EXECUTION COPY
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING CORPORATION
as Seller
HOME LOAN PURCHASE AGREEMENT
Dated as of October 1, 2005
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...............................................................1
Section 1.1. Definitions.......................................................1
ARTICLE II SALE OF HOME LOANS AND RELATED PROVISIONS.................................2
Section 2.1. Sale of Home Loans................................................2
Section 2.2. Payment of Purchase Price.........................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH.......................5
Section 3.1. Seller Representations and Warranties.............................5
ARTICLE IV SELLER'S COVENANTS.......................................................11
Section 4.1. Covenants of the Seller..........................................11
ARTICLE V SERVICING................................................................12
Section 5.1. Servicing........................................................12
ARTICLE VI LIMITATION ON LIABILITY OF THE SELLER....................................12
Section 6.1. Limitation on Liability of the Seller............................12
ARTICLE VII TERMINATION..............................................................12
Section 7.1. Termination......................................................12
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................12
Section 8.1. Amendment........................................................12
Section 8.2. GOVERNING LAW....................................................12
Section 8.3. Notices..........................................................13
Section 8.4. Severability of Provisions.......................................13
Section 8.5. Relationship of Parties..........................................13
Section 8.6. Counterparts.....................................................13
Section 8.7. Further Agreements...............................................14
Section 8.8. Intention of the Parties.........................................14
Section 8.9. Successors and Assigns; Assignment of This Agreement.............14
Section 8.10. Survival.........................................................14
Exhibit A Home Loan Schedule
Exhibit B Standard & Poor's Glossary For File Format For LEVELS(R) Version 5.6c Revised
This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan
Purchase Agreement"), dated as of October 1, 2005, is made between Residential
Funding Corporation (the "Seller") and Residential Funding Mortgage Securities
II, Inc. (the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Seller owns Home Loans and the Related Documents for the
Home Loans indicated on the Home Loan Schedule attached as Exhibit A hereto
(collectively, the "Home Loans"), including rights to (a) any property acquired
by foreclosure or deed in lieu of foreclosure or otherwise, and (b) the proceeds
of any insurance policies covering the Home Loans;
WHEREAS, the parties hereto desire that the Seller sell the Home Loans
to the Purchaser pursuant to the terms of this Agreement together with the
Related Documents on the Closing Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the Purchaser
will sell the Home Loans to the Issuer in exchange for the Securities;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue and transfer to or at the direction of the Depositor, the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue
and transfer to or at the direction of the Depositor, the Notes; and
WHEREAS, pursuant to the terms of the Servicing Agreement, the Master
Servicer will service the Home Loans directly or through one or more
Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Home Loan Purchase Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions contained in Appendix A to the
Indenture dated October 27, 2005 (the "Indenture"), between Home Loan Trust
2005-HI3, as issuer, and JPMorgan Chase Bank, N.A., as indenture trustee, which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
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ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Home Loans. (a) The Seller, by the execution and delivery
of this Agreement, does hereby sell, assign, set over, and otherwise convey to
the Purchaser, without recourse, all of its right, title and interest in, to and
under the following, and wherever located: (i) the Home Loans, all interest
accruing thereon and all collections in respect thereof received on or after the
Cut-off Date; (ii) property which secured a Home Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iii) the interest of
the Seller in any insurance policies in respect of the Home Loans; and (iv) all
proceeds of the foregoing. Such conveyance shall be deemed to be made, with
respect to the Cut-off Date Loan Balances, as of the Closing Date, subject to
the receipt by the Seller of consideration therefor as provided herein under
clause (b) of Section 2.2.
(b) In connection with such conveyance, the Seller further agrees, at its
own expense, on or prior to the Closing Date to indicate in its books
and records that the Home Loans have been sold to the Purchaser pursuant
to this Agreement and to deliver to the Purchaser true and complete
lists of all of the Home Loans specifying for each Home Loan (i) its
account number and (ii) its Cut-off Date Loan Balance. Such lists, which
form part of the Home Loan Schedule, shall be marked as Exhibit A to
this Agreement and are hereby incorporated into and made a part of this
Agreement.
