Exhibit 99.7(b)
EXECUTION COPY
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FIRST AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND
WARRANTIES
AGREEMENT
-----------------------------
MORGAN STANLEY MORTGAGE CAPITAL INC.,
Purchaser
FIRST NATIONAL BANK OF NEVADA
Seller
-----------------------------
Dated as of October 1, 2005
Conventional,
Fixed and Adjustable Rate
Residential Mortgage Loans
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TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS......................................................1
SECTION 2. AGREEMENT
TO PURCHASE...........................................13
SECTION 3. MORTGAGE
SCHEDULES..............................................14
SECTION 4. PURCHASE
PRICE; PRINCIPAL PREPAYMENTS...........................14
SECTION 5. EXAMINATION
OF MORTGAGE FILES...................................15
SECTION 6. CONVEYANCE
FROM SELLER TO PURCHASER.............................16
SECTION 7. SERVICING
OF THE MORTGAGE LOANS.................................19
SECTION 8.
[RESERVED]......................................................19
SECTION 9.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR
BREACH...........................................19
SECTION 10.
CLOSING.........................................................39
SECTION 11. CLOSING
DOCUMENTS...............................................40
SECTION 12.
COSTS...........................................................41
SECTION 13. COOPERATION OF SELLER WITH A
RECONSTITUTION.....................41
SECTION 14. THE
SELLER......................................................43
SECTION 15. FINANCIAL
STATEMENTS............................................45
SECTION 16. MANDATORY DELIVERY; GRANT OF SECURITY
INTEREST..................45
SECTION 17.
NOTICES.........................................................45
SECTION 18. SEVERABILITY
CLAUSE.............................................47
SECTION 19.
COUNTERPARTS....................................................47
SECTION 20. INTENTION OF THE
PARTIES........................................47
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT........47
SECTION 22.
WAIVERS.........................................................48
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SECTION 23.
EXHIBITS........................................................48
SECTION 24. GENERAL INTERPRETIVE
PRINCIPLES.................................48
SECTION 25. REPRODUCTION OF
DOCUMENTS.......................................48
SECTION 26. FURTHER
AGREEMENTS..............................................49
SECTION 27. RECORDATION OF ASSIGNMENTS OF
MORTGAGE..........................49
SECTION 28. NO
SOLICITATION.................................................49
SECTION 29. WAIVER OF TRIAL BY
JURY.........................................50
SECTION 30. GOVERNING LAW JURISDICTION; CONSENT TO SERVICE OF
PROCESS.......50
SECTION 31.
AMENDMENT.......................................................50
SECTION 32.
CONFIDENTIALITY.................................................50
SECTION 33. AVAILABILITY OF
INFORMATION.....................................51
SECTION 34. ENTIRE
AGREEMENT................................................51
EXHIBITS
EXHIBIT A-1 MORTGAGE LOAN DOCUMENTS
EXHIBIT A-2 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B FORM
OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT C FORM
OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM
OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM
OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM
OF SECURITY RELEASE CERTIFICATION
EXHIBIT G
UNDERWRITING GUIDELINES
EXHIBIT H FORM
OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT I REPORT
PERIOD INFORMATION
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FIRST AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AND
WARRANTIES
AGREEMENT
This FIRST AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE
AND
WARRANTIES AGREEMENT ("Agreement"), dated as of October 1, 2005, by
and
between Morgan Stanley Mortgage Capital Inc., a New York
corporation (the
"Purchaser"), and FIRST NATIONAL BANK OF NEVADA, a national
banking
association (the "Seller").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Seller are parties to that
certain
Master Mortgage Loan Purchase and Warranties Agreement, dated as of
January
20, 2005 (the "Original Purchase Agreement") and the Seller desires
to sell,
from time to time, to the Purchaser, and the Purchaser desires to
purchase,
from time to time, from the Seller, certain conventional fixed and
adjustable
rate residential first-lien mortgage loans (the "Mortgage Loans")
on a
servicing released basis as described herein, and which shall be
delivered in
pools of whole loans (each, a "Mortgage Loan Package") on various
dates as
provided herein (each, a "Closing Date");
WHEREAS, at the present time, the Purchaser and the Seller
desire
to amend the Original Purchase Agreement to make certain
modifications as set
forth herein with respect to all Mortgage Loans acquired pursuant
to this
Agreement or the Original Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable
consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Purchaser
and the Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms
shall have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage
Loan,
those mortgage servicing practices which are in accordance with
accepted
mortgage servicing practices of prudent mortgage lending
institutions which
service mortgage loans of the same type as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjusted Purchase Price Percentage: With respect to any
Mortgage
Loan subject to repurchase in accordance with the terms of this
Agreement
during the first twelve months following the related Closing Date,
shall be
equal to the Purchase Price Percentage less the product of (i) the
excess, if
any, of the Purchase Price Percentage of such Mortgage Loan over
par, and
(ii)(A) the number of calendar days completed from (but not
including) the
related Closing Date through the repurchase date of such Mortgage
Loan,
divided by (B) 365.
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Adjustable Rate Mortgage Loan: A Mortgage Loan purchased
pursuant
to this Agreement, the Mortgage Interest Rate of which is adjusted
from time
to time in accordance with the terms of the related Mortgage
Note.
Affiliate: With respect to any specified Person, any other
Person
controlling or controlled by or under common control with such
specified
Person. For the purposes of this definition, "control" when used
with respect
to any specified Person means the power to direct the management
and policies
of such Person, directly or indirectly, whether through the
ownership of
voting securities, by contract or otherwise and the terms
"controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Fannie Mae Transfer or a Freddie Mac
Transfer.
Agreement: This First Amended and Restated Master Mortgage Loan
Purchase and Warranties Agreement including all exhibits,
schedules, amendments
and supplements hereto.
ALTA: The American Land Title Association or any successor
thereto.
Appraised Value: With respect to any Mortgaged Property, the
lesser of (i) the value thereof as determined by an appraisal made
for the
originator of the Mortgage Loan at the time of origination of the
Mortgage
Loan by a Qualified Appraiser and (ii) the purchase price paid for
the related
Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage Loan,
such value
of the Mortgaged Property is based solely upon the value determined
by an
appraisal made for the originator of such Refinanced Mortgage Loan
at the time
of origination of such Refinanced Mortgage Loan by a Qualified
Appraiser.
Assignment and Conveyance Agreement: As defined in Subsection
6.01.
Assignment of Mortgage: An individual assignment of the
Mortgage,
notice of transfer or equivalent instrument in recordable form and
in blank,
sufficient under the laws of the jurisdiction in which the related
Mortgaged
Property is located to give record notice of the sale of the
Mortgage to the
Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan which by its original
terms or any modifications thereof provides for amortization beyond
its
scheduled maturity date.
Business Day: Any day other than (i) a Saturday or Sunday, (ii)
a
day on which banking and savings and loan institutions, in the
State of New
York or the State in which the Interim Servicer's servicing
operations are
located or (iii) the state in which the Custodian's operations are
located,
are authorized or obligated by law or executive order to be
closed.
Cash-Out Refinance: A Refinanced Mortgage Loan in which the
proceeds received were in excess of the amount of funds required to
repay the
principal balance of any existing first mortgage on the related
Mortgaged
Property, pay related closing costs and satisfy any outstanding
subordinate
mortgages on the related Mortgaged Property and which provided
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incidental cash to the related Mortgagor of more than 1% of the
original
principal balance of such Mortgage Loan.
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, the
Mortgage Loans listed on the related Mortgage Loan Schedule with
respect to
the related Mortgage Loan Package.
Closing Documents: The documents required to be delivered on
each
Closing Date pursuant to Section 11.
CLTA: The California Land Title Association.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Commission: The United States Securities and Exchange
Commission.
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 a
Mortgagor in accordance with the terms of the related Mortgage Loan
Documents.
Co-op: A private, cooperative housing corporation, having only
one
class of stock outstanding, which owns or leases land and all or
part of a
building or buildings, including apartments, spaces used for
commercial
purposes and common areas therein and whose board of directors
authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with
respect
to a dwelling unit occupied by the Mortgagor and relating to the
stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing
corporation
and a collateral assignment of the related Co-op Lease.
