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Hibernia - Mortgage Servicing Purchase And Sale Agreement
Exhibit 10.66 MORTGAGE SERVICING PURCHASE AND SALE AGREEMENT HIBERNIA NATIONAL BANK
(Seller)
CITIMORTGAGE, INC.
(Purchaser)
Dated and effective as of September 30, 2004 MORTGAGE SERVICING PURCHASE AND SALE AGREEMENT
This Mortgage Servicing Purchase and Sale Agreement (the " Agreement" ), dated as of September 30, 2004, is by and between HIBERNIA NATIONAL BANK, a national banking association, with its principal office located in New Orleans, Louisiana (the " Seller" ), and CITIMORTGAGE, INC., a Delaware corporation, with offices located in St. Louis, Missouri (the " Purchaser" ). W I T N E S S E T H :
WHEREAS, Seller owns the servicing rights relating to the Mortgage Loans listed in Exhibit A attached hereto;
WHEREAS, it is contemplated that the Investors will consent to the assumption of the Servicing by Purchaser and to Seller' s transfer and assignment of the Servicing to Purchaser as provided herein; and
WHEREAS, Purchaser desires to purchase and Seller desires to sell all Seller' s right, title and interest in and to the Servicing in accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants made herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto 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:
Agency or Agencies : Fannie Mae, Freddie Mac and GNMA, collectively referred to as the " Agencies" and individually the " Agency" .
Agency Loans : Any Mortgage Loans as to which an Agency is the Investor.
Agency Servicing : The rights and responsibilities of Seller with respect to servicing the Agency Loans under the Agency Servicing Agreement and the maintenance and servicing of the Related Escrow Accounts.
Agency Servicing Agreement : The Agency servicing requirements pursuant to which Seller is currently servicing the Agency Loans.
Agreement : As defined in the first paragraph hereof.
Assignment Holdback : A portion of the Purchase Price retained by Purchaser pursuant to Section 3.02(d) hereof equal to twenty-five dollars ($25.00) times the number of Mortgage Loans not registered on the MERS system transferred to Purchaser on the Transfer Date.
Business Day : Any day other than (a) a Saturday or Sunday, or (b) a day on which banking institutions in the States of California, Missouri or Louisiana are authorized or obligated by law or by executive order to be closed.
Buyout Price : As defined in Section 10.03 hereof.
Complete Mortgage Loan File : The file or files for each Mortgage Loan that contains without defect all of the Mortgage Loan documents pertaining to such Mortgage Loan which are specified as the Collateral File and Servicing File Contents in Exhibit D hereto.
Delinquent Mortgages : Any Mortgage Loan that, as of the Sale Date, is either sixty (60) days or more past due or in bankruptcy, foreclosure or litigation. A Mortgage Loan will be considered sixty (60) days past due when, for example, the payment due on October 1, 2004 remains unpaid at the close of business on November 30, 2004.
Document Holdback : The remainder of the Purchase Price described in Section 3.02(c) hereof less the Assignment Holdback.
Fannie Mae : The entity formerly known as the Federal National Mortgage Association.
FARETS : First American Real Estate Tax Service, Inc.
FHA : The Federal Housing Administration.
First American : First American Flood Data Services, Inc.
Freddie Mac : The entity formerly known as the Federal Home Loan Mortgage Corporation.
GNMA : The Government National Mortgage Association.
HUD : Department of Housing and Urban Development.
Interim Servicing Agreement : The Interim Servicing Agreement in the form of Exhibit I between Purchaser and Seller which provides for servicing of the Mortgage Loans by Seller between the Sale Date and the Transfer Date.
Interim Period : The period from the Sale Date to the Transfer Date.
Investors : Means the owners of the Mortgage Loans, including the Agencies and the Private Investors.
Letter of Intent : That certain letter agreement, dated August 18, 2004, by and between Purchaser and Seller.
LGC or MIC : The default insurance provided by the VA or FHA.
LPMI : Lender paid mortgage insurance.
MERS : Mortgage Electronic Registration Systems, Inc.