(c) In connection with such conveyance by the Seller, the Seller shall on
behalf of the Purchaser deliver to, and deposit with the Custodian, on
or before the Closing Date, the following documents or instruments with
respect to each Home Loan:
(i) the original Mortgage Note endorsed without recourse to the Indenture
Trustee and showing an unbroken chain of endorsement from the originator
thereof to the Person endorsing it or, with respect to any Home Loan as
to which the original Mortgage Note has been permanently lost or
destroyed and has not been replaced, a Lost Note Affidavit from the
related seller or Residential Funding Corporation stating the original
Mortgage Note was lost, misplaced or destroyed together with a copy of
such Note;
(ii) the original Mortgage, noting the presence of the MIN of the Home Loan
and language indicating that the Home Loan is a MOM Loan if the Home
Loan is a MOM Loan, with evidence of recording indicated thereon, or, if
the original Mortgage has not yet been returned from the public
recording office, a copy of the original Mortgage with evidence of
recording indicated thereon;
(iii) unless the Home Loan has been recorded in the name of MERS(R) System,
the assignment (which may be included in one or more blanket assignments
if permitted by applicable law) of the Mortgage recorded to "JPMorgan
Chase Bank, N.A. as indenture trustee" c/o the Seller at an address
specified by the Seller;
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(iv) originals of any intervening assignments of the Mortgage, with evidence
of recording noted thereon or attached thereto, or a copy of such
original intervening assignment with evidence of recording indicated
thereon; and
(v) a true and correct copy of each assumption, modification, consolidation
or substitution agreement, if any, relating to the Home Loan.
Within the time period for the review of each Mortgage File set forth in
Section 2.03 of the Custodial Agreement, if a defect or omission in any Mortgage
File is discovered which may materially and adversely affect the value of the
related Home Loan, or the interests of the Indenture Trustee (as pledgee of the
Home Loans), the Noteholders or the Certificateholders in such Home Loan,
including the Seller's failure to deliver any document required to be delivered
to the Custodian on behalf of the Indenture Trustee (provided that a Mortgage
File will not be deemed to contain a defect for an unrecorded assignment under
clause (iii) above if the Seller has submitted such assignment for recording or
if such assignment is not required to be recorded pursuant to the terms of the
following paragraph), the Seller shall cure such defect, repurchase the related
Home Loan at the Repurchase Price or substitute an Eligible Substitute Loan for
the related Home Loan upon the same terms and conditions set forth in Section
3.1 hereof for breaches of representations and warranties as to the Home Loans.
As set forth in Section 2.03 of the Custodial Agreement, the Custodian shall
deliver to the Indenture Trustee a certificate (the "Interim Certification") to
the effect that all documents required to be delivered pursuant to this
Subsection 2.1(c) have been executed and received and that such documents relate
to the Home Loans identified on the Home Loan Schedule, except for any
exceptions listed on Schedule B attached to such Interim Certification.
Within 60 days after the receipt by the Master Servicer of the recording
information, the Seller at its own expense shall complete and submit for
recording in the appropriate public office for real property records each of the
assignments referred to in clause (iii) above. While such assignment to be
recorded is being recorded, the Custodian shall retain a photocopy of such
assignment. If any assignment is lost or returned unrecorded to the Custodian
because of any defect therein, the Seller is required to prepare a substitute
assignment or cure such defect, as the case may be, and the Seller shall cause
such assignment to be recorded in accordance with this paragraph. In connection
with the assignment of any Home Loan registered on the MERS(R) System, the
Seller further agrees that it will cause, at the Seller's own expense, within 30
Business Days after the Closing Date, the MERS(R) System to indicate that such
Home Loans have been assigned by the Seller to the Purchaser in accordance with
this Agreement, by the Purchaser to the Trust in accordance with the terms of
the Trust Agreement and by the Trust, to the Indenture Trustee for the benefit
of the Noteholders, pursuant to the Indenture, by including (or deleting, in the
case of Home Loans which are repurchased in accordance with this Agreement) in
such computer files (a) the code in the field which identifies the specific
Trust and (b) the code in the field "Pool Field" which identifies the series of
the Notes issued in connection with such Home Loans. The Seller further agrees
that it will not, and will not permit the Master Servicer to alter the codes
referenced in this paragraph with respect to any Home Loan during the term of
this Agreement, the Trust Agreement and the Indenture, unless and until such
Home Loan is repurchased in accordance with the terms of this Agreement.
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In the event that the Seller delivers to the Custodian on behalf of the
Indenture Trustee any Mortgage Note or assignment in blank, the Seller shall, or
shall cause the Custodian to, complete the endorsement of the Mortgage Note and
the assignment in conjunction with the Interim Certification issued by the
Custodian.
In instances where an original Mortgage or any original intervening
assignment of Mortgage was not, in accordance with clause (ii), (iii), (iv) or
(v) above (or copies thereof as permitted in this Section 2.1(c) above),
delivered by the Seller to the respective Custodian prior to or concurrently
with the execution and delivery of this Agreement, the Seller will deliver or
cause to be delivered the originals of such documents to such Custodian promptly
upon receipt thereof.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the property, conveyed to it pursuant to this Section 2.1.