Custodial Account: The separate trust account created and
maintained pursuant to Subsection 2.04 of the Interim Servicing
Agreement
(with respect to each Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention
of
the originals of each Mortgage Note, Mortgage, Assignment of
Mortgage and
other Mortgage Loan Documents. If more than one Custodial Agreement
is in
effect at any given time, all of the individual Custodial
Agreements shall
collectively be referred to as the "Custodial Agreement."
Custodian: Deutsche Bank Trust Company Americas, a New York
banking corporation, and its successors in interest, or any
successor to the
Custodian under the Custodial Agreement as therein provided.
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Cut-off Date: The date or dates designated as such on the
related
Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Determination Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim
period, as
specified therein).
Due Date: The day of the month on which the Monthly Payment is
due
on a Mortgage Loan, which is the first day of the month.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer
rents,
municipal charges, mortgage insurance premiums, fire and hazard
insurance
premiums, condominium charges, and any other payments required to
be escrowed
by the Mortgagor with the Mortgagee pursuant to the Mortgage or any
other
document.
Fannie Mae: The Federal National Mortgage Association, or any
successor thereto.
Fannie Mae Guides: The Fannie Mae Sellers' Guide and the Fannie
Mae
Servicers' Guide, as amended or restated from time to time.
Fannie Mae Transfer: As defined in Section 13.
FHA: The Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any
successor
thereto and including the Federal Housing Commissioner and the
Secretary of
Housing and Urban Development where appropriate under the FHA
Regulations.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended and in effect from time to
time.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Freddie Mac Transfer: As defined in Section 13.
Gross Margin: With respect to each Adjustable Rate Mortgage
Loan,
the fixed percentage amount set forth in the related Mortgage Note
which
amount is added to the Index in accordance with the terms of the
related
Mortgage Note to determine on each Interest Rate Adjustment Date
the Mortgage
Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home
Ownership
and Equity Protection Act of 1994, or (b) classified as a "high
cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that
term was defined in clause (1) of the definition of that term in
the New
Jersey Home Ownership Security Act of 2002 that were
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originated between November 26,2003 and July 7, 2004), "high risk
home,"
"predatory" or similar loan under any other applicable state,
federal or local
law (or a similarly classified loan using different terminology
under a law
imposing heightened regulatory scrutiny or additional legal
liability for
residential mortgage loans having high interest rates, points
and/or fees).
HUD: The Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time
succeed to the
functions thereof with regard to Mortgage Insurance issued by the
FHA. The
term "HUD," for purposes of this Agreement, is also deemed to
include
subdivisions thereof such as the FHA and Government National
Mortgage
Association.
Index: The index indicated in the related Mortgage Note for
each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan,
proceeds
of insurance policies insuring the Mortgage Loan or the related
Mortgaged
Property.
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date, specified in the related Mortgage
Note and the
related Mortgage Loan Schedule, on which the Mortgage Interest Rate
is
adjusted.
Interim Funder: With respect to each MERS Designated Mortgage
Loan, the Person named on the MERS System as the interim funder
pursuant to
the MERS Procedures Manual.
Interim Servicer: The servicer under the Interim Servicing
Agreement, or its successor in interest, or any successor to the
Interim
Servicer under the Interim Servicing Agreement, as therein
provided.
Interim Servicing Agreement: The agreement to be entered into
by
the Purchaser and the Interim Servicer, providing for the Interim
Servicer to
service the Mortgage Loans as specified by the Interim Servicing
Agreement.
Investor: With respect to each MERS Designated Mortgage Loan,
the
Person named on the MERS System as the investor pursuant to the
MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related
to
an Adjustable Rate Mortgage Loan which provides for an absolute
maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate
during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed
the
Mortgage Interest Rate at the time of origination of such
Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the
related
Mortgage Loan Schedule.
Liquidation Proceeds: The proceeds received in connection with
the
liquidation of a defaulted Mortgage Loan, whether through the sale
or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale
or
otherwise or the sale of the related Mortgaged Property if the
Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, other
than amounts
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received following the acquisition of REO Property, Insurance
Proceeds and
Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, as of
any
date of determination, the ratio (expressed as a percentage) the
numerator of
which is the outstanding principal balance of the Mortgage Loan as
of the
related Cut-off Date (unless otherwise indicated), and the
denominator of
which is the lesser of (a) the Appraised Value of the Mortgaged
Property at
origination and (b) if the Mortgage Loan was made to finance the
acquisition
of the related Mortgaged Property, the purchase price of the
Mortgaged
Property.
LTV: Loan-to-Value Ratio.
Manufactured Home: A
single family residential unit that is
constructed in a factory in sections in accordance with the
Federal
Manufactured Home Construction and Safety Standards adopted on June
15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as
amended in
2000, which preempts state and local building codes. Each unit is
identified
by the presence of a HUD Plate/Compliance Certificate label. The
sections are
then transported to the site and joined together and affixed to a
pre-built
permanent foundation (which satisfies the manufacturer's
requirements and all
state, county, and local building codes and regulations). The
manufactured
home is built on a non-removable, permanent frame chassis that
supports the
complete unit of walls, floors, and roof. The underneath part of
the home may
have running gear (wheels, axles, and brakes) that enable it to be
transported
to the permanent site. The wheels and hitch are removed prior to
anchoring the
unit to the permanent foundation. The manufactured home must be
classified as
real estate and taxed accordingly. The permanent foundation may be
on land
owned by the mortgager or may be on leased land.
MERS: Mortgage Electronic Registration Systems, Inc., a
Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or
will take
such action as is necessary to cause MERS to be, the mortgagee of
record, as
nominee for the Seller, in accordance with MERS Procedures Manual
and (b) the
Seller has designated or will designate the Purchaser as the
Investor on the
MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may
be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as
more
particularly described in the MERS Procedures Manual.
MIN: With respect to any MERS Designated Mortgage Loan, the
mortgage identification number (if any) assigned to such MERS
Designated
Mortgage Loan by MERS.
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Monthly Payment: With respect to any Mortgage Loan, the
scheduled
payment of principal and interest payable by a Mortgagor under the
related
Mortgage Note on each Due Date.
Mortgage: With respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a
Mortgage
Note, which creates a first lien on the Mortgaged Property. With
respect to a
Co-op Loan, the Security Agreement.
Mortgage File: With respect to any Mortgage Loan, the Mortgage
Loan Documents and the items listed in Exhibit A-2 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 Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment
as set
forth in the related Mortgage Note.
Mortgage Loan: Each mortgage loan sold, assigned and
transferred
pursuant to this Agreement and identified on the applicable
Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the
Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation
Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights and all
other
rights, benefits, proceeds and obligations arising from or in
connection with
such Mortgage Loan, excluding replaced or repurchased mortgage
loans.
Mortgage Loan Documents: With respect to any Mortgage Loan, the
documents required to be delivered to the Custodian pursuant to
Subsection
6.03.
