GREENWICH CAPITAL ACCEPTANCE, INC., as Purchaser and THORNBURG MORTGAGE HOME LOANS, INC., as Seller MORTGAGE LOAN PURCHASE AGREEMENT Dated as of February 1, 2008 Adjustable Rate and Hybrid Mortgage Loans Thornburg Mortgage Securities Trust 2008-1...
EXECUTION
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Purchaser
and
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Seller
Dated
as
of February 1, 2008
Adjustable
Rate and Hybrid Mortgage Loans
Mortgage
Loan Pass-Through Certificates, Series 2008-1
Table
of Contents
Page
|
ARTICLE
I. DEFINITIONS AND SCHEDULES
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1
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Section
1.01.
|
Definitions
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1
|
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ARTICLE
II. SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
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2
|
|
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Section
2.01.
|
Sale
of Mortgage Loans
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2
|
|
Section
2.02.
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Obligations
of the Seller Upon Sale
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2
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Section
2.03.
|
Payment
of Purchase Price for the Mortgage Loans
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3
|
|
ARTICLE
III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
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3
|
|
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Section
3.01
|
Seller
Representations and Warranties Relating to the Mortgage
Loans
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3
|
|
Section
3.02.
|
Seller’s
Representations and Warranties
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3
|
|
Section
3.03
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Remedies
for Breach of Representations and Warranties
|
5
|
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ARTICLE
IV. SELLER’S COVENANTS
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5
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|
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Section
4.01.
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Covenants
of the Seller
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5
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ARTICLE
V. INDEMNIFICATION
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5
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|
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Section
5.01.
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Indemnification
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5
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ARTICLE
VI. TERMINATION
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6
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Section
6.01.
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Termination
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6
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ARTICLE
VII. MISCELLANEOUS PROVISIONS
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6
|
|
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Section
7.01.
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Amendment
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6
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Section
7.02.
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Governing
Law
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6
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Section
7.03.
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Notices
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6
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Section
7.04.
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Severability
of Provisions
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6
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Section
7.05.
|
Counterparts
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7
|
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Section
7.06.
|
Further
Agreements
|
7
|
|
Section
7.07.
|
Intention
of the Parties
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7
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|
Section
7.08.
|
Successors
and Assigns: Assignment of Purchase Agreement
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7
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Section
7.09.
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Survival
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8
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Schedule
I:
|
Mortgage
Loan Schedule.
|
I-1
|
|
Schedule
II:
|
List
of Servicers and Servicing Agreements
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II-1
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Schedule
III:
|
Seller’s
Representations and Warranties Relating to Mortgage Loans.
|
III-1
|
i
This
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of February 1, 2008 (the
“Agreement”),
is
made and entered into between Xxxxxxxxx Mortgage Home Loans, Inc. (the
“Seller”)
and
Greenwich Capital Acceptance, Inc. (the “Purchaser”).
WHEREAS,
the Seller is the owner of the notes or other evidence of indebtedness (the
“Mortgage
Notes”)
so
indicated on Schedule I hereto referred to below, and the other documents or
instruments constituting the Mortgage File (collectively, the “Mortgage
Loans”);
and
WHEREAS,
the Seller is a party to the servicing agreements identified on Schedule II
(each a “Servicing
Agreement,”
and
together the “Servicing
Agreements”),
and
certain of the Mortgage Loans are currently being serviced thereunder by the
servicers identified therein; and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages or deeds of trust (the
“Mortgages”)
on the
properties (the “Mortgaged
Properties”)
securing such Mortgage Loans, including rights to (a) any property acquired
by
foreclosure or deed in lieu of foreclosure or otherwise, (b) the proceeds of
any
insurance policies covering the Mortgage Loans or the Mortgaged Properties
or
the obligors on the Mortgage Loans and (c) the Seller’s security interest in any
Additional Collateral; and
WHEREAS,
pursuant to the terms of that certain Pooling and Servicing Agreement dated
as
of February 1, 2008 (the “Pooling
and Servicing Agreement”)
among
the Purchaser, as depositor, the Seller, as seller, Xxxxx Fargo Bank, N.A.,
as
master servicer and securities administrator and LaSalle Bank National
Association, as trustee (in such capacity, the “Trustee”),
the
Purchaser will convey the Mortgage Loans to Xxxxxxxxx Mortgage Securities Trust
2008-1 (the “Trust”).
ARTICLE
I.
DEFINITIONS
AND SCHEDULES
Section
1.01. Definitions. Any
capitalized term used but not defined herein shall have the meaning assigned
thereto in the Pooling and Servicing Agreement or the related Prospectus
Supplement dated March 2, 2008, as supplemented by a supplement dated March
3,
2008 (the “Prospectus
Supplement”)
to the
Prospectus dated July 30, 2007 (the “Prospectus”).
1
ARTICLE
II.
