Exhibit 10.2
===============================================================================
TRANSFER AGREEMENT
BETWEEN
EQUICREDIT CORPORATION OF AMERICA
TRANSFEROR
AND
EQCC RECEIVABLES CORPORATION
TRANSFEREE
DATED AS OF DECEMBER 1, 2001
EQCC TRUST 2001-1F
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. General ................................................. 1
ARTICLE II
CONVEYANCE OF THE MORTGAGE LOANS
SECTION 2.01. Conveyance of Mortgage Loans ........................... 1
SECTION 2.02. Possession of Mortgage Files ........................... 2
SECTION 2.03. Books and Records ...................................... 2
SECTION 2.04. Delivery of Mortgage Loan Documents .................... 2
SECTION 2.05. Acceptance by Transferee of the Mortgage Loans;
Certain Substitutions; Certification by the Trustee .. 3
SECTION 2.06. Acceptance by Transferee ............................... 5
SECTION 2.07. The Closing ............................................ 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Transferor ....... 5
SECTION 3.02. Representations and Warranties as to the Mortgage Loans
and the Mortgage Pool ................................ 7
SECTION 3.03. Purchase and Substitution .............................. 16
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to Obligation of the Transferee ............. 18
SECTION 4.02. Conditions To Obligation of the Transferor ............. 18
ARTICLE V
THE TRANSFEROR
SECTION 5.01. Third Party Servicers .................................. 19
SECTION 5.02. Enforceability; Merger or Consolidation of the
Transferor ........................................... 19
SECTION 5.03. Mandatory Delivery; Grant of Security Interest ......... 19
-i-
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Conflicts With Pooling and Servicing Agreement ........ 20
SECTION 6.02. Protection of Title to Trust .......................... 20
SECTION 6.03. Other Liens or Interests .............................. 20
SECTION 6.04. Purchase Events ....................................... 20
SECTION 6.05. Indemnification ....................................... 21
SECTION 6.06. Trust ................................................. 21
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment ............................................. 21
SECTION 7.02. Waivers ............................................... 21
SECTION 7.03. Costs and Expenses .................................... 22
SECTION 7.04. Survival .............................................. 22
SECTION 7.05. Confidential Information .............................. 22
SECTION 7.06. Severability Clause ................................... 22
SECTION 7.07. Headings and Cross-References ......................... 22
SECTION 7.08. Recordation of Agreement .............................. 22
SECTION 7.09. Governing Law ........................................ 23
SECTION 7.10. Notices ............................................... 23
SECTION 7.11. Counterparts .......................................... 23
SECTION 7.12. The Certificate Insurer and the NIMS Insurer ......... 23
EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Form of Transferee Receipt
EXHIBIT C Contents of Mortgage File
-ii-
THIS TRANSFER AGREEMENT is made as of December 1, 2001, by and between
EQUICREDIT CORPORATION OF AMERICA (the "Transferor") and EQCC RECEIVABLES
CORPORATION (the "Transferee").
WHEREAS, the Transferor and the Transferee wish to set forth the terms
pursuant to which the Mortgage Loans are to be transferred by the Transferor to
the Transferee in exchange for (i) the delivery of cash from the Transferee and
(ii) the acceptance by the Transferee of a capital contribution from the
Transferor in the amount of the balance of the purchase price of the Mortgage
Loans;
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. General
Certain capitalized terms used and undefined in this Agreement are defined
in and shall have the respective meanings assigned them in Article I to the
Pooling and Servicing Agreement, dated as of December 1, 2001, by and among the
Transferee, as Depositor, EquiCredit Corporation of America, as Transferor and
Initial Servicer, Bank of America, N.A., as Advancing Party, Fairbanks Capital
Corp., as Expected Successor Servicer, and The Bank of New York, as Trustee (the
"Pooling and Servicing Agreement"). All references herein to "the Agreement" or
"this Agreement" are to this Transfer Agreement, and all references herein to
Articles, Sections and subsections are to Articles, Sections or subsections of
this Transfer Agreement unless otherwise specified.
ARTICLE II
CONVEYANCE OF THE MORTGAGE LOANS
SECTION 2.01. Conveyance of Mortgage Loans.
(a) Immediately upon the consummation on the Closing Date of the
transactions contemplated by this Agreement, in exchange for cash in the amount
agreed to by the Transferor and the Transferee in a separate agreement and the
acceptance by the Transferee of a capital contribution from the Transferor for
the balance of the purchase price for the Mortgage Loans, all as reflected on
the books and records of the Transferor and Transferee, the Transferor does
hereby transfer, assign, set over and convey to the Transferee without recourse,
all of the right, title and interest of the Transferor (other than Transferor's
rights to Prepayment Charges, Existing Advances and Excluded Ancillary Income)
in and to the Mortgage Loans set forth in the Mortgage Loan Schedule attached
hereto as Exhibit A, together with the Mortgage Files (as defined below)
relating thereto and all proceeds thereof (excepting any amounts
received on and after the Cut-off Date in respect of interest accrued on such
Mortgage Loans prior to the Cut-off Date).
SECTION 2.02. Possession of Mortgage Files.
(a) Upon the delivery to the Transferor of the consideration set forth in
Section 2.01, the ownership of the Transferor's Mortgage Notes, related
Mortgages and the contents of the related Mortgage Files are vested in the
Transferee.
(b) Pursuant to Section 2.04, the Transferor has delivered or caused to be
delivered the Transferee's Mortgage File with respect to its Mortgage Loans to
the Transferee.
SECTION 2.03. Books and Records.
The transfer of each Mortgage Loan to the Transferee shall be reflected on
the Transferor's balance sheets and other financial statements as a sale of
assets by the Transferor. The Transferor shall be responsible for maintaining,
and shall maintain, a complete set of books and records for each Mortgage Loan
which shall be clearly marked to reflect the ownership of each Mortgage Loan by
the Transferee.
SECTION 2.04. Delivery of Mortgage Loan Documents.
The Transferor has delivered or caused to be delivered to the Transferee or
its designee in accordance with the instructions of the Transferee each of the
documents referred to in Section 2.04 of the Pooling and Servicing Agreement and
listed in Exhibit D hereto for each Mortgage Loan.
The Transferor shall use its reasonable efforts promptly to deliver or
cause to be delivered to the Transferee: (a) the original recorded Mortgage in
those instances where a copy thereof certified by the Transferor was delivered
to the Transferee; (b) the original recorded Assignments of Mortgage evidencing
a complete chain of assignment from the originator of such Mortgage to the
Transferor or the applicable Originator, which, together with any intervening
Assignments of Mortgage, evidences a complete chain of assignments from the
originator to the Transferor or the applicable Originator in those instances
where copies of such assignments certified by the Transferor were delivered to
the Transferee; and (c) the title insurance policy or assurance of title
required in paragraph (4) of Exhibit C (to the extent so required). The
Transferor shall, within five (5) Business Days after the receipt thereof, and
in any event, within twelve months after the Closing Date, deliver or cause to
be delivered to the Transferee each document described in any of paragraphs (1),
(2), (3) and (5) on Exhibit C; provided, however, that if a document described
in paragraph (2) or (5) on Exhibit C has not been returned from the appropriate
public recording office, the Transferor shall deliver a certified copy of the
Mortgage and a receipted copy of the assignment from the appropriate recording
office prior to the expiration of such twelve-month period. Notwithstanding
anything to the contrary contained in this Section 2.04, the Transferor shall be
deemed to have satisfied its obligations to deliver a Mortgage or Assignment of
Mortgage upon delivery to the Transferee of a copy of such Mortgage or
Assignment of Mortgage, as applicable, certified by the public recording office
to be a true copy of the recorded original thereof. From time to time the
Transferor may forward or cause to be forwarded to the Transferee additional
original documents evidencing an assumption
-2-
or modification of a Mortgage Loan. All Mortgage Loan documents held by the
Transferee as to each Mortgage Loan are referred to herein as the "Mortgage
File."