MI : The default insurance provided by private mortgage insurance companies on certain Mortgage Loans.
Mortgage Loans : Each of those mortgage loans described in Exhibit A hereto.
Mortgages : Each of those mortgages, deeds of trust, security deeds or deeds to secure debt creating a lien on or an interest in real property securing a Mortgage note and related to a Mortgage Loan.
Mortgagor : An obligor under a Mortgage Loan.
Optional Insurance : Any life, accidental death or accident and health (disability) insurance purchased by Mortgagor in connection with a Mortgage Loan.
Prior Servicers : Each originator, owner or servicer of any of the Mortgage Loans other than, and prior to, Seller or the Agencies or Private Investors.
Private Investors : Means each owner of the Mortgage Loans other than the Agencies.
Private Investor Loans : Any Mortgage Loans as to which a Private Investor is the owner.
Private Investor Servicing : The rights and responsibilities of Seller with respect to servicing the Private Investor Loans under the Private Investor Servicing Agreements and the maintenance and servicing of the Related Escrow Accounts.
Private Investor Servicing Agreements : The servicing agreement, subservicing agreement or warranties and servicing agreement pursuant to which each of the Mortgage Loans is currently being serviced by Seller for the applicable Private Investor.
Purchase Price : As defined in Section 3.01(a).
Purchase Price Percentage : The product of 4.89 and the Weighted Average Service Fee as of the Sale Date.
Purchaser : CitiMortgage, Inc., its successors and assigns.
Related Escrow Accounts : Mortgage Loan escrow/impound accounts maintained by Seller relating to the Servicing, including, but not limited to, accounts for buydown funds, real estate taxes and MI, flood and hazard insurance premiums.
Sale Date : Close of business on September 30, 2004, or such other date as may be mutually agreed to in writing by Seller and Purchaser.
Seller : Hibernia National Bank, its successors and assigns.
Servicer Prepayment Penalties : As defined in Section 2.01.
Servicing : The collective reference to the Agency Servicing and the Private Investor Servicing.
Servicing Agreements : The collective reference to the Agency Servicing Agreements and the Private Investor Servicing Agreements.
Transfer Date : Open of business on February 15, 2005 for the Freddie Mac Servicing, February 28, 2005 for the Fannie Mae and Private Investor Servicing and March 1, 2005 for the GNMA Servicing, or such other date(s) as may be mutually agreed to in writing by Seller and Purchaser.
VA : The Veterans Administration.
Weighted Average Service Fee : The sum of the product of the actual outstanding principal balance of each Mortgage Loan as of the Sale Date and such Mortgage Loan' s corresponding net service fee (net of Agency guaranty fees and LPMI or similar third party fees that are paid out of the gross servicing fee) divided by the sum of the actual outstanding principal balance of all of the Mortgage Loans as of the Sale Date.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a)
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;
(b)
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles;
(c)
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;
(d)
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;
(e)
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
(f)
the term " include" or " including" shall mean without limitation by reason of enumeration.
ARTICLE II SALE AND TRANSFER OF SERVICING
Section 2.01 Items to be Sold.
Subject to, and upon the terms and conditions of this Agreement, Seller shall, as hereinafter provided, sell, transfer, assign and deliver to Purchaser all right, title and interest in and to the Servicing including the Related Escrow Accounts.
The Servicing conveyed to Purchaser hereunder shall include the rights to retain prepayment penalties after the Transfer Date to the extent that Seller has the rights to retain prepayment penalties as of the Sale Date (the " Servicer Prepayment Penalties" ).
Section 2.02 Sale Date.
On the Sale Date: (a)
All indicia of legal ownership to the Servicing, including all legal rights, obligations and duties with respect to the Servicing, shall be transferred to Purchaser as provided herein;
(b)
The following documents shall be exchanged between the parties:
(i) this Agreement, duly executed by each of the parties hereto;
(ii) the Interim Servicing Agreement, duly executed by each of the parties hereto;
(iii) Seller shall have provided to Purchaser the duly executed corporate certificate required by Section 8.03; and
(iv) Purchaser shall have provided to Seller the duly executed corporate certificate required by Section 9.03;
(c)
Seller shall assign to Purchaser its rights to receive the servicing fees and all incidental fees on the Mortgage Loans subject to the Interim Servicing Agreement; and
(d)
Purchaser shall pay to Seller the portion of the Purchase Price due on the Sale Date.