Mortgage
Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on
each Closing
Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan
in the
related Mortgage Loan Package: (1) the Seller's Mortgage Loan
identifying
number; (2) the Mortgagor's name; (3) the social security number of
the
Mortgagor; (4) a code indicating whether the Mortgagor's race
and/or ethnicity
is (i) native American or Alaskan native, (ii) Asian/Pacific
islander, (iii)
African American, (iv) white, (v) Hispanic or Latino, (vi) other
minority,
(vii) not provided by the Mortgagor, (viii) not applicable (if the
Mortgagor
is an entity) and (ix) unknown or missing; (5) the street address
of the
Mortgaged Property including the city, state and zip code; (6) a
code
indicating whether the Mortgagor is self-employed; (7) a code
indicating
whether the Mortgaged Property is owner-occupied, investment
property or a
second home; (8) a code indicating the number and type of
residential units
constituting the Mortgaged Property (e.g., single family residence,
two-family
residence, three-family residence, four-family residence,
multifamily
residence, condominium, manufactured housing, mixed-use property,
raw land and
other non-residential properties, planned unit development or
cooperative
stock in a cooperative housing corporation); (9) the original
months to
maturity or the remaining months to maturity from the related
Cut-off Date, in
any case based on the original amortization schedule and, if
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different, the maturity expressed in the same manner but based on
the actual
amortization schedule; (10) the Loan-to-Value Ratio at origination;
(11) the
Mortgage Interest Rate as of the related Cut-off Date; (12) the
date on which
the first Monthly Payment was due on the Mortgage Loan and, if such
date is
not consistent with the Due Date currently in effect, the Due Date;
(13) the
stated maturity date; (14) the amount of the Monthly Payment as of
the related
Cut-off Date; (15) whether the Mortgage Loan has Monthly Payments
that are
interest-only for a period of time; (16) the last payment date on
which a
payment was actually applied to the outstanding principal balance;
(17) the
schedule of the payment delinquencies in the prior 12 months; (18)
[reserved];
(19) the original principal amount of the Mortgage Loan; (20) the
principal
balance of the Mortgage Loan as of the close of business on the
related
Cut-off Date, after deduction of payments of principal due and
collected on or
before the related Cut-off Date; (21) with respect to each Mortgage
Loan with
a second lien behind it, the combined principal balance of the
Mortgage Loan
and the applicable second lien loan, at origination, (22) a code
indicating
whether there is a simultaneous second; (23) with respect to
Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (24) with
respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (25) with respect
to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the
terms of the
Mortgage Note; (26) with respect to Adjustable Rate Mortgage Loans,
a code
indicating the type of Index, including the methodology for
rounding (e.g.,
rounded upward, if necessary, to the nearest ten thousandth
(.0001)) and the
applicable time frame for determining the Index; (27) the type of
Mortgage
Loan (i.e., Fixed Rate, Adjustable Rate); (28) a code indicating
the purpose
of the loan (i.e., purchase, Rate/Term Refinance or Cash-Out
Refinance); (29)
a code indicating the documentation style (i.e., no documents,
full,
alternative, reduced, no income/no asset, stated income, no ration,
reduced or
NIV); (30) asset verification (Y/N); (31) the loan credit
classification (as
described in the Underwriting Guidelines); (32) whether such
Mortgage Loan
provides for a Prepayment Penalty; (33) the Prepayment Penalty
period of such
Mortgage Loan, if applicable; (34) a description of the Prepayment
Penalty, if
applicable; (35) the Mortgage Interest Rate as of origination; (36)
the credit
risk score (FICO score); (37) the date of origination; (38) with
respect to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate
adjustment period;
(39) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest
Rate adjustment percentage; (40) with respect to Adjustable Rate
Mortgage
Loans, the Mortgage Interest Rate floor; (41) the Mortgage Interest
Rate
calculation method (i.e., 30/360, simple interest, other); (42)
with respect
to Adjustable Rate Mortgage Loans, the Periodic Rate Cap as of the
first
Interest Rate Adjustment Date; (43) with respect to each Adjustable
Rate
Mortgage Loan, a code indicating whether the Mortgage Loan provides
for
negative amortization; (44) a code indicating whether the Mortgage
Loan has
negative amortization and the maximum of such negative
amortization; (45) a
code indicating whether the Mortgage Loan is a Balloon Mortgage
Loan; (46) a
code indicating whether the Mortgage Loan by its original terms or
any
modifications thereof provides for amortization beyond its
scheduled maturity
date; (47) the original Monthly Payment due; (48) the Appraised
Value; (49)
appraisal type; (50) appraisal date; (51) a code indicating whether
the
Mortgage Loan is covered by a PMI Policy and, if so, identifying
the PMI
Policy provider; (54) the certificate number of the PMI Policy, if
applicable;
(52) the amount of coverage of the PMI Policy, if applicable; (53)
in
connection with a condominium unit, a code indicating whether the
condominium
project where such unit is located is low-rise or high-rise; (54) a
code
indicating whether the Mortgaged Property is a leasehold estate;
(55) with
respect to the related Mortgagor, the debt-to-income ratio; (56)
sales price;
(57) automated valuation model (AVM);
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(58) a code indicating whether the Mortgage Loan is a MERS
Designated Mortgage
Loan and the MERS Identification Number, if applicable; and (59)
the DU or LP
number, if applicable. With respect to the Mortgage Loans in the
aggregate,
the related Mortgage Loan Schedule shall set forth the following
information,
as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; (4)
the
weighted average maturity of the Mortgage Loans; (5) the average
principal
balance of the Mortgage Loans; (6) the applicable Cut-off Date; and
(7) the
applicable Closing Date.
Mortgage Note: The original executed note or other evidence of
the
Mortgage Loan indebtedness of a Mortgagor, including any riders or
addenda
thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not
a
Co-op Loan, the Mortgagor's real property securing repayment of a
related
Mortgage Note, consisting of an unsubordinated estate in fee simple
or, with
respect to real property located in jurisdictions in which the use
of
leasehold estates for residential properties is a widely-accepted
practice, a
leasehold estate, in a single parcel or multiple parcels of real
property
improved by a Residential Dwelling. With respect to a Co-op Loan,
the stock
allocated to a dwelling unit in the residential cooperative
housing
corporation that was pledged to secure such Co-op Loan and the
related Co-op
Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage
and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of
the
Mortgaged Property and the grantor or mortgagor named in the
Mortgage and such
grantor's or mortgagor's successors in title to the Mortgaged
Property.
Officer's Certificate: A certificate signed by the Chairman of
the
Board or the Vice Chairman of the Board or a President or a Vice
President and
by the Treasurer or the Secretary or one of the Assistant
Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser
as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Seller, reasonably acceptable to the Purchaser,
provided that
any Opinion of Counsel relating to (a) the qualification of any
account
required to be maintained pursuant to the Interim Servicing
Agreement as an
Eligible Account (as defined in the Interim Servicing Agreement),
(b)
qualification of the Mortgage Loans in a REMIC or (c) compliance
with the
REMIC Provisions, must be (unless otherwise stated in such Opinion
of Counsel)
an opinion of counsel who (i) is in fact independent of the Seller
and any
servicer of the Mortgage Loans, (ii) does not have any material
direct or
indirect financial interest in the Seller or any servicer of the
Mortgage
Loans or in an Affiliate of either and (iii) is not connected with
the Seller
or any servicer of the Mortgage Loans as an officer, employee,
director or
person performing similar functions.
Periodic Rate Cap: With respect to each Adjustable Rate
Mortgage
Loan, the provision of each Mortgage Note which provides for an
absolute
maximum amount by which the Mortgage Interest Rate therein may
increase or
decrease on an Interest Rate Adjustment Date
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above or below the Mortgage Interest Rate previously in effect. The
Periodic
Rate Cap for each Adjustable Rate Mortgage Loan is the rate set
forth as such
on the related Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate
Mortgage
Loan, the provision of each Mortgage Note which provides for an
absolute
maximum amount by which the Mortgage Interest Rate therein may
decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate
previously in
effect.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust,
unincorporated organization, government or any agency or political
subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance
issued
by an insurer acceptable under the Underwriting Guidelines and
qualified to do
business in the jurisdiction where the Mortgaged Property is
located.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the
amount
of any premium or penalty required to be paid by the Mortgagor if
the
Mortgagor prepays such Mortgage Loan as provided in the related
Mortgage Note
or Mortgage.
Principal Prepayment: Any payment or other recovery of
principal
on a Mortgage Loan which is received in advance of its scheduled
Due Date,
including any Prepayment Penalty thereon, and which is not
accompanied by an
amount of interest representing scheduled interest due on any date
or dates in
any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by
the
Purchaser to the Seller in exchange for the Mortgage Loans
purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: That certain agreement
setting
forth the general terms and conditions of the purchase and sale of
the
Mortgage Loans to be purchased hereunder, between the Seller and
the
Purchaser.
Purchase Price Percentage: The percentage of par (expressed as
decimal) set forth in the related Purchase Price and Terms
Agreement.
Purchaser: Morgan Stanley Mortgage Capital Inc., a New York
corporation, and its successors in interest and assigns, or any
successor to the
Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the
Seller,
who had no interest, direct or indirect, in the Mortgaged Property
or in any
loan made on the security thereof, and whose compensation was not
affected by
the approval or disapproval of the Mortgage Loan, and such
appraiser and the
appraisal made by such appraiser both satisfied the requirements
of
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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 authorized and
licensed where required by law to issue insurance approved as an
insurer by
Fannie Mae and Freddie Mac.