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01. Sale
of Mortgage Loans; Assignment of the Servicing Agreements. The
Seller, concurrently with 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 (i) each
Mortgage Loan, including the related Cut-Off Date Principal Balance and all
collections in respect of interest and principal due after the Cut-Off Date
(and
all principal received before the Cut-Off Date to the extent such principal
relates to a Monthly Payment due after the Cut-Off Date); (ii) property which
secured such Mortgage Loan and which has been acquired by foreclosure or deed in
lieu of foreclosure; (iii) its interest in any insurance policies in respect
of
the Mortgage Loans; (iv) any Additional Collateral with respect to the Mortgage
Loans; and (v) all proceeds of any of the foregoing.
Concurrently
with the execution and delivery of this Agreement, the Seller hereby assigns
to
the Purchaser all of its rights and interest (but none of its obligations)
under
each Servicing Agreement, other than any servicing rights retained pursuant
to
the provisions of such Servicing Agreements, to the extent relating to the
Mortgage Loans. The Purchaser hereby accepts such assignment, and shall be
entitled to exercise all such rights of the Seller under each Servicing
Agreement as if the Purchaser had been a party to each such
agreement.
Section
2.02. Obligations
of the Seller Upon Sale and Assignment. In
connection with the transfer pursuant to Section 2.01 hereof, the Seller further
agrees, at its own expense, on or prior to the Closing Date, (a) to indicate
in
its books and records that the Mortgage Loans have been sold to the Purchaser
pursuant to this Agreement and (b) to deliver to the Purchaser and the Trustee
a
computer file containing a true and complete list of all such Mortgage Loans
specifying for each such Mortgage Loan, as of the Cut-Off Date, (i) its account
number and (ii) the Cut-Off Date Principal Balance and such file, which forms
a
part of Schedule A to the Pooling and Servicing Agreement, shall also be marked
as Schedule I to this Agreement and is hereby incorporated into and made a
part
of this Agreement.
In
connection with such conveyance by the Seller, the Seller shall on behalf of
the
Purchaser deliver to, and deposit with the Trustee, as assignee of the
Purchaser, on or before the Closing Date, the documents described in Section
2.01 of the Pooling and Servicing Agreement including, but not limited to,
the
Mortgage File and the Servicing Agreements. In the case of the Mortgage Loans
(if any) that have been prepaid in full after the Cut-off Date and prior to
execution of this Agreement, the Seller, in lieu of delivering the related
Mortgage Files, shall deliver to the Trustee on behalf of the Purchaser an
Officer’s Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayments that are required to be
deposited in the Collection Account pursuant to Section 2.01 of the Pooling
and
Servicing Agreement have been so deposited
The
Seller hereby confirms to the Purchaser and the Trustee that it has made the
appropriate entries in its general accounting records, to indicate that the
Mortgage Loans have been transferred to the Trustee, or a custodian appointed
pursuant to the Pooling and Servicing Agreement to act on behalf of the Trustee,
and that the Mortgage Loans constitute part of the Trust in accordance with
the
terms of the Pooling and Servicing Agreement.
2
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
in, to and under the Mortgage Loans and other property, and its rights under
the
Servicing Agreements, now existing or hereafter created, conveyed to it pursuant
to Section 2.01 hereof.
Section
2.03. Payment
of Purchase Price for the Mortgage Loans. In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to (i) pay to the Seller on the
Closing Date by transfer of immediately available funds, an amount equal to
$855,788,964.41 (which amount includes accrued interest) and (ii) cause to
be
transferred to the Seller the Class 1A-2, Class 2A-2, Class 3A-2, Class 4A-2,
Class 1-AX, Class 2-AX, Class 3-AX, Class 4-AX, Class B-1, Class B-2 and Class
B-3 Certificates (collectively, the “Purchase
Price”).
The
Seller shall pay, and be billed directly for, the amounts set forth in the
Xxxxxxxxx Securitization Engagement Letter dated October 18, 2001, including
all
reasonable expenses incurred by the Purchaser in connection with the issuance
of
the Certificates, including, without limitation, printing fees incurred in
connection with the Prospectus Supplement relating to the Certificates, fees
and
expenses of Purchaser’s counsel, fees of the rating agencies requested to rate
the Certificates, accountant’s fees and expenses and the fees and expenses of
the Trustee and other out-of-pocket costs, if any.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01. Seller
Representations and Warranties Relating to the Mortgage Loans. The
Seller hereby makes the representations and warranties set forth in Schedule
III
hereto applicable to the Mortgage Loans and by this reference incorporated
herein, to the Purchaser and the Trustee, as of the Closing Date or, if
applicable, such other date as may be specified therein.
