Exhibit 99.1
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
between
TABERNA REALTY HOLDINGS TRUST
as Seller
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
June 1, 2007
TABLE OF CONTENTS
PAGE
----
Section 1. Definitions.................................................. 1
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights... 2
Section 3. Mortgage Loan Schedule....................................... 3
Section 4. Mortgage Loan Transfer....................................... 3
Section 5. Examination of Originator's Mortgage Files................... 4
Section 6. [Reserved]................................................... 6
Section 7. Representations and Warranties of Seller Concerning the
Mortgage Loans............................................... 6
Section 8. Representations and Warranties Concerning the Seller......... 7
Section 9. Representations and Warranties Concerning the Purchaser...... 8
Section 10. Conditions to Closing........................................ 9
Section 11. [Reserved]................................................... 11
Section 12. Notices...................................................... 11
Section 13. Transfer of Mortgage Loans................................... 11
Section 14. Representations, Warranties and Agreements to Survive
Delivery..................................................... 12
Section 15. Mandatory Delivery; Grant of Security Interest............... 12
Section 16. Severability................................................. 12
Section 17. Counterparts................................................. 13
Section 18. Amendment.................................................... 13
Section 19. Governing Law................................................ 13
Section 20. Further Assurances........................................... 13
Section 21. Successors and Assigns....................................... 13
Section 22. The Seller................................................... 13
Section 23. Entire Agreement............................................. 14
Section 24. No Partnership............................................... 14
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EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Mortgage Loan Schedule Information
Exhibit 2 Schedule of Lost Notes
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MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of June 1, 2007, as amended
and supplemented by any and all amendments hereto (collectively, the
"Agreement"), by and between TABERNA REALTY HOLDINGS TRUST, a Maryland business
trust (the "Seller"), and XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware
corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the
Seller agrees to sell, and the Purchaser agrees to purchase, certain first lien,
adjustable-rate mortgage loans secured by one- to four-family residences,
individual condominiums, co-op units and units in planned unit developments
(collectively, the "Mortgage Loans") as described herein. The Purchaser intends
to sell the Mortgage Loans to Xxxxxxx Xxxxx Mortgage Backed Securities Trust,
Series 0000-0 (xxx "Xxxxxxx Xxxxxx") pursuant to the Sale and Servicing
Agreement, dated June 27, 2007, among the Seller, the Purchaser, as depositor,
the Issuing Entity, Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator (the "Securities Administrator") and HSBC Bank USA, National
Association as indenture trustee (the "Indenture Trustee") (the "Sale and
Servicing Agreement"). The Issuing Entity will issue Xxxxxxx Xxxxx Mortgage
Backed Securities Trust, Series 2007-2 Mortgage Loan Asset-Backed Notes pursuant
to an Indenture, dated as of June 27, 2007, among the Issuing Entity, the
Securities Administrator and the Indenture Trustee (the "Indenture").
The Purchaser has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Number 333-140436)
relating to its Mortgage Loan Asset-Backed Notes and the offering of certain
series thereof (including certain classes of the Notes) from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (the "Securities
Act"). Such registration statement, when it became effective under the
Securities Act, and the prospectus relating to the public offering of certain
classes of the Notes by the Purchaser (the "Public Offering"), as from time to
time each is amended or supplemented pursuant to the Securities Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated June 26, 2007 to the Prospectus, dated May 15, 2007, relating
to certain classes of the Notes. With respect to the Public Offering of certain
classes of the Notes, the Purchaser and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") have entered into a terms agreement dated as of
June 25, 2007, to an underwriting agreement dated February 28, 2003, between the
Purchaser and Xxxxxxx Xxxxx (together, the "Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions.
Certain terms are defined herein. Capitalized terms used herein but
not defined herein shall have the meanings specified in Appendix A to the
Indenture. The following other terms are defined as follows:
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Xxxxxxx Xxxxx: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Originator's Mortgage File: The items provided in the Transfer
Agreement pertaining to a particular Mortgage Loan and any additional documents
required to be added to such documents pursuant to the Transfer Agreement.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to the applicable provisions of this Agreement,
an amount equal to the sum of (i) 100% of the principal remaining unpaid on such
Mortgage Loan as of the date of purchase (including if a foreclosure has already
occurred, the principal balance of the related Mortgage Loan at the time the
Mortgaged Property was acquired), and (ii) accrued and unpaid interest thereon
at the Mortgage Interest Rate through and including the last day of the month of
purchase (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan of any predatory or
abusive-lending law.