Section 2.03 Transfer Date.
On the Transfer Date: (a)
Purchaser shall assume all Servicing responsibilities, and Seller shall cease all Servicing responsibilities, related to the Mortgage Loans;
(b)
Seller shall assign to Purchaser all of Seller' s right, title and interest in and to the Servicing Agreements and Mortgage Loans with respect to the Servicing transferred;
(c)
The following documents shall be exchanged between the parties:
(i) an assignment and assumption agreement, in form and substance mutually satisfactory to the parties hereto and duly executed by each of the parties hereto with respect to each Private Investor Servicing Agreement, and acknowledged or consented to by each third party whose consent is required thereto;
(ii) Seller shall have provided to Purchaser the duly executed corporate certificate required by Section 8.04; and
(iii) Purchaser shall have provided to Seller the duly executed corporate certificate required by Section 9.04.
ARTICLE III CONSIDERATION
Section 3.01 Purchase Price. (a)
In full consideration for the sale of the Servicing, and upon the terms and conditions of this Agreement, Purchaser shall pay to Seller a Purchase Price (the " Purchase Price" ) equal to the product of (x) the actual outstanding principal balance of the Mortgage Loans as of the Sale Date, less (i) the actual outstanding principal balance, as of the Sale Date, of any loan that is a Delinquent Mortgage (except that for purposes of determining the estimated purchase price as of the Sale Date, the parties shall utilize the actual outstanding principal balance of the Mortgage Loans as of the close of business on September 27, 2004), (ii) the actual outstanding principal balance of any loan ninety (90) days or more past due or in bankruptcy, foreclosure or litigation all as of the Transfer Date, other than a loan the unpaid principal balance of which has been excluded under (i) above and (iii) the actual outstanding principal balance, as of the Sale Date, of any loan which prepays in full within ninety (90) calendar days of the Sale Date, multiplied by (y) the Purchase Price Percentage. The Purchase Price shall be reduced by any cost or fee necessary to establish with, or transfer to, Purchaser or its agents, any bi-saver program feature.
(b)
It is understood and agreed that if the principal balance of any Mortgage Loan or any other information used in computing the amount of the Purchase Price shall be found, within ninety (90) calendar days after the Transfer Date, to have been incorrectly computed, the Purchase Price shall be promptly and appropriately adjusted on the basis of the calculation stated in Section 3.01(a).
(c)
On or prior to the Transfer Date, Seller shall, at Seller' s expense, transfer to Purchaser full life of loan tax service contracts with FARETS. The tax service contracts shall provide Purchaser with complete tax procurement and payment services. Seller agrees to provide to Purchaser, in an electronic format acceptable to Purchaser, the information necessary to effectuate the establishment of a tax service for all fifty (50) states.
(d)
On or prior to the Transfer Date, Seller shall, at Seller' s expense, transfer to Purchaser full life of loan flood insurance determination tracking services with First American at no cost to Purchaser.
(e)
No later than one (1) Business Day prior to the Sale Date, Seller shall have completed and provided to Purchaser, the Estimated Purchase Price Computation Worksheet, including the attachment thereto, in the form of Exhibit B-1.
(f)
No later than two (2) Business Days after the Transfer Date, Seller shall complete and provide to Purchaser, the Purchase Price Computation Worksheet, including the attachments thereto, in the form of Exhibit B-2.
Section 3.02 Payment.