Section
3.02. Seller’s
Representations and Warranties. The
Seller represents, warrants and covenants to the Purchaser as of the Closing
Date or as of such other date specifically provided herein:
(i) the
Seller is duly organized, validly existing and in good standing as a corporation
under the laws of the State of Delaware and is and will remain in compliance
with the laws of each state in which any Mortgaged Property is located to the
extent necessary to fulfill its obligations hereunder;
(ii) the
Seller has the power and authority to hold each Mortgage Loan, to sell each
Mortgage Loan, to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller has
duly
authorized the execution, delivery and performance of this Agreement, has duly
executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization or other similar laws in relation
to
the rights of creditors generally;
3
(iii) the
execution and delivery of this Agreement by the Seller and the performance
of
and compliance with the terms of this Agreement will not violate the Seller’s
certificate of incorporation or by-laws or constitute a material default under
or result in a material breach or acceleration of, any material contract,
agreement or other instrument to which the Seller is a party or which may be
applicable to the Seller or its assets;
(iv) the
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) the
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vi) the
Seller has good, marketable and indefeasible title to the Mortgage Loans, free
and clear of any and all liens, pledges, charges or security interests of any
nature encumbering the Mortgage Loans;
(vii) the
Mortgage Loans are not being transferred by the Seller with any intent to
hinder, delay or defraud any creditors of the Seller;
(viii) there
are
no actions or proceedings against, or investigations known to it of, the Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement
or
(C) that might prohibit or materially and adversely affect the performance
by
the Seller of its obligations under, or validity or enforceability of, this
Agreement;
(ix) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained;
and
(x) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions.
(b) On
the
Closing Date, the Seller shall deliver to the Purchaser a certificate of an
authorized officer of the Seller to the effect that, as of the Closing Date,
the
information set forth in the Prospectus Supplement, as it relates to the
Xxxxxxxxx Information does not contain an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not
misleading.
4
Section
3.03. Remedies
for Breach of Representations and Warranties.
It is
understood and agreed that (i) the representations and warranties set forth
in
Sections 3.01 and 3.02 hereof shall survive the sale of the Mortgage Loans
to
the Purchaser and shall inure to the benefit of the Purchaser and the Trust,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note
or
Assignment or the examination or lack of examination of any Mortgage File and
(ii) the remedies for the breach of such representations and warranties and
for
the failure to deliver the documents referred to in Section 2.02 hereof shall
be
as set forth in Section 2.03 of the Pooling and Servicing
Agreement.
It
is
understood and agreed that the representations and warranties set forth in
Section 3.01 hereof shall survive delivery of the respective Mortgage Files
to
the Trustee on behalf of the Purchaser.
ARTICLE
IV.
SELLER’S
COVENANTS
Section
4.01. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, it will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any Mortgage Loan, or any interest
therein; it will notify the Trust, as assignee of the Purchaser, of the
existence of any Lien on any Mortgage Loan immediately upon discovery thereof;
and it will defend the right, title and interest of the Trust, as assignee
of
the Purchaser, in, to and under the Mortgage Loans, against all claims of third
parties claiming through or under the Seller; provided,
however,
that
nothing in this Section 4.01 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans 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 and shall have set aside on its books adequate reserves with respect
thereto.
ARTICLE
V.
INDEMNIFICATION
Section
5.01. Indemnification. The
Seller agrees to indemnify and to hold each of the Purchaser, the Trust, the
Trustee, each of the officers and directors of each such entity and each person
or entity who controls each such entity or person harmless against any and
all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser, the Trust,
the Trustee, or any such person or entity may sustain in any way related to
the
failure of the Seller to perform its duties in compliance with the terms of
this
Agreement. The Seller shall immediately notify the Purchaser and the Trustee
if
a claim is made under this provision. The Seller shall assume the defense of
any
such claim and pay all expenses in connection therewith, including reasonable
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against the Purchaser, the Trust, the Trustee or any such
person or entity in respect of such claim.
5
ARTICLE
VI.
TERMINATION
Section
6.01. Termination.
The
respective obligations and responsibilities of the Seller and the Purchaser
created hereby shall terminate, except for the respective indemnity obligations
as provided herein, upon the termination of the Trust as provided in Article
X
of the Pooling and Servicing Agreement.
ARTICLE
VII.
MISCELLANEOUS
PROVISIONS
Section
7.01. Amendment. This
Agreement may be amended from time to time by the Seller and the Purchaser
by
written agreement signed by the parties hereto.
Section
7.02. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without reference to its conflict of law provisions (other
than Section 5-1401 of the General Obligations Law), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section
7.03. 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:
if
to the
Seller:
Xxxxxxxxx
Mortgage Home Loans, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx,
Xxx Xxxxxx 00000
Attention:
Xxxxxxx X. Xxxxx
or
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Seller.
if
to the
Purchaser:
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Legal Department
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
Section
7.04. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or 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.
6
Section
7.05. Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, which may be transmitted by telecopier
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
7.06. Further
Agreements.
