiii) if available, a code indicating whether the
Mortgage Loan is a MERS Mortgage Loan; and
(xxxiv) a code indicating whether the Mortgage Loan is a
Buydown Mortgage Loan.
Mortgage
Note : The note or other
evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property : With respect
to any Mortgage Loan other than a Co-op Loan, the real property
securing repayment of the debt evidenced by a Mortgage Note,
consisting of a single parcel of property considered to be real
estate under the law of the state in which it is located improved
by a residential dwelling. With respect to a Co-op Loan, the
related Co-op Stock and Co-op Lease securing the indebtedness of
the Purchaser under the related Mortgage Loan.
Mortgagor : The obligor on a Mortgage Note.
OCC :
The Office of the Comptroller of the Currency, or any successor
thereto.
Officers’ Certificate
: A certificate signed by the
Chairman of the Board or the Vice Chairman of the Board or the
President, a Senior Vice President or a Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of Seller, or by other duly authorized
officers or agents of Seller and delivered to Purchaser as required
by this Agreement.
Opinion of
Counsel : A written
opinion of counsel.
Pass-Through Transfer : The sale or transfer of some or all of the
Mortgage Loans by Purchaser to a trust to be formed as part of a
publicly issued and/or privately placed mortgage-backed securities
transaction.
Periodic Rate Cap : With respect to each Adjustable Rate Mortgage
Loan and any Adjustment Date therefor, a number of percentage
points per annum that is set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Interest Rate for
such Mortgage Loan may increase (without regard to the Maximum
Mortgage Interest Rate) or decrease (without regard to the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage
Interest Rate in effect immediately prior to such Adjustment Date,
which may be a different amount with respect to the first
Adjustment Date.
Person : Any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincor-porated organization or government or any
agency or political subdivision thereof.
Prepayment Interest Shortfalls
: As defined in Section
10.09(i).
Primary Mortgage Insurance Policy
: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 6.01(v),
or any replacement policy therefor obtained by Seller pursuant to
Section 10.13.
Principal
Prepayment : Any payment
or other recovery of principal on a Mortgage Loan which is received
in advance of its scheduled Due Date and is not accompanied by an
amount of interest repre-sent-ing 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 pursuant to
the related Commitment Letter in exchange for the Mortgage Loans
purchased on such Closing Date, calculated as provided in Section
4.01.
Purchase
Price Percentage : The
purchase price percentage set forth in the related Commitment
Letter and confirmed in the related Term Sheet applicable to the
Mortgage Loans purchased on such Closing Date.
Purchaser : The Initial Purchaser and any subsequent
permitted holder or holders of the Mortgage Loans.
Qualified Appraiser : With respect to each Mortgage Loan, 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 is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser
and the appraisal made by such appraiser both satisfy the
requirements of Fannie Mae or Freddie Mac and Title XI of FIRREA
and the regulations promulgated thereunder, all as in effect on the
date the Mortgage Loan was originated.
Qualified
Insurer : An insurance
company duly qualified to do business in the state in which any
related Mortgaged Property is located, duly authorized and licensed
in such states to transact the applicable insurance business and to
write the insurance provided by the insurance policy issued by it,
and approved as an insurer by Fannie Mae and Freddie
Mac.
Qualified
Substitute Mortgage Loan : A mortgage loan substituted by Seller for a
Deleted Mortgage Loan which must, on the date of such substitution,
(a) 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 Stated Principal Balance of the Deleted Mortgage Loan (the
amount of any shortfall will be distributed by Seller to Purchaser
in the month of substitution), (b) have a Mortgage Interest Rate
equal to the Mortgage Interest Rate of the Deleted Mortgage Loan,
(c) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan,
(d) have a Loan-to-Value Ratio at origination no greater that that
of the Deleted Mortgage Loan, (e) have the same lien priority as
the Deleted Mortgage Loan, (f) be, in the reasonable determination
of the Purchaser, of the same type, quality and character
(including location of the Mortgaged Property) as the Deleted
Mortgage Loan, and (g) comply as of the date of substitution with
each representa-tion and warranty set forth in Section
6.01.
Rating
Agencies : Standard &
Poor’s, Moody’s, or, in the event that some or all
ownership of the Mortgage Loans is evidenced by mortgage-backed
securities, the national recognized rating agencies issuing ratings
with respect to such securities, if any.
Record
Date : With respect to
each Remittance Date, the close of business of the last Busi-ness
Day of the month preceding the month of the related Remittance
Date.
Refinanced
Mortgage Loan : A
Mortgage Loan the proceeds of which were not used to purchase the
related Mortgaged Property.
REMIC : A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
Remittance
Date : The eighteenth
(18th) day of any month, begin-ning in March, 2005, or if such
eighteenth (18th) day is not a Business Day, the first Business Day
immediately preceding such eighteenth (18th) day.
REO
Account : The account or
accounts maintained pursuant to Section 10.17. REO Disposition : The final sale by Seller of a Mortgaged
Property acquired by Seller in foreclosure or by deed in lieu of
foreclosure.
REO
Disposition Proceeds :
All amounts received with respect to an REO Disposition pursuant to
Section 10.17.
REO
Property : A Mortgaged
Property acquired by Seller through foreclosure or deed in lieu of
foreclosure, as described in Section 10.17.
Repurchase
Price : With respect to
any Mortgage Loan, a price equal to (a) either (1) within nine
months after the related Closing Date, the product of the Stated
Principal Balance of the Mortgage Loan times the greater of (x) the
Purchase Price Percentage or (y) 100%; or (2) thereafter, the
Stated Principal Balance of the Mortgage Loan as of the date on
which such repurchase takes place, plus (b) interest on such Stated
Principal Balance at a rate equal to the related Mortgage Loan
Remittance Rate from the date to which interest has last been paid
and distributed to Purchaser to the first day of the month
following the month of repurchase, plus (c) with regard to any
Mortgage Loan subject to a Pass-Through Transfer, any costs and
damages incurred by the related trust in connection with any
violation by such Mortgage Loan of any predatory or abusive lending
law.
SAIF :
The Savings Association Insurance Fund, or any successor
thereto.
Security Agreement : With respect to a Co-op Loan, the agreement or
mortgage creating a security interest in favor of the originator of
the Co-op Loan in the related Co-op Stock.