(d) The parties hereto intend that the transactions set forth herein constitute
a sale by the Seller to the Purchaser of all the Seller's right, title and
interest in and to the Home Loans and other property as and to the extent
described above. In the event the transactions set forth herein are deemed not
to be a sale, the Seller hereby grants to the Purchaser a security interest in
all of the Seller's right, title and interest in, to and under (i) the Home
Loans, all interest accruing thereon and all collections in respect thereof
received on or after the Cut-off Date; (ii) property which secured a Home Loan
and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii)
the interest of the Seller in any insurance policies in respect of the Home
Loans; and (iv) all proceeds of the foregoing, and such other property, to
secure all of the Seller's obligations hereunder, and this Agreement shall
constitute a security agreement under applicable law. The Seller agrees to take
or cause to be taken such actions and to execute such documents, including
without limitation the filing of all necessary UCC-1 financing statements filed
in the State of Delaware (which shall have been submitted for filing within 10
days following the Closing Date), any continuation statements with respect
thereto and any amendments thereto required to reflect a change in the name or
corporate structure of the Seller or the filing of any additional UCC-1
financing statements due to the change in the principal office or jurisdiction
of incorporation of the Seller, as are necessary to perfect and protect the
Purchaser's interests in each Home Loan and the proceeds thereof.
Section 2.2. Payment of Purchase Price. (a) The "Purchase Price" for the Home
Loans shall be an amount equal to $ 224,743507.64 in immediately available
funds, together with the Certificates.
(b) In consideration of the sale of the Home Loans from the Seller to the
Purchaser on the Closing Date, the Purchaser shall pay to the Seller on the
Closing Date by wire transfer of immediately available funds to a bank account
designated by the Seller, the amount specified above in clause (a); provided,
that such payment may be on a net funding basis if agreed by the Seller and the
Purchaser.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1. Seller Representations and Warranties. The Seller represents and
warrants to the Purchaser, as of the Closing Date (or if otherwise specified
below, as of the date so specified):
(a) As to the Seller:
(i) The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate
power to own its assets and to transact the business in which it is
currently engaged. The Seller is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which the character of the business transacted by it or properties owned
or leased by it requires such qualification and in which the failure to
so qualify would have a material adverse effect on the business,
properties, assets or condition (financial or other) of the Seller;
(ii) The Seller has the power and authority to make, execute, deliver and
perform its obligations under this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute
the legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies;
(iii) The Seller is not required to obtain the consent of any other Person or
any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as shall
have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and the performance of the
transactions contemplated hereby by the Seller will not violate any
provision of any existing law or regulation or any order or decree of
any court applicable to the Seller or any provision of the Certificate
of Incorporation or Bylaws of the Seller, or constitute a material
breach of any mortgage, indenture, contract or other agreement to which
the Seller is a party or by which the Seller may be bound;
(v) No litigation or administrative proceeding of or before any court,
tribunal or governmental body is currently pending, or to the knowledge
of the Seller threatened, against the Seller or any of its properties or
with respect to this Agreement or the Certificates which in the opinion
of the Seller has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this Agreement;
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(vi) This Agreement constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity);
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of the Seller in, to and
under the Home Loans, all monies due or to become due with respect
thereto, and all proceeds of such Cut-off Date Loan Balances with
respect to the Home Loans and such funds as are from time to time
deposited in the Custodial Account (excluding any investment earnings
thereon) as assets of the Trust and all other property specified in the
definition of "Trust" as being part of the corpus of the Trust conveyed
to the Purchaser by the Seller;
(viii) The Seller is not in default with respect to any order or decree of any
court or any order, regulation or demand or 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 Seller or its properties or might have
consequences that would materially adversely affect its performance
hereunder; and
(ix) The Seller has not transferred the Home Loans to the Purchaser with any
intent to hinder, delay or defraud any of its creditors.