Rate/Term Refinance: A Refinanced Mortgage Loan, in which the
proceeds received were not in excess of the amount of funds
required to repay
the principal balance of any existing first mortgage loan on the
related
Mortgaged Property, pay related closing costs and satisfy any
outstanding
subordinate mortgages on the related Mortgaged Property and did not
provide
incidental cash to the related Mortgagor of more than one percent
(1%) of the
original principal balance of such Mortgage Loan.
Reconstitution: A Whole Loan Transfer or a Securitization
Transfer.
Reconstitution Agreements: The agreement or agreements entered
into by the Seller and the Purchaser and/or certain third parties
on the
Reconstitution Date or Dates with respect to any or all of the
Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency
Transfer or a
Securitization Transfer pursuant to Section 13, including, but not
limited to,
a seller's warranties and servicing agreement with respect to a
Whole Loan
Transfer, and a pooling and servicing agreement and/or
seller/servicer
agreements and related custodial/trust agreement and documents with
respect to
a Securitization Transfer.
Reconstitution Date: As defined in Section 13.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which
were
not used to purchase the related Mortgaged Property.
Regulation AB: As defined in Section 13.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of
Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions and
regulations,
rulings or pronouncements promulgated thereunder, as the foregoing
may be in
effect from time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified
therein).
REO Property: A Mortgaged Property acquired by the Interim
Servicer through foreclosure or deed in lieu of foreclosure.
Report Period: The period beginning with the final Business Day
of
the calendar month preceding the current calendar month, and ending
on the
final Business Day of the current calendar month.
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Repurchase Price: With respect to any Mortgage Loan, a price
equal
to (A) during the first twelve months following the related Closing
Date (i)
the Adjusted Purchase Price Percentage multiplied by the Stated
Principal
Balance of the Mortgage Loan so repurchased plus (ii) all accrued
and unpaid
interest thereon to the day of the month that such repurchase
occurs (but not
more than 150 days of accrued and unpaid interest), and (B)
thereafter, (i)
the Stated Principal Balance of the Mortgage Loan so repurchased,
plus (ii)
all accrued and unpaid interest thereon to the day of the month
such
repurchase occurs (but not more than 150 days of accrued and unpaid
interest),
plus in the case of either clause (A) or (B) above, any costs and
damages
(including costs and expenses incurred in the enforcement of the
terms of this
Agreement) incurred by the related trust with respect to any
securitization of
the Mortgage Loan in connection with any violation by such Mortgage
Loan prior
to the time of such repurchase of any predatory or abusive lending
law
actually incurred and paid out of or on behalf of the related trust
fund, and
that directly resulted from such violation.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling,
(iii) a
one-family dwelling unit in a condominium project or (iv) a
one-family
dwelling in a planned unit development, none of which is a
co-operative,
mobile or Manufactured Home.
RESPA: Real Estate Settlement Procedures Act, as amended from
time
to time.
Securities Act: The federal Securities Act of 1933, as amended.
Securities Exchange Act: The federal Securities Exchange Act of
1934, as amended.
Securitization Transfer: The sale or transfer of some or all of
the Mortgage Loans to a trust or other entity as part of a
publicly-offered or
privately-placed, rated or unrated mortgage pass-through or
other
mortgage-backed securities transaction.
Security Agreement: The agreement creating a security interest
in
the stock allocated to a dwelling unit in the residential
cooperative housing
corporation that was pledged to secure such Co-op Loan and the
related Co-op
Lease.
Seller: As defined in the initial paragraph of the Agreement,
together with its successors in interest.
Servicing Fee: With respect to each Mortgage Loan subject to
the
Interim Servicing Agreement, a fee payable monthly equal to twelve
dollars
($12) per Mortgage Loan for the first sixty (60) days after the
related
Closing Date. In the event the Purchaser requires the Seller to
service the
Mortgage Loans beyond such sixty (60) day period, the Purchaser
shall pay the
Seller fifteen dollars ($15) per Mortgage Loan for each subsequent
sixty (60)
day period; provided, however, that such interim servicing fee
shall be paid
monthly, in arrears, and for any partial month, such interim
servicing fee
shall be prorated on a per diem basis.
Servicing File: With respect to each Mortgage Loan, the
file retained by the Interim Servicer consisting of originals of
all documents
in the Mortgage File which are not
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delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan
Documents set forth in Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies
received
by the Seller for servicing the Mortgage Loans; (c) any late fees,
penalties
or similar payments with respect to the Mortgage Loans; (d) all
agreements or
documents creating, defining or evidencing any such servicing
rights to the
extent they relate to such servicing rights and all rights of the
Seller
thereunder; (e) Escrow Payments or other similar payments with
respect to the
Mortgage Loans and any amounts actually collected by the Seller
with respect
thereto; (f) all accounts and other rights to payment related to
any of the
property described in this paragraph; and (g) any and all
documents, files,
records, servicing files, servicing documents, servicing records,
data tapes,
computer records, or other information pertaining to the Mortgage
Loans or
pertaining to the past, present or prospective servicing of the
Mortgage
Loans.
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 on any date
of
determination, (i) the principal balance of such Mortgage Loan at
the related
Cut-off Date after giving effect to payments of principal due on or
before
such date, to the extent actually received, minus (ii) all amounts
previously
distributed to the Purchaser with respect to the related Mortgage
Loan
representing payments or recoveries of principal on such Mortgage
Loan.
Static Pool Information: As defined in Section 13.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of
the
indemnifications set forth in Subsections 9.03 and 14.01.
Transfer Date: In the event the Interim Servicer is terminated
as
servicer of a Mortgage Loan pursuant to the Interim Servicing
Agreement, the
date on which the Purchaser, or its designee, shall receive the
transfer of
servicing responsibilities and begin to perform the servicing of
such Mortgage
Loans, and the Interim Servicer shall cease all servicing
responsibilities.
Underwriting Guidelines: The underwriting guidelines of the
Seller, a copy of which is attached hereto as Exhibit G and a
then-current
copy of which is attached as an exhibit to the related Assignment
and
Conveyance.
Whole Loan Transfer: The sale or transfer by Purchaser of some
or
all of the Mortgage Loans in a whole loan or participation format
pursuant to
a Reconstitution Agreement.
SECTION 2. Agreement to Purchase.
The Seller agrees to sell from time to time, and the Purchaser
agrees to purchase from time to time, Mortgage Loans having an
aggregate
actual unpaid principal balance on the related Cut-off Date in an
amount as
set forth in the related Purchase Price and Terms
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<PAGE>
Agreement, or in such other amount as agreed by the Purchaser and
the Seller
as evidenced by the actual aggregate unpaid principal balance of
the Mortgage
Loans accepted by the Purchaser on each Closing Date, together with
the
related Mortgage Files and all rights and obligations arising under
the
documents contained therein.
SECTION 3. Mortgage Schedules.
The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the
Mortgage Loans
to be purchased on each Closing Date in accordance with the related
Purchase
Price and Terms Agreement and this Agreement (each, a "Preliminary
Mortgage
Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans to be purchased on a particular Closing Date to
the
Purchaser at least five (5) Business Days prior to the related
Closing Date.
The related Mortgage Loan Schedule shall be the related Preliminary
Mortgage
Schedule with those Mortgage Loans which have not been funded prior
to the
related Closing Date deleted.
SECTION 4. Purchase Price; Principal Prepayments.
Subsection 4.01 Purchase Price. The Purchase Price for the
Mortgage Loans and Servicing Rights listed on the related Mortgage
Loan
Schedule in a Mortgage Loan Package shall be the Purchase Price
Percentage,
multiplied by the aggregate actual unpaid principal balance as of
the related
Cut-off Date after application of scheduled payments of principal
due on or
before the related Cut-off Date, but only to the extent such
payments were
actually received. If so provided in the related Purchase Price and
Terms
Agreement, portions of the Mortgage Loans and/or the Servicing
Rights shall be
priced and paid for separately.
In addition to the Purchase Price as described above, the
Purchaser shall pay to the Seller, at closing, accrued interest
from the last
"interest paid to" date through the day immediately preceding the
related
Closing Date, inclusive, on the aggregate actual unpaid principal
amount of
the related Mortgage Loans as of the related Cut-off Date at the
weighted
average Mortgage Interest Rate of those Mortgage Loans. The
Purchase Price
plus accrued interest as set forth in the preceding paragraph shall
be paid to
the Seller by wire transfer of immediately available funds to an
account
designated by the Seller in writing.