All recording required pursuant to this Section 2.04 shall be accomplished
by and at the expense of the Transferor.
SECTION 2.05. Acceptance by Transferee of the Mortgage Loans; Certain
Substitutions; Certification by the Trustee.
(a) The Transferee agrees to execute and deliver on the Closing Date an
acknowledgment of receipt of, for each Mortgage Loan, the items listed in
paragraphs (1), (2), (3), (7) and (8) on Exhibit C hereto, in the form attached
as Exhibit B hereto (other than any Mortgage Loan paid in full or any Mortgage
Loan specifically identified in such certification as not covered by such
certification), and declares that the Transferee will hold such documents and
any amendments, replacements or supplements thereto, as well as any other assets
transferred pursuant to the terms hereof. Pursuant to the Pooling and Servicing
Agreement, the Custodial Agreement and this Agreement, the Trustee will review
(or cause to be reviewed) each Mortgage File within 45 days after the Closing
Date (or, with respect to any Qualified Substitute Mortgage Loan, within 45 days
after the delivery thereof) and deliver (or cause to be delivered) a
certification in the form attached to the Pooling and Servicing Agreement as
Exhibit F-1 to the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification), (i) all documents required to be delivered to it pursuant to
this Agreement and the Pooling and Servicing Agreement are in its possession
(other than those described in paragraphs (1)(ii), 5(ii), (6), (11), (12), (13),
(14), (15), (16) and (17) on Exhibit C hereto), (ii) such documents have been
reviewed by it and have not been mutilated, damaged, torn or otherwise
physically altered (handwritten additions, changes or corrections shall not
constitute physical alteration if initialed by the Mortgagor) and relate to such
Mortgage Loan, and (iii) based on its examination and only as to the foregoing
documents, the information set forth on the Mortgage Loan Schedule (other than
items (i), (iv) and (x) of the definition of Mortgage Loan Schedule) accurately
reflects the information set forth in the Mortgage File. Pursuant to the Pooling
and Servicing Agreement, the Custodial Agreement and this Agreement, the Trustee
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face. Within 375 days after the
Closing Date, pursuant to the Pooling and Servicing Agreement, the Trustee shall
deliver (or cause to be delivered) a final certification in the form attached to
the Pooling and Servicing Agreement as Exhibit F-2 evidencing the completeness
of the Mortgage Files.
(b) If the Trustee (or other party referred to in the Pooling and Servicing
Agreement) during the process of reviewing the Mortgage Files finds any document
constituting a part of a Mortgage File which is not executed, has not been
received, is unrelated to the Mortgage Loan identified in the Mortgage Loan
Schedule, or does not conform to the requirements of Section 2.04 or Exhibit C
hereto or substantively to the description thereof as set forth in the Mortgage
Loan Schedule, the Trustee (or other party referred to in the Pooling and
Servicing Agreement) is required by the Pooling and Servicing Agreement promptly
to give
-3-
notice of the same. In performing any such review, the Trustee may conclusively
rely on the Transferor as to the purported genuineness of any such document and
any signature thereon. It is understood that the scope of the Trustee's review
of the Mortgage Files is limited solely to confirming that the documents listed
in Exhibit C hereto (other than those described in paragraph (1)(ii), 5(ii), (6)
and (11) through (17) on Exhibit C) have been executed and received and relate
to the Mortgage Files identified in the Mortgage Loan Schedule. The Transferor
agrees to use its reasonable efforts to cause to be remedied any material defect
in a document constituting part of a Mortgage File of which the Transferor is so
notified by the Trustee (or other party referred to in the Pooling and Servicing
Agreement). If, however, within 60 days after notice to it respecting such
defect, the Transferor has not caused to be remedied the defect and the defect
materially and adversely affects the interest of the Transferee in the Mortgage
Loan, upon demand therefor by the Servicer, the Transferor will on the third
Business Day preceding the Distribution Date immediately succeeding the end of
such 60-day period (or 30-day, in the case of failure to deliver original
Mortgage Notes or a Destroyed Mortgage Note Affidavit) (i) if within two years
of the closing date, substitute, in lieu of such Mortgage Loan, a Qualified
Substitute Mortgage Loan in the manner and subject to the conditions set forth
in Section 3.03 or (ii) purchase such Mortgage Loan at a purchase price equal to
the Principal Balance of such Mortgage Loan as of the date of purchase, plus all
accrued and unpaid interest on such Principal Balance, computed at the Mortgage
Interest Rate, net of the Servicing Fee if the Transferor is the Servicer, plus
the amount of any unreimbursed Servicing Advances made by the Servicer with
respect to such Mortgage Loan (after deducting therefrom any amounts received in
respect of such purchased Mortgage Loan or Loans); provided that if such defect
caused such Mortgage Loan not to be a "qualified mortgage" within the meaning of
Code Section 860G(a)(3), such repurchase or, if applicable, substitution shall
occur within 75 days of the earlier of the delivery of the Trustee's interim
certification under the Pooling and Servicing Agreement or Servicer's discovery
of such defect. It is understood that (i) a failure of a Mortgage File to
contain a Mortgage Note (or a Destroyed Mortgage Note Affidavit as permitted by
paragraph 1 on Exhibit C) or a Mortgage (with or without evidence of recording)
(ii) the inclusion in the Mortgage Pool of any Mortgage Loan with a CLTV greater
than 100% which also fails to meet the requirement that it be "principally
secured by an interest in real property" within the meaning of Treasury
Regulation 1.860G-2(a)(1), or (iii) any other Mortgage File defect that causes
the related Mortgage Loan not to be a "qualified mortgage" within the meaning of
Code Section 860G(a)(3) materially and adversely affects the interests of the
Certificateholders. With respect to a defect or failure of delivery of any other
document required to be included in a Mortgage File, such defect or non-delivery
shall not be deemed to have a material and adverse effect on the interests of
the Trustee or Certificateholders in the related Mortgage Loan or the interests
of the Certificate Insurer unless and until a Mortgage Loan Loss shall have
occurred with respect to that Mortgage Loan as the direct and proximate result
of such defect or failure of delivery. In the event of a Mortgage Loan Loss
resulting directly and proximately from such a defect or non-delivery, which
Mortgage Loan Loss is determined following liquidation of the related Mortgage
Loan, it is understood that the Transferor may satisfy its repurchase obligation
by depositing the amount of the Mortgage Loan Loss into the Principal and
Interest Account on the next succeeding Determination Date (after deducting
therefrom any amounts received in respect of such liquidated Mortgage Loan or
Loans and held in the Principal and Interest Account for future distribution).
-4-
(c) Upon receipt by the Trustee of a certification of a Servicing Officer
of the Servicer of such substitution or purchase described above and receipt of
the Mortgage File relating to the purchase price for such Deleted Mortgage Loan
or the Qualified Substitute Mortgage Loan and any Substitution Adjustment, the
Trustee is required to release to the Transferor the related Mortgage File and
shall execute, without recourse, and deliver such instruments of transfer
necessary to transfer such Mortgage Loan to the Transferor.
SECTION 2.06. Acceptance by Transferee.
The Transferee acknowledges the assignment to it of the Mortgage Loans
being transferred hereby by the Transferor and the delivery of the Mortgage
Files to it or upon its order and, concurrently with such delivery, has
executed, authenticated and delivered to or upon the order of the Transferor, in
exchange for such Mortgage Loans and the related Mortgage Files, the
consideration as set forth in Section 2.01.
SECTION 2.07. The Closing.