Transfer Agreement: Collectively (1) the Seller's Warranties and
Servicing Agreement, dated as of July 1, 2006, by and between Xxxxxxx Xxxxx
Mortgage Lending, Inc., ("MLML") and Xxxxx Fargo Bank, N.A. ("WFB") (the
"Underlying Agreement"); and (2) the Assignment, Assumption and Recognition
Agreement, dated August 8, 2006, between MLML and the Seller (the "AAR
Agreement").
Transferor: WFB.
Value: The value of the Mortgaged Property at the time of origination
of the related Mortgage Loan, such value being the lesser of (i) the value of
such property set forth in an appraisal accepted by the Originator or (ii) the
sales price of such property at the time of origination.
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10
hereof, the Seller agrees to sell, and the Purchaser agrees to purchase Mortgage
Loans having an aggregate Cut-off Date Balance of $645,696,568.
(b) The closing for the purchase and sale of the Mortgage Loans and
the closing for the issuance of the Notes will take place on the Closing Date at
the office of the Purchaser's counsel in New York, New York or such other place
as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section 10
hereof, on the Closing Date, in consideration of the purchase of the Mortgage
Loans, the Purchaser shall pay to the Seller an amount equal to the net sale
proceeds of the Notes plus accrued interest (the "Purchase Price") in
immediately available funds by wire transfer to such account or accounts as
shall be designated by the Seller.
(d) In addition to the foregoing, on the Closing Date the Seller
assigns to the Purchaser without recourse all of its right, title and interest
in the Transfer Agreement.
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Section 3. Mortgage Loan Schedule.
The Seller agrees to provide to the Purchaser on or prior to the
Closing Date a schedule (the "Mortgage Loan Schedule") setting forth the
information listed on Exhibit 1 to this Agreement with respect to each of the
Mortgage Loans being sold by the Seller to the Purchaser. The Purchaser confirms
that the Mortgage Loan Schedule includes the information categories set forth on
Exhibit 1.
Section 4. Mortgage Loan Transfer.
(a) The Purchaser will be entitled to all scheduled payments of
principal and interest on the Mortgage Loans due after the Cut-off Date
(regardless of when actually collected) and all payments thereof other than
scheduled principal and interest received after the Cut-off Date. The Seller
will be entitled to all scheduled payments of principal and interest on the
Mortgage Loans due on or before the Cut-off Date (including payments collected
after the Cut-off Date) and all payments thereof other than scheduled principal
and interest on the Mortgage Loans received on or before the Cut-off Date. Such
principal amounts and any interest thereon belonging to the Seller as described
above will not be included in the aggregate outstanding principal balance of the
Mortgage Loans as of the Cut-off Date as set forth on the Mortgage Loan
Schedule.
(b) Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Sale and Servicing Agreement and the Indenture,
the Purchaser will assign on the Closing Date all of its right, title and
interest in and to the Mortgage Loans to the Issuing Entity, and the Issuing
Entity will assign on the Closing Date all of its right, title in and to the
Mortgage Loans to the Indenture Trustee for the benefit of the Noteholders. In
connection with the transfer and assignment of the Mortgage Loans, the Seller
(at the request of the Purchaser) has delivered or will deliver or cause to be
delivered to the Custodian, on behalf of the Issuing Entity, by the Closing Date
or such later date as is agreed to by the Purchaser and the Seller (each of the
Closing Date and such later date is referred to as a "Originator's Mortgage File
Delivery Date"), the items of each Originator's Mortgage File, provided,
however, that in lieu of the foregoing, the Seller may deliver the following
documents, under the circumstances set forth below: (x) in lieu of the original
Mortgage, assignments to the Indenture Trustee or intervening assignments
thereof which have been delivered, are being delivered or will upon receipt of
recording information relating to the Mortgage required to be included thereon,
be delivered to recording offices for recording and have not been returned in
time to permit their delivery as specified above, the Seller may deliver a true
copy thereof with a certification by the Seller or the Originator, on the face
of such copy, substantially as follows: "Certified to be a true and correct copy
of the original, which has been transmitted for recording;" (y) in lieu of the
Mortgage, assignments to the Indenture Trustee or intervening assignments
thereof, if the applicable jurisdiction retains the originals of such documents
or if the originals are lost (in each case, as evidenced by a certification from
the Seller to such effect), the Seller may deliver photocopies of such documents
containing an original certification by the judicial or other governmental
authority of the jurisdiction where such documents were recorded; and (z) in
lieu of the Mortgage Notes relating to the Mortgage Loans, each identified in
the list delivered by the Purchaser to the Indenture Trustee on the Closing Date
and attached hereto as Exhibit 2 the Seller may deliver lost note affidavits and
indemnities of the Seller; and provided further,
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however, that in the case of Mortgage Loans which have been prepaid in full
after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of
delivering the above documents, may deliver to the Indenture Trustee a
certification by the Seller to such effect. The Seller shall deliver such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Custodian,
on behalf of the Issuing Entity, or the Indenture Trustee promptly after they
are received.