(b) As to the Home Loans:
(i) The information set forth in the Home Loan Schedule with respect to each
Home Loan is true and correct in all material respects as of the date or
dates respecting which such information is furnished;
(ii) [Reserved];
(iii) The related Mortgage Note and the Mortgage have not been assigned or
pledged, the Seller has good and marketable title thereto and the Seller
is the sole owner and holder of the Home Loan free and clear of any and
all liens, claims, encumbrances, participation interests, equities,
pledges, charges or security interests of any nature and has full right
and authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the applicable Home Loans to sell and
assign the same pursuant to this Agreement;
(iv) To the best of Seller's knowledge, there is no valid offset, defense or
counterclaim of any obligor under any Mortgage;
(v) To the best of Seller's knowledge, there is no delinquent recording or
other tax or fee or assessment lien against any related Mortgaged
Property;
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(vi) To the best of Seller's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related
Mortgaged Property;
(vii) To the best of Seller's knowledge, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material
affecting the related Mortgaged Property which are, or may be liens
prior or equal to, or subordinate with, the lien of the related
Mortgage, except liens which are fully insured against by the title
insurance policy referred to in clause (xi);
(viii) As of the Cut-off Date, none of the Home Loans were 30 or more days
delinquent;
(ix) For each Home Loan, the related Mortgage File contains each of the
documents and instruments specified to be included therein;
(x) Each Home Loan at the time it was made complied in all material respects
with applicable local, state and federal laws including but not limited
to all applicable anti-predatory lending laws and usury laws;
(xi) A policy of title insurance in the form and amount required by the
Program Guide was effective as of the closing of each Home Loan and each
such policy is valid and remains in full force and effect, and a title
search or other assurance of title customary in the relevant
jurisdiction was obtained with respect to each Home Loan as to which no
title insurance policy or binder was issued;
(xii) None of the Mortgaged Properties is a mobile home that is permanently
attached to its foundation and none of the Mortgaged Properties are
manufactured housing units that are not permanently attached to their
foundation;
(xiii) Approximately 10.8% of the Cut-off Date Loan Balance of the Home Loans
are secured by Mortgaged Properties located in Ohio;
(xiv) Approximately 94.01% of the Home Loans by Cut-Off Date Loan Balance, had
a Combined Loan-to-Value Ratio in excess of 100%;
(xv) None of the mortgage loans in the mortgage pool are loans that, under
applicable state or local law in effect at the time of origination of
the loan, are referred to as (1) "high cost" or "covered" loans or (2)
any other similar designation if the law imposes greater restrictions or
additional legal liability for residential mortgage loans with high
interest rates, points and/or fees;
(xvi) None of the proceeds of any Home Loan were used to finance the purchase
of single premium credit insurance policies;
(xvii) The Seller will submit for filing or cause to be submitted for filing
UCC-1 financing statements in accordance with the terms of this
Agreement;
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(xviii) Each Mortgage is substantially similar to one another and constitutes a
legal, valid and binding obligation of the related Mortgagor enforceable
in accordance with its terms except as may be limited by bankruptcy,
insolvency or similar laws affecting generally the enforcement of
creditor's rights;
(xix) To the best of Seller's knowledge, the physical property subject to each
Mortgage is free of material damage and is in good repair;
(xx) The Seller has not received a notice of default of any senior mortgage
loan related to a Mortgaged Property which has not been cured by a party
other than the related Subservicer;
(xxi) No Home Loan has a prepayment penalty term that extends beyond five
years after the date of origination;
(xxii) None of the Home Loans are reverse Home Loans;
(xxiii) None of the Home Loans have a remaining term to stated maturity of less
than 58 months. As of the Cut-off Date, the Loan Rates on the Home Loans
range between 5.800% per annum and 14.500% per annum and the weighted
average Loan Rate is approximately 11.5681% per annum. The weighted
average remaining term to stated maturity of the Home Loans as of the
Cut-off Date is approximately 216 months;
(xxiv) (A) Each Mortgaged Property with respect to the Home Loans consists of a
single parcel of real property with a single family residence erected
thereon, manufactured housing permanently attached to its foundation or
an individual condominium unit. (B) With respect to the Home Loans (i)
approximately 1.74% (by Cut-off Date Loan Balance) are secured by real
property improved by individual condominium units and (ii) approximately
91.02% (by Cut-off Date Loan Balance) of the Home Loans are secured by
real property with a single family residence erected thereon;
(xxv) All of the Home Loans are secured by second mortgages or deeds of trust;
(xxvi) If any of the Home Loans are secured by a leasehold interest, with
respect to each leasehold interest, the use of leasehold estates for
residential properties is an accepted practice in the area where the
related Mortgaged Property is located; residential property in such area
consisting of leasehold estates is readily marketable; the lease is
recorded and no party is in any way in breach of any provision of such
lease; the leasehold is in full force and effect and is not subject to