Seller : CitiMortgage, Inc., its successors and
assigns.
Servicing
Advances : All customary,
reasonable and necessary out-of-pocket costs and expenses, other
than advances pursuant to Section 11.03, incurred in the
performance by Seller of its servicing obligations, including, but
not limited to, the cost of (a) the inspection, preservation,
restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c)
the management and liquidation of the Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage and
(d) compliance with the obligations under Section 10.13.
Servicing
Fee : With respect to
each Mortgage Loan, the amount of the annual fee Purchaser shall
pay to Seller, which shall, for each month, be equal to one-twelfth
of the product of (a) the Servicing Fee Rate and (b) the
outstanding principal balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal
amount and period respecting which any related interest payment on
a Mortgage Loan is computed. The obligation of Purchaser to pay the
Servicing Fee is limited to, and payable solely from, the interest
portion (including recoveries with respect to interest from
Liquidation Proceeds and other proceeds, to the extent permitted by
Section 10.10) of related Monthly Payments collected by Seller, or
as otherwise provided under Section 10.10.
Servicing
Fee Rate : With respect
to any Mortgage Loan, the per annum rate provided in the related
Commitment Letter.
Standard
& Poor’s :
Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
Stated
Principal Balance : As to
each Mortgage Loan as of any date of determination, (a) the
principal balance of the Mortgage Loan at the Cut-off Date after
giving effect to payments of principal due on or before such date,
whether or not received, minus (b) all amounts previously
distributed to Purchaser with respect to the Mortgage Loan
representing payments or recoveries of principal, or advances in
lieu thereof.
Subservicer : Any mortgage loan servicing institution other
than Seller which is responsible for the servicing and
administration of any Mortgage Loan or any successor appointed
pursuant to any Subservicing Agreement.
Subservicing
Account : As defined in
Section 10.06.
Subservicing
Agreement : Each
agreement providing for the servicing of any of the Mortgage Loans
by a Subservicer.
Subservicing
Fee : As to each Mortgage
Loan, the monthly fee payable to the Subservicer, paid by Seller
from its Servicing Fee.
Term
Sheet : An assignment and
conveyance of the Mortgage Loans purchased on a Closing Date in the
form annexed hereto as Exhibit H.
Underwriting Standards : As to each Mortgage Loan, the Seller’s
underwriting guidelines in effect as of the related Closing
Date.
Whole Loan
Transfer : Any sale or
transfer of some or all of the Mortgage Loans by Purchaser to a
third party which sale or transfer is not a Pass-Through Transfer
or Agency Transfer.
Section
1.02.
General Interpretive
Principles.
For purposes of
this Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
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(a)
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the terms
defined in this Agreement have the meanings assigned to them in
this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other
gender;
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(b)
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accounting
terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting
principles;
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(c)
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references
herein to "Articles", "Sections", "Subsections", "Paragraphs", and
other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
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(d)
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a reference to
a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
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(e)
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the words
"herein", "hereof", "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular
provision; and
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(f)
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the term
"include" or "including" shall mean without limitation by reason of
enumeration.
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ARTICLE
II
AGREEMENT TO
PURCHASE
Section
2.01.
Agreement to
Purchase.
The Seller
agrees to sell, and the Purchaser agrees to purchase, from
time-to-time, the Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in
the related Commitment Letter, or in such other amount as agreed by
the Purchaser and the Seller as evidenced by the actual aggregate
principal balance of the Mortgage Loans accepted by the Purchaser
on the related Closing Date.
ARTICLE
III
MORTGAGE LOAN
SCHEDULE
Section
3.01.
Mortgage Loan
Schedule.
With respect to
each Closing Date, Seller shall deliver to Purchaser a preliminary
Mortgage Loan Schedule with respect to the Mortgage Loans to be
sold and purchased on such Closing Date at least five (5) Business
Day prior to such Closing Date and the final Mortgage Loan Schedule
with respect to such Mortgage Loans at least one (1) Business Day
prior to such Closing Date.
ARTICLE
IV
PURCHASE
PRICE
Section
4.01.
Purchase Price.
The Purchase Price for each Mortgage Loan listed
on the related Mortgage Loan Schedule shall be the Purchase Price
Percentage as stated in the related Commitment Letter (subject to
adjustment as provided therein), multiplied by its Stated Principal
Balance as of the related Cut-off Date. If so provided in the
related Commitment Letter, portions of each Mortgage Loan Package
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 Stated Principal Balance of each Mortgage
Loan as of the related Cut-off Date at the related Mortgage Loan
Remittance Rate from the related Cut-off Date through the day prior
to the related Closing Date, both inclusive, pro-rated on the basis
of a 30-day month.
Purchaser shall
own and be entitled to receive with respect to each Mortgage Loan
purchased, (a) all scheduled principal due after the Cut-off Date,
(b) all other recoveries of principal collected after the Cut-off
Date (provided, however, that all scheduled payments of principal
due on or before the Cut-off Date and collected by Seller after the
Cut-off Date shall belong to Seller), and (c) all payments of
interest on the Mortgage Loans net of the Servicing Fee (minus that
portion of any such interest payment that is allocable to the
period prior to the Cut-off Date). The Stated Principal Balance of
each Mortgage Loan as of the Cut-off Date is determined after
application to the reduction of principal of payments of principal
due on or before the Cut-off Date whether or not collected.
Therefore, for the purposes of this Agreement, payments of
scheduled principal and interest prepaid for a Due Date beyond the
Cut-off Date shall not be applied to the principal balance as of
the Cut-off Date. Such prepaid amounts (minus the applicable
Servicing Fee) shall be the property of Purchaser. Seller shall
deposit any such prepaid amounts into the Custodial Account, which
account is established for the benefit of Purchaser, for remittance
by Seller to Purchaser on the first Remittance Date following the
related Closing Date. All payments of principal and interest, less
the applicable Servicing Fee, due on a Due Date following the
Cut-off Date shall belong to Purchaser.
ARTICLE
V
CONVEYANCE OF MORTGAGE
LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS;
DELIVERY OF MORTGAGE
LOAN DOCUMENTS; TRANSFER
OF MORTGAGE LOANS
Section
5.01.
Conveyance of Mortgage Loans;
Possession of Mortgage Files.