The
parties hereto each agree to execute and deliver to the other such additional
documents, instruments or agreements as may be necessary or reasonable and
appropriate to effectuate the purposes of this Agreement or in connection with
the issuance of the Certificates representing interests in the Trust Fund,
including the Mortgage Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Seller, the Seller will
cooperate with the Purchaser in connection with the sale of the Class 1A-1,
Class 2A-1, Class 3A-1, Class 4A-1 and Class A-R Certificates. In that
connection, the Seller will provide to the Purchaser any and all information
and
appropriate verification of information, whether through letters of its auditors
and counsel or otherwise, as the Purchaser shall reasonably request and will
provide to the Purchaser such additional representations and warranties,
covenants, opinions of counsel, letters from auditors, and certificates of
public officials or officers of the Seller as are reasonably required in
connection with the offering of the Certificates.
Section
7.07. Intention
of the Parties. The
parties hereto intend that the transaction set forth herein be a non-recourse
sale by the Seller to the Purchaser of all of the Seller’s right, title and
interest in, to and under the Mortgage Loans and other property described in
Section 2.01 hereof. Accordingly, the parties hereto each intend to treat the
transaction as a sale by the Seller, and a purchase by the Purchaser, of the
Mortgage Loans. Nonetheless, in the event the transaction set forth herein
is
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
Mortgage Loans and other property described in Section 2.01 hereof, whether
now
existing or hereafter created, to secure all of the Seller’s obligations
hereunder; and this Agreement shall constitute a security agreement under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that,
if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest
of
first priority under applicable law and will be maintained as such throughout
the term of the Pooling and Servicing Agreement. The Purchaser will have the
right to review the Mortgage Loans and the related Mortgage Files to determine
the characteristics of the Mortgage Loans which will affect the Federal income
tax consequences of owning the Mortgage Loans and the Seller will cooperate
with
all reasonable requests made by the Purchaser in the course of such
review.
Section
7.08. Successors
and Assigns: Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee. 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 Person into which the Seller is merged or any
corporation resulting from any merger, conversion or consolidation to which
the
Seller is a party or any Person succeeding to the business of the Seller. The
parties hereto acknowledge that the Purchaser is acquiring the Mortgage Loans
and the rights of the Seller under the Servicing Agreements for the purpose
of
selling them to the Trust that will issue the Certificates representing
undivided interests in such Mortgage Loans. As an inducement to the Purchaser
to
purchase the Mortgage Loans, the Seller acknowledges and consents to the
assignment by the Purchaser to the Trust of all of the Purchaser’s rights
against the Seller pursuant to this Agreement insofar as such rights relate
to
Mortgage Loans transferred to the Trust and to the enforcement or exercise
of
any right or remedy against the Seller pursuant to this Agreement by the
Trustee. Such enforcement of a right or remedy by the Trustee shall have the
same force and effect as if the right or remedy had been enforced or exercised
by the Purchaser directly.
7
Section
7.09. Survival.
The
representations and warranties set forth in Sections 3.01 and 3.02 and the
provisions of Article V hereof shall survive the purchase of the Mortgage Loans
hereunder.
8
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above
written.
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Purchaser
By: /s/
Xxx
Xxxxxxxxxx
Name:
Xxx
Xxxxxxxxxx
Title:
Vice President
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Seller
By: /s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President
|
STATE
OF CONNECTICUT
|
)
|
|
|
)
ss.:
|
||
|
COUNTY
OF FAIRFIELD
|
)
|
On
the
3rd
day of
March 2008 before me, a Notary Public in and for said State, personally appeared
Xxx Xxxxxxxxxx, known to me to be a Vice President of GREENWICH CAPITAL
ACCEPTANCE, INC., the corporation that executed the within instrument, and
also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
Xxxxx
X.
Xxxxx
Notary
Public
My
Commission Expires on 7/31/2012
|
STATE
OF NEW MEXICO
|
)
|
|
|
)
ss.:
|
||
|
COUNTY
OF SANTE FE
|
)
|
On
the
3rd
day of
March 2008 before me, a notary public in and for said State, personally appeared
Xxxxxxx X. Xxxxx, known to me to be a Senior Vice President of XXXXXXXXX
MORTGAGE HOME LOANS, INC., a Delaware corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
Xxxx
X.