any prior lien or encumbrance by which the leasehold could be
terminated; and the remaining term of the lease does not terminate less
than five years after the maturity date of such Home Loan;
(xxvii) Each Subservicer meets all applicable requirements under the Servicing
Agreement, is properly qualified to service the Home Loans and has been
servicing the Home Loans prior to the Cut-off Date in accordance with
the terms of the Program Guide;
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(xxviii) For each Home Loan, if required, as of the Cut-off Date, flood
insurance has been obtained which meets all applicable requirements of
Section 3.04 of the Servicing Agreement. For each Home Loan, hazard
insurance has been obtained which meets all applicable requirements of
Section 3.04 of the Servicing Agreement;
(xxix) There is no material default, breach, violation or event of acceleration
existing under the terms of any Mortgage Note or Mortgage and no event
which, with notice and expiration of any grace or cure period, would
constitute a material default, breach, violation or event of
acceleration under the terms of any Mortgage Note or Mortgage, and no
such material default, breach, violation or event of acceleration has
been waived by the Seller or by any other entity involved in originating
or servicing a Home Loan;
(xxx) No instrument of release or waiver has been executed in connection with
the Home Loans, and no Mortgagor has been released, in whole or in part
from its obligations in connection with a Home Loan;
(xxxi) With respect to each Home Loan that is a second lien, either (i) no
consent for the Home Loan was required by the holder of the related
prior lien or liens or (ii) such consent has been obtained and is
contained in the Mortgage File;
(xxxii) With respect to each Home Loan, either (i) the Home Loan is assumable
pursuant to the terms of the Mortgage Note, or (ii) the Home Loan
contains a customary provision for the acceleration of the payment of
the unpaid principal balance of the Home Loan in the event the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(xxxiii) Each Mortgage File either contains (a) an original Mortgage Note or (b)
with respect to any Home Loan as to which the original Mortgage Note has
been permanently lost or destroyed and has not been replaced, a Lost
Note Affidavit together with a copy of such Mortgage Note;
(xxxiv) No Home Loan was originated on or after October 1, 2002 and before March
7, 2003, which is secured by property located in the State of Georgia;
(xxxv) No Home Loan except as provided in clause (xxxvi) is a High Cost Loan or
Covered Loan, as applicable (as such terms are defined in Appendix E of
the Standard & Poor's Glossary For File Format For LEVELS(R) Version
5.6c Revised (attached hereto as Exhibit B)); provided that no
representation and warranty is made in this clause (xxxv) with respect
to any Home Loan secured by property located in the States of Kansas or
West Virginia; and
(xxxvi) As of the Cut-Off Date, 2 of the Home Loans, representing approximately
0.1% of the Home Loans, were subject to the Home Ownership and
Protection Act of 1994, referred to as the Homeownership Act.
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Upon discovery by Seller or upon notice from the Purchaser, the Issuer,
the Owner Trustee, the Indenture Trustee or any Custodian, as applicable, of a
breach of any representation or warranty in clause (a) above which materially
and adversely affects the interests of the Securityholders in any Home Loan, the
Seller shall, within 45 days of its discovery or its receipt of notice of such
breach, either (i) cure such breach in all material respects or (ii) to the
extent that such breach is with respect to a Home Loan or a Related Document,
either (A) repurchase such Home Loan from the Trust at the Repurchase Price, or
(B) substitute one or more Eligible Substitute Loans for such Home Loan, in each
case in the manner and subject to the conditions and limitations set forth
below.
(c) Upon discovery by the Seller or upon notice from the Purchaser, the Issuer,
the Owner Trustee, the Indenture Trustee or any Custodian, as applicable, of a
breach of any representation or warranty in clause (b) above with respect to any
Home Loan or upon the occurrence of a Repurchase Event that materially and
adversely affects the interests of the Securityholders or of the Purchaser in
such Home Loan (notice of which shall be given to the Purchaser by the Seller,
if it discovers the same), notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty or Repurchase
Event, the Seller shall, within 90 days after the earlier of its discovery or
receipt of notice thereof, either cure such breach or Repurchase Event in all
material respects or either (i) repurchase such Home Loan from the Trust at the
Repurchase Price, or (ii) substitute one or more Eligible Substitute Loans for
such Home Loan, in each case in the manner and subject to the conditions set
forth below. If the breach of representation and warranty that gave rise to the
obligation to repurchase or substitute a Home Loan pursuant to this Section 3.1
was the representation and warranty set forth in clause (x) of Section 3.1(b),
then the Seller shall pay, concurrently with and in addition to the remedies
provided in the preceding sentence, an amount equal to any liability, penalty or
expense that was actually incurred and paid out of or on behalf of the Trust,
and that directly resulted from such breach, or if incurred and paid by the
Trust thereafter, concurrently with such payment. The Repurchase Price for any
such Home Loan repurchased by the Seller and any amounts paid by the Seller in
connection with the preceding sentence shall be deposited or caused to be
deposited by the Master Servicer in the Custodial Account maintained by it
pursuant to Section 3.02 of the Servicing Agreement.