The Purchase Price shall be paid to Seller by wire transfer of immediately available federal funds as follows: (a)
Thirty percent (30%) of the estimated Purchase Price as reflected on Exhibit B-1 shall be paid to Seller prior to 11:00 a.m. Eastern Time on the Sale Date; provided, however that if the Servicing is not transferred to Purchaser on the Transfer Date and the transaction is terminated, such funds shall be immediately returned to Purchaser by wire transfer of immediately available federal funds; and further provided, if the failure to transfer Servicing is due to Seller' s fault, then Seller shall also pay to Purchaser interest on the estimated Purchase Price paid to Seller calculated at the overnight federal funds effective rate from the date payment is received by Seller to the date payment is returned to Purchaser. The estimated Purchase Price shall be determined by the parties at least one (1) Business Day prior to the Sale Date based on information regarding the Mortgage Loans and as of the close of business on September 27, 2004.
(b)
Sixty percent (60%) of the Purchase Price shall be paid to Seller within one (1) Business Day after receipt by Purchaser of Complete Mortgage Loan Files for at least seventy-five percent (75%) of the number of Mortgage Loans transferred to Purchaser on the Transfer Date, the Servicing information referenced in Section 7.10 and the wire transfer referenced in Section 7.11.
(c)
The remainder of the Purchase Price shall be retained by Purchaser as an Assignment Holdback and a Document Holdback to be released to Seller as set forth below.
(d)
The Assignment Holdback shall be released to Seller commencing sixty (60) calendar days after the final Transfer Date and quarterly thereafter. Purchaser shall release to Seller twenty-five dollars ($25.00) for each recorded Mortgage Loan assignment received by Purchaser as required pursuant to Section 7.01 hereof.
(e)
The Document Holdback shall be released to Seller commencing one hundred twenty (120) calendar days after the final Transfer Date and quarterly thereafter on a prorated basis based on Complete Mortgage Loan Files received by Purchaser during such one hundred twenty (120) calendar days and each quarter thereafter; provided that, subject to the following sentence, the amount of the Document Holdback retained by Purchaser shall not be less than five hundred thousand dollars ($500,000). Purchaser shall release the final five hundred thousand dollars ($500,000) of the Document Holdback, on the date Complete Mortgage Loan Files for one hundred percent (100%) of the Mortgage Loans transferred to Purchaser on the Transfer Date are delivered to Purchaser; provided, however, Purchaser agrees to discuss in good faith, within five (5) Business Days of Seller' s request, the earlier release of the final Document Holdback amount;
(f)
Seller agrees to provide any undelivered Mortgage Loan documents or Servicing Files in its possession within five (5) Business Days of receipt of a written request by Purchaser made after the time such Mortgage Loan documents and Servicing Files are required to be delivered to Purchaser pursuant to Section 7.09(b) hereof; and
(g)
If Complete Mortgage Loan Files for all of the Mortgage Loans have not been received by Purchaser within three hundred sixty (360) calendar days from the latest Transfer Date, Purchaser may, at its option, request that Seller obtain the documentation at Seller' s expense. If, within ninety (90) calendar days after such request, Seller has not provided Complete Mortgage Loan Files for all Mortgage Loans, Purchaser may, at its option, obtain the documentation at Seller' s expense and net any costs and expenses incurred from any funds still retained by Purchaser hereunder, and any funds remaining thereafter shall be remitted promptly to Seller. Seller will reimburse Purchaser for any costs and expenses to obtain such documentation that are greater than any funds retained by Purchaser.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement, Seller represents and warrants to Purchaser as follows:
Section 4.01 Due Incorporation and Good Standing.
Seller is a national banking association duly organized and validly existing under the laws of the United States. Seller is qualified to transact business in each jurisdiction where the failure to so qualify would have a material adverse effect upon Seller' s ability to service the Mortgage Loans.
Section 4.02 Authority and Capacity.
Seller has all requisite corporate power, authority and capacity, subject to approvals required pursuant to Sections 7.02 and 7.03 hereof, to enter into this Agreement and the Interim Servicing Agreement and to perform the obligations required of it hereunder and thereunder. The execution and delivery of this Agreement and the Interim Servicing Agreement, and the consummation of the transactions contemplated hereby and thereby, have each been duly and validly authorized by all necessary corporate action. This Agreement and the Interim Servicing Agreement constitute valid and legally binding agreements of Seller enforceable in accordance with their respective terms against Seller, and no offset, counterclaim or defense exists to the full performance by Seller of this Agreement and the Interim Servicing Agreement, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equity principles.