The conveyance of the Mortgage Loans shall take place at the offices of
Hunton & Xxxxxxxx, Bank of America Plaza, Suite 3500, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, on the Closing Date, immediately prior to the
closing of the transactions contemplated by the Pooling and Servicing Agreement
and the other Basic Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Transferee as of the
Closing Date:
(a) The Transferor is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation and has all
licenses necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each Mortgaged Property State if the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Transferor and perform its obligations as
a Transferor hereunder; the Transferor has the power and authority to execute
and deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Transferor and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action; this Agreement is the valid, binding and
enforceable obligation of the Transferor; and all requisite action has been
taken by the Transferor to make this Agreement valid, binding and enforceable
upon the Transferor in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally or the application of
equitable principles in any proceeding, whether at law or in equity;
-5-
(b) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any federal, state or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which the Transferor makes no such representation or warranty),
that are necessary in connection with the execution and delivery by the
Transferor of the Basic Documents to which it is a party, have been duly taken,
given or obtained, as the case may be, are in full force and effect, are not
subject to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be obtained
or appeal therefrom taken, and are adequate to authorize the consummation of the
transactions contemplated by this Agreement and the other documents on the part
of the Transferor and the performance by the Transferor of its obligations as
the Transferor under this Agreement and such of the other Basic Documents to
which it is a party;
(c) The consummation of the transactions contemplated by this Agreement
will not result in the breach of any terms or provisions of the bylaws of the
Transferor or result in the breach of any term or provision of, or conflict with
or constitute a default under or result in the acceleration of any obligation
under, any material agreement, indenture or loan or credit agreement or other
material instrument to which the Transferor or its property is subject, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Transferor or its property is subject;
(d) Neither this Agreement nor the Prospectus nor any statement, report or
other document prepared by the Transferor and furnished or to be furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby, by the Pooling and Servicing Agreement or by any Basic Document,
contains any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading;
(e) There is no action, suit, proceeding or investigation pending or, to
the best of the Transferor's knowledge, threatened against the Transferor which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Transferor or in any material impairment of the right or ability
of the Transferor to carry on its business substantially as now conducted, or in
any material liability on the part of the Transferor or which would draw into
question the validity of this Agreement or the Mortgage Loans or of any action
taken or to be taken in connection with the obligations of the Transferor
contemplated herein, or which would be likely to impair materially the ability
of the Transferor to perform under the terms of this Agreement;
(f) The Transferor is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or other) or operations of the
Transferor or its properties or might have consequences that would materially
and adversely affect its performance hereunder or under any Subservicing
Agreement;
-6-
(g) Upon the receipt of each Mortgage File by the Transferee under this
Agreement, the Transferee will have good and indefeasible title to each Mortgage
Loan (other than any amounts received after the Cut-off Date in respect of
interest accrued on or prior to the Cut-off Date) and such other assets
transferred hereunder free and clear of any Lien (other than Liens which will be
simultaneously released);
(h) The transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Transferor pursuant to this Agreement are not subject to the
bulk transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction;
(i) The Transferor did not transfer any interest in any Mortgage Loan with
any intent to hinder, delay or defraud any of its creditors;
(j) The Transferor is solvent and the Transferor will not be rendered
insolvent as a result of the transfer of the Mortgage Loans to the Transferee;
and
(k) The origination and collection practices used by the Transferor with
respect to each Mortgage Note and Mortgage (other than each Mortgage Note and
Mortgage evidencing or securing (as applicable) a Mortgage Loan acquired from an
originator (each, an "Acquired Mortgage Loan") have been in all material
respects legal, proper, prudent and customary in the second mortgage origination
and servicing business; and, to the best knowledge of the Transferor, the
origination and collection practices used by the originator with respect to each
Mortgage Note and Mortgage evidencing or securing (as applicable) an Acquired
Mortgage Loan have been in all material respects legal, proper, prudent and
customary in the second mortgage origination and servicing business.
SECTION 3.02. Representations and Warranties as to the Mortgage Loans and
the Mortgage Pool.
The Transferor hereby represents and warrants to the Transferee with
respect to each Mortgage Loan, as of the Closing Date:
(a) The information with respect to each related Mortgage Loan set forth in
the Mortgage Loan Schedule is true and correct;
(b) All of the original or certified documentation set forth in Section
2.04 of the Pooling and Servicing Agreement (including all material documents
related thereto) has been or will be delivered to the Transferee on the Closing
Date or as otherwise provided in such Section 2.04;
(c) Each Mortgage Loan is being serviced by the Initial Servicer or one or
more Subservicers;
(d) The Mortgage Note related to each Mortgage Loan bears a fixed Mortgage
Interest Rate;
(e) Mortgage Loans constituting approximately 12.68% of the Mortgage Loans
in Mortgage Loan Group 1, approximately 21.70% of the Mortgage Loans in Mortgage
-7-
Loan Group 2, approximately 29.01% of the Mortgage Loans in Mortgage Loan Group
3 and approximately 23.52% of the Mortgage Loans in Mortgage Loan Group 4 are
balloon loans which will provide for a final Monthly Payment substantially
greater than the preceding Monthly Payments. Approximately 12.64% of the
Mortgage Loans in Mortgage Loan Group 1, approximately 21.68% of the Mortgage
Loans in Mortgage Loan Group 2, approximately 28.95% of the Mortgage Loans in
Mortgage Loan Group 3 and approximately 23.47% of the Mortgage Loans in Mortgage
Loan Group 4, are balloon loans based on a 30-year amortization schedule.
Approximately 0.02%, 0.18%, 2.71% and 9.77% of the Mortgage Loans in Mortgage
Loan Group 1 have a single payment of the remaining loan balances approximately
5, 7, 10 and 15 years, respectively, after origination. Approximately 0.03%,
0.11%, 1.68% and 19.88% of the Mortgage Loans in Mortgage Loan Group 2 have a
single payment of the remaining loan balances approximately 5, 7, 10 and 15
years, respectively, after origination. Approximately 0.01%, 0.09%, 0.60% and
28.31% of the Mortgage Loans in Mortgage Loan Group 3 have a single payment of
the remaining loan balances approximately 5, 7, 10 and 15 years, respectively,
after origination. Approximately 0.11%, 0.06%, 2.39% and 20.96% of the Mortgage
Loans in Mortgage Loan Group 4 have a single payment of the remaining loan
balances approximately 5, 7, 10 and 15 years, respectively, after origination.
All of such balloon loans provide for Monthly Payments based on an amortization
schedule specified in the related Mortgage Note and have a final balloon payment
no earlier than 60 months following origination and no later than 180 months
following origination. Each other Mortgage Note will provide for a schedule of
substantially equal Monthly Payments which are, if timely paid, sufficient to
fully amortize the principal balance of such Mortgage Note on or before its
maturity date;
(f) Each Mortgage relating to a Mortgage Loan is a valid and subsisting
first or second lien on the Mortgaged Property subject, in the case of any
second Mortgage Loan only to a First Lien on such Mortgaged Property, and
subject in all cases to the exceptions to title set forth in the title insurance
policy or the other evidence of title enumerated in paragraph 4 of Exhibit C
hereto, with respect to the related Mortgage Loan, which exceptions are
generally acceptable to first and second lien mortgage lending companies, and
such other exceptions to which similar properties are commonly subject and which
do not individually, or in the aggregate, materially and adversely affect the
benefits of the security intended to be provided by such Mortgage;
(g) Each Mortgage Loan is principally secured by a Mortgaged Property. Each
Mortgaged Property is improved by a one- to four-family Residential Dwelling,
which, to the best of the Transferor's knowledge, does not include (A)
cooperatives, (B) mobile homes other than permanently affixed mobile homes which
constitute real property under state law, or (C) except for not more than
approximately 0.65% of the Mortgage Loans in Mortgage Loan Group 1, 0.57% of the
Mortgage Loans in Mortgage Loan Group 2, 0.49% of the Mortgage Loans in the
Mortgage Loan Group 3 and 0.89% of the Mortgage Loans in Mortgage Loan Group 4,
manufactured housing units, as defined in the FNMA Selling Guide, which
constitute other than real property under state law. Each manufactured home
securing a Mortgage Loan is a "single family residence" as defined in Section
25(e)(10) of the Code that is used as a single family residence, has a minimum
living space of 400 square feet and a minimum width of 102 inches and is of the
kind customarily used at a fixed location;
-8-
(h) With respect to each Mortgage Loan involving property improved by a
manufactured or mobile home, the Transferor or the related Originator has taken
all action necessary to create a valid and perfected first or second priority
(as reflected in the Mortgage Loan Schedule) lien and security interest in such
manufactured or mobile home and the related Mortgaged Property, including,
without limitation, the filing of UCC financing statements or notations on
certificates of title if necessary, under applicable state law;
(i) Immediately prior to the transfer and assignment herein contemplated,
the Transferor held good and indefeasible title to, and was the sole owner of,
each Mortgage Loan, subject to no liens, charges, mortgages, encumbrances or
rights of others (except any liens released immediately prior to the
Transferor's transfer of the Mortgage Loans to the Transferee); and immediately
upon the transfer and assignment herein contemplated, the Transferee will hold
good and indefeasible title, to, and be the sole owner of, each Mortgage Loan
(other than amounts collected on the Mortgage Loans in respect of interest
accrued prior to the Cut-off Date) subject to no liens, charges, mortgages,
encumbrances or rights of others;
(j) Approximately 3.07% of the Mortgage Loans in Mortgage Loan Group 1,
approximately 2.95% of the Mortgage Loans in Mortgage Loan Group 2,
approximately 3.07% of the Mortgage Loans in the Mortgage Loan Group 3 and
approximately 3.55% of the Mortgage Loans in Mortgage Loan Group 4 are 30 or
more days contractually delinquent; and none of the Mortgage Loans in the
Mortgage Pool are more than 59 days contractually delinquent as of the Cut-off
Date. For purposes of this representation and warranty "30 or more days
contractually delinquent" means that a Monthly Payment due on a Due Date was
unpaid as of the end of the month of the next succeeding Due Date or following
Due Dates and the Cut-off Date means the close of business on November 30, 2001.