The Seller may only substitute an Eligible Substitute Loan or Loans for
a Deleted Loan pursuant to this Section 3.1(c) if the Seller obtains an Opinion
of Counsel generally to the effect that the substitution of an Eligible
Substitute Loan or Loans for a Deleted Loan will not cause an entity level
federal or state income tax to be imposed on the Trust. The Seller shall also
deliver to the Custodian on behalf of the Trust, with respect to such Eligible
Substitute Loan or Loans, the original Mortgage Note and all other documents and
agreements as are required by Section 2.1(c), with the Mortgage Note endorsed as
required by Section 2.1(c). No substitution will be made in any calendar month
after the Determination Date for such month. Monthly Payments due with respect
to Eligible Substitute Loans in the month of substitution shall not be part of
the Trust and will be retained by the Master Servicer and remitted by the Master
Servicer to the Seller on the next succeeding Payment Date, provided that a
payment at least equal to the applicable Monthly Payment has been received by
the Trust, for such month in respect of the Deleted Loan. For the month of
substitution, distributions to the Custodial Account pursuant to the Servicing
Agreement will include the Monthly Payment due on a Deleted Loan for such month
and thereafter the Seller shall be entitled to retain all amounts received in
respect of such Deleted Loan. The Master Servicer shall amend or cause to be
amended the Home Loan Schedule to reflect the removal of such Deleted Loan and
the substitution of the Eligible Substitute Loan or Loans and the Master
Servicer shall deliver the amended Home Loan Schedule to the Indenture Trustee.
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Upon such substitution, the Eligible Substitute Loan or Loans shall be subject
to the terms of this Agreement and the Servicing Agreement in all respects, the
Seller shall be deemed to have made the representations and warranties (other
than any statistical representation or warranty) with respect to the Eligible
Substitute Loan set forth in Section 3.1(b) as of the date of substitution, and
the Seller shall be obligated to repurchase or substitute for any Eligible
Substitute Loan as to which a Repurchase Event has occurred as provided herein.
In connection with the substitution of one or more Eligible Substitute Loans for
one or more Deleted Loans, the Master Servicer will determine the amount (such
amount, a "Substitution Adjustment Amount"), if any, by which the aggregate
principal balance of all such Eligible Substitute Loans as of the date of
substitution is less than the aggregate principal balance of all such Deleted
Loans (after application of the principal portion of the Monthly Payments due in
the month of substitution that are to be distributed to the Custodial Account in
the month of substitution). The Seller shall deposit the amount of such
shortfall into the Custodial Account on the day of substitution, without any
reimbursement therefor.
Upon receipt by the Indenture Trustee on behalf of the Trust and the
Custodian of written notification, signed by a Servicing Officer, of the deposit
of such Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and deposit of any applicable
Substitution Adjustment Amount as provided above, the Custodian, on behalf of
the Indenture Trustee shall release to the Seller the related Mortgage File for
the Home Loan being repurchased or substituted for and the Indenture Trustee on
behalf of the Trust shall execute and deliver such instruments of transfer or
assignment prepared by the Master Servicer, in each case without recourse, as
shall be necessary to vest in the Seller or its designee such Home Loan released
pursuant hereto and thereafter such Home Loan shall not be an asset of the
Trust.
It is understood and agreed that the obligation of the Seller to cure
any breach, or to repurchase or substitute for, any Home Loan as to which such a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Purchaser, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against the Seller.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Indenture Trustee, or the Custodian.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1. Covenants of the Seller. The Seller hereby covenants that, except
for the transfer hereunder, the Seller will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur or assume any Lien on any Home
Loan, or any interest therein. The Seller will notify the Indenture Trustee in
writing, as assignee of the Purchaser, of the existence of any Lien (other than
as provided above) on any Home Loan immediately upon discovery thereof; and the
Seller will defend the right, title and interest of the Issuer, as assignee of
the Purchaser, in, to and under the Home Loans against all claims of third
parties claiming through or under the Seller; provided, however, that nothing in
this Section 4.1 shall be deemed to apply to any Liens for municipal or other
local taxes and other governmental charges if such taxes or governmental charges
shall not at the time be due and payable or if the Seller shall currently be
contesting the validity thereof in good faith by appropriate proceedings.
11
ARTICLE V
SERVICING
Section 5.1. Servicing. The Seller will service the Home Loans pursuant to the
terms and conditions of the Servicing Agreement and will service the Home Loans
directly or through one or more subservicers in accordance therewith.
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLER
Section 6.1. Limitation on Liability of the Seller. None of the directors,
officers, employees or agents of the Seller shall be under any liability to the
Purchaser, it being expressly understood that all such liability is expressly
waived and released as a condition of, and as consideration for, the execution
of this Agreement. Except as and to the extent expressly provided herein or in
the Servicing Agreement, the Seller shall not be under any liability to the
Trust, the Owner Trustee, the Indenture Trustee or the Securityholders. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1. Termination. The respective obligations and responsibilities of the
Seller and the Purchaser created hereby shall terminate, except for the Seller's
indemnity obligations as provided herein, upon the termination of the Owner
Trust pursuant to the terms of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Amendment. This Agreement may be amended from time to time by the
Seller and the Purchaser by written agreement signed by the Seller and the
Purchaser.