Section 4.03 Title to the Servicing and Related Escrow Accounts.
Seller is the lawful owner of the Servicing, is responsible for the maintenance of the Related Escrow Accounts, has the sole right and authority, subject to the approvals required pursuant to Sections 7.02 and 7.03 hereof, to transfer the Servicing as contemplated hereby, and is not contractually obligated to sell or subcontract the Servicing to any other party. The transfer, assignment and delivery of the Servicing and of the Related Escrow Accounts shall vest in Purchaser all rights as servicer free and clear of any and all claims, charges, defenses, offsets and encumbrances of any kind or nature whatsoever.
Section 4.04 Related Escrow Accounts.
All Related Escrow Accounts are being maintained in accordance with applicable law and in accordance with the Servicing Agreements and the terms of the related Mortgages and other Mortgage Loan documents; and, except as to payments which are past due under Mortgage notes and except to the extent provided for in Sections 7.05 and 7.06 hereof, all balances required by the Mortgages or other Mortgage Loan documents and paid to Seller for the account of the Mortgagors are on deposit in the appropriate Related Escrow Account. Seller shall, in accordance with the Interim Servicing Agreement, credit to the account of Mortgagors all interest required by statute or the terms of the Mortgage or other Mortgage Loan documents to be paid on any Related Escrow Account through the Transfer Date. Evidence of such credit shall be provided to Purchaser.
Section 4.05 Litigation; Compliance with Laws.
There is no litigation, proceeding or governmental investigation pending or, to the best of Seller' s knowledge, threatened, or any order, injunction or decree outstanding which could have a material adverse effect upon any of the Mortgage Loans, the Related Escrow Accounts or the Servicing nor does Seller know of any basis for any such litigation, proceeding or governmental investigation. Seller has not violated any applicable law, regulation, ordinance, order, injunction or decree, or any other requirement of any governmental body or court, which may materially affect any of the Mortgage Loans or the Servicing.
Section 4.06 Servicing Agreements.
Seller has performed all obligations to be performed under the Servicing Agreements and LGC, MIC and MI requirements, as applicable, and no event has occurred and is continuing which, but for the passage of time or the giving of notice or both, would constitute an event of default on the part of Seller thereunder.
Section 4.07 Accuracy of Servicing Information.
The information provided by Seller, or its agents, to Purchaser in accordance with Purchaser' s due diligence of the Mortgage Loans, the Servicing, this Agreement and the Interim Servicing Agreement is true and correct in all material respects.
Section 4.08 Effective Agreements.
The execution, delivery and performance of this Agreement and the Interim Servicing Agreement by Seller, its compliance with the terms hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not violate, conflict with, result in a breach of, constitute a default under, be prohibited by or require any additional approval under its charter or bylaws, or, upon obtaining the approvals required pursuant to Sections 7.02 and 7.03 hereof, any instrument or agreement to which it is a party or by which it is bound or which affects the Servicing, or any state or federal law, rule or regulation or any judicial or administrative decree, order, ruling or regulation applicable to it or to the Servicing.
Section 4.09 No Accrued Liabilities.
There are no accrued liabilities of Seller with respect to the Mortgage Loans or the Servicing or circumstances under which such accrued liabilities will arise against Purchaser as successor to the Servicing with respect to occurrences prior to the Transfer Date.
Section 4.10 Adverse Selection.
Seller has not used any adverse selection procedures in selecting the Mortgage Loans from among the outstanding loans of similar product types in Seller' s portfolio.
Section 4.11 Seller/Servicer Standing.
Seller is an approved Fannie Mae and Freddie Mac Seller/Servicer and a GNMA Issuer/Servicer in good standing with the requisite financial criteria and adequate resources to complete the transactions contemplated hereby on the conditions stated herein.
Section 4.12 Disclosure of Mortgage Loan Account Information.