The Seller,
simultaneously with the payment of the Purchase Price, shall
execute and deliver to the Purchaser a Term Sheet with respect to
the related Mortgage Loan Package in the form attached hereto as
Exhibit H. Simultaneously with the execution and delivery of the
related Term Sheet, for each Mortgage Loan Package, the Seller
hereby agrees to service the Mortgage Loans listed on the related
Mortgage Loan Schedule in accordance with Customary Servicing
Procedures and this Agreement. The rights of the Purchaser to
receive payments with respect to the related Mortgage Loans shall
be as set forth in this Agreement.
Any documentation retained by the
Seller with respect to each Mortgage Loan pursuant to this
Agreement shall be appropriately identified in the Seller's
computer system to reflect clearly the sale of such related
Mortgage Loan to the Purchaser. The contents of each Mortgage File
not delivered to Purchaser are and shall be held in trust by Seller
for the benefit of Purchaser as the owner thereof and Seller's
possession of the portion of each Mortgage File so retained is for
the sole purpose of servicing the related Mortgage Loan, and such
retention and possession by Seller is in a custodial capacity only.
Upon the purchase of the Mortgage Loans, the ownership of each
Mortgage Note, Mortgage and each related Mortgage File is vested in
Purchaser and the ownership of all records and documents with
respect to each related Mortgage Loan prepared by or which come
into the possession of Seller shall immediately vest in Purchaser
and shall be retained and maintained, in trust, by Seller in such
custodial capacity only. The portion of each Mortgage File so
retained shall be appropriately marked to clearly reflect the sale
of the related Mortgage Loan to Purchaser. Seller shall release
from its custody the contents of any Mortgage File only in
accordance with written instructions from Purchaser, unless such
release is required as incidental to Seller's servicing of the
Mortgage Loans or is in connection with a repurchase of any
Mortgage Loan pursuant to Section 6.03.
Section
5.02.
Books and Records.
All rights
arising out of the Mortgage Loans including, but not limited to,
all funds received on or in connection with a Mortgage Loan shall
be held by Seller in trust for the benefit of Purchaser or one or
more designees as the owner of the Mortgage Loans.
The sale of
each Mortgage Loan shall be reflected on Seller's balance sheet and
other financial statements as a sale of assets by Seller and not a
pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller. Seller shall be
responsible for maintaining, and shall maintain, a complete set of
books and records for each Mortgage Loan which shall be clearly
marked to reflect the ownership of each Mortgage Loan by Purchaser
in Seller’s computer system. In particular, the Seller shall
maintain in its possession, available for inspection by the
Purchaser, or its designee 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, as applicable, including but not limited to
documentation as to the method used in determining the
applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation
evidencing insurance coverage and eligibility of any condominium
project for approval by Seller and periodic inspection reports as
required by Section 10.17. 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 or such other
reliable means of recreating original documents, including but not
limited to, optical imagery techniques so long as the Seller
complies with the requirements of the Fannie Mae Guides.
The Seller
shall, with respect to any Mortgage Loan not registered with the
MERS System, at the option of the Purchaser, prepare and deliver to
Purchaser an original Assignment of Mortgage in blank. For one
transfer only, the Seller shall bear the cost and expense related
to (i) providing all Assignments of Mortgages in blank and (ii)
recording fees and fees for title policy endorsements and any
additional transfers shall be at the Purchaser’s expense. In
connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at the Seller’s expense,
the MERS System to indicate that such Mortgage Loans have been
assigned by the Seller to the Purchaser (or deleting, in the case
of Mortgage Loans which are repurchased in accordance with this
Agreement) by including in such computer files the information
required by the MERS System to identify the Purchaser (such
information to be provided to the Seller from the Purchaser) and
the series in which such Mortgage Loans were sold. The Seller
further agrees that it will not alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
In addition to
the foregoing, the Seller shall provide, at Purchaser’s
expense, to any supervisory agents or examiners that regulate the
Purchaser, including but not limited to, OCC, OTS, FDIC and other
similar entities or such supervisory agents or examiners, access,
during normal business hours, upon reasonable advance notice to the
Seller and to any documentation regarding the Mortgage Loans that
may be required by any applicable regulator.
Section
5.03.
Delivery of Mortgage Loan
Documents.
Seller shall
deliver to Purchaser or its designee, as directed by Purchaser, the
Mortgage Loan Documents as required by Exhibit J hereto for each
Mortgage Loan no later than five (5) Business Days prior to the
related Closing Date.
Except as
otherwise provided in this Section 5.03, upon discovery or receipt
of notice of any materially defective Mortgage Loan Document, or
that a Mortgage Loan Document is missing, Seller shall have sixty
(60) days to cure such defect or deliver such missing document to
Purchaser or its designee. If Seller does not cure such defect or
deliver such missing document within such time period, Seller shall
either repurchase or substitute for such Mortgage Loan in
accordance with Section 6.03.
Seller shall
forward to Purchaser or its designee, original documents evidencing
an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with this Agreement within
two (2) weeks of their execution; provided, however, that Seller
shall provide Purchaser or its designee, with a certified true copy
of any such document submitted for recordation within two (2) weeks
of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by
the appropriate public recording office to be a true and complete
copy of the original within 270 days of its submission for
recordation. In the event Seller cannot deliver the original of
such documents submitted for recording due to a delay by the
recording office in the applicable jurisdiction, Seller shall
instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an Officer's Certificate
from Seller confirming that such documents have been accepted for
recording. Any such document shall be delivered to Purchaser or its
designee promptly upon receipt thereof from the related recording
office.
From time to
time Purchaser shall deliver or cause to be delivered to Seller, as
soon as practicable following receipt of a written request from
Seller and at no expense to Seller, any Mortgage Loan Document
needed by Seller in connection with the servicing of a Mortgage
Loan. Seller’s request for the release of a Mortgage Loan
Document shall specify in reasonable detail the reason for
Seller’s request. Seller shall use its best efforts to
provide notice to the Purchaser of Purchaser’s or its
designee’s failure to act in a timely manner with respect to
Seller’s request for Mortgage Loan Documents; provided,
however, Seller’s failure to notify Purchaser shall not
alleviate, eliminate or diminish any obligation of Purchaser to
indemnify Seller under this Section 5.03. During the time that any
such Mortgage Loan Document is in the possession of Seller, such
possession shall be deemed to be in trust for the benefit of
Purchaser and Seller shall promptly return to Purchaser or its
designee any Mortgage Loan Document so released when Seller’s
need for such Mortgage Loan Document no longer exists. Purchaser
shall indemnify and hold Seller harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any
other costs, fees and expenses that Seller may sustain in
connection with any third party claim in any way related to
Purchaser’s or its designee’s failure to release, in a
timely manner, the Mortgage Loan Documents requested by Seller.