Section 8.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATION LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
12
Section 8.3. Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the Seller:
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Managing Director, Structured Finance
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
(ii) if to the Purchaser:
Residential Funding Mortgage Securities II, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Managing Director, Structured Finance
(iii) if to the Custodian:
Xxxxx Fargo Bank, N.A. 1015 00 Xxxxxx
X.X. Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: MDC -- Account Manager
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Section 8.4. Severability of Provisions. If any one or more of the covenants,
agreements, provisions of terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity of enforceability of
the other provisions of this Agreement.
Section 8.5. Relationship of Parties. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto, and the services of the Seller shall be rendered as an independent
contractor and not as agent for the Purchaser.
Section 8.6. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
13
Section 8.7. Further Agreements. The Purchaser and the Seller each agree to
execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 8.8. Intention of the Parties. It is the intention of the parties that
the Purchaser is purchasing, and the Seller is selling, the Home Loans, rather
than a loan by the Purchaser to the Seller secured by the Home Loans.
Accordingly, the parties hereto each intend to treat the transaction for federal
income tax purposes as a sale by the Seller, and a purchase by the Purchaser, of
the Home Loans. The Purchaser will have the right to review the Home Loans and
the Related Documents to determine the characteristics of the Home Loans which
will affect the federal income tax consequences of owning the Home Loans and the
Seller will cooperate with all reasonable requests made by the Purchaser in the
course of such review.
Section 8.9. Successors and Assigns; Assignment of This Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, Purchaser and their respective successors and assigns. The obligations
of the Seller under this Agreement cannot be assigned or delegated to a third
party without the consent of the Purchaser, which consent shall be at the
Purchaser's sole discretion, except that the Purchaser acknowledges and agrees
that the Seller may assign its obligations hereunder to any Affiliate of the
Seller, to any Person succeeding to the business of the Seller, to any Person
into which the Seller is merged and to any Person resulting from any merger,
conversion or consolidation to which the Seller is a party. The parties hereto
acknowledge that the Purchaser is acquiring the Home Loans for the purpose of
contributing them to the Issuer. Pursuant to the terms of the Trust Agreement,
the Issuer will issue and transfer to or at the direction of the Purchaser, the
Certificates and pursuant to the terms of the Indenture, the Issuer will issue
and transfer to or at the direction of the Purchaser, the Notes secured by the
Home Loans. As an inducement to the Purchaser to purchase the Home Loans, the
Seller acknowledges and consents to (i) the assignment by the Purchaser to the
Issuer of all of the Purchaser's rights against the Seller pursuant to this
Agreement insofar as such rights relate to Home Loans transferred to the Issuer
and to the enforcement or exercise of any right or remedy against the Seller
pursuant to this Agreement by the Issuer, (ii) the enforcement or exercise of
any right or remedy against the Seller pursuant to this Agreement by or on
behalf of the Issuer and (iii) the Issuer's pledge of its interest in this
Agreement to the Indenture Trustee and the enforcement by the Indenture Trustee
of any such right or remedy against the Seller following an Event of Default
under the Indenture. Such enforcement of a right or remedy by the Issuer or the
Indenture Trustee, as applicable, shall have the same force and effect as if the
right or remedy had been enforced or exercised by the Purchaser directly.
Section 8.10. Survival. The representations and warranties made herein by the
Seller and the provisions of Article VI hereof shall survive the purchase of the
Home Loans hereunder.
14
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed to this Home Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
as Seller
By: /s/ Xxxxxx XxxXxx
Name: Xxxxxx XxxXxx
Title: Associate
EXHIBIT A
HOME LOAN SCHEDULE
(Provided Upon Request)
EXHIBIT A
REVISED July 11, 0000
XXXXXXXX X - STANDARD & POOR'S PREDATORY LENDING CATEGORIES
Standard & Poor's has categorized loans governed by anti-predatory lending laws
in the Jurisdictions listed below into three categories based upon a combination
of factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor's High Cost Loan Category because they included thresholds and
tests that are typical of what is generally considered High Cost by the
industry.
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory Lending
Law/Effective Date Law
---------------------------- ---------------------------------------- --------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code Xxx. xx.xx. 00-00-000 et seq.
Effective July 16, 2003
---------------------------- ---------------------------------------- --------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code Covered Loan
xx.xx. 757.01 et seq.
Effective June 2, 2003
---------------------------- ---------------------------------------- --------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. xx.xx. 5-3.5-101 et seq.
Effective for covered loans offered
or entered into on or after
January 1, 2003. Other provisions of
the Act took effect on June 7, 2002
---------------------------- ---------------------------------------- --------------------------
Connecticut Connecticut Abusive Home Loan Lending High Cost Home Loan
Practices Act, Conn. Gen. Stat. xx.xx.
36a-746 et seq.