As of the Closing Date, the Transferor does not know or have reason to know of
any facts or circumstances with respect to any Mortgagor or Mortgage Loan that
would indicate that foreclosure is likely to occur with respect to the related
Mortgaged Property;
(k) To the best of the Transferor's knowledge, (i) there is no delinquent
tax or assessment lien on any Mortgaged Property that would jeopardize the
Transferor's enforcement of the lien of the applicable Mortgage, and (ii) each
Mortgaged Property is free of material damage and is in average repair;
(l) No Mortgage Loan is subject to any right of rescission, set-off,
counterclaim or defense, including the defense of usury, nor will the operation
of any of the terms of the Mortgage Note 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 the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
(m) To the best of the Transferor's knowledge, there is no mechanics' lien
or claim for work, labor or material affecting any Mortgaged Property which is
or may be a lien prior to, or equal with, the lien of such Mortgage except those
which are insured against by the title insurance policy referred to in Section
3.02(o) below;
-9-
(n) Each Mortgage Loan at the time it was made complied in all material
respects with applicable state and federal laws and regulations, including,
without limitation, usury, equal credit opportunity and disclosure laws;
(o) With respect to each Mortgage Loan, other than any Mortgage Loan
secured by a second priority lien and having a Principal Balance not in excess
of $50,000 and any Mortgage Loan with a Principal Balance not in excess of
$50,000 which is secured by a first priority Mortgage on a Mortgaged Property
located in Oklahoma, a written commitment for a lender's title insurance policy,
issued in standard American Land Title Association or California Land Title
Association form, or other form customary and acceptable in the related
Mortgaged Property State, by a title insurance company acceptable to FNMA and
FHLMC and authorized to transact business in the state in which the related
Mortgaged Property is situated, together with a condominium endorsement, if
applicable, in an amount at least equal to the original Principal Balance of
such Mortgage Loan insuring the mortgagee's interest under the related Mortgage
Loan as the holder of a valid first or second mortgage lien of record on the
real property described in the Mortgage, subject only to (1) in the case of any
second lien Mortgage Loan, a First Lien on the same Mortgaged Property, (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of the related Mortgage,
such exceptions being set forth in the title insurance policy or attorney's
opinion of title and in the related appraisal, with respect to the related
Mortgage Loan, which exceptions are generally acceptable to banking institutions
in connection with their regular mortgage lending activities, and (3) such other
exceptions to which similar properties are commonly subject and which do not,
individually or in the aggregate, materially and adversely affect the benefits
of the security intended to be provided by the related Mortgage, was effective
on the date of the origination of such Mortgage Loan, and, as of the Closing
Date, such commitment will be valid and thereafter the policy issued pursuant to
such commitment shall continue in full force and effect or, with respect to
Mortgaged Properties located in jurisdictions in which it is customary and
acceptable to obtain an assurance of title in lieu of a title insurance policy,
such assurance of title has been obtained;
(p) The improvements upon each Mortgaged Property are covered by a valid
and existing hazard insurance policy with a generally acceptable carrier that
provides for fire and extended coverage representing coverage described in
Sections 5.07 and 5.08 of the Pooling and Servicing Agreement;
(q) A flood insurance policy is in effect with respect to each Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
described in Section 5.07 or 5.08 of the Pooling and Servicing Agreement, if and
to the extent required by such Section 5.07 or 5.08;
(r) Each Mortgage and Mortgage Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with its terms,
except only as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at law), and all parties to
each Mortgage Loan had full legal capacity to execute all Mortgage Loan
documents and convey the estate therein purported to be conveyed;
-10-
(s) The Transferor has directed the Servicer to perform any and all acts
required to be performed to preserve the rights and remedies of the Transferee
in any insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies or
interests therein, and establishments of co-insured, joint loss payee and
mortgagee rights in favor of the Transferee;
(t) No more than approximately 0.10% of the Mortgage Loans in Mortgage Loan
Group 1, approximately 0.15% of the Mortgage Loans in Mortgage Loan Group 2, no
more than approximately 0.22% of the Mortgage Loans in Mortgage Loan Group 3 and
no more than approximately 0.27% of the Mortgage Loans in Mortgage Loan Group 4,
are secured by Mortgaged Properties located within any single five-digit zip
code area within the State of California. No more than approximately 0.30% of
the Mortgage Loans in Mortgage Loan Group 1, no more than approximately 0.23% of
the Mortgage Loans in Mortgage Loan Group 2, no more than approximately 0.21% of
the Mortgage Loans in Mortgage Loan Group 3 and no more than approximately 0.17%
of the Mortgage Loans in Mortgage Loan Group 4, are secured by Mortgaged
Properties located within any single five-digit zip code area outside the State
of California;
(u) At least approximately 91.10% of the Mortgage Loans in Mortgage Loan
Group 1, approximately 92.00% of the Mortgage Loans in Mortgage Loan Group 2,
approximately 92.71% of the Mortgage Loans in the Mortgage Loan Group 3 and
approximately 85.16% of the Mortgage Loans in Mortgage Loan Group 4, are secured
by an Owner Occupied Mortgaged Property;
(v) The terms of the Mortgage Note and the Mortgage have not been impaired,
altered or modified in any material respect, except by a written instrument
which has been recorded or is in the process of being recorded, if necessary to
protect the interest of the Transferee, and which has been or will be delivered
to the Transferee. The substance of any such alteration or modification is
reflected on the related Mortgage Loan Schedule. Each original Mortgage was
recorded, and all subsequent assignments of the original Mortgage have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of the Transferor (or, subject
to Section 2.04 of the Pooling and Servicing Agreement are in the process of
being recorded);
(w) No instrument of release or waiver has been executed in connection with
the Mortgage Loan, and no Mortgagor has been released, in whole or in part, from
his or her obligations under the related Mortgage, Mortgage Note and other
related documents;
(x) Except for Existing Advances, the Transferor has not advanced funds, or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever was
earlier, to the day which precedes by one month the Due Date of the first
installment of principal and interest. With respect to Mortgaged Properties that
are the subject of a ground lease, to the best of the Transferor's knowledge,
all lease rents, and all other payments or assessments that have become due have
been paid and the Mortgagor is not
-11-
in material default under any other provisions of the lease and the lease is
valid, in good standing and in full force and effect;
(y) To the best of the Transferor's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of the Mortgaged
Property, nor is such a proceeding currently in process, and the Mortgaged
Property is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which the
premises were intended;
(z) To the best of the Transferor's knowledge, all of the improvements
which were included for the purpose of determining the appraised value of the
Mortgaged Property lie wholly within the boundaries and building restriction
lines of such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property;
(aa) To the best of the Transferor's knowledge, no improvement located on
or being part of the Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Transferor's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities;
(bb) The proceeds of the Mortgage Loan have been fully disbursed, and there
is no obligation on the part of the mortgagee to make future advances
thereunder. Any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing or
recording documents with respect to the Mortgage Loans were paid;
(cc) The related Mortgage Note is not and has not been secured by any
collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(dd) No Mortgage Loan was originated under a buydown plan;
(ee) There is no obligation on the part of the Transferor or any other
party to make payments in addition to those made by the Mortgagor;
(ff) With respect to each Mortgage constituting a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in such Mortgage, and no fees or
expenses are or will become payable by the Transferee to the trustee under such
deed of trust, except in connection with a trustee's sale after default by the
Mortgagor.