The Purchaser shall
own and be entitled to receive with respect to
each Mortgage Loan purchased, (1) all recoveries of principal
collected after
the related Cut-off Date and (2) 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 related
Cut-off Date).
All payments of principal and interest, Prepayment Charges (other
than
Prepayment Charges retained by the Purchaser pursuant to Subsection
4.02
below) and premiums less the applicable Servicing Fee, due on a Due
Date
following the related Cut-off Date shall belong to the Purchaser.
All payments
of principal and interest, Prepayment Charges (other than
Prepayment Charges
retained by the Purchaser pursuant to Subsection 4.02 below) and
premiums less
the applicable Servicing Fee, due on a Due Date following the
related Cut-off
Date shall belong to the Purchaser.
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<PAGE>
Subsection 4.02 Near-term Principal Prepayments. In the event
any
Principal Prepayment is made by a Mortgagor on or prior to thirty
(30) days
(unless otherwise specified in the related Purchase Price and Terms
Agreement)
after the related Closing Date, the Seller shall remit to the
Purchaser an
amount, with respect to any Mortgage Loan, equal to the excess, if
any, of the
Purchase Price Percentage for such Mortgage Loan over par
multiplied by the
amount of such Principal Prepayment ("Premium Recapture Amount");
provided,
however, that such Premium Recapture Amount shall be subject to
reduction (the
maximum amount of such reduction limited to the Premium Recapture
Amount) to
the extent of any legally enforceable prepayment penalty received
by the
Purchaser in connection with such Mortgage Loan. Such remittance
shall be made
by the Seller to Purchaser no later than the fifth (5th) Business
Day
following receipt of notice of such Principal Prepayment by the
Seller. The
Seller shall be entitled to retain any Prepayment Charge collected
from the
Mortgagor in connection with a Principal Prepayment in full made
during such
thirty (30) day period (unless otherwise specified in the related
Purchase
Price and Terms Agreement) and any Prepayment Charges collected
from the
Mortgagor in connection with a Principal Prepayment in full after
such thirty
(30) day period shall be remitted to, or retained by, the
Purchaser. If demand
for payment of any amount described in this paragraph is not made
prior to
thirty (30) days after the date of any Principal Prepayment, the
Seller shall
have no obligation to pay the amount described in this
paragraph.
SECTION 5. Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing
Date,
the Seller shall either (a) deliver to the Purchaser or its
designee in
escrow, for examination with respect to each Mortgage Loan to be
purchased,
the related Mortgage File, including a copy of the Assignment of
Mortgage,
pertaining to each Mortgage Loan, or (b) make the related Mortgage
File
available to the Purchaser for examination at such other location
as shall
otherwise be acceptable to the Purchaser. Such examination of the
Mortgage
Files may be made by the Purchaser or its designee at any
reasonable time
before or after the related Closing Date. If the Purchaser makes
such
examination prior to the related Closing Date and determines, in
its sole
discretion, that any Mortgage Loans do not conform to any of the
requirements
set forth in the Purchase Price and Terms Agreement, or as an
Exhibit annexed
thereto, the Mortgage Loan may be rejected for purchase by the
Purchaser and
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
some or all of the Mortgage Loans without conducting any partial or
complete
examination. The fact that the Purchaser or its designee has
conducted or has
failed to conduct any partial or complete examination of the
Mortgage Files
shall not impair in any way the Purchaser's (or any of its
successor's) rights
to demand repurchase or other relief as provided in this Agreement.
In the
event that the Seller fails to deliver the Mortgage File with
respect to any
Mortgage Loan, the Seller shall, upon the request of the Purchaser,
repurchase
such Mortgage Loan at the price and in the manner specified in
Subsection
9.03.
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<PAGE>
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, simultaneously with the delivery of the Mortgage
Loan
Schedule with respect to the related Mortgage Loan Package to be
purchased on
each Closing Date, shall execute and deliver an Assignment and
Conveyance
Agreement in the form attached hereto as Exhibit H (the "Assignment
and
Conveyance Agreement"). The Seller shall ensure that the contents
of each
Servicing File, which required to be retained by or delivered to
the Interim
Servicer to service the Mortgage Loans pursuant to the Interim
Servicing
Agreement and thus not delivered to the Purchaser, or its designee,
are and
shall be held in trust by the Interim Servicer for the benefit of
the
Purchaser as the owner thereof. The Seller agrees that the Interim
Servicer's
possession of any portion of each such Mortgage File is at the will
of the
Purchaser for the sole purpose of facilitating servicing of the
Mortgage Loans
pursuant to this Agreement, and such retention and possession by
the Interim
Servicer shall be in a custodial capacity only. The ownership of
each Mortgage
Note, each Mortgage and the contents of each Mortgage File is
vested in the
Purchaser and the ownership of all records and documents with
respect to the
related Mortgage Loan prepared by or which come into the possession
of the
Interim Servicer shall immediately vest in the Purchaser and shall
be retained
and maintained, in trust, by the Interim Servicer at the will of
the Purchaser
in such custodial capacity only. The Seller shall cause the
Servicing File
retained by the Interim Servicer pursuant to this Agreement to
be
appropriately identified in the Seller's computer system and/or
books and
records, as appropriate, to clearly reflect the sale of the related
Mortgage
Loan to the Purchaser. The Seller shall cause the Interim Servicer
to release
from its custody the contents of any Servicing File retained by it
only in
accordance with this Agreement or the Interim Servicing Agreement,
except when
such release is required in connection with a repurchase of any
such Mortgage
Loan pursuant to Subsection 9.03 or if required under applicable
law or court
order.
Subsection 6.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note as
of
the related Closing Date shall be in the name of the Seller, an
Affiliate of
the Seller, the Purchaser or one or more designees of the
Purchaser, as the
Purchaser shall select; provided, however, that if a Mortgage has
been
recorded in the name of MERS or its designee, the Seller is shown
as the owner
of the related Mortgage Loan on the records of MERS for purposes of
the system
of recording transfers of beneficial ownership of mortgages
maintained by
MERS. Notwithstanding the foregoing, ownership of each Mortgage and
related
Mortgage Note shall be vested solely in the Purchaser or the
appropriate
designee of the Purchaser, as the case may be. All rights arising
out of the
Mortgage Loans including, but not limited to, all funds received by
the Seller
or the Interim Servicer after the related Cut-off Date on or in
connection
with a Mortgage Loan shall be vested in the Purchaser or one or
more designees
of the Purchaser; provided, however, that all funds received on or
in
connection with a Mortgage Loan shall be received and held by the
Seller or
the Interim Servicer in trust for the benefit of the Purchaser or
the
appropriate designee of the Purchaser, as the case may be, as the
owner of the
Mortgage Loans pursuant to the terms of this Agreement.
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The Seller shall be or shall cause the Interim Servicer to be
responsible for maintaining, and shall maintain, a complete set of
books and
records for each Mortgage Loan which shall be marked clearly to
reflect the
ownership of each Mortgage Loan by the Purchaser. In particular,
the Seller
shall or shall cause the Interim Servicer to maintain in its
possession,
available for inspection by the Purchaser, and shall deliver to the
Purchaser
upon demand, evidence of compliance with all federal, state and
local laws,
rules and regulations, and all requirements of the Seller,
including but not
limited to documentation as to the method used in determining
the
applicability of the provisions of the National Flood Insurance Act
of 1968,
as amended, to the Mortgaged Property, documentation evidencing
insurance
coverage and periodic inspection reports, as required by the
Seller. The
Seller or Interim Servicer shall retain such documents in the form
of imaged
copies on microfilm, microfiche or any other imaging or electronic
records
retention system so long as such system complies with all of the
Seller's or
Interim Servicer's requirements relating to the retention and
maintenance of
such documents. In the event the Purchaser is required to submit
information
regarding the location or status of the original of such document
for
evidentiary purposes in a legal proceeding, the Seller shall
cooperate with
all reasonable requests of the Purchaser to provide information
regarding
Seller's ordinary course of business practices with respect to such
imaged
copies of documents.