(c) The Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans and the related servicing therefor will ultimately be assigned to
HSBC Bank USA, National Association, as Indenture Trustee for the Noteholders,
on the date hereof.
Section 5. Examination of Originator's Mortgage Files.
(a) On or before the Originator's Mortgage File Delivery Date, the
Seller will have made the Originator's Mortgage Files available to the Purchaser
or its agent for examination which may be at the offices of the Indenture
Trustee, the Seller or the Custodian. The fact that the Purchaser or its agent
has conducted or has failed to conduct any partial or complete examination of
the Originator's Mortgage Files shall not affect the Purchaser's rights to
demand cure, repurchase, substitution or other relief as provided in this
Agreement. In furtherance of the foregoing, the Seller shall make the
Originator's Mortgage Files available to the Purchaser or its agent from time to
time so as to permit the Purchaser to confirm the Seller's compliance with the
delivery requirements of this Agreement and the Sale and Servicing Agreement. In
addition, upon request of the Purchaser, the Seller agrees to provide to the
Purchaser and Xxxxxxx Xxxxx information regarding the Mortgage Loans and their
servicing, to make the Originator's Mortgage Files available to the Purchaser
and Xxxxxxx Xxxxx (which may be at the offices of the Seller and/or the
Custodian) and to make available personnel knowledgeable about the Mortgage
Loans for discussions with the Purchaser and Xxxxxxx Xxxxx, upon reasonable
request during regular business hours, sufficient to permit the Purchaser and
Xxxxxxx Xxxxx to conduct such due diligence as any such party reasonably
believes is appropriate.
(b) Pursuant to the Sale and Servicing Agreement, on the Closing Date
the Custodian, for the benefit of the Noteholders, will review items of the
Originator's Mortgage Files and will deliver to the Seller a certification in
the form attached as Exhibit One to the Custodial Agreement.
(c) Pursuant to the Sale and Servicing Agreement, the Custodian will
review the Originator's Mortgage Files within 180 days of the Closing Date and
will deliver to the Purchaser a final certification substantially in the form of
Exhibit Three to the Custodial Agreement. If the Custodian is unable to deliver
a final certification due to any document that is missing, has not been
executed, is unrelated, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans identified in the
Mortgage Loan Schedule (a "Material Defect"), the Custodian shall notify the
Seller of such Material Defect. The Seller shall correct or cure any such
Material Defect within 90 days from the date of notice from the Custodian of the
Material Defect and if the Seller does not correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Noteholders in the related Mortgage Loan, the Seller will, in
accordance with the terms of
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the Sale and Servicing Agreement, within 90 days of the date of notice, provide
the Indenture Trustee with a Substitute Mortgage Loan or purchase the related
Mortgage Loan at the applicable Purchase Price, it being understood and agreed
by the parties hereto that the Seller's obligation to repurchase any Mortgage
Loan hereunder is no greater than the Seller's right to cause the Transferor to
repurchase such Mortgage Loan pursuant to the Transfer Agreement; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the original security instrument or intervening assignments thereof, or
a certified copy because the originals of such documents, or a certified copy,
have not been returned by the applicable jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event later than
360 days after the Closing Date. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that the Seller shall instead deliver a recording receipt of
such recording office or, if such receipt is not available, a certificate of the
Seller confirming that such documents have been accepted for recording, and
delivery to the Indenture Trustee, or its designee, shall be effected by the
Seller within thirty days of its receipt of the original recorded document.