Xxxxx
Notary
Public
My
Commission Expires 11/20/2010
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “Xxxxxxxxx 2008-1 Mortgage
Loan
Schedule”
at the Washington D.C. offices of XxXxx Xxxxxx LLP]
I-1
SCHEDULE
II
LIST
OF
SERVICING AGREEMENTS
|
1.
|
(a)
Servicing Agreement, dated as of March 1, 2002, among Xxxxxxxxx Mortgage
Home 1. Loans, Inc. (“Xxxxxxxxx”), as seller and servicer and Xxxxx Fargo,
as master servicer, (“Xxxxx Fargo”) as amended by the Amendment to
Servicing Agreement, dated as of December 1, 2002, and as amended
by the
Second Amendment to Servicing Agreement, dated as of January 1, 2006,
and
(b) the Sub-Servicing Acknowledgement Agreement, dated as of March
1,
2002, by and between Xxxxxxxxx, as servicer, and Cenlar FSB, as
sub-servicer (“Cenlar”), as amended by the Amendment to Sub-Servicing
Acknowledgement Agreement, dated as of December 1, 2002, by the Second
Amendment to Subservicing Acknowledgement Agreement, dated as of
January
1, 2006, by the Third Amendment to Subservicing Acknowledgement,
dated as
of August 1, 2007, by the Fourth Amendment to Subservicing Acknowledgment
Agreement, dated as of October 1, 2007, by the Fifth Amendment to
Subservicing Acknowledgement Agreement dated as of February 1, 2008,
and
by the Sixth Amendment to Subservicing Acknowledgement Agreement,
dated as
of February 1, 2008, including the related Transfer Notice, dated
February
28, 2008, from Xxxxxxxxx, as seller, to Xxxxxxxxx, as servicer, and
Cenlar, as sub-servicer.
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2.
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Amended
and Restated Correspondent Loan Purchase Agreement, dated as of March
25,
2002, between Xxxxxxxxx Mortgage Home Loans, Inc. (“Xxxxxxxxx”) and First
Republic Bank (“First Republic”), including the related Transfer Notice,
dated February 28, 2008, from Xxxxxxxxx to First
Republic.
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3.
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Amended
and Restated Correspondent Loan Purchase Agreement, dated as of March
27,
2002, between Xxxxxxxxx Mortgage Home Loans, Inc. (“Xxxxxxxxx”) and
Colonial Savings, F.A. (“Colonial”), including the related Transfer
Notice, dated February 28, 2008, from Xxxxxxxxx to
Colonial.
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4.
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Correspondent
Loan Purchase Agreement, dated as of April 6, 2006, between Xxxxxxxxx
Mortgage Home Loans, Inc. (“Xxxxxxxxx”) and First Horizon Home Loans, a
division of First Tennessee Bank National Association (“First Horizon”),
including the related Transfer Notice, dated February 28, 2008, from
Xxxxxxxxx to First Horizon.
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II-1
SCHEDULE
III
SELLER’S
REPRESENTATIONS AND
WARRANTIES
RELATING TO
MORTGAGE
LOANS
The
Seller hereby represents and warrants to, and covenants with, the Purchaser
that, as to each Mortgage Loan, as of the Closing Date:
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(i)
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The
information set forth in the final Mortgage Loan Schedule is complete,
true and correct in all material respects and (b) the Mortgage Note
or an
affidavit of lost note with respect to each Mortgage Loan has been
delivered to the Purchaser or its
designee.
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(ii)
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As
of the Cut-off Date, none of the Mortgage Loans (by Stated Principal
Balance) were 30 or more days delinquent in
payment.
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(iii)
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To
the best of Seller’s knowledge, there are no delinquent taxes, ground
rents, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments
or other outstanding charges affecting the related Mortgaged Property
or
escrow funds have been established in an amount sufficient to pay
for
every such escrowed item which remains
unpaid.
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(iv)
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The
terms of the Mortgage Note and the Mortgage (including with respect
to
provisions relating to any Additional Collateral (if applicable))
have not
been impaired, waived, altered or modified in any respect, except
by
written instruments which have been recorded, if necessary to protect
the
interests of the Trust, and which are included in the Mortgage File,
the
substance of which waiver, alteration or modification has been approved
by
the primary mortgage guaranty insurer, if any, and by the title insurer,
in each instance to the extent required by the related policy and
is
reflected on the Mortgage Loan Schedule. Except for any modification
agreement or similar document contained in the Mortgage File permitting
a
borrower to modify his Mortgage Loan, no instrument of waiver, alteration
or modification has been executed, and no Mortgagor has been released,
in
whole or in part, except in connection with an assumption agreement
approved by the primary mortgage insurer, if any, and title insurer,
in
each instance to the extent required by the policy, and which assumption
agreement is part of the Mortgage
File.
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(v)
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The
Mortgage Note and the Mortgage (including with respect to provisions
relating to any Additional Collateral (if applicable)) are not subject
to
any right of rescission, set-off, counterclaim or defense, including
the
defense of usury, nor will the operation of any of the terms of the
Mortgage Note and Mortgage, or the exercise of any right thereunder,
render the Mortgage unenforceable, in whole or in part, or subject
to any
right of rescission, set-off, counterclaim or defense, including
the
defense of usury, and to the Seller’s knowledge no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto.