Purchaser shall pay all costs, fees and expenses in connection with
the possession of the Mortgage Loan Documents.
Purchaser shall
provide Seller with written notice at least fifteen (15) days prior
to any transfer of the Mortgage Loan Documents.
Section
5.04.
Examination of Mortgage
Files.
In addition to
the rights granted to the Purchaser under the related Commitment
Letter to underwrite the Mortgage Loans and review the Mortgage
Files prior to the Closing Date, the Seller shall (a) deliver to
the Purchaser in escrow, for examination with respect to each
Mortgage Loan to be purchased on such Closing Date, the related
Mortgage File, including the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available
to the Purchaser for examination at the Seller’s offices or
such other location as shall otherwise be agreed upon by the
Purchaser and the Seller. Such examination may be made by the
Purchaser or its designee at any reasonable time before or after
the applicable Closing Date. If the Purchaser makes such
examination prior to the applicable Closing Date and identifies any
Mortgage Loans which do not conform to the terms of the related
Commitment Letter, such Mortgage Loans may, at the
Purchaser’s option, be rejected for purchase by the
Purchaser. If not purchased by the Purchaser, such Mortgage Loans
shall be deleted from the related Mortgage Loan Schedule. The
Purchaser may, at its option and without notice to the Seller,
purchase any Mortgage Loan Package without conducting any partial
or complete examination. The fact that the Purchaser has conducted
or has determined not to conduct any partial or complete
examination of the Mortgage Files shall not affect the
Purchaser’s (or any of its successors’) rights to
demand repurchase or other relief or remedy provided for in this
Agreement.
Section
5.05.
Transfer of Mortgage
Loans.
The Initial
Purchaser shall have the right, without the consent of Seller, to
assign its interest under this Agreement with respect to all or
some of the Mortgage Loans, and designate any person to exercise
any rights of Purchaser hereunder, and the assignee or designee
shall accede to the rights and obligations hereunder of Purchaser
with respect to such Mortgage Loans; provided, however, that Seller
shall not be required to recognize any assignment to the extent
that it would result in Mortgage Loans in any one Mortgage Loan
Package being serviced for more than three (3) Purchasers
hereunder. All references to Purchaser shall be deemed to include
its assignee or designee.
Seller shall
keep at its servicing office books and records in which, subject to
such reasonable regulations as it may prescribe, Seller shall note
transfers of the Mortgage Loans. No transfer of the Mortgage Loans
may be made unless such transfer is in compliance with the terms
hereof. For the purposes of this Agreement, Seller shall be under
no obligation to deal with any person with respect to this
Agreement or the Mortgage Loans unless the books and records show
such person as Purchaser of the Mortgage Loans. Purchaser may,
subject to the terms of this Agreement, sell and transfer, in whole
or in part, the Mortgage Loans, provided that no such sale and
transfer shall be binding upon Seller unless a properly executed
Assignment, Assumption and Recognition Agreement, substantially in
the form attached hereto as Exhibit I, shall have been delivered to
Seller. Upon receipt thereof, Seller shall mark its books and
records to reflect the ownership of the Mortgage Loans by such
assignee, and the previous Purchaser shall be released from its
obligations hereunder to the extent such obligations relate to
Mortgage Loans sold by Purchaser. This Agreement shall be binding
upon and inure to the benefit of Purchaser and Seller and their
respective permitted successors, assignees and
designees.
Section
5.06.
Whole Loan Transfers, Agency
Transfers or Pass-Through Transfers.
Seller and
Purchaser agree that with respect to some or all of the Mortgage
Loans upon written notice to Seller at least seven (7) days prior
to the first day of the first Due Period of such Whole Loan
Transfer, Agency Transfer or Pass Through-Transfer, provided
Purchaser provides to Seller all information included on Exhibit L
hereto with such notice, Purchaser may effect either one or more
Whole Loan Transfers, one or more Agency Transfers and/or one or
more Pass-Through Transfers.
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(a)
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Whole Loan
Transfers . With respect
to each Whole Loan Transfer entered into by Purchaser, Seller
agrees:
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(i)
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to cooperate
fully with Purchaser and any prospective purchaser with respect to
all reasonable requests;
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(ii)
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to execute or
acknowledge, at Purchaser’s discretion, an assignment, in the
form of Exhibit I, by Purchaser to a successor purchaser of some or
all of the Mortgage Loans, which Mortgage Loans will be assigned
subject to the representations and warranties set forth in this
Agreement and covenants to service the Mortgage Loans on behalf of
the successor purchaser in accordance with the terms and conditions
of this Agreement or otherwise;
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(iii)
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the Seller
shall make the representations and warranties regarding (1) the
Seller as of the date of the Whole Loan Transfer, and (2) the
Mortgage Loans as of the date of the Whole Loan Transfer; provided
that such Whole Loan Transfer occurs within twelve months of the
related Closing Date .