(d) At the time of any substitution, the Seller shall deliver or cause
to be delivered the Substitute Mortgage Loan, the related Originator's Mortgage
File and any other documents and payments required to be delivered in connection
with a substitution pursuant to the Sale and Servicing Agreement. At the time of
any purchase or substitution, the Indenture Trustee shall (in accordance with
the terms of the Sale and Servicing Agreement) (i) assign to the Seller and
cause the Custodian to release the documents (including, but not limited to, the
Mortgage, Mortgage Note and other contents of the Originator's Mortgage File) in
the possession of the Custodian relating to the Deleted Mortgage Loan and (ii)
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in the Seller title to such
Deleted Mortgage Loan.
(e) It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans by the Seller to the Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held by a court of competent jurisdiction to continue to be
property of the Seller, then (i) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the applicable
Uniform Commercial Code; (ii) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, to the extent the Purchaser would otherwise be entitled to own such
Mortgage Loans and proceeds pursuant to Section 4 hereof, including all amounts,
other than investment earnings, from time to time held or invested in any
accounts created pursuant to the Sale and Servicing Agreement, whether in the
form of cash, instruments, securities or other property; (iii) the possession by
the Purchaser or the Indenture Trustee of Mortgage Notes and
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such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section
9-305 (or comparable provision) of the applicable Uniform Commercial Code; and
(iv) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to any provision hereof or
pursuant to the Sale and Servicing Agreement or the Indenture shall also be
deemed to be an assignment of any security interest created hereby. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be reasonably necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the
Sale and Servicing Agreement and the Indenture.
Section 6. [Reserved].
Section 7. Representations and Warranties of Seller Concerning the Mortgage
Loans.
(a) The Seller hereby represents and warrants, as of June 27, 2007,
that (x) each of the representations and warranties contained in Section 3.02 of
the Underlying Agreement is true, complete and correct with respect to each
Mortgage Loan (other than Mortgage Loan #145512638) and (y) each of the
representations and warranties contained in Section 3.02 of the Seller's
Warranties and Servicing Agreement (WFHM 2005-W77), dated as of September 1,
2005, between Citigroup Global Markets Realty Corp. and WFB (the "Citigroup
Agreement") is true, complete and correct with respect to Mortgage Loan
#145512638, in each case as if such representations and warranties are set
out in full herein. The Seller further represents and warrants upon delivery of
the Mortgage Loans to the Purchaser hereunder, as to each, that as of June 27,
2007:
(i) The Seller is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans and any and all of its interests,
rights and obligations under the Transfer Agreement or the Citigroup
Agreement, as applicable, as they relate to the Mortgage Loans, free and
clear of any and all liens, claims and encumbrances whatsoever;
(ii) The information set forth with respect to the Mortgage Loans
on the Mortgage Loan Schedule provides an accurate listing of the Mortgage
Loans, and the information with respect to each Mortgage Loan on the
Mortgage Loan Schedule is true and correct in all material respects at the
date or dates respecting which such information is given;
(iii) [Reserved]; and
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(iv) Each Mortgage Loan at the time it was made complied with all
applicable local, state and federal lending laws, including, but not
limited to, all applicable predatory and abusive lending laws.
(b) It is understood and agreed that the representations and
warranties set forth in Section 7.04(a) herein shall survive delivery of the
Originator's Mortgage Files and the Assignment of Mortgage of each Mortgage Loan
to the Purchaser. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties that adversely and
materially affects the value of the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other party. Within 90 days
of the discovery of any such breach, the Seller shall either (a) cure such
breach in all material respects, (b) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Purchaser at the applicable
Purchase Price or (c) substitute a Replacement Mortgage Loan for the affected
Mortgage Loan.
Section 8. Representations and Warranties Concerning the Seller.