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III-1
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(vi)
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All
buildings upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage
and
such other hazards as are customary in the area where the Mortgaged
Property is located. All such insurance policies contain a standard
mortgagee clause naming the Master Servicer or the applicable Servicer,
their successors and assigns as mortgagee and to Seller’s knowledge all
premiums thereon have been paid. If upon origination of the Mortgage
Loan,
the Mortgaged Property was in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards
(and such flood insurance has been made available) a flood insurance
policy meeting the requirements of the current guidelines of the
Federal
Insurance Administration is in effect. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the Mortgagor’s
cost and expense, and on the Mortgagor’s failure to do so, authorizes the
holder of the Mortgage to maintain such insurance at the Mortgagor’s cost
and expense and to seek reimbursement therefor from the
Mortgagor.
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(vii)
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The
Mortgage Loan is not a loan (A) subject to 12 CFR Part 226.31, 12
CFR Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing
TILA, which implements the Home Ownership and Equity Protection Act
of
1994, as amended, or any comparable state law (B) a “High Cost Loan” or
“Covered Loan” as applicable, as such terms are defined in the current
Standard & Poor’s LEVELS® GLOSSARY classified and/or defined as a
“high cost” loan or “predatory,” “high cost,” “threshold” or “covered”
lending under any other state, federal or local law. The Mortgage
Loan at
the time it was made otherwise complied in all material respects
with any
and all requirements of any federal, state or local law including,
but not
limited to, all predatory lending laws, usury, truth in lending,
real
estate settlement procedures (including the Real Estate Settlement
Procedures Act of 1974, as amended), consumer credit protection,
equal
credit opportunity or disclosure laws applicable to such Mortgage
Loan.
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(viii)
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The
Mortgage has not been satisfied, canceled or subordinated, or rescinded,
in whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage except for a release that does not materially
impair the security of the Mortgage Loan or is reflected in the
Loan-to-Value Ratio, in whole or in part, nor has any instrument
been
executed that would effect any such release, cancellation, subordination
or rescission unless payoff funds have been deposited in the custodial
account.
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(ix)
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The
Mortgage is a valid, existing and enforceable first lien on the Mortgaged
Property, including all improvements on the Mortgaged Property subject
only to (A) the lien of current real property taxes and assessments
not
yet due and payable, (B) covenants, conditions and restrictions,
rights of
way, easements and other matters of the public record as of the date
of
recording being acceptable to mortgage lending institutions generally
and
either (a) specifically referred to in a lender’s title insurance policy
delivered to the related Originator of the Mortgage Loan or (b) which
do
not adversely affect the Appraised Value of the Mortgaged Property,
and
(C) other matters to which like properties are commonly subject which
do
not materially interfere with the benefits of the security intended
to be
provided by the Mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property; and, further provided, with respect
to
Cooperative Loans, the lien of the related cooperative corporation
for
unpaid assessments representing the obligor’s pro
rata
share of the cooperative corporation’s payments for its blanket mortgage,
current and future real property taxes, insurance premiums, maintenance
fees and other assessments to which like collateral is commonly subject.
Any security agreement, chattel mortgage or equivalent document related
to
and delivered in connection with the Mortgage establishes and creates
a
valid, existing and enforceable first lien and first priority security
interest on the property described therein and the Seller has full
right
to sell and assign the same to the
Purchaser.
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III-2
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(x)
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The
Mortgage Note and the related Mortgage are genuine and each is the
legal,
valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as the enforceability thereof may
be
limited by bankruptcy, insolvency, or reorganization or other laws
relating to the rights of creditors and general principles of
equity.
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(xi)
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All
parties to the Mortgage Note and the Mortgage had legal capacity
to enter
into the Mortgage Loan and to execute and deliver the Mortgage Note
and
the Mortgage, and the Mortgage Note and the Mortgage have been duly
and
properly executed by such parties.
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(xii)
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The
proceeds of the Mortgage Loan have been fully disbursed, there is
no
requirement for future advances thereunder and any and all requirements
as
to completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with
(except
for escrow funds for exterior items which could not be completed
due to
weather and escrow funds for the completion of swimming pools); and
all
costs, fees and expenses incurred in making, closing or recording
the
Mortgage Loan have been paid, except recording fees with respect
to
Mortgages not recorded as of the Closing Date. Any future advances
made to
the Mortgagor prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and
single
repayment term.
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(xiii)
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The
Seller has acquired its ownership of each Mortgage Loan in good faith
without notice of any adverse claim, and as of the Closing Date,
the
Mortgage Note and the Mortgage are not assigned or pledged, and
immediately prior to the sale of the Mortgage Loan to the Purchaser,
the
Seller was the sole owner thereof and with full right to transfer
and sell
the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest and with
full
right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage
Loan
pursuant to this Agreement.