Except as otherwise indicated in writing to Purchaser no later than five (5) Business Days prior to the date of this Agreement, Seller has not, nor has its affiliates, agents and/or subservicers, since the execution of the Letter of Intent to purchase the Mortgage Loans, disclosed Mortgage Loan account-specific information, including, but not limited to, names and addresses of Mortgagors, to any third person or unaffiliated entity unless such disclosure was necessary to comply with applicable state or federal law, rule or regulation, the Servicing Agreements and/or applicable LGC, MIC or MI requirements.
Section 4.13 Private Investor Servicing Agreements. (a)
All Private Investor Servicing Agreements and all other documents pertaining to duties, obligations and rights of Seller under the Private Investor Servicing Agreements are listed on Exhibit M hereto and a copy of each has been or will be prior to the Sale Date made available to Purchaser. The Private Investor Servicing Agreements set forth all of the terms and conditions of Seller' s rights and obligations to the Investors, and there are no other agreements, written or oral, that modify or affect the Private Investor Servicing Agreements in any material respect.
(b)
Each Private Investor Servicing Agreement is a valid and binding obligation of the parties thereto enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equity principles, and is in full force and effect as of the Sale Date. No Private Investor Servicing Agreement is subject to any pledge, lien, assignment or other encumbrance incurred or suffered by Seller or to any right of any party other than the rights of Investors set forth in the applicable Private Investor Servicing Agreement.
(c)
Neither the execution and delivery of this Agreement by Seller nor the sale by Seller of the Servicing pursuant to this Agreement will, solely by reason of such execution, delivery or sale, result in a default (or give rise to any right of termination, cancellation, or acceleration not otherwise available) under any of the terms, conditions or provisions of any Private Investor Servicing Agreement subject to the receipt of the consents contemplated by this Agreement, or require the consent or other approval of any Person to the assignment to Purchaser of all of Seller' s right, title and interest thereunder other than the consents contemplated by this Agreement.
(d)
Seller has not received any notice that any Investor has determined or intends to terminate a Private Investor Servicing Agreement to which it is a party or to declare an event of default thereunder.
Section 4.14 Prior Servicers. (a)
Each Prior Servicer was duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization.
(b)
Each Prior Servicer was qualified to transact business in each jurisdiction in which such qualification was deemed necessary.
(c)
No Prior Servicer has violated any applicable law, regulation, ordinance, order, injunction or decree, or any other requirement of any governmental body or court, which may materially affect any of the Mortgage Loans or the Servicing.
(d)
All Prior Servicers have performed all obligations to be performed under the Servicing Agreements and MI requirements, as applicable, and no event has occurred and is continuing which, but for the passage of time or the giving of notice or both, would constitute an event of default thereunder.
Section 4.15 MERS Membership.
Seller is a member in good standing of the MERS system. ARTICLE V REPRESENTATIONS AND WARRANTIES AS TO MORTGAGE LOANS
As further inducement to Purchaser to enter into this Agreement, Seller represents and warrants to Purchaser, with respect to each Mortgage Loan, as follows:
Section 5.01 Mortgage Loan Documents.
The Mortgage Loan documents are genuine, duly executed by a Mortgagor of legal capacity, and all insertions in any Mortgage Loan document are correct. Seller has no knowledge of any facts that would impair the validity or value of the Mortgage note, the Mortgage, any other Mortgage Loan document or the collateral. The Mortgage Loan documents listed on Exhibit D contain the entire agreement between the parties to each Mortgage Loan. Each Mortgage Loan was originated utilizing Fannie Mae/Freddie Mac uniform documents or utilizing documents otherwise acceptable to the applicable Investor.
Section 5.02 Unpaid Balance.
The amount of the unpaid balance of each Mortgage Loan which is reflected on Exhibit A is correct as of the date of Exhibit A and there are no defenses, setoffs or counterclaims against any Mortgage Loan.
Section 5.03 Security Interest.
The security interest granted by the Mortgagor in the property described in the Mortgage is a valid lien on the property described therein.
Section 5.04 Compliance with Laws and Investor Requirements.