As of the date hereof and as of the Closing Date, the Seller
represents and warrants to the Purchaser as to itself in the capacity indicated
as follows:
(a) the Seller (i) is a business trust duly formed, validly existing
and in good standing under the laws of the State of Maryland and (ii) is
qualified and in good standing to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on the Seller's
business as presently conducted or on the Seller's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the Seller has full power to own its property, to carry on its
business as presently conducted and to enter into and perform its obligations
under this Agreement;
(c) the execution and delivery by the Seller of this Agreement have
been duly authorized by all necessary action on the part of the Seller; and
neither the execution and delivery of this Agreement, nor the consummation of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under, any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Seller or its properties or the charter or by-laws of the
Seller, except those conflicts, breaches or defaults which would not reasonably
be expected to have a material adverse effect on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made and, in connection with the recordation of the Mortgages, powers of
attorney or assignments of Mortgages not yet completed;
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(e) this Agreement has been duly executed and delivered by the Seller
and, assuming due authorization, execution and delivery by the Purchaser,
constitutes a valid and binding obligation of the Seller enforceable against it
in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter which in the judgment of the Seller will be determined adversely to
the Seller and will if determined adversely to the Seller materially and
adversely affect the Seller's ability to perform its obligations under this
Agreement; and the Seller is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
(g) the Seller is qualified as of the date hereof and will qualify at
all times that the Notes are Outstanding as a real estate investment trust
within the meaning of Section 856 of the Code; and
(h) the Seller will hold all Notes (other than the Offered Notes (as
defined in the Indenture) or Notes with respect to which a "will be debt" for
federal income tax purposes opinion has been delivered by nationally recognized
federal income tax counsel) either directly or through one or more subsidiaries,
each of which is either a "qualified REIT subsidiary" within the meaning of
Section 856(i)(2) of the Code or a disregarded entity under Treasury Regulation
promulgated pursuant to Section 7701 of the Code.
Section 9. Representations and Warranties Concerning the Purchaser.
As of the date hereof and as of the Closing Date, the Purchaser
represents and warrants to the Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (ii)
is qualified and in good standing as a foreign corporation to do business in
each jurisdiction where such qualification is necessary, except where the
failure so to qualify would not reasonably be expected to have a material
adverse effect on the Purchaser's business as presently conducted or on the
Purchaser's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(b) the Purchaser has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Purchaser or its properties or the
articles of
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incorporation or by-laws of the Purchaser, except those conflicts, breaches or
defaults which would not reasonably be expected to have a material adverse
effect on the Purchaser's ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made;
(e) this Agreement has been duly executed and delivered by the
Purchaser and, assuming due authorization, execution and delivery by the Seller,
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally); and
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened against the Purchaser, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Purchaser will be determined
adversely to the Purchaser and will if determined adversely to the Purchaser
materially and adversely affect the Purchaser's ability to perform its
obligations under this Agreement; and the Purchaser is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement.
Section 10. Conditions to Closing.
(a) The obligations of the Purchaser under this Agreement will be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) Each of the obligations of the Seller required to be
performed at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all material
respects; all of the representations and warranties of the Seller under
this Agreement shall be true and correct as of the date or dates specified
in all material respects; and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this
Agreement.
(ii) The Purchaser shall have received all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to the Purchaser, duly executed by all signatories other than
the Purchaser as required pursuant to the respective terms thereof:
(A) [Reserved];
(B) The Mortgage Loan Schedule containing the information
set forth on Exhibit 1 hereto;
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(C) Each of the Sale and Servicing Agreement and the
Indenture, in form and substance reasonably satisfactory to the
Indenture Trustee and the Purchaser, and all documents required
thereby duly executed by all signatories;
(D) A certificate of an officer of the Seller dated as of
the Closing Date, in a form reasonably acceptable to the Purchaser,
and attached thereto the resolutions of the Seller's authorizing the
transactions contemplated by this Agreement, together with copies of
the charter and by-laws of the Seller;
(E) One or more opinions of counsel from the Seller's
counsel otherwise in form and substance reasonably satisfactory to the
Purchaser, the Indenture Trustee and each Rating Agency;
(F) A letter from each of the Rating Agencies rating each
Class of Notes, as applicable;
(G) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably
necessary to secure the intended ratings from each Rating Agency for
the Notes.