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III-3
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(xiv)
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To
the Seller’s best knowledge, the Seller or,
if the Mortgage Loan was not originated by the Seller, the related
originator is or was (or, during the period in which they held and
disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (B) either (i) organized under
the laws
of such state, or (ii) qualified to do business in such state, or
(iii) a
federal savings and loan association or national bank or subsidiary
having
preemptive authority under federal law or under applicable state
law to
engage in business in such state without qualification, or (iv) not
doing
business in such state.
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(xv)
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The
Mortgage Loan is covered by an ALTA lender’s title insurance policy or
other form acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title
insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to
do
business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in (ix)(A) through
(C)
above) the related originator or the Seller, their respective successors
and assigns as to the first priority lien of the Mortgage in the
original
principal balance of the Mortgage Loan in accordance with the terms
of the
Mortgage Note. The Seller is
the sole insured of such lender’s title insurance policy, and such
lender’s title insurance policy is in full force and effect and will be
in
full force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such
lender’s title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything
which would impair the coverage of such lender’s title insurance
policy.
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(xvi)
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There
is no default, breach, violation or event of acceleration existing
under
the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration,
and the
Seller has not waived any default, breach, violation or event of
acceleration.
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(xvii)
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To
the best of the Seller’s knowledge, there are no mechanics’ or similar
liens or claims which have been filed for work, labor or material
(and no
rights are outstanding that under law could give rise to such lien)
affecting the related Mortgaged Property which are or may be liens
prior
to, or equal or on parity with, the lien of the related
Mortgage.
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(xviii)
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To
the best of the Seller’s knowledge, all improvements which were considered
in determining the Appraised Value of the related Mortgaged Property
lay
wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach
upon the Mortgaged Property.
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III-4
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(xix)
|
The
Mortgage Loan was originated by the Seller or was purchased by the
Seller
from a third party and the related originator of each Mortgage Loan,
was,
at the time of origination, (A) (1) a Xxxxxx Xxx-approved or Xxxxxxx
Mac-approved Seller/Servicer and (2) a U.S. Department of Housing
and
Urban Development approved mortgage banker, or a savings and loan
association, a savings bank, a commercial bank or similar banking
institution which is supervised and examined by a federal or state
authority or (B) closed in the name of a loan broker under the
circumstances described in the following sentence. If such Mortgage
Loan
was originated through a loan broker, the related originator qualifies
under clause (A) above, such Mortgage Loan met such originator’s
underwriting criteria at the time of origination and was originated
in
accordance with such originator’s polices and procedures and such
originator acquired such Mortgage Loan from the loan broker
contemporaneously with the origination thereof. Each Mortgage Note
has a
Mortgage Rate that adjusts periodically (not always in correlation
to the
Index calculation term), based on the 1-month LIBOR Index, 6-month
LIBOR
Index, 1-year LIBOR Index, or 1-year CMT Index, as each is defined
in the
Pooling and Servicing Agreement, except that some Mortgage Loans
first
adjust after an initial period of one month, three years, five years,
seven years or ten years following
origination.
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(xx)
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The
origination practices used by the Seller or the related originator
of the
Mortgage Loan and the collection practices used by the Master Servicer
or
the applicable Servicer with respect to each Mortgage Note and Mortgage
have been in all respects legal, proper, prudent and customary in
the
mortgage origination and servicing business. With respect to escrow
deposits and escrow payments, if any, all such payments are in the
possession of, or under the control of, the applicable Servicer and
there
exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made.
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(xxi)
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The
Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty, so as to have
a
material adverse effect on the value of the related Mortgaged Property
as
security for the related Mortgage Loan or the use for which the premises
were intended and there is no proceeding pending for the total or
partial
condemnation thereof.
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(xxii)
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The
Mortgage contains customary and enforceable provisions such as to
render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby, including, (A) in the case of a Mortgage designated as a
deed of
trust, by trustee’s sale, and (B) otherwise by judicial foreclosure. There
is no other exemption available to the Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee’s sale or the
right to foreclose the Mortgage.
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(xxiii)
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The
Mortgage Loan was underwritten generally in accordance with either
(A) the
Seller’s underwriting standards described in the Prospectus Supplement or
(B) in the case of a Mortgage Loan originated by First Republic Bank,
the
underwriting standards of First Republic
Bank.
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III-5
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(xxiv)
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The
Mortgage File in possession of the related Servicer contains an appraisal
of the related Mortgaged Property by a qualified appraiser, duly
appointed
by the related originator of the Mortgage Loan, who had no interest,
direct or indirect in the Mortgaged Property or in any loan made
on the
security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan or, in accordance with certain
specified programs of the related originator of the Mortgage Loan
an
approved AVM in lieu of the
appraisal.
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(xxv)
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In
the event the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Seller or any
of its
successors to the trustee under the deed of trust, except, in connection
with a trustee’s sale after default by the
Mortgagor.