Each Mortgage Loan transaction complies in all material respects with the applicable requirements of each Investor, HUD, FHA, VA and each of the federal or state laws or regulations that pertain to the origination, closing, pooling and servicing of the Mortgage Loan.
Section 5.05 Payment of Taxes, Insurance Premiums, Etc.
All real estate taxes, special government assessments, ground rents and flood, hazard, LGC, MIC and MI insurance premiums with respect to all Mortgage Loans have been paid when due by Seller or the Prior Servicers or, if not escrowed, paid by the Mortgagors.
Section 5.06 Effective Insurance.
All flood, hazard, LGC, MIC and MI insurance policies remain in full force and effect.
Section 5.07 Real Estate Tax Identifications.
All real estate tax identifications are legally sufficient. Tax segregation, where required, has been completed.
Section 5.08 Mortgagor Statements.
All payoff and assumption statements with respect to each Mortgage Loan provided by Seller to Mortgagors or their agents were complete and accurate.
Section 5.09 Interest on Escrows.
Seller has credited to the account of each Mortgagor all interest required to be paid and all such interest accrued which is due but not yet payable to a Mortgagor on any Related Escrow Account through the Transfer Date. Evidence of such credit shall be provided to Purchaser.
Section 5.10 Title Insurance.
A title policy, or for mortgaged properties located in Iowa or any other states where it is customary practice, an abstract of title and certification of attorney' s mortgage lien opinion, which is currently in effect and has not been modified, has been issued for each Mortgage Loan insuring, in an amount no less than the outstanding Mortgage Loan balance, that the Mortgage relating thereto is a valid lien on the property therein described and that the related mortgaged property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except for (i) liens for real estate taxes and special assessments not yet due and payable, (ii) easements and restrictions of record being acceptable to mortgage lending institutions generally and specifically identified in the title policy, (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 Loan or the use, enjoyment, value or marketability of the related mortgaged property and (iv) liens for taxes or assessments arising after the date of the recordation of the Mortgage. In jurisdictions that give unpaid common expense assessments limited priority over a first mortgage lien, the policy provides assurance that those assessments have been paid through the effective date of the policy.
Section 5.11 Tax Compliance.
Seller has complied in all material respects with all local, state and federal laws and regulations pertaining to tax reporting. For example, but not by way of limitation, Seller has: (a)
certified Social Security or Taxpayer Identification numbers for each Mortgage Loan; and
(b)
provided all appropriate tax forms and information to (i) the Internal Revenue Service, (ii) the buyers and sellers in assumption or foreclosure transactions and (iii) Mortgagors who have a buydown account as part of their Mortgage Loan.
Section 5.12 Recourse Status.
All of the Mortgage Loans have been sold to the applicable Investor, and are being serviced, without recourse, as defined by the Agencies, to Seller.
Section 5.13 Mortgage Loan Servicing.
Each Mortgage Loan has been serviced in accordance with the terms of its Mortgage note, Mortgage and related Mortgage Loan documents and the Servicing Agreements.
Section 5.14 Fraud.
No action, error, omission, misrepresentation, negligence, fraud or similar occurrence with respect to a Mortgage Loan has taken place on the part of any person, including without limitation Seller, the Mortgagor, any appraiser, any builder or developer, or any other party involved in the origination of the Mortgage Loan or in the application of any insurance regarding such Mortgage Loan that materially and adversely affects Purchaser, the Mortgage Loan or the Servicing.
Section 5.15 MERS Registration.
As of the Transfer Date, all required data with respect to all Mortgage Loans registered on the MERS system has been entered by Seller on the MERS system, with the exception of recording information that is not yet available to Seller as of the Transfer Date.
Section 5.16 Participation Loans.
No Mortgage Loan which is a participation loan has more than four (4) participation Investors. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement, Purchaser represents and warrants to Seller as follows:
Section 6.01 Due Incorporation and Good Standing.
Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Purchaser is qualified to transact business in each jurisdiction in which such qualification is deemed necessary to service the Mortgage Loans.
Section 6.02 Authority and Capacity.
Purchaser has all requisite corporate power, autho...
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