(iii) The Notes to be sold to Xxxxxxx Xxxxx pursuant to the
Underwriting Agreement shall have been issued and sold to Xxxxxxx Xxxxx.
(iv) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and
opinions of counsel to evidence fulfillment of the conditions set forth in
this Agreement and the transactions contemplated hereby as the Purchaser
and its counsel may reasonably request.
(b) The obligations of the Seller under this Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) The obligations of the Purchaser required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects,
and all of the representations and warranties of the Purchaser under this
Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date, and no event shall have occurred which
would constitute a breach by it of the terms of this Agreement, and the
Seller shall have received a certificate to that effect signed by an
authorized officer of the Purchaser.
(ii) The Seller shall have received copies of all of the
following closing documents, in such forms as are agreed upon and
reasonably acceptable to the Seller, duly executed by all signatories other
than the Seller as required pursuant to the respective terms thereof:
(A) [Reserved];
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(B) Each of the Sale and Servicing Agreement and the
Indenture, in form and substance reasonably satisfactory to the
Seller, and all documents required thereby duly executed by all
signatories;
(C) A certificate of an officer of the Purchaser dated as of
the Closing Date, in a form reasonably acceptable to the Seller, and
attached thereto the resolutions of the Purchaser authorizing the
transactions contemplated by this Agreement, the Sale and Servicing
Agreement and the Indenture, together with copies of the Purchaser's
articles of incorporation, and evidence as to the good standing of the
Purchaser dated as of a recent date;
(D) One or more opinions of counsel from the Purchaser's
counsel in form and substance reasonably satisfactory to the Seller;
and
(E) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably
necessary to secure the intended rating from each Rating Agency for
the Notes;
Section 11. [Reserved].
Section 12. Notices.
All demands, notices and communications hereunder shall be in writing
but may be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Seller shall be directed to Taberna Realty Holdings
Trust, Xxxx Center, 0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attn: Xxxx Xxxxxx, with a copy to the same address, Attn: Xxxxxxx Xxxxx,
and notices to the Purchaser shall be directed to Xxxxxxx Xxxxx Mortgage
Investors, Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy:
212-449-6710), Attention: Xxxx Xxxxxx; or to any other address as may hereafter
be furnished by one party to the other party by like notice. Any such demand,
notice or communication hereunder shall be deemed to have been received on the
date received at the premises of the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt) provided
that it is received on a business day during normal business hours and, if
received after normal business hours, then it shall be deemed to be received on
the next business day.
Section 13. Transfer of Mortgage Loans.
The Purchaser retains the right to assign the Mortgage Loans and any
or all of its interest under this Agreement to the Issuing Entity without the
consent of the Seller, and, upon such assignment, the Issuing Entity shall
succeed to the applicable rights and obligations of the Purchaser hereunder;
provided, however, the Purchaser shall remain entitled to the benefits set forth
in Sections 7, 8 and 14 hereto and as provided in Section 2(a). Notwithstanding
the foregoing, the sole and exclusive right and remedy of the Indenture Trustee
with respect to a breach of representation or warranty of the Seller shall be
the purchase or substitution obligations of the Seller contained in Section 7
hereof.
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Section 14. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to
the Indenture Trustee). Subsequent to the delivery of the Mortgage Loans to the
Purchaser, the Seller's representations and warranties contained herein with
respect to the Mortgage Loans shall be deemed to relate to the Mortgage Loans
actually delivered to the Purchaser and included in the Mortgage Loan Schedule
and any Substitute Mortgage Loan.
Section 15. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the Closing Date of the Mortgage Loans
described on the Mortgage Loan Schedule in accordance with the terms and
conditions of this Agreement is mandatory. It is 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 Purchaser
for the losses and damages incurred by the Purchaser in the event of the
Seller's failure to deliver the Mortgage Loans on or before the Closing Date.