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(xxvi)
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No
Mortgage Loan (A) contains provisions pursuant to which Monthly Payments
are paid or partially paid with funds deposited in any separate account
established by the Seller, the Mortgagor, or anyone on behalf of
the
Mortgagor or paid by any source other than the Mortgagor or (B) contains
any provision permitting a temporary “buydown” of the related Mortgage
Rate. No Mortgage Loan was a graduated payment mortgage loan as of
the
date of its origination. No Mortgage Loan has a shared appreciation
or
other contingent interest feature.
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(xxvii)
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No
Mortgage Loan had a Loan-to-Value Ratio in excess of 100%. The portion
of
the unpaid principal balance of each Mortgage Loan which is in excess
of
80% of the original Loan-to-Value Ratio either (a) has Additional
Collateral or (b) is and will be insured as to payment defaults under
a
Primary Mortgage Insurance Policy issued by primary mortgage insurer
licensed to do business in the state in which the Mortgaged Property
is
located and acceptable to Xxxxxx Xxx or Xxxxxxx Mac as of the Closing
Date, so as to reduce the Mortgagee’s exposure in accordance with the
standards of Xxxxxx Mae or Xxxxxxx Mac and applicable law. All provisions
of such Primary Mortgage Insurance Policy have been and are being
complied
with; such policy is valid and in full force and effect and all premiums
due thereunder have been paid.
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(xxviii)
|
Except
for any Additional Collateral Mortgage Loans, the Mortgage Note is
not and
has not been secured by any collateral, pledged account, or other
security
except the lien of the Mortgage, and the security interest of any
applicable security agreement or chattel mortgage referred to
above.
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(xxix)
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To
the best of the Seller’s knowledge, the Mortgaged Property is lawfully
occupied under applicable law. To the best of the Seller’s knowledge, all
inspections, licenses and certificates required to be made or issued
with
respect to all occupied portions of the related Mortgaged Property
and,
with respect to the use and occupancy of the same, including but
not
limited to certificates of occupancy, had been made or obtained from
the
appropriate authorities.
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III-6
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(xxx)
|
Each
Assignment is in recordable form, is acceptable for recording under
the
laws of the jurisdiction in which the Mortgaged Property is
located.
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(xxxi)
|
If
the Mortgaged Property is a condominium unit or a planned unit development
(other than a de
minimis
planned unit development) such condominium or planned unit development
project meets Xxxxxx Mae or Xxxxxxx Mac or the originator’s eligibility
requirements.
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(xxxii)
|
Each
Mortgage is a “qualified mortgage” for purposes of the REMIC provisions of
the Code.
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(xxxiii)
|
To
the best of the Seller’s knowledge, no fraud was committed by the
originator of the Mortgage Loan and the Seller is not aware of any
fact
that would reasonably lead the Seller to believe that any Mortgagor
had
committed fraud in connection with the origination of such Mortgage
Loan.
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(xxxiv)
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The
Mortgagor has not notified the Seller, and the Seller has no knowledge
of
any relief requested by the Mortgagor under the Servicemembers Civil
Relief Act.
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(xxxv)
|
As
to any Additional Collateral Mortgage Loan, such Mortgage Loan is
secured
by a perfected first priority security interest in the related Additional
Collateral.
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(xxxvi)
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As
to any Additional Collateral Mortgage Loan, the applicable pledge
agreement is in place, is genuine and is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance with its
terms
subject to bankruptcy, insolvency and other laws of general application
affecting the rights of creditors and general principles of
equity.
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(xxxvii)
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With
respect to each Cooperative Loan (i) there is no provision in the
related
proprietary lease which requires the related Mortgagor to offer for
sale
the shares owned by such Mortgagor first to the Cooperative Corporation
for a price less than the outstanding amount of the Cooperative Loan,
(ii)
there is no prohibition in the related proprietary lease against
pledging
such shares or assigning the proprietary lease that has been violated
in
connection with the origination of the Cooperative
Loan.
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(xxxviii)
|
With
respect to each Cooperative Loan, such Cooperative Loan is secured
by
shares held by a “tenant-stockholder” of a corporation that qualifies as a
“cooperative housing corporation” as such terms are defined in Section
216(b)(1) of the Code.
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(xxxix)
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With
respect to each Cooperative Loan, the related Mortgage and related
UCC
financing statement creates a first-priority security interest in
the
stock in the Cooperative Corporation and the related proprietary
lease of
the related Cooperative Unit which were pledged to secure such Cooperative
Loan, and the Cooperative Corporation owns the Cooperative Corporation
as
an estate in fee simple in real property or pursuant to a leasehold
acceptable to Xxxxxx Mae.
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III-7
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(xl)
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No
Mortgage Loan originated on or after October 1, 2002 through March
6, 2003
is governed by the Georgia Fair Lending
Act.
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III-8