(gg) No Mortgage Loan has a shared appreciation feature or other contingent
interest feature;
(hh) With respect to each Mortgage Loan secured by a second priority lien,
the related First Lien requires equal monthly payments or if it bears an
adjustable interest rate, the
-12-
monthly payments for the related First Lien may be adjusted not more frequently
than once every six months;
(ii) With respect to each Mortgage Loan secured by a second priority lien,
either (i) no consent for the Mortgage Loan was or is required by the holder of
the related First Lien or (ii) such consent has been obtained and is contained
in the Mortgage File;
(jj) The maturity date of each Mortgage Loan secured by a second priority
lien is prior to the maturity date of the related First Lien if such First Lien
provides for a balloon payment;
(kk) All parties which have had any interest in the Mortgage Loan, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) (1) in compliance with any
and all applicable licensing requirements of the laws of the state wherein the
related Mortgaged Property is located, and (2)(A) organized under the laws of
such state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal offices in such
state, or (D) not doing business in such state so as to require qualification or
licensing;
(ll) The Mortgage contains a customary provision for the acceleration of
the payment of the unpaid principal balance of the Mortgage Loan in the event
the related security for the Mortgage Loan is sold without the prior consent of
the mortgagee thereunder;
(mm) Except for Existing Advances, any future advances made to the
Mortgagor prior to (and excluding) the Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term reflected on the related Mortgage Loan Schedule. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate the Servicer to make future
advances to the Mortgagor at the option of the Mortgagor;
(nn) The related Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
purported to be provided by the Mortgage, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial or non-judicial foreclosure. There is no homestead or other exemption
available to the Mortgagor which would materially interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage (subject to the applicable federal and state laws and judicial
precedent with respect to bankruptcy and rights of redemption) except as set
forth in the Prospectus;
(oo) Except for payment delinquencies described in Section 3.02(k) of this
Agreement, to the best of the Transferor's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or the
related Mortgage Note, and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration; and neither the Servicer
nor the Transferor has waived any such default, breach, violation or event of
acceleration;
-13-
(pp) All parties to the Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage have been duly and properly executed by such parties;
(qq) All amounts received by the Transferor on and after the Cut-off Date
with respect to the Mortgage Loans that are required to be paid to the
Transferee have been transferred to the Transferee;
(rr) Each Mortgage Loan was originated and underwritten by, or purchased
and re-underwritten by, the Transferor or by an affiliate of the Transferor,
provided, however, that certain of the Mortgage Loans acquired by the
Originators were underwritten on a random sample basis;
(ss) As of the Cut-off Date, each Mortgage Loan conforms, and all Mortgage
Loans in the aggregate conform, in all material respects, to the description
thereof set forth in the Prospectus Supplement, including all statistical data
provided therein in tabular format or otherwise;
(tt) The Mortgage Loans were not selected by the Originators or the
Transferor for transfer to the Transferee hereunder on any basis intended
adversely to affect the Transferee;
(uu) A full interior inspection appraisal was performed in connection with
each Mortgaged Property; provided, that for certain loans with Combined
Loan-To-Value Ratios less than 85% and balances less than $50,000, interior
inspections may not have been performed;
(vv) The Mortgage Interest Rate for each Mortgage Loan in Mortgage Loan
Group 1 is not less than 1.65% per annum, the Mortgage Interest Rate for each
Mortgage Loan in Mortgage Loan Group 2 is not less than 5.00% per annum, the
Mortgage Interest Rate for each Mortgage Loan in Mortgage Loan Group 3 is not
less than 5.50% per annum and the Mortgage Interest Rate for each Mortgage Loan
in Mortgage Loan Group 4 is not less than 5.50% per annum and the Mortgage
Interest Rate for each Mortgage Loan in Mortgage Loan Group 1 is not more than
18.79% per annum, the Mortgage Interest Rate for each Mortgage Loan in Mortgage
Loan Group 2 is not more than 18.01% per annum, the Mortgage Interest Rate for
each Mortgage Loan in Mortgage Loan Group 3 is not more than 18.55% per annum
and the Mortgage Interest Rate for each Mortgage Loan in Mortgage Loan Group 4
is not more than 21.50% per annum;
(ww) None of the Mortgage Loans in Mortgage Loan Group 1, Mortgage Loan
Group 2, or Mortgage Loan Group 3 is subject to the Home Ownership and Equity
Protection Act of 1994 ("HOEPA"). With respect to any Mortgage Loan in Mortgage
Loan Group 4 that is subject to HOEPA, all notices required to be delivered to
the related Mortgagor pursuant to HOEPA have been delivered, and all other
requirements of HOEPA have been complied with.
(xx) Each hazard insurance policy required to be maintained under Section
5.07 of the Pooling and Servicing Agreement with respect to such Mortgage Loan
is a valid, binding, enforceable and subsisting insurance policy of its
respective kind and is in full force and effect;
-14-
(yy) If the Mortgaged Property consists of a leasehold estate, the Mortgage
covers property improvements and the Mortgagor's leasehold interest in the land
upon which such improvements are situated; at origination of the Mortgage Loan
the term of the leasehold estate was scheduled to last for at least ten years
beyond the maturity date of the Mortgage or provided for perpetual renewal
covenants; the leasehold estate is assignable by the mortgagee; and the lease is
valid and in full force and effect;
(zz) To the best of the Transferor's knowledge, no Mortgaged Property was,
at origination, located within a one-mile radius of any site with material
environmental or hazardous waste risks;
(aaa) Each Mortgage Loan had an original principal balance that was lower
than the maximum principal balance for Mortgage Loans that are eligible for
purchase by Xxxxxx Xxx and Xxxxxxx Mac;
(bbb) With respect to each Mortgage Loan, the CLTV does not exceed 100%; to
the extent there is no documentation evidencing an appraisal with respect to a
Mortgage Loan, such Mortgage Loan was originated pursuant to a program that
required an appraisal of such Mortgaged Property that established a CLTV of less
than 100%. In addition, no Mortgage Loan has been modified since the date it was
originated in a manner that would change the Mortgage Interest Rate, defer or
forgive the payment of any principal or interest, extend the final maturity
date, or modify any other material term of the Mortgage Loan unless in
connection with the default or delinquency of such Mortgage Loan at the time of
such modification; and
(ccc) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code. For this purpose, Section 860G(a)(3)
of the Code shall be applied without regard to the rule contained in Treasury
Regulations Section 1.860G-2(f)(2) which treats a defective mortgage loan as a
"qualified mortgage" under certain circumstances. Accordingly, the Transferor
represents and warrants that each Mortgage Loan is directly secured by a
Mortgage on residential real property, and either (1) substantially all of the
proceeds of such Mortgage Loan were used to acquire, improve or protect such
residential real property and such interest in residential real property was the
sole security for such Mortgage Loan as of the Testing Date (as defined below),
or (2) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of the Mortgage
Loan (a) as of the Testing Date or (b) as of the Closing Date. For purposes of
the previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the lien of the Mortgage Loan, and
(b) a proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be the date
on which the referenced Mortgage Loan was originated unless (a) such Mortgage
Loan was modified after the date of its origination in a manner that would cause
a "significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(e), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in default or
when default with respect to such Mortgage Loan was reasonably foreseeable.