It is the express intention of the parties that the
transactions
contemplated by this Agreement and the related Purchase Price and
Terms
Agreement be, and be construed as, a sale of the Mortgage Loans,
and the
Servicing Rights by the Seller and not a pledge of the Mortgage
Loans or the
Servicing Rights by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller. Consequently, the sale of each Mortgage
Loan and the
Servicing Rights shall be reflected as a sale on the Seller's
business
records, tax returns and financial statements.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later
than two (2) Business Days prior to the related Closing Date those
Mortgage
Loan Documents set forth on Exhibit A-1 hereto as required by the
Custodial
Agreement with respect to each Mortgage Loan set forth on the
related Mortgage
Loan Schedule.
In connection with the foregoing, the Seller shall indemnify
the
Purchaser and its present and former directors, officers, employees
and agents
and any Successor Servicer and its present and former directors,
officers,
employees and agents, and hold such parties harmless against any
losses,
damages, penalties, fines, forfeitures, legal fees and expenses and
related
costs, judgments, and other costs and expenses based on or grounded
upon, or
resulting from, the fact that no Mortgage Loan is covered by an
ALTA or CLTA
lender's title insurance policy. For purposes of the previous
sentence,
"Purchaser" shall mean the Person then acting as the Purchaser
under this
Agreement and any and all Persons who previously were "Purchasers"
under this
Agreement and "Successor Servicer" shall mean any Person designated
as the
Successor Servicer pursuant to this Agreement and any and all
Persons who
previously were "Successor Servicers" pursuant to this
Agreement.
The Custodian shall certify its receipt of all such Mortgage
Loan
Documents required to be delivered pursuant to the Custodial
Agreement for the
related Closing Date, as
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<PAGE>
evidenced by the Initial Certification of the Custodian in the form
annexed to
the Custodial Agreement. The Purchaser shall pay all fees and
expenses of the
Custodian.
The Seller shall or shall cause the Interim Servicer to forward
to
the Custodian, or to such other Person as the Purchaser shall
designate in
writing, original documents evidencing an assumption,
modification,
consolidation or extension of any Mortgage Loan entered into in
accordance
with this Agreement within two weeks of their execution, provided,
however,
that the Seller shall provide the Custodian, or to such other
Person as the
Purchaser shall designate in writing, with a certified true copy of
any such
document submitted for recordation within two weeks of its
execution, and
shall promptly provide the original of any document submitted for
recordation
or a copy of such document certified by the appropriate public
recording
office to be a true and complete copy of the original within two
(2) weeks
following receipt of the original document by the Interim Servicer;
provided,
however, that such original recorded document or certified copy
thereof shall
be delivered to the Purchaser no later than 180 days following the
related
Closing Date, unless there has been a delay at the applicable
recording
office.
If the Seller cannot deliver the original recorded Mortgage
Loan
Documents on the related Closing Date, the Seller shall, promptly
upon receipt
thereof and in any case not later than 120 days from the related
Closing Date,
deliver such original documents, including original recorded
documents, to the
Purchaser (unless the Seller is delayed in making such delivery by
reason of
the fact that such documents shall not have been returned by the
appropriate
recording office). If delivery is not completed within 120 days of
the related
Closing Date, solely due to delays in making such delivery by
reason of the
fact that such documents shall not have been returned by the
appropriate
recording office, Seller shall deliver such document to Purchaser
within such
time period as specified in an Officer's Certificate or, if
delivery is not
made by the expiration of such time period, Seller shall use
commercially
reasonable efforts to cause delivery as soon as possible
thereafter. In any
case, if the Seller cannot deliver the original recorded Mortgage
Loan
Documents within 240 days of the related Closing Date, the related
Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by
the Seller at
the price and in the manner specified in Subsection 9.03.
For any Mortgage Loan which is not a MERS Mortgage Loan, the
Seller shall prepare the Assignments of Mortgage and, at time of
the related
closing date the Purchaser shall deduct $25 for each mortgage loan
as
recording fees in transferring all original documents to the
Purchaser.
Subsection 6.04 Quality Control Procedures.
The Seller shall, or shall cause the Interim Servicer to, have
an
internal quality control program that verifies, on a regular basis,
the
existence and accuracy of the legal documents, credit documents,
property
appraisals, and underwriting decisions. The program shall include
evaluating
and monitoring the overall quality of the Seller loan production
and the
servicing activities of the Interim Servicer. The program is to
ensure that
the Mortgage Loans are originated in accordance with the
Underwriting
Guidelines; guard against dishonest, fraudulent, or negligent acts;
and guard
against errors and omissions by officers, employees, or other
authorized
persons.
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Subsection 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the
Purchaser as the
Investor and the Custodian as custodian, and no Person shall be
listed as
Interim Funder on the MERS System. In addition, on or prior to the
related
Closing Date, Seller shall provide the Custodian and the Purchaser
with a MERS
Report listing the Purchaser as the Investor, the Custodian as
custodian and
no Person as Interim Funder with respect to each MERS Designated
Mortgage
Loan.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the
Purchaser
on a servicing released basis. Subject to and upon the terms and
conditions of
this Agreement and the Interim Servicing Agreement (with respect to
each
Mortgage Loan, for an interim period, as specified therein), the
Seller hereby
sells, transfers, assigns, conveys and delivers to the Purchaser
the Servicing
Rights.
The Purchaser shall retain the Interim Servicer as contract
servicer of the Mortgage Loans for an interim period pursuant to
and in
accordance with the terms and conditions contained in the Interim
Servicing
Agreement (with respect to each Mortgage Loan, for an interim
period, as
specified therein). The Seller shall cause the Interim Servicer to
execute the
Interim Servicing Agreement on the initial Closing Date.
The Seller shall cause the Interim Servicer to transfer the
servicing of the Mortgage Loans on each Transfer Date in accordance
with the
terms of the Interim Servicing Agreement.
SECTION 8. [RESERVED].
SECTION 9. Representations, Warranties and Covenants of the
Seller;
Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser
that as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a national
association duly organized, validly existing and in good standing
under the
laws of the United States of America and is and will remain in
compliance with
the laws of each state in which any Mortgaged Property is located
to the
extent necessary to ensure the enforceability of each Mortgage Loan
and the
servicing of the Mortgage Loan in accordance with the terms of this
Agreement.