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(b)
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Agency
Transfers and Pass-Through Transfers . Purchaser and Seller agree that in connection
with the completion of an Agency Transfer or Pass-Through Transfer,
Seller shall:
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(i)
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if Seller is
required to be a party to any of the reconstitution agreements,
execute any reconstitution agreement required to effectuate the
foregoing;
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(ii)
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to execute or
acknowledge, at Purchaser’s discretion, either: (a) an
assignment, in the form of Exhibit I, by Purchaser to a successor
purchaser of some or all of the Mortgage Loans, which Mortgage
Loans will be assigned subject to the representations and
warranties set forth in this Agreement and covenants to service the
Mortgage Loans on behalf of the successor purchaser in accordance
with the terms and conditions of this Agreement or (b) execute a
letter agreement to be provided to the Seller by the master
servicer (such letter agreement to delivered to Seller in
accordance with the timing requirements of this Section 5.06),
setting forth which Mortgage Loans will be: assigned into the
Pass-through Transfer(s) and subject to the representations and
warranties pursuant to Section 5.06(b)(v) of the Agreement. Seller
covenants to service the Mortgage Loans on behalf of and at the
direction of the master servicer. Such letter agreement shall also
require that Seller shall establish and maintain, at the direction
of the master servicer, a separate Custodial Account and a seperate
Escrow Account with respect to any Mortgage Loans that are sold
pursuant to such Pass-Through Transfer(s). Pursuant to the letter
agreement, Purchaser agrees to provide any applicable MERS
information that Seller may request in order to properly reflect
the ownership of any MERS loans sold pursuant to the Pass-Through
Tranfer(s);
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to deliver to
the Purchaser and to any Person designated by the
Purchaser
(a) for inclusion in any
prospectus or other offering material, such
publicly available information
regarding the Seller, its financial
condition and its mortgage loan delinquency, foreclosure and
loss experience and any additional
information requested by the Purchaser,
(b) any similar non-public, unaudited financial information
(which the Purchaser may, at its option and
at its cost, have audited by certified public accountants) and such
other information as is reasonably requested by the Purchaser and
which the Seller is capable of providing without unreasonable
effort or expense, and (c) such statements and audit
letters of reputable, certified public
accountants pertaining to information provided by the Seller
pursuant to clause (a) above as reasonably requested by the
Purchaser. Seller shall indemnify the Purchaser and its affiliates
for material misstatements or omissions contained in the
information required to be provided in clauses (a) and (b) above.
Purchaser shall indemnify the Seller and its affiliates for
material misstatements or omissions contained in such prospectus or
other offering material other than those material misstatements or
omissions for which Seller has indemnification obligations under
Section 5.06(b)(ii) ;
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agree to
service the Mortgage Loans in accordance with the requirements of
this Agreement or in accordance with the requirements of Fannie
Mae, or any successor thereto, or Freddie Mac, or any successor
thereto; subject to such waivers, variances, and modifications as
may be agreed to between Fannie Mae or Freddie Mac, as the case may
be, the Seller and the master servicer;
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(iv)
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provide all
other assistance reasonably requested by Purchaser in connection
with completion of the Pass-Through Transfer or Agency Transfer,
including, without limitation, the obligation to deliver
officer’s certificate in the form of Exhibit N;
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(v)
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with respect to
any Pass-Through Transfer or Agency Transfer, the Seller shall make
the representations and warranties regarding (1) the Seller as of
the date of the Pass-Through Transfer or Agency Transfer, and (2)
the Mortgage Loans as of the date of the Pass-Through Transfer or
Agency Transfer; provided that such Pass-Through Transfer or Agency
Transfer occurs within twelve months of the related Closing
Date.
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With respect to
any Pass-Through Transfer, Purchaser shall be entitled to include
in any disclosure document any unaltered information specifically
requested by Purchaser for this purpose and provided by Seller and
Seller acknowledges and agrees that the related investors will be
permitted to rely on such information. If Purchaser determines that
Seller is required to be a party to any reconstitution agreement,
Seller shall execute such reconstitution agreement within a
reasonable period of time, but in no event shall such time exceed
five (5) Business Days after mutual agreement between Purchaser and
Seller as to the terms thereof.
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All of the
Mortgage Loans, including those Mortgage Loans that are subject to
a Pass-Through Transfer or a Whole Loan Transfer, shall continue to
be subject to this Agreement, and with respect thereto, this
Agreement shall remain in full force and effect. In no event shall
a Whole Loan Transfer or a Pass-Through Transfer be deemed to
relieve the Seller of its obligations as set forth in Article VI
hereof nor to increase the Seller’s liabilities, duties,
obligations, or responsibilities as set forth in this
Agreement.
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ARTICLE
VI
REPRESENTATIONS AND
WARRANTIES;
REMEDIES FOR
BREACH
Section
6.01.
Representations and Warranties
Regarding Individual Mortgage Loans.
Seller hereby
represents and warrants to Purchaser that, as to each Mortgage
Loan, as of the applicable Closing Date (or such other date as may
be specified herein):
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(a)
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The information
set forth on the Mortgage Loan Schedule and the magnetic tape or
diskette delivered to Purchaser by Seller is complete, true and
correct;
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(b)
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The Mortgage
Note and the Mortgage have not been assigned or pledged, and Seller
has good and marketable title thereto, and Seller is the sole owner
and holder of the Mortgage Loan free and clear of any and all
liens, claims, encumbrances, participation interests, equities,
pledges, charges or security interests of any nature and has full
right and author-ity, subject to no interest or participation of,
or agreement with, any other party, to sell and assign the same
pursuant to this Agreement;
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(c)
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The Mortgage is
a valid, enforceable and subsisting first lien on the property
therein described, and the Mortgaged Property is free and clear of
any and all adverse claims, encumbrances and liens having priority
over the first lien of the Mort-gage except for (i) liens for
current real estate taxes and special assessments not yet due and
payable, (ii) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and which do not adversely affect the Appraised Value of the
Mortgaged Property, and (iii) 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 the Mortgage Loan and
delivered to Purchaser establishes in Seller a valid, enforceable
and sub-sisting first lien and first priority security interest
with respect to each first lien Mortgage Loan on the property
described therein, and Seller has full right to sell and assign the
same to Purchaser. The Mortgaged Property was not, as of the date
of origination of the Mortgage Loan, subject to a mortgage, deed of
trust, deed to secure debt or other security instrument creating a
lien subordinate to the lien of the Mortgage;
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(d)
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Except to the
extent of a discharge Chapter 7, the terms of the Mortgage Note and
the Mortgage have not been impaired, waived, altered or modified in
any respect, except by a written instrument which has been recorded
in the appropriate public recording office, if required by law, or,
if necessary, to protect the interest of Purchaser and which have
been delivered to Purchaser. The substance of any such alteration
or modification is reflected on the Mortgage Loan Schedule and has
been approved by the issuer of any related Primary Mortgage
Insurance Policy, if any, and the title insurer, to the extent
required by the related policy;
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(e)
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Except to the
extent of a discharge Chapter 7, no instrument of release,
alteration, modification or waiver has been executed in connection
with the Mortgage Loan, and no Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement
which has been approved by the issuer of any Private Mortgage
Insurance Policy, if any, and the title insurer, to the extent
required by the related policy, and except such Mortgage Loan which
contains in the related Mortgage File, as set forth on the related
Mortgage Loan Schedule, evidence of a release or waiver or an
assumption agreement discharging the original borrower from all of
the debt obligations in connection with the related Mortgage Loan
and providing for the assumption of all such debt obligations by
the party assuming the obligations under the Mortgage Loan and, in
each case, terms of which are reflected in the Mortgage Loan
Schedule;
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(f)
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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 and except as permitted in clause (l),
there are no defaults in complying with the terms of the Mortgage.
Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by
the Mortgage Note or Mortgage, except for interest accruing from
the date of the Mortgage Note or date of disbursement of the
Mortgage proceeds, whichever is greater, to the day which precedes
by one month the Due Date of the first installment of principal and
interest;
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(g)
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The Mortgaged
Property is free of material damage and waste and there is no
proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property, nor is such a proceeding
currently occurring, and such property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other
casualty, so as to affect materially and adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for
which the premises were intended;
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(h)
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There are no
mechanics' or similar liens or claims which have been filed for
work, labor or material (and no rights are outstanding that under
law could give rise to such lien) affecting the Mortgaged Property
which are, or may be, liens prior or equal to, or coordinate with,
the lien of the related Mortgage unless such lien is insured under
the related title insurance policy;
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(i)
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All
improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of the Mortgaged Property
and, to Seller's knowledge, no improvements on adjoining properties
encroach upon the Mortgaged Property (other than minor
encroachments (i) which do not affect the value of the Mortgage
Loan or the Purchaser’s interest therein and (ii) to which
properties similar to the Mortgaged Property within the same
jurisdiction are commonly subject and which do not interfere with
the benefits of the security intended to be provided by the related
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property). Each appraisal has been performed in
accordance with the provisions of Title XI of FIRREA and the
regulations promulgated thereunder;
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(j)
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No improvement
located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation and 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
certif-icates, have been made or obtained from the appropriate
authorities and the Mortgaged Property is lawfully occupied under
applicable law;
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(k)
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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) (i)
in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located,
and (ii) either (1) organized under the laws of such state, or (2)
qualified to do business in such state, or (3) federal savings and
loan associations, federal savings banks or national banks having
authorized offices in such state, or (4) not doing business in such
state;
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(l)
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Unless
otherwise disclosed in the Commitment Letter, all Monthly Payments
due prior to the related Cut-off Date for such Mortgage Loan have
been made by the related Closing Date and no Monthly Payment due
under any Mortgage Loan has been more than thirty (30) days due
past the related Due Date, exclusive of any grace period, within
the prior twelve months prior to the Cut-off Date. The Seller has
not advanced funds, or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Note or Mortgage;
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(m)
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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 satisfaction,
release, cancellation, subordination or rescission, except in
connection with an assumption agreement which has been delivered to
the Purchaser; and any such release is reflected on the Mortgage
Loan Schedule;
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(n)
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The Mortgage
File contains each of the documents and instruments specified to be
included therein duly executed and in due and proper form, and each
such document or instrument is in form acceptable to Fannie Mae or
Freddie Mac, and each Mortgage Note, Mortgage, and appraisal are on
forms acceptable to Fannie Mae or Freddie Mac;
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(o)
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The Mortgage
Note and the related Mortgage are genuine, and each is the legal,
valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors'
rights and by general principles of equity. All parties to the
Mortgage Note and the Mort-gage had legal capacity to execute the
Mortgage Note and the Mortgage, and each Mortgage Note and Mortgage
have been duly and properly executed by such parties;
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(p)
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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, predatory and abusive
lending, equal credit opportunity or disclo-sure laws applicable to
the originating or servicing of the Mortgage Loans have been
complied with and the consummation of the transactions contemplated
hereby will not involve the violation of any such laws;
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(q)
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The proceeds of
the Mortgage Loan have been fully disbursed to or for the account
of the Mortgagor, there is no requirement for future advances
thereunder and any and all requirements as to comple-tion of any
on-site or off-site improvements and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing Mortgage Loans 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;
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(r)
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Any future
advances made prior to the Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the
secured princi-pal amount, as consolidated, bears a single interest
rate and single repayment term reflected on the Mort-gage Loan
Schedule. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring
the Mortgagee's consolidated interest or by other title evidence
acceptable to Fannie Mae or Freddie Mac. The consolidated principal
amount does not exceed the original principal amount of the
Mortgage Loan;
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(s)
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All
improvements upon the Mortgaged Property are insured by a Qualified
Insurer against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged
Property is located, pursuant to insurance policies conforming to
the requirements of Section 10.15 hereof. All individual insurance
policies (collectively, the "hazard insurance policy") are in full
force and effect and are the valid and binding obligation of the
insurer and contain a standard mortgagee clause naming Seller, its
successors and assigns, as mortgagee. All premiums thereon have
been paid. If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been
made available) Seller will cause to be maintained a flood
insurance policy meeting the requirements of the current
guide-lines of the Federal Insurance Administration with an
insurance carrier acceptable to Fannie Mae and Freddie Mac, in an
amount representing coverage not less than the least of (i) the
out-standing principal balance of the Mortgage Loan, (ii) the full
insurable value of the Mortgaged Property, or (iii) the maximum
amount of insurance available under the Flood Disaster Protection
Act of 1973, as amended. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost
and expense, and upon the Mortgagor's failure to do so, authorizes
the holder of the Mortgage to obtain and maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor
from the Mortgagor;
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(t)
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There is no
default, breach, violation or event of acceleration existing under
the Mortgage or the related Mortgage Note and, to Seller's
knowledge, 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, viola-tion or event of acceleration; and Seller
has not waived any default, breach, violation or event of
acceleration;
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(u)
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The Mortgage
Note and the Mortgage are 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, or subject to any right of
rescission, set-off, counter-claim or defense, including the
defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto; and
unless otherwise disclosed in the Commitment Letter, the Mortgagor
is not and was not at the time the Mortgage Loan was originated, a
debtor in any state or federal bankruptcy or insolvency
proceeding;
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(v)
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No Mortgage
Loan has an LTV greater than 100%. If a Mortgage Loan has an LTV
greater than 80%, the excess of the principal balance of the
Mortgage Loan over 75% of the Appraised Value, with respect to a
Refinanced Mortgage Loan, or the lesser of the Appraised Value or
the purchase price of the Mortgaged Property, with respect to a
purchase money Mortgage Loan, is insured as to payment defaults by
a Primary Mortgage Insurance Policy issued by a Qualified Insurer.