However, if the referenced Mortgage Loan has been subjected to a "significant
modification" after the date of its origination and at a time when such Mortgage
Loan was not in default or when default with respect to such Mortgage Loan was
not reasonably
-15-
foreseeable, the "Testing Date" shall be the date upon which the latest such
"significant modification" occurred.
SECTION 3.03. Purchase and Substitution.
It is understood and agreed that the representations and warranties set
forth in Sections 3.01 and 3.02 shall survive delivery of the Mortgage Loans to
the Transferee. Upon discovery by the Trustee, the Transferee, the Servicer, any
Subservicer, the Certificate Insurer, the NIMS Insurer, or the Custodian of a
breach of any of such representations and warranties which materially and
adversely affects the value of Mortgage Loans or the interest of the Transferee,
or which materially and adversely affects the interests of the Transferee in the
case of a representation and warranty relating to a particular Mortgage Loan
(notwithstanding that such representation and warranty was made to the
Transferor's best knowledge), the party discovering such breach shall give
prompt written notice to the others. Within 60 days of the earlier of its
discovery or its receipt of notice of any breach of a representation or
warranty, the Transferor shall (a) promptly cure such breach in all material
respects, or (b) purchase such Mortgage Loan by remitting to the Servicer for
deposit in the Principal and Interest Account, on the next succeeding
Determination Date relating to a Distribution Date, in the manner and at the
price specified in Section 2.05(b), or by substituting one or more Qualified
Substitute Mortgage Loans, provided such substitution is effected not later than
the date which is two years after the Closing Date. Any such substitution shall
be accompanied by payment by the Transferor of the Substitution Adjustment, if
any, to be deposited in the Principal and Interest Account; provided, that if
such breach of a representation and warranty caused such Mortgage Loan not to be
a "qualified mortgage" within the meaning of Code Section 860G(a)(3), such
repurchase or, if applicable, substitution shall occur within 75 days of the
earlier of the delivery of the Trustee's interim certification under the Pooling
and Servicing Agreement or Servicer's discovery of such defect. It is understood
that (i) a failure of a Mortgage File to contain a Mortgage Note (or a Destroyed
Mortgage Note Affidavit as permitted by paragraph 1 on Exhibit C) or a Mortgage
(with or without evidence of recording), (ii) the inclusion in the Mortgage Pool
or any Mortgage Loan with a CLTV greater than 100% which also fails to meet the
requirement that it be "principally secured by an interest in real property"
within the meaning of Treasury Regulation 1.860G-2(a)(1), or (iii) any other
Mortgage File defect that causes the related Mortgage Loan not to be a
"qualified mortgage" within the meaning of Code Section 860G(a)(3) materially
and adversely affects the interests of the Certificateholders. Notwithstanding
anything to the contrary herein (other than the immediately preceding sentence),
a breach of a representation and warranty with respect to a particular Mortgage
Loan shall not be considered to materially and adversely affect the interests of
the Trustee, the Certificateholders, the Certificate Insurer or the NIMS Insurer
unless and until a Mortgage Loan Loss is incurred on the related Mortgage Loan
as the direct and proximate result of the breach. In the event of a Mortgage
Loan Loss resulting directly and proximately from such a breach, which Mortgage
Loan Loss is determined following liquidation of the related Mortgage Loan, it
is understood that the Transferor may satisfy its repurchase obligation by
depositing the amount of the Mortgage Loan Loss into the Principal and Interest
Account on the next succeeding Determination Date (after deducting therefrom any
amounts received in respect of such liquidated Mortgage Loans and held in the
Principal and Interest Account for future distribution). Notwithstanding the
foregoing, the existence of any Mortgage Loan subject to HOEPA in Mortgage Loan
Group 1, Mortgage Loan Group 2 or Mortgage Loan Group 3 in breach of the
representation in Section 3.02 (xx), shall
-16-
constitute a material adverse effect on the interests of the Trustee, the
Certificateholders, the Certificate Insurer or the NIMS Insurer in such Mortgage
Loan, and such Mortgage Loan must be repurchased or substituted for no later
than the third Business Day following the 60th day after the Transferor's
receipt of actual knowledge that such Mortgage Loan is subject to HOEPA.
As to any Deleted Mortgage Loan for which the Transferor
substitutes a Qualified Substitute Mortgage Loan or Loans, the Servicer shall
effect such substitution by delivering to the Transferee a certification in the
form attached to the Custodial Agreement as Exhibit B thereto, and delivering to
the Transferee the documents constituting the Mortgage File for such Qualified
Substitute Mortgage Loan or Loans.
The Servicer is required to deposit in the Principal and Interest Account
all payments received in connection with such Qualified Substitute Mortgage Loan
or Loans after the date of such substitution; provided, however, that any
amounts received after the date of substitution in respect of interest accrued
on or prior to the date of substitution on such Qualified Substitute Mortgage
Loan will constitute the property of the Transferor. Monthly Payments received
with respect to Qualified Substitute Mortgage Loans on or before the date of
substitution will be retained by the Servicer on behalf of the Transferor. The
Transferee will own all payments received on the Deleted Mortgage Loan on or
before the date of substitution, and the Servicer on behalf of the Transferor
shall thereafter be entitled to retain all amounts subsequently received in
respect of such Deleted Mortgage Loan. The Servicer shall amend the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the
terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan. Upon such substitution, such Qualified Substitute Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the Servicer and the Transferor shall be deemed to have made with respect to
such Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set forth in
Sections 3.01 and 3.02. On the date of such substitution, the Transferor will
remit to the Transferee an amount equal to the Substitution Adjustment, if any.
It is understood and agreed that the obligations of the Transferor set
forth in Sections 2.05 and 3.03 to cure, purchase, pay the Mortgage Loan Loss or
substitute for a defective Mortgage Loan as provided in Sections 2.05 and 3.03
constitute the sole remedies of the Transferee respecting a breach of the
foregoing representations and warranties.
Any cause of action against the Transferor relating to or arising out of a
defect in a Mortgage File as contemplated by Section 2.05 or the breach of any
representations and warranties made in Sections 3.01 or 3.02 shall arise as to
any Mortgage Loan upon the occurrence of not less than all of the following
events: (i) discovery of such defect or breach by the Certificate Insurer, the
NIMS Insurer or any party and notice thereof to the Transferor or notice thereof
by the Transferor to the Transferee, (ii) failure by the Transferor to cure such
defect or breach or purchase or substitute such Mortgage Loan as specified
above, and (iii) demand upon the Transferor by the Certificate Insurer the NIMS
Insurer or the Transferee for all amounts payable in respect of such Mortgage
Loan. The party delivering such notice shall also deliver a copy thereof to the
Certificate Insurer and the NIMS Insurer.
-17-
ARTICLE IV
CONDITIONS
SECTION 4.01. Conditions to Obligation of the Transferee.
The obligation of the Transferee to purchase the Mortgage Loans is subject
to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and warranties
of the Transferor hereunder shall be true and correct on the Closing Date with
the same effect as if then made, and the Transferor shall have performed all
obligations to be performed by it hereunder on or prior to the Closing Date.
(b) Documents to be Delivered By the Transferor at the Closing.