The Seller has all licenses necessary to carry out its business as
now being
conducted, and is licensed and qualified to transact business in
and is in
good standing under the laws of each state in which any Mortgaged
Property is
located or is otherwise exempt under applicable law from such
licensing or
qualification or is otherwise not required under applicable law to
effect such
licensing or qualification, and in any event the Seller is in
compliance with
the laws of any such state to the extent necessary to ensure
the
enforceability of each Mortgage Loan and the sale of
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the Mortgage Loans and Servicing Rights in accordance with the
terms of this
Agreement and the related Purchase Price and Terms Agreement. No
licenses or
approvals obtained by the Seller have been suspended or revoked by
any court,
administrative agency, arbitrator or governmental body and no
proceedings are
pending which might result in such suspension or revocation. The
Seller has
the full power and authority and legal right to hold, transfer and
convey each
Mortgage Loan (including the Servicing Rights), to sell each
Mortgage Loan and
the Servicing Rights, and to execute, deliver and perform, and to
enter into
and consummate, all transactions contemplated by this Agreement and
the
related Purchase Price and Terms Agreement and to conduct its
business as
presently conducted. The Seller has duly authorized the execution,
delivery
and performance of this Agreement and any agreements contemplated
hereby, has
duly executed and delivered this Agreement, and any agreements
contemplated
hereby, and this Agreement and the related Purchase Price and Terms
Agreement,
assuming due authorization, execution and delivery by the
Purchaser, and each
Assignment of Mortgage and any agreements contemplated hereby,
constitutes a
legal, valid and binding obligation of the Seller, enforceable
against it in
accordance with its terms and all requisite corporate action has
been taken by
the Seller to make this Agreement and all agreements contemplated
hereby valid
and binding upon the Seller in accordance with their terms. The
Seller is
properly qualified to service the Mortgage Loans and has been
servicing the
Mortgage Loans prior to the related Cut-off Date;
(b)
No Consent Required. No consent, approval, authorization or order
of
any court or governmental agency or body or federal or state
regulatory
authority having jurisdiction over the Seller is required for the
execution,
delivery and performance by the Seller of, or compliance by the
Seller with,
this Agreement or the sale of the Mortgage Loans and Servicing
Rights and
delivery of the Mortgage Files to the Purchaser or the consummation
of the
transactions contemplated by this Agreement, except for such
consents,
approvals, authorizations or orders, if any, that have been
obtained prior to
the related Closing Date. The Seller is not in violation of, and
the execution
and delivery of this Agreement or the related Purchase Price and
Terms
Agreement by the Seller and its performance and compliance with the
terms of
this Agreement will not constitute a violation with respect to, any
order or
decree of any court or any order or regulation of any federal,
state,
municipal or governmental agency having jurisdiction over the
Seller or its
assets, which violation might have consequences that would
materially and
adversely affect the condition (financial or otherwise) or the
operation of
the Seller or its assets or might have consequences that would
materially and
adversely affect the performance of its obligations and duties
hereunder;
(c)
Ordinary Course of Business. The consummation of the
transactions
contemplated by this Agreement and the related Purchase Price and
Terms
Agreement are in the ordinary course of business of the Seller, and
the
transfer, assignment and conveyance of the Mortgage Notes, the
Mortgages
and/or the Servicing Rights by the Seller pursuant to this
Agreement are not
subject to the bulk transfer or any similar statutory provisions in
effect in
any applicable jurisdiction;
(d)
No Conflicts. Neither the execution and delivery of this Agreement
or
the related Purchase Price and Terms Agreement by the Seller, nor
the
origination or purchase of the Mortgage Loans by the Seller, the
sale of the
Mortgage Loans or the Servicing Rights to the Purchaser, the
consummation of
the transactions contemplated hereby, or the performance of or
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compliance with the terms and conditions of this Agreement or the
related
Purchase Price and Terms Agreement will conflict with any of the
terms,
conditions or provisions of the Seller's articles of incorporation
or by-laws,
or constitute a default under or result in a breach or acceleration
of, any
material contract, agreement or other instrument to which the
Seller is a
party or which may be applicable to the Seller or its assets, or
result in the
material violation of any law, rule, regulation, order, judgment or
decree to
which the Seller or its properties are subject, or impair the
ability of the
Purchaser to realize on the Mortgage Loans;
(e) No Litigation Pending. There are no actions, suits or
proceedings against, or, to Seller's knowledge, threatened
investigations of,
the Seller before any court, administrative or other tribunal
that,
individually or in the aggregate, (a) might prohibit its entering
into this
Agreement or the related Purchase Price and Terms Agreement, (b)
seeks to
prevent the sale of the Mortgage Loans, the sale of the Servicing
Rights or
the consummation of the transactions contemplated by this
Agreement, (c) might
prohibit or materially and adversely affect the performance by the
Seller of
its obligations under, or the validity or enforceability of, this
Agreement or
the Mortgage Loans or (d) is reasonably likely to have a material
adverse
effect on the financial condition of the Seller;
(f) Ability to Perform; Solvency. The Seller does not believe,
nor
does it have any reason or cause to believe, that it cannot perform
each and
every covenant contained in this Agreement or the related Purchase
Price and
Terms Agreement. The Seller is solvent and the sale of the Mortgage
Loans and
the Servicing Rights will not cause the Seller to become insolvent.
The sale
of the Mortgage Loans and Servicing Rights is not undertaken with
the intent
to hinder, delay or defraud any of the Seller's creditors;
(g) [Reserved];
(h) [Reserved];
(i) Financial Statements. The Seller has delivered to the
Purchaser financial statements as to its last two complete fiscal
years and
any later quarter ended more than 60 days prior to the execution of
this
Agreement. All such financial statements fairly present the
pertinent results
of operations and changes in financial position for each of such
periods and
the financial position at the end of each such period of the Seller
and its
subsidiaries and have been prepared in accordance with generally
accepted
accounting principles consistently applied throughout the periods
involved,
except as set forth in the notes thereto. In addition, the Seller
has
delivered information as to its loan gain and loss experience in
respect of
foreclosures and its loan delinquency experience for the
immediately preceding
three-year period, in each case with respect to mortgage loans
owned by it and
such mortgage loans serviced for others during such period, and all
such
information so delivered shall be true and correct in all material
respects.
There has been no change in the business, operations, financial
condition,
properties or assets of the Seller since the date of the Seller's
financial
statements that would have a material adverse effect on its ability
to perform
its obligations under this Agreement. The Seller has completed any
forms
requested by the Purchaser in a timely manner and in accordance
with the
provided instructions;
(j) [Reserved];
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(k) [Reserved];
(l) [Reserved];
(m) No Brokers. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to
any
commission or compensation in connection with the sale of the
Mortgage Loans
or the Servicing Rights;
(n) Sale Treatment. The Seller will treat the sale of the
Mortgage
Loans and the Servicing Rights to the Purchaser as a sale for
reporting and
accounting purposes and, to the extent appropriate, for federal
income tax
purposes;
(o) [Reserved];
(p) Reasonable Purchase Price. The consideration received by
the
Seller upon the sale of the Mortgage Loans under this Agreement and
the
Purchase Price and Terms Agreement constitutes fair consideration
and
reasonably equivalent value for the Mortgage Loans;
(q) [Reserved]; and
(r) The
Seller is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of
MERS in
connection with the servicing of the MERS Mortgage Loans for as
long as such
Mortgage Loans are registered with MERS.
Subsection 9.02 Representations and Warranties Regarding
Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser
that,
as to each Mortgage Loan, as of the related Closing Date for such
Mortgage
Loan:
(a) Mortgage Loans as Described. The information set forth in
the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to
the
related Closing Date for the Mortgage Loan under the terms of the
Mortgage
Note have been made and credited. No payment required under the
Mortgage Loan
is 30 days or more delinquent nor has any payment under the
Mortgage Loan been
30 days or more delinquent at any time since the origination of the
Mortgage
Loan;
(c) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental
assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or
ground rents which previously became due and owing have been paid,
or an
escrow of funds has been established in an amount sufficient to pay
for every
such item which remains unpaid and which has been assessed but is
not yet due
and payable. The Seller has not advanced funds, or induced,
solicited or
knowingly received any advance of funds by a party other than the
Mortgagor,
directly or indirectly, for the payment of any amount required
under the
Mortgage Loan, except for interest accruing from the date of
the
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Mortgage Note or date of disbursement of the Mortgage Loan
proceeds, whichever
is earlier, to the day which precedes by one month the related Due
Date of the
first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note
and
Mortgage have not been impaired, waived, altered or modified in any
respect,
from the date of origination except by a written instrument which
has been
recorded, if necessary to protect the interests of the Purchaser,
and which
has been delivered to the Custodian or to such other Person as the
Purchaser
shall designate in writing, and the terms of which are reflected in
the
related Mortgage Loan Schedule. The substance of any such waiver,
alteration
or modification has been approved by the issuer of any related PMI
Policy and
the title insurer, if any, to the extent required by the policy,
and its terms
are reflected on the related Mortgage Loan Schedule, if applicable.