All provisions of such Primary Mortgage Insurance Policy have been
and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. 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 Primary Mortgage Insurance
Policy obligates the Mortgagor thereunder to maintain the Primary
Mortgage Insurance Policy and to pay all premiums and charges in
connection therewith until such time as applicable law allows the
termination of such insurance. The mortgage interest rate for the
Mortgage Loan as set forth on the Mortgage Loan Schedule is net of
any such insurance premium;
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(w)
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The Mortgage
Note is not secured by any collateral, pledged account or other
security except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or chattel
mortgage referred to in Section 6.01(c);
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(x)
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The Mortgage
and related Mortgage Note contain customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property
of the benefits of the security 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, subject only to
rights of redemption, seizure and other laws that would not
materially interfere with the ultimate realization of the benefits
of the security. The Mortgagor has not notified the Seller and the
Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act;
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(y)
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No fraud,
error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of Seller or the Mortgagor or, to the best of Seller’s
knowledge, any other party involved in the origination of the
Mortgage Loan;
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(z)
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As to Mortgage
Loans that are not Co-op Loans, the Mortgaged Property is located
in the state identified in the 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 single parcel of real property with a
cooperative housing corporation erected thereon, or a mobile home.
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. If the Mortgaged Property is a condominium unit or a
planned unit development (other than a de minimis planned unit
development), or stock in a cooperative housing corporation, such
condominium, cooperative or planned unit development project meets
the
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Seller’s eligibility requirements as set
forth in the Underwriting Standards or as may otherwise be set
forth and agreed to in the related Commitment Letter;
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(aa)
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There exist no
deficiencies with respect to escrow deposits and payments, if such
are required, for which customary arrangements for repayment
thereof have not been made, and, to Seller's knowledge, no escrow
deposits or payments of other charges or payments due Seller have
been capital-ized under the Mortgage or the related Mortgage
Note;
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(bb)
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The
origination, collection and servicing practices used by Seller with
respect to the Mortgage Note and Mortgage have been in all respects
legal and customary in the mortgage servicing business;
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(cc)
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Each Mortgage
Loan that is not Co-op Loan is covered by an ALTA or CLTA mortgage
title insurance policy acceptable to Fannie Mae or Freddie Mac, or
such other generally acceptable form of policy or insurance, issued
by and the valid and binding obligation of a Qualified Insurer,
insuring Seller, its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of
the Mortgage Loan and against any loss by reason of the invalidity
or unenforceability of the lien resulting from the provisions of
the Mortgage. Such mortgage title insurance policy insures Seller,
its successors and assigns as mortgagee and the assignment to
Purchaser of Seller's interest in such mortgage title insurance
policy does not require the consent of or notification to the
insurer, such mortgage title insurance policy is in full force and
effect and will be in full force and effect and inure to the
benefit of Purchaser upon the consummation of the trans-actions
contemplated by this Agreement. No claims have been made under such
mortgage title insurance policy and, to Seller's knowledge, no
prior holder of the related Mortgage, including Seller, has done,
by act or omission, anything which would impair the coverage of
such mortgage title insurance policy;
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(dd)
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Except with
respect to Interest Only Mortgage Loans, principal payments on the
Mortgage Loan commenced no more than sixty (60) days after the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan
bears interest at the Mortgage Interest Rate. With respect to each
Mortgage Loan, the Mortgage Note has an original term of not more
than thirty (30) years and is payable on the first day of each
month; provided, however, in the case of a balloon Mortgage Loan,
the Mortgage Loan matures at least five (5) years after the first
payment date thereby requiring a final payment of the outstanding
principal balance prior to the full amortization of the Mortgage
Loan. Except with respect to Interest Only Mortgage Loans, the
Monthly Payments will fully amortize the Stated Principal Balance
of the Mortgage Loan over its remaining term at the Mortgage
Interest Rate. The Mortgage Note does not permit negative
amortization. The Monthly Payment on each Interest Only Mortgage
Loan during the related interest-only period is equal to the
product of the related Mortgage Interest Rate and the principal
balance of such Mortgage Loan on the first day of each month and
after such interest-only period, except with respect to Interest
Only Mortgage Loans that are Adjustable Rate Mortgage Loans, such
Mortgage Loan is payable in equal monthly installments of principal
and interest;
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(ee)
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No Mortgage
Loan is classified as a “high cost” mortgage loan under
the Home Ownership and Equity Protection Act of 1994, as amended,
nor is any Mortgage Loan a “high cost home,”
“covered,” “high risk home” or
“predatory” loan under any applicable state, federal or
local law (or a similarly classified loan using different
terminology under an applicable law imposing heightened regulatory
scrutiny or additional legal liability for residential mortgage
loans having high interest rates, points and/or fees);
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(ff)
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Each Mortgage
Loan is a “qualified mortgage” within Section
860G(a)(3) of the Code;
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(gg)
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With respect to
each Mortgage Loan for which the Underwriting Standards require an
appraisal to be performed in connection with the origination
thereof, the Mortgage File contains an appraisal of the related
Mortgaged Property made and signed, prior to the approval of the
Mortgage Loan application, by a Qualified Appraiser;
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(hh)
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If the Mortgage
constitutes a deed of trust, a trustee, authorized and duly
qualified if required under applicable law to act as such, has been
properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses, except as may be required by
local law, are or will become payable by the Purchaser to the
trustee under the deed of trust, except in connection with a
trustee’s sale or attempted sale after default by the
Mortgagor;
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(ii)
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No Mortgage
Loan contains “graduated payment,” “shared
appreciation” or other contingent interest features; to the
extent any Mortgage Loan (as identified on the Mortgage Loan
Schedule) contains any buydown provision, such buydown funds have
been maintained and administered in accordance with, and such
Mortgage Loan otherwise complies with, Fannie Mae and Freddie Mac
requirements relating to buydown loans;
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(jj)
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The Mortgagor
has received all disclosure materials required by applicable law
with respect to the making of such mortgage loans;
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(kk)
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No Mortgage
Loan was made for the purpose of (a) the construction or
rehabilitation of a Mortgaged Property or (b) facilitating the
trade-in or exchange of a Mortgaged Property;
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(ll)
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All information
supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that is or
will be inaccurate or misleading in any material
respect;
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(mm)
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The Assignment
of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property
is located;
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(nn)
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With respect to
each Mortgage Loan that contains a Prepayment Penalty, such
Prepayment Penalty is enforceable and will be enforced by Seller,
and such Prepayment Penalty is permitted pursuant to federal, state
and local law. No Mortgage Loan originated on or after October 1,
2002 imposes a Prepayment Penalty for a term in excess of three
years, and no Mortgage Loan originated prior to October 1, 2002
imposes a Prepayment Penalty in excess of five years; Except as
otherwise set forth on the Mortgage Loan Schedule, with respect to
each Mortgage Loan that contains a Prepayment Penalty, such
Prepayment Penalty is at least equal to the lesser of (A) the
maximum amount permitted under applicable law and (B) six months
interest at the related Mortgage Interest Rate on the amount
prepaid in excess of 20% of the original principal balance of such
Mortgage Loan;
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(oo)
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Any principal
advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears
a single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy,
an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to
Fannie Mae and Freddie Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage
Loan;
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(pp)
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No Mortgagor
was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension
of credit. No Mortgagor obtained a prepaid single premium credit
life, disability, accident or health insurance policy or debt
cancellation agreement as a condition of obtaining the extension of
credit or in connection the with the origination of the Mortgage
Loan. No proceeds from any Mortgage Loan were used to purchase
single premium credit insurance policies as part of the origination
of, or as a condition to closing, such Mortgage Loan;
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(qq)
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Each Mortgage
Loan has been serviced in all material respects in compliance with
Customary Servicing Procedures;
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(rr)
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With respect to
each Co-op Loan, the related Mortgage is a valid, enforceable and
subsisting first security interest on the related cooperative
shares securing the related cooperative note, subject only to (a)
liens of the cooperative for unpaid assessments representing the
Mortgagor’s pro rata share of the cooperative’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 intended to
be provided by the Security Agreement. There are no liens against
or security interest in the cooperative shares relating to each
Co-op Loan (except for unpaid maintenance, assessments and other
amounts owed to the related cooperative which individually or in
the aggregate will not have a material adverse effect on such Co-op
Loan), which have priority over Seller’s security interest in
such cooperative shares;
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(ss)
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With respect to
each Co-op Loan, a search for filings of financing statements has
been made by a company competent to make the same, which company is
acceptable to Fannie Mae and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search
has not found anything which would materially and adversely affect
the Co-op Loan;
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(tt)
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With respect to
each Co-op Loan, the related cooperative corporation that owns
title to the related cooperative apartment building is a
“cooperative housing corporation” within the meaning of
Section 216 of the Code, and is in material compliance with
applicable federal, state and local laws which, if not complied
with, could have a material adverse effect on the Mortgaged
Property;
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(uu)
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With respect to
each Co-op Loan, there is no prohibition against pledging the
shares of the cooperative corporation or assigning the Co-op
Lease;
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(vv)
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The Mortgage
Loan was originated by a Mortgagee approved by the Secretary of HUD
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 similar institution which is
supervised and examined by a federal or state authority;
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(ww)
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With respect to
any ground lease to which a Mortgaged Property may be subject: (i)
a true, correct and complete copy of the ground lease and all
amendments, modifications and supplements thereto is included in
the Mortgage File, and the Mortgagor is the owner of a valid and
subsisting leasehold interest under such ground lease; (ii) such
ground lease is in full force and effect, unmodified and not
supplemented by any writing or otherwise except as contained in the
Mortgage File; (iii) all rent, additional rent and other charges
reserved therein have been fully paid to the extent payable as of
the Closing Date; (iv) the Mortgagor enjoys the quiet and peaceful
possession of the leasehold estate, subject to any sublease; (v)
the Mortgagor is not in default under any of the terms of such
ground lease, and there are no circumstances which, with the
passage of time or the giving of notice, or both, would result in a
default under such ground lease; (vi) the lessor under such ground
lease is not in default under any of the terms or provisions of
such ground lease on the part of the lessor to be observed or
performed; (vii) the lessor under such ground lease has satisfied
any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; (viii) the execution,
delivery and performance of the Mortgage do not require the consent
(other than those consents which have been obtained and are in full
force and effect) under, and will not contravene any provision of
or cause a default under, such ground lease; (ix) the ground lease
term exceeds, or is automatically renewable, for at least five
years beyond the maturity date of the related Mortgage Loan; and
(x) the Purchaser has the right to cure defaults on the ground
lease;
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(xx)
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With respect to
any broker fees collected and paid on any of the Mortgage Loans,
all broker fees have been properly assessed to the borrower and no
claims will arise as to broker fees that are double charged and for
which the borrower would be entitled to reimbursement;
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(yy)
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With respect to
any Mortgage Loan as to which an affidavit has been delivered to
the Purchaser certifying that the original Mortgage Note has been
lost or destroyed and not been replaced, if such Mortgage Loan is
subsequently in default, the enforcement of such Mortgage Loan will
not be materially adversely affected by the absence of the original
Mortgage Note;
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(zz)
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There is no
pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or
regulation is an issue. There is no violation of any environmental
law, rule or regulation with respect to the Mortgaged Property; and
Seller has not received any notice of any environmental hazard on
the Mortgaged Property and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said
property;
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(aaa)
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With respect to
any Mortgage Loan which is a Texas Home Equity Loan, any and all
requirements of Section 50, Article XVI of the Texas Constitution
applicable to Texas Home Equity Loans which were in effect at the
time of the origination of the Mortgage Loan have been complied
with;
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(bbb)
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No Mortgage
Loan is secured by real property or secured by a manufactured home
located in the state of Georgia unless (x) such Mortgage Loan was
originated prior to October 1, 2002 or after March 6, 2003, or (y)
the property securing the Mortgage Loan is not, nor will be,
occupied by the Mortgagor as the Mortgagor’s principal
dwelling. No Mortgage Loan is a “High Cost Home Loan”
as defined in the Georgia Fair Lending Act, as amended (the
“Georgia Act”). Each Mortgage Loan that is a
“Home Loan” unde
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