Effective October 1, 2001
---------------------------- ---------------------------------------- --------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. Covered Loan
26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
---------------------------- ---------------------------------------- --------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
---------------------------- ---------------------------------------- --------------------------
Georgia (Oct. 1, 0000 - Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code High Cost Home Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- --------------------------
Georgia as amended (Mar. Georgia Fair Lending Act, Ga. Code High Cost Home Loan
7, 2003 - current) Xxx. xx.xx. 7-6A-1 et seq.
Effective for loans closed on or after
March 7, 2003
---------------------------- ---------------------------------------- --------------------------
HOEPA Section 32 Home Ownership and Equity Protection High Cost Loan
Act of 1994, 15 U.S.C. ss. 1639, 12
C.F.R. xx.xx. 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
---------------------------- ---------------------------------------- --------------------------
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
Stat. tit. 815, xx.xx. 137/5 et seq.
Effective January 1, 2004
(prior to this date,
regulations under Residential
Mortgage License Act
effective from May 14, 2001)
---------------------------- ---------------------------------------- --------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
xx.xx. 16a-1-101 et seq. Consumer Loan (id. ss.
16a-3-207)
and;
Sections 16a-1-301 and 16a-3-207
became effective April 14, 1999;
Section 16a-3-308a became effective
July 1, 1999
---------------------------- ---------------------------------------- --------------------------
High APR Consumer Loan
(id. ss. 16a-3-308a)
---------------------------- ---------------------------------------- --------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home Loan High Cost Home Loan
Act, Ky. Rev. Stat. xx.xx. 360.100
et seq.
Effective June 24, 2003
---------------------------- ---------------------------------------- --------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. High Rate High Fee
9-A, xx.xx. 8-101 et seq. Mortgage
Effective September 29, 1995 and as
amended from time to time
---------------------------- ---------------------------------------- --------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. High Cost Home Loan
32.00 et seq. and 209 C.M.R. xx.xx.
40.01 et seq.
Effective March 22, 2001 and amended
from time to time
---------------------------- ---------------------------------------- --------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
xx.xx. 598D.010 et seq.
Effective October 1, 2003
---------------------------- ---------------------------------------- --------------------------
New Jersey New Jersey Home Ownership Security Act High Cost Home Loan
of 2002, N.J. Rev. Stat. xx.xx.
46:10B-22 et seq.
Effective for loans closed on or after
November 27, 2003
---------------------------- ---------------------------------------- --------------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
---------------------------- ---------------------------------------- --------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or
after April 1, 2003
---------------------------- ---------------------------------------- --------------------------
North Carolina Restrictions and Limitations on High High Cost Home Loan
Cost Home Loans, N.C. Gen. Stat. xx.xx.
24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end lines
of credit)
---------------------------- ---------------------------------------- --------------------------
Ohio H.B. 386 (codified in various sections Covered Loan
of the Ohio Code), Ohio Rev. Code Xxx.
xx.xx. 1349.25 et seq.
Effective May 24, 2002
---------------------------- ---------------------------------------- --------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10 Mortgage
various sections of Title 14A)
Effective July 1, 2000; amended
effective January 1, 2004
---------------------------- ---------------------------------------- --------------------------
South Carolina South Carolina High Cost and Consumer High Cost Home Loan
Home Loans Act, S.C. Code Xxx. xx.xx.
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------- ---------------------------------------- --------------------------
West Virginia West Virginia Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, W. Loan Act Loan
Va. Code Xxx. xx.xx. 31-17-1 et seq.
Effective June 5, 2002
---------------------------- ---------------------------------------- --------------------------
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
---------------------------- ---------------------------------------- --------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory Lending
Law/Effective Date Law
---------------------------- ---------------------------------------- --------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Covered Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- --------------------------
New Jersey New Jersey Home Ownership Security Act Covered Home Loan
of 2002, N.J. Rev. Stat. xx.xx. 46:10B-22
et seq.
Effective November 27, 2003 - July 5,
2004
---------------------------- ---------------------------------------- --------------------------
STANDARD & POOR'S HOME LOAN CATEGORIZATION
------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory Lending
Law/Effective Date Law
---------------------------- ---------------------------------------- --------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Home Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- --------------------------
New Jersey New Jersey Home Ownership Security Act Home Loan
of 2002, N.J. Rev. Stat. xx.xx. 46:10B-22
et seq.
Effective for loans closed on or after
November 27, 2003
---------------------------- ---------------------------------------- --------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Home Loan
Stat. xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
---------------------------- ---------------------------------------- --------------------------
North Carolina Restrictions and Limitations on High Consumer Home Loan
Cost Home Loans, N.C. Gen. Stat. xx.xx.
24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end lines
of credit)
---------------------------- ---------------------------------------- --------------------------
South Carolina South Carolina High Cost and Consumer Consumer Home Loan
Home Loans Act, S.C. Code Xxx. xx.xx.
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------- ---------------------------------------- --------------------------
