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RESIDENTIAL FUNDING MORTGAGE SECURITIES II, INC.
as Purchaser,
and
RESIDENTIAL FUNDING CORPORATION
as Seller
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HOME LOAN PURCHASE AGREEMENT
Dated as of September 1, 2003
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions............................................................3
ARTICLE II
SALE OF HOME LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Home Loans..............................................4
Section 2.2 Payment of Purchase Price.......................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties...........................6
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller........................................13
ARTICLE V
SERVICING
Section 5.1 Servicing......................................................14
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLER
Section 6.1 Limitation on Liability of the Seller..........................14
ARTICLE VII
TERMINATION
Section 7.1 Termination....................................................14
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment......................................................14
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Section 8.2 GOVERNING LAW..................................................14
Section 8.3 Notices........................................................15
Section 8.4 Severability of Provisions.....................................15
Section 8.5 Relationship of Parties........................................15
Section 8.6 Counterparts...................................................15
Section 8.7 Further Agreements.............................................16
Section 8.8 Intention of the Parties.......................................16
Section 8.9 Successors and Assigns; Assignment of This Agreement...........16
Section 8.10 Survival.......................................................16
Exhibit A-1 Group I Home Loans
Exhibit A-2 Group II Home Loans
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This HOME LOAN PURCHASE AGREEMENT (this "Agreement" or "Home Loan
Purchase Agreement"), dated as of September 1, 2003, 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-1 and
Exhibit A-2 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 cash
proceeds of 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 September 25, 2003 (the "Indenture"), between Home Loan
Trust 2003-HI3, as issuer, and JPMorgan Chase Bank, 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-1 and Exhibit A-2 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 with evidence of recording
thereon, or a copy of the original Mortgage with evidence of recording
thereon;
(iii) assignments (which may be included in one or more
blanket assignments if permitted by applicable law) of the Mortgage
recorded to "JPMorgan Chase Bank as indenture trustee" c/o the Seller at
an address specified by the Seller; and
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(iv) originals of any intervening assignments of the
Mortgage, with evidence of recording thereon, 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 2.3 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, the Certificateholders or the Credit
Enhancer 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 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.
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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 the
Home Loans 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 Minnesota (which
shall have been submitted for filing as of 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 $253,388,770.74 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.
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
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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;
(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);
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(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 or the Home Loans that compose either
Group I Loans or Group II Loans, as applicable, 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;
(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;
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(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;
(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 7.2% of the Cut-off Date Loan Balance
of the Group I Loans are secured by Mortgaged Properties located in Ohio
and approximately 7.2% of the Cut-off Date Loan Balance of the Group II
Loans are secured by Mortgaged Properties located in Ohio.
(xiv) Approximately 97.74% and 96.15% of the Group I Loans
and Group II Loans, respectively, by Cut-Off Date Loan Balance, had a
Combined Loan-to-Value Ratio in excess of 100%;
(xv) Approximately 1.8% Home Loans secured by Mortgaged
Property in the State of Georgia are subject to the Georgia Fair Lending
Act, as amended (the "Georgia Act"). These Home Loans were originated
after March 7, 2003. Approximately 0.8% of the Home Loans secured by
Mortgaged Property in the State of New York are subject to the New York
Predatory Lending Law, codified as N.Y. Banking Law ss.6-I, N.Y. Gen.
Bus. Law ss.771-a, and N.Y. Real Prop. Acts Law ss.1302 (the "New York
Act"). Approximately 1.1% of the Home Loans secured by Mortgaged
Property in the State of Kentucky, are subject to the Kentucky Revised
Statutes Section 360.100, as amended (the "Kentucky Act"). None
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of the Home Loans secured by Mortgaged Property in the State of Arkansas
are subject to the Arkansas Home Loan Protection Act, as amended (the
"Arkansas Act");
(xvi) None of the Home Loans are classified or defined as
"high-cost home loans" under the administrative code or other applicable
law, regulation or ordinance, of the City of New York;
(xvii) None of the proceeds of any Home Loan were used to
finance the purchase of single premium credit insurance policies;
(xviii)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;
(xix) Each Mortgage is substantially similar to one
another and is an enforceable obligation of the related Mortgagor;
(xx) To the best of Seller's knowledge, the physical
property subject to each Mortgage is free of material damage and is in
good repair;
(xxi) 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;
(xxii) No Group I Loan or Group II Loan has a prepayment
penalty term that extends beyond five years after the date of
origination;
(xxiii)None of the Home Loans are reverse Home Loans;
(xxiv) None of the Group I Loans have a remaining term to
stated maturity of less than 57 months. All of the Group I Loans are
fixed rate and are fully amortizing, except for 0.1% that are Balloon
Payment loans. As of the Cut-off Date, the Loan Rates on the Group I
Loans range between 6.495% per annum and 14.630% per annum and the
weighted average Loan Rate is approximately 11.0618% per annum. The
weighted average remaining term to stated maturity of the Group I Loans
as of the Cut-off Date is approximately 207 months;
(xxv) None of the Group II Loans have a remaining term to
stated maturity of less than 54 months. All of the Group II Loans are
fixed rate and are fully amortizing, except for 0.2% that are Balloon
Payment loans. As of the Cut-off Date, the Loan Rates on the Group II
Loans range between 5.875% per annum and 14.075% per annum and the
weighted average Loan Rate is approximately 11.0708% per annum. The
weighted average remaining term to stated maturity of the Group II Loans
as of the Cut-off Date is approximately 205 months;
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(xxvi) (A) Each Mortgaged Property with respect to the
Group I Loans and Group II Loans consists of a single parcel of real
property with a single family residence erected thereon, manufactured
housing permanently attached to their foundation or an individual
condominium unit. (B) With respect to the Group I Loans and Group II
Loans, respectively, (i) approximately 2.20% and 2.13% (by Cut-off Date
Loan Balance) are secured by real property improved by individual
condominium units and (ii) approximately 90.21% and 90.89% (by Cut-off
Date Loan Balance) of the Group I Loans and Group II Loans,
respectively, are secured by real property with a single family
residence erected thereon;
(xxvii)All of the Home Loans are secured by second
mortgages or deeds of trust;
(xxviiiIf 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.
(xxix) 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;
(xxx) 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;
(xxxi) 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;
(xxxii)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;
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(xxxiiiWith 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;
(xxxiv)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; and
(xxxv) 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.
(c) Upon discovery by Seller or upon notice from the Purchaser,
the Credit Enhancer, 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 or the Credit Enhancer 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.
Upon discovery by the Seller or upon notice from the Purchaser,
the Credit Enhancer, 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 the Credit Enhancer 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
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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. 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
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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.
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.
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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, with the consent of the Credit Enhancer (which consent shall
not be unreasonably withheld).
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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:
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(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 Minnesota, 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.
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.
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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 Credit Enhancer and the Purchaser, which
consent shall be at the Credit Enhancer's and the Purchaser's sole discretion,
except that the Purchaser and the Credit Enhancer acknowledge and agree 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.
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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/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
RESIDENTIAL FUNDING CORPORATION
as Seller
By: /s/ Xxxxx Xxx Xxx
----------------------------------
Name: Xxxxx Xxx Xxx
Title: Director
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:
----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
as Seller
By:
----------------------------------
Name: Xxxxxxx Xxxx
Title: Associate
Exhibit A-1
HOME LOAN SCHEDULE
GROUP I LOANS
(Provided Upon Request)
Exhibit A-2
HOME LOAN SCHEDULE
GROUP II LOANS
(Provided Upon Request)