No
Mortgagor has been released, in whole or in part, except in
connection with an
assumption agreement, approved by the issuer of any related PMI
Policy and the
title insurer, to the extent required by the policy, and which
assumption
agreement is part of the Mortgage Loan File delivered to the
Custodian or to
such other Person as the Purchaser shall designate in writing and
the terms of
which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right
of
rescission, set-off, counterclaim or defense, including without
limitation the
defense of usury, nor will the operation of any of the terms of the
Mortgage
Note or the Mortgage, or the exercise of any right thereunder,
render either
the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or
subject to any right of rescission, set-off, counterclaim or
defense,
including without limitation the defense of usury, and no such
right of
rescission, set-off, counterclaim or defense has been asserted with
respect
thereto;
(f) Hazard Insurance. Pursuant to the terms of the related
Mortgage, the buildings and improvements upon each Mortgaged
Property are
insured by a Qualified Insurer pursuant to a standard, valid and
existing
hazard insurance policy acceptable to Fannie Mae or Freddie Mac
which policy
insures against loss by fire, hazards of extended coverage and such
other
hazards as are provided for in the Fannie Mae Guides or Freddie Mac
Guide
representing coverage in an amount not less than the lesser of (a)
the maximum
insurable value of the improvements securing such Mortgage Loan and
(b) the
outstanding principal balance of the related Mortgage Loan, but in
no event an
amount less than an amount that is required to prevent the
Mortgagor from
being deemed to be a co-insurer thereunder. If the Mortgaged
Property is in an
area identified in the Federal Register by the Federal Emergency
Management
Agency as having special flood hazards, a flood insurance policy in
a form
meeting the requirements of the current guidelines of the Flood
Insurance
Administration (which policy conforms to Fannie Mae or Freddie
Mac
requirements) is in effect with respect to such Mortgaged Property
with a
Qualified Insurer in an amount representing coverage not less than
the least
of (a) the outstanding Stated Principal Balance of the Mortgage
Loan, (b) the
maximum insurable value of the improvements securing such Mortgage
Loan or (c)
the maximum amount of insurance that is available under federal
law. All
individual insurance policies contain a standard mortgagee clause
naming the
Seller or the original holder of the Mortgage, and its successors
in interest,
as loss payee, and all of the premiums due and payable thereon have
been paid;
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
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obtain and maintain such insurance at the Mortgagor's cost and
expense and to
seek reimbursement therefor from the Mortgagor. Neither the Seller
(nor any
prior originator or servicer of any of the Mortgage Loans) nor any
Mortgagor
has engaged in any act or omission which has impaired or would
impair the
coverage of any such policy, the benefits of the endorsement
provided for
herein, or the validity and binding effect of either. All such
insurance
policies contain a standard mortgagee clause naming Seller, its
successors and
assigns as loss payee and contain a clause that the insurer will
notify the
named mortgagee at least thirty (30) days prior to any reduction in
coverage
or cancellation of the policy. The hazard insurance policy is the
valid and
binding obligation of the insurer, is in full force and effect, and
will be in
full force and effect and inure to the benefit of the Purchaser
upon the
consummation of the transactions contemplated by this Agreement.
The Seller
has not engaged in, and has no knowledge of the Mortgagor's having
engaged in,
any act or omission which would impair the coverage of any such
policy, the
benefits of the endorsement provided for herein, or the validity
and binding
effect of either including, without limitation, no unlawful fee,
commission,
kickback or other unlawful compensation or value of any kind has
been or will
be received, retained or realized by any attorney, firm or other
person or
entity, and no such unlawful items have been received, retained or
realized by
the Seller;
(g) Compliance with Applicable Laws. Any and all requirements
of
any federal, state or local law including, without limitation,
usury,
truth-in-lending, real estate settlement procedures, consumer
credit
protection, predatory and abusive lending, equal credit opportunity
and
disclosure laws applicable to the Mortgage Loan, including,
without
limitation, any provisions relating to a Prepayment Penalty have
been complied
with, the consummation of the transactions contemplated hereby will
not
involve the violation of any such laws or regulations, and the
Seller shall
maintain in its possession, available for the Purchaser's
inspection, and
shall deliver to the Purchaser upon demand, evidence of compliance
with all
such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in
part, and the
Mortgaged Property has not been released from the lien of the
Mortgage, in
whole or in part, nor has any instrument been executed that would
effect any
such release, cancellation, subordination or rescission. The Seller
has not
waived the performance by the Mortgagor of any action, if the
Mortgagor's
failure to perform such action would cause the Mortgage Loan to be
in default,
nor has the Seller waived any default resulting from any action or
inaction by
the Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan
that is not a Co-op Loan and is not secured by an interest in a
leasehold
estate, the Mortgaged Property is a fee simple estate that consists
of a
single parcel of real property with a detached single family
residence erected
thereon, or a two- to four-family dwelling, or an individual
residential
condominium unit in a condominium project, or an individual unit in
a planned
unit development, (or, with respect to each Co-op Loan, an
individual unit in
a residential cooperative housing corporation); provided, however,
that any
condominium unit, planned unit development or residential
cooperative housing
corporation shall conform with the Underwriting Guidelines. Any
condominium
unit or planned unit development is "warrantable" with respect
thereto or
"nonwarrantable" if underwritten in accordance with the
Underwriting
Guidelines. No portion of the Mortgaged Property (or underlying
Mortgaged
Property, in the case of a Co-op Loan) is
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used for commercial purposes, and since the date of origination, no
portion of
the Mortgaged Property has been used for commercial purposes;
provided, that
Mortgaged Properties which contain a home office shall not be
considered as
being used for commercial purposes as long as the Mortgaged
Property has not
been altered for commercial purposes and is not storing any
chemicals or raw
materials other than those commonly used for homeowner repair,
maintenance
and/or household purposes. No such residence is a mobile home. None
of the
Mortgage Loans are considered agricultural loans. No Mortgaged
Property
consists of a log home except as permitted pursuant to the Fannie
Mae
guidelines, an earthen home, underground home or a home which is
situated on
more than forty acres of property. Any Mortgage Property secured by
a
leasehold estate was underwritten in accordance with the
Underwriting
Guidelines. None of the Mortgage Loans are made for the purchase of
land only;
(j) Valid First Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien on the Mortgaged Property,
including all
buildings and improvements on the Mortgaged Property and all
installations and
mechanical, electrical, plumbing, heating and air conditioning
systems located
in or annexed to such buildings, and all additions, alterations
and
replacements made at any time with respect to the foregoing. The
lien of the
Mortgage is subject only to:
(i) the lien of
current real property taxes and assessments not yet
due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date
of recording acceptable to prudent mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and (a) specifically referred to or otherwise
considered in the appraisal made for the originator of the
Mortgage Loan or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(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 and delivered in connection with the Mortgage Loan
establishes and
creates a valid, subsisting, enforceable and perfected first lien
and first
priority security interest on the property described therein and
the Seller
has full right to sell and assign the same to the Purchaser.
With respect to any Co-op Loan, the related Mortgage is a
valid,
subsisting and enforceable first priority security interest on the
related
cooperative shares securing the Mortgage Note, subject only to (a)
liens of
the related residential cooperative housing corporation for unpaid
assessments
representing the Mortgagor's pro rata share of the related
residential
cooperative housing corporation's payments for its blanket
mortgage, current
and future real property taxes, insurance premiums, maintenance
fees and other
assessments to which like collateral is commonly subject and (b)
other matters
to which like
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collateral is commonly subject which do not materially interfere
with the
benefits of the security interest intended to be provided by the
related
Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a
Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal,
valid and
binding obligation of the maker thereof enforceable in accordance
with its
terms (including, without limitation, any provisions therein
relating to
Prepayment Penalties). All parties to the Mortgage Note, the
Mortgage and any
other such related agreement had legal capacity to enter into the
Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and
any such
agreement, and the Mortgage Note, the Mortgage and any other such
related
agreement have been duly and properly executed by other such
related parties.
No fraud, error, omission, misrepresentation, negligence or similar
occurrence
with respect to a Mortgage Loan has taken place on the part of the
Seller in
connection with the origination of the Mortgage Loan or in the
application of
any insurance in relation to such Mortgage Loan. The documents,
instruments
and agreements submitted for loan underwriting were not falsified
and contain
no untrue statement of material fact or omit to state a material
fact required
to be stated therein or necessary to make the information and
statements
therein not misleading. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken
place on the part of any Person, including without limitation, the
Mortgagor,
any appraiser, any builder or developer, or any other party
involved in the
origination of the Mortgage Loan or in the application for any
insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the
documents
constituting the Servicing File and has made such inquiries as it
deems
necessary to make and confirm the accuracy of the representations
set forth
herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been
closed
and the proceeds of the Mortgage Loan have been fully disbursed and
there is
no requirement for future advances thereunder, and any and all
requirements as
to completion of any on-site or off-site improvement and as to
disbursements
of any escrow funds therefor have been complied with. All costs,
fees and
expenses incurred in making or closing the Mortgage Loan and the
recording of
the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder
of
the Mortgage Loan and the indebtedness evidenced by each Mortgage
Note and
upon the sale of the Mortgage Loans to the Purchaser, the Seller
will retain
the Mortgage Fi