(i) Final Mortgage Loan Schedule specifying the Mortgage Loans to be
Transferred hereunder, one copy to be attached to each counterpart to the
Pooling and Servicing Agreement as the Mortgage Loan Schedule thereto;
(ii) Officer's Certificate dated as of the Closing Date with respect
to the Transferor, and attached thereto the resolutions of the Transferor,
authorizing the transactions contemplated by this Agreement and the other
Basic Documents, together with copies of the charter and by-laws of the
Transferor;
(iii) Opinion of Counsel to the Transferor dated as of the Closing
Date in the form required to be delivered to any Rating Agency or the
Certificate Insurer; and
(iv) Certificate or other evidence of merger or changes of name,
signed or stamped by the applicable regulatory authority, if any of the
Mortgage Loans were acquired by the Transferor by merger or acquired or
originated by the Transferor while conducting business under a name other
than its present name.
(c) Other Documents. At the Closing, the Transferor shall provide such
other documents as the Transferee may reasonably request.
(d) Other Transactions. The transactions contemplated by the Pooling and
Servicing Agreement and the other Basic Documents shall be consummated on the
Closing Date.
SECTION 4.02. Conditions To Obligation of the Transferor.
The obligation of the Transferor to transfer the Mortgage Loans to the
Transferee is subject to the satisfaction of the condition that at the Closing
Date, the Transferee shall deliver to the Transferor the consideration provided
in Section 2.01 and the Transferee shall accept a capital contribution from the
Transferor in an amount equal to the balance of the purchase price of the
Mortgage Loans transferred by the Transferor to the Transferee, all as reflected
on the books and records of the Transferor and the Transferee.
-18-
ARTICLE V
THE TRANSFEROR
SECTION 5.01. Third Party Servicers.
As of the Closing Date, the Transferor has represented to the Transferee
that the Mortgage Loans are serviced by the Initial Servicer and are not subject
to servicing agreements with third parties. It is understood and agreed between
the Transferor and the Transferee that the Mortgage Loans which are the subject
of this Agreement are to be delivered free and clear of any servicing agreements
with third party servicers (other than the Successor Servicer). The Transferor,
without reimbursement from the Transferee, shall pay any fees or penalties
required by any third party servicer for releasing the Mortgage Loans from any
such servicing agreement and shall arrange for the orderly transfer of such
servicing from any such third party servicer to the Transferee.
SECTION 5.02. Enforceability; Merger or Consolidation of the Transferor.
(a) The Transferor will keep in full effect its respective existence,
rights and franchises as a corporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the other Basic Documents, the Pooling and
Servicing Agreement, and any of the Mortgage Loans and to perform its duties
under such agreements.
(b) Any Person into which the Transferor may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Transferor shall be a party, or any Person succeeding to the business of the
Transferor, shall be the successor of the Transferor hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
SECTION 5.03. Mandatory Delivery; Grant of Security Interest.
The transfer and delivery on the Closing Date by the Transferor of its
Mortgage Loans are mandatory, it being specifically understood and agreed that
each Mortgage Loan is unique and identifiable on the date hereof and that an
award of money damages would be insufficient to compensate the Transferee for
the loss and damages incurred by the Transferee (including damages to
prospective purchasers of the Certificates) in the event of the Transferor's
failure to deliver the Mortgage Loans on or before the Closing Date. The
Transferor hereby grants to the Transferee a lien on and continuing security
interest in each Mortgage Loan and each document and instrument evidencing such
Mortgage Loan to secure the performance by the Transferor of its obligations
hereunder, and the Transferor agrees that it holds each Mortgage Loan in custody
for the Transferee subject to the Transferee's (i) right to reject any Mortgage
Loan under the terms of this Agreement and (ii) obligation to deliver cash and
other consideration as set forth in Section 2.01 for the Mortgage Loans. All
rights and remedies of the Transferee under this Agreement are distinct from,
and cumulative with, any other rights or
-19-
remedies under this Agreement or afforded by law or equity, and all such rights
and remedies may be exercised concurrently, independently or successively.
ARTICLE VI
ADDITIONAL AGREEMENTS
The Transferor agrees with the Transferee as follows:
SECTION 6.01. Conflicts With Pooling and Servicing Agreement.
To the extent that any provision of Sections 6.02 through 6.04 of this
Agreement conflicts with any provision of the Pooling and Servicing Agreement,
the Pooling and Servicing Agreement shall govern.
SECTION 6.02. Protection of Title to Trust.
(a) The Transferor shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action necessary or advisable to:
(i) maintain or preserve the transfer evidenced by this Agreement or
carry out more effectively the purposes hereof; or
(ii) preserve and defend the Transferee's title to the Mortgage Loans
and the rights of the Transferee in such assets against the claims of all
persons and parties, and the Transferor hereby designates the Transferee,
its agent and attorney-in-fact to execute any financing statement,
continuation statement or other instrument required by the Transferee
pursuant to this Section 6.02.
SECTION 6.03. Other Liens or Interests.
Except for the conveyances hereunder and pursuant to this Agreement and the
other Basic Documents, the Transferor shall not sell, pledge, assign or transfer
the Mortgage Loans to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any interest therein, and the Transferor shall
defend the right, title and interest of the Transferee in, to and under such
Mortgage Loans against all claims of third parties claiming through or under the
Transferor.
SECTION 6.04. Purchase Events.
The Transferor acknowledges that the Transferee has assigned all of their
right, title and interest in, to and under this Agreement, including the
Transferee's right to cause the Transferor to purchase the Mortgage Loans from
the Transferee under certain circumstances, to the Trust pursuant to Section
2.01 of the Pooling and Servicing Agreement, and the Transferee has granted to
the Trustee a security interest in and Lien on the Mortgage Loans and the
Transferee's right, title and interest in this Agreement. The Transferor hereby
covenants and
-20-
agrees with the Transferee for the benefit of the Transferee, the Trustee, the
Certificateholders and the Certificate Insurer, the NIMS Insurer, that the
occurrence of a breach of any of the Transferor's representations and warranties
contained in Section 3.02 hereof shall constitute events obligating the
Transferor, to the extent specified in Section 3.03 of the Pooling and Servicing
Agreement, and without further notice from the Transferee hereunder, to purchase
applicable Mortgage Loans from the Trustee (a "Purchase Event"). It is
understood and agreed that the obligation of the Transferor to purchase any
Mortgage Loan as to which a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Transferor for
such breach available to the Trustee, the Certificateholders, the Certificate
Insurer or the NIMS Insurer.
SECTION 6.05. Indemnification.
The Transferor shall indemnify the Transferee against any loss or liability
as a result of the failure of any Mortgage Loan to be originated in compliance
with all requirements of law. This indemnity obligation shall be in addition to
any obligation that the Transferor may otherwise have.
SECTION 6.06. Trust.
The Transferor acknowledges that the Transferee shall, pursuant to the
Pooling and Servicing Agreement, transfer the Mortgage Loans to the Trustee (for
the benefit of the Certificateholders), and the Transferee assigns its rights
hereunder to the Trustee (for the benefit of the Certificateholders) as set
forth in the Pooling and Servicing Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendment.
This Agreement may be amended from time to time (upon prior notice to each
of the Rating Agencies and with the prior written consent of the Certificate
Insurer) by a written amendment duly executed and delivered by the Transferor
and the Transferee, provided, however, that any such amendment that materially
adversely affects the rights of the Certificateholders under the Pooling and
Servicing Agreement must be consented to by a Majority in Voting Interest of the
Certificates.
SECTION 7.02. Waivers.
No failure or delay on the part of the Transferee in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or further exercise thereof or the exercise of any other power, right
or remedy.
-21-
SECTION 7.03. Costs and Expenses.
The Transferor agrees to pay all reasonable out-of-pocket costs and
expenses of the Transferee, including fees and expenses of counsel, in
connection with the perfection as against third parties of the Transferee's
right, title and interest in, to and under the Mortgage Loans and the
enforcement of any obligation of the Transferor hereunder.
SECTION 7.04. Survival.
The representations, warranties and covenants of the Transferor set forth
in Sections 3.01 and 3.02 and Article V of this Agreement shall remain in full
force and effect and shall survive the closing under Section 2.07 and the
transfers contemplated by Sections 6.04 and 6.06.