The Seller hereby grants to the Purchaser a lien on and a continuing security
interest in the Seller's interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by the
Seller of its obligation hereunder, and the Seller agrees that it holds such
Mortgage Loans in custody for the Purchaser, subject to the Purchaser's
obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 2 hereof. The Seller agrees that, upon
acceptance of the Mortgage Loans by the Purchaser or its designee and delivery
of payment to the Seller, that its security interest in the Mortgage Loans shall
be released. All rights and remedies of the Purchaser under this Agreement are
distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 10 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the purchase price as
described in Section 2 hereof, or any such condition shall not have been waived
or satisfied and the Purchaser determines not to pay or cause to be paid the
purchase price, the Purchaser shall immediately effect the redelivery of the
Mortgage Loans, if delivery to the Purchaser has occurred and the security
interest created by this Section 15 shall be deemed to have been released.
Section 16. Severability.
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
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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. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 17. Counterparts.
This Agreement may be executed in counterparts, each of which will be
an original, but which together shall constitute one and the same agreement.
Section 18. Amendment.
This Agreement cannot be amended or modified in any manner without the
prior written consent of each party.
SECTION 19. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE
STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS
OF SUCH STATE.
Section 20. Further Assurances.
Each of the parties agrees to execute and deliver such instruments and
take such actions as another party may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
including any amendments hereto which may be required by either Rating Agency.
Section 21. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and their permitted successors and
assigns (within the meaning of federal securities laws). The Seller acknowledges
and agrees that the Purchaser may assign its rights under this Agreement
(including, without limitation, with respect to the Seller's representations and
warranties respecting the Mortgage Loans) to the Indenture Trustee. Any person
into which the Seller may be merged or consolidated (or any person resulting
from any merger or consolidation involving the Seller), any person resulting
from a change in form of the Seller or any person succeeding to the business of
the Seller, shall be considered the "successor" of the Seller hereunder and
shall be considered a party hereto without the execution or filing of any paper
or any further act or consent on the part of any party hereto. Except as
provided in the two preceding sentences, this Agreement cannot be assigned,
pledged or hypothecated by either party hereto without the written consent of
the other parties to this Agreement and any such assignment or purported
assignment shall be deemed null and void.
Section 22. The Seller.
The Seller will keep in full effect all rights as are necessary to
perform their respective obligations under this Agreement.
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Section 23. Entire Agreement.
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements, understandings, inducements and conditions,
express or implied, oral or written, of any nature whatsoever with respect to
the subject matter hereof.
Section 24. No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
TABERNA REALTY HOLDINGS TRUST
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE INFORMATION
The Mortgage Loan Schedule shall set forth the following information
with respect to each Mortgage Loan:
(a) the loan number of the mortgage loan;
(b) the city, state and zip code of the Mortgage Property;
(c) a code indicating whether the Mortgaged Property is owner
occupied;
(d) the type of Residential Dwelling constituting the Mortgaged
Property;
(e) the original months to maturity;
(f) the original date of the mortgage;
(g) the Loan to Value Ratio at origination;
(h) the Mortgage Rate;
(i) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(j) the stated maturity date;
(k) the amount of the Monthly Payment at origination;
(l) the amount of the Monthly Payment as of the Cut off Date;
(m) the last Due Date on which a Monthly Payment was actually applied
to the unpaid Stated Principal Balance;
(n) the original principal amount of the Mortgage Loan;
(o) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut off Date;
(p) a code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, Rate/Term Refinancing, Cash Out Refinancing);
(q) a code indicating the documentation style (i.e., full, alternative
or reduced);
(r) [reserved];
(s) the Value of the Mortgaged Property;
Ex. 1-1
(t) the sale price of the Mortgaged Property, if applicable;
(u) the actual unpaid principal balance of the Mortgage Loan as of the
Cut off Date;
(v) the Servicing Fee;
(w) [reserved];
(x) the next Interest Rate Adjustment Date;
(y) the Gross Margin;
(z) the Minimum and Maximum Mortgage Rate under the terms of the
Mortgage Note;
(aa) the First Rate Cap;
(bb) the related Periodic Rate Cap;
(cc) whether additional collateral exists;
(dd) whether it is interest-only; and
(ee) the Seller.
Such schedule shall set forth the following information with respect
to the Mortgage Loans in the aggregate as of the Cut off Date: (1) the number of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
Ex. 1-2
EXHIBIT 2
SCHEDULE OF LOST NOTES
[Intentionally Omitted]
Ex. 2-1