SECTION 7.05. Confidential Information.
The Transferee agrees that it shall neither use nor disclose to any person
the names and addresses of the Mortgagors, except in connection with the
enforcement of the Transferee's rights (i) hereunder, (ii) under the Mortgage
Loans, (iii) under the Basic Documents or (iv) as required by law.
SECTION 7.06. Severability Clause.
Any part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 7.07. Headings and Cross-References.
The various headings in this Agreement are included for convenience only
and shall not affect the meaning or interpretation of any provision of this
Agreement.
SECTION 7.08. Recordation of Agreement.
To the extent permitted by applicable law, the Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Transferor at the Transferor's expense on direction of the Transferee
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Transferee.
-22-
SECTION 7.09. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT).
SECTION 7.10. Notices.
All demands, notices and communications under this Agreement shall be in
writing, personally delivered or mailed by certified mail with return receipt
requested, and shall be deemed to have been duly given upon receipt at the
appropriate address set forth in the Pooling and Servicing Agreement.
SECTION 7.11. Counterparts.
This Agreement may be executed in two or more counterparts and by different
parties on separate counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
SECTION 7.12. The Certificate Insurer and the NIMS Insurer.
Any right conferred to the Certificate Insurer and the NIMS Insurer
hereunder shall be suspended during any period in which the Certificate Insurer
or the NIMS Insurer is in default in its payment obligations under their
respective insurance policies. At such time as the Certificates are no longer
outstanding under the Pooling and Servicing Agreement, and no amounts owed to
the Certificate Insurer or the NIMS Insurer under any Basic Document remain
unpaid, the Certificate Insurer's or the NIMS Insurer's rights hereunder shall
terminate. Each of the Certificate Insurer and the NIMS Insurer is an intended
third-party beneficiary of this Agreement.
-23-
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
TRANSFEROR:
EQUICREDIT CORPORATION OF AMERICA
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
TRANSFEREE:
EQCC RECEIVABLES CORPORATION
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
[Signature Pages to the Transfer Agreement]
-24-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(See Exhibit D to the Pooling and Servicing Agreement)
A-1
EXHIBIT B
FORM OF TRANSFEREE RECEIPT
, 2001
-------- --
EquiCredit Corporation of America
Re: Transfer Agreement (the "Transfer Agreement"), dated as of
December 1, 2001, between EquiCredit Corporation of America (the
"Transferor") and EQCC Receivables Corporation (the "Transferee")
relating to the EQCC Asset Backed Certificates, Series 2001-1F
Gentlemen:
In accordance with Section 2.05 of the Transfer Agreement, the undersigned
hereby certifies that, except as noted on the attachment hereto, if any (the
"Loan Exception Report"), it or the Custodian on its behalf has received, with
respect to each Mortgage Loan, the documents specified in paragraphs (1), (2),
(3), (7) and (8) on Exhibit C to the Transfer Agreement, as applicable, a
Mortgage, or a certified copy thereof, Assignment of Mortgage, or a certified
copy thereof, and a Mortgage Note with respect to each Mortgage Loan listed in
the Transfer Agreement and the documents contained therein appear to bear
original signatures or copies of originals if the originals have not yet been
delivered.
Capitalized words and phrases used and undefined herein shall have the
respective meanings assigned to them in the above-captioned Transfer Agreement.
EQCC RECEIVABLES CORPORATION
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
B-1
EXHIBIT C
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items (copies to the extent the originals have been delivered to
the Transferee pursuant to Section 2.04 of the Pooling and Servicing Agreement),
all of which shall be available for inspection by the Trustee and the Custodian,
to the extent required by applicable laws:
1. (i)(A) The original Mortgage Note, with any intervening endorsements,
endorsed "Pay to the order of The Bank of New York, as Trustee under
the Pooling and Servicing Agreement dated as of December 1, 2001,
Series 2001-1F, without recourse" or in blank and signed, by facsimile
or manual signature, in the name of the Transferor or of the
Originator that transferred such Mortgage Loan to the Transferor
pursuant to the Transfer Agreement by a Responsible Officer of the
Transferor or such Originator, with all prior and intervening
endorsements showing a complete chain of endorsement from the
originator to such Originator or the Transferor, as the case may be,
if neither the Transferor nor the Originator from whom the Transferor
acquired such Mortgage Loan was the originator of the Mortgage Loan or
(B) if such Mortgage Note is a Destroyed Mortgage Note, an original
Destroyed Mortgage Note Affidavit together with a copy of such
Mortgage Note attached thereto and, (ii) and, with respect to
manufactured housing units, the certificate of title, if any.
2. Either: (i) a copy of the Mortgage certified as a true copy by a
Responsible Officer of the Transferor or of the Originator that
transferred such Mortgage Loan to the Transferor (provided, however,
that such Responsible Officer may complete one or more blanket
certificates attaching copies of one or more Mortgages relating
thereto) or by the closing attorney, or by an officer of the title
insurer or agent of the title insurer which issued the related title
insurance policy, or commitment therefor, if the original has been
transmitted for recording until such time as the original is returned
by the public recording office or (ii) a copy of the Mortgage
certified by the public recording office in those instances where the
original recorded Mortgage has been lost.
3. The original Assignment of Mortgage from the Originator that
transferred such Mortgage Loan to the Transferor (or, in the case of
Mortgage Loans owned by the Transferor without any assignment of such
Mortgage Loans from an Originator, an original Assignment from the
Transferor) to The Bank of New York as Trustee under the Pooling and
Servicing Agreement dated as of December 1, 2001, Series 2001-1F, or
in blank; any such Assignments of Mortgage may be made by blanket
assignment for
C-1
Mortgage Loans secured by the Mortgaged Properties located in the same
county if permitted by applicable local law.
4. Except with respect to any Mortgage Loan secured by a second priority
lien and having a principal balance not in excess of $50,000, and any
Mortgage Loan with a Principal Balance not in excess of $50,000 which
is secured by a first priority Mortgage on a Mortgaged Property
located in Oklahoma, the original policy of title insurance or a true
copy thereof or, if such policy has not yet been delivered by the
insurer, the commitment or binder to issue same, or original documents
of assurance of title.
5. Either: (i) originals of all intervening assignments, if any showing a
complete chain of title from the originator to the Transferor or the
applicable Originator, including any recorded warehousing assignments,
with evidence of recording thereon, or, (ii) if the original
intervening assignments have not yet been returned from the recording
office, a copy of the originals of such intervening assignments
together with a certificate of a Responsible Officer of the Transferor
or the applicable Originator or the closing attorney or an officer of
the title insurer which issued the related title insurance policy, or
commitment therefor, or its duly authorized agent certifying that the
copy is a true copy of the original of such intervening assignments or
(iii) a copy of the intervening assignment certified by the public
recording office in those instances where the original recorded
intervening assignment has been lost.
6. Originals of all assumption and modification agreements, if any or a
copy certified as a true copy by a Responsible Officer of the
Transferor or the applicable Originator.
7. [RESERVED]
8. [RESERVED]
9. [RESERVED]
10. [RESERVED]
11. Mortgage Loan closing statement and any other truth-in-lending or real
estate settlement procedure forms required by law.
12. Residential loan application.
13. Verification of employment and income, and tax returns, if any.
14. Credit report on the mortgagor.
15. The full appraisal if available made in connection with the
origination of the related Mortgage Loan with photographs of the
subject property and of
C-2
comparable properties, constituting evidence sufficient to indicate
that the Mortgaged Property relates to a Residential Dwelling.
Provided, that for certain loans with combined loan-to-value ratios
less than 85% and balances less than $50,000, interior inspections may
not be included.
16. Copy of the First Lien, if in the Servicer's file.
17. All other papers and records developed or originated by the
Transferor, the applicable Originator or others, required to document
the Mortgage Loan or to service the Mortgage Loan.
C-3
