HELOC PURCHASE AGREEMENT
This
is a
HELOC Purchase Agreement (the “Agreement”), dated May 23, 2006, among Citigroup
Mortgage Loan Trust Inc., a Delaware corporation (the “Purchaser”), Citigroup
Global Markets Realty Corp., a New York corporation (the “Seller”) and
National
City Bank, a
national banking association (the “Originator”).
Preliminary
Statement
The
Seller wishes to sell the HELOCs (as hereinafter defined) to the Purchaser
on
the terms and subject to the conditions set forth in this Agreement. The
Purchaser has established Citigroup HELOC Trust 2006-NCB1 Notes, a Delaware
statutory trust (the “Issuer”) pursuant to a Short Form Trust Agreement, dated
as of May 12, 2006, as amended and restated on May 23, 2006, (the “Trust
Agreement”), among the Purchaser, Wilmington Trust Company (the “Owner
Trustee”), and Citibank, N.A. (the “Securities Administrator”). The Purchaser
intends to sell the HELOCs to the Issuer pursuant to the Trust Agreement. The
Issuer intends to deposit the HELOCs into a pool of loans comprising the trust
fund. The Issuer will issue a single series of HELOC-backed notes designated
as
Series 2006-NCB1 (the “Notes”). The Notes will consist of five classes of notes.
The Issuer, pursuant to an Indenture, dated as of May 23, 2006 (the
“Indenture”), among the Purchaser as depositor, the Securities Administrator and
the Indenture Trustee, will pledge the HELOCs to the Indenture Trustee and
issue
and transfer to the Purchaser the Citigroup HELOC Trust 2006-NCB1 Notes, Series
2006-NCB1, and the Certificates issued pursuant to the Trust Agreement (the
“Certificates”). The servicing of the HELOCs will be provided by National
City Bank pursuant
to the Servicing Agreement (the “Servicing Agreement”) dated
as of May 1, 2006, among the Securities Administrator, Indenture Trustee, the
Issuer and National City Bank as
servicer (in such capacity, the “Servicer”).
Capitalized terms used but not defined herein shall have the meanings set forth
in the Indenture or in the Servicing Agreement.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase.
The
Seller agrees to sell, and the Purchaser agrees to purchase, on or before May
23, 2006 (the “Closing Date”), the adjustable-rate, first and second lien,
revolving home equity line of credit loans set forth on the Closing Schedule
(as
defined below)(the “HELOCs”) originated by the Originator, having an aggregate
principal balance as of the close of business on May 1, 2006 (the “Cut-off
Date”) of $1,038,910,845 (the “Closing Balance”), after giving effect to all
payments received on the HELOCs on or before the Cut-off Date. The Purchaser
agrees to sell the HELOCs to the Issuer on the Closing Date.
SECTION
2. Schedule.
The
Purchaser and the Seller have agreed upon which of the revolving credit loans
owned by the Seller are to be purchased by the Purchaser pursuant to this
Agreement and the Seller will prepare or cause to be prepared on or prior to
the
Closing Date a final schedule (the “Closing Schedule”) that together shall
describe such HELOCs and set forth all of the HELOCs to be purchased under
this
Agreement. The Closing Schedule will conform to the requirements set forth
in
this Agreement and to the definition of “Loan Schedule” under the Indenture. The
Closing Schedule shall be used as the Loan Schedule under the Indenture and
shall be prepared by the Seller based on information provided by the
Originator.
SECTION
3. Consideration;
Transfer of Title.
(a) In
consideration for the HELOCs to be purchased hereunder, the Purchaser shall,
as
described in Section 8, pay to or upon the order of the Seller in immediately
available funds an amount equal to the net cash proceeds of the sale of the
Notes and the Certificates (the “HELOC Purchase Price”).
(b) Upon
receipt of the HELOC Purchase Price therefor and as of the Closing Date, the
Seller does hereby sell, transfer, assign, set over and convey to the Purchaser
all of its right, title and interest in, to and under the HELOCs, including
right,
title and interest as in, to and under the Master Loan Purchase and Servicing
Agreement dated as of March 1, 2006, between the Seller and the Originator
with
respect to the transferred HELOCs except
the Seller's rights thereunder to premium recapture from the Originator in
connection with certain prepayments of loans, whether occurring before or after
the Cut-Off Date. Such conveyance includes, without limitation, each HELOC,
including its Principal Balance (including Additional Balances related thereto
other than Additional Balances created after the Managed Amortization Period)
and all collections in respect thereof received after the Cut-Off Date;
provided,
however,
that
the Purchaser does not assume or shall assume the obligation under any Credit
Line Agreement that provides for the funding of Draws to the Mortgagor
thereunder, and the Purchaser shall not be obligated or permitted to fund any
such Draws.
(c) The
Purchaser or any assignee, transferee or designee of the Purchaser shall be
entitled to all payments of principal and interest received after the Cut-off
Date.
(d) Pursuant
to the Indenture, the Issuer will pledge all of its right, title and interest
in
and to the HELOCs, together with its rights under this Agreement, to the
Indenture Trustee for the benefit of the related Noteholders.
SECTION
4. Transfer
of the HELOCs.
(a) Possession
of Mortgage Files.
The
contents of each Mortgage File not delivered to the Purchaser or to any
assignee, transferee or designee of the Purchaser on or prior to the Closing
Date are and shall be held in trust by the Seller for the benefit of the
Purchaser or any assignee, transferee or designee of the Purchaser. Upon the
sale of the HELOCs, the ownership of each
Mortgage and the related Credit Line Agreement
and the
other contents of the related Mortgage File is vested in the Purchaser and
the
ownership of all records and documents with respect to the related HELOC
prepared by or that come into the possession of the Seller on or after the
Closing Date shall immediately vest in the Purchaser and shall be delivered
immediately to the Purchaser or as otherwise directed by the
Purchaser.
(b) Delivery
of Loan Documents.
In
connection with the transfers and assignments of the HELOCs, the Seller shall
deliver to, and deposit with, or cause to be delivered to and deposited with,
the Indenture Trustee, and/or the Custodian acting on the Indenture Trustee’s
behalf, the following documents or instruments with respect to each HELOC so
transferred and assigned on or before the Closing Date:
(i)
the
original Credit Line Agreement endorsed by the Originator in the following
form:
“Pay to the order of ____________, without recourse,” with all intervening
endorsements, showing a complete chain of title;
(ii)
if
such HELOC is not a MERS HELOC, an original Assignment of Mortgage in
blank;
(iii)(A)
if such HELOC is not a MERS HELOC, the original recorded Mortgage or, if in
connection with such HELOC, the original recorded Mortgage with evidence of
recording thereon cannot be delivered on or prior to the Closing Date because
of
a delay caused by the public recording office where such original Mortgage
has
been delivered for recordation or because such original Mortgage has been lost,
the Originator shall deliver or cause to be delivered to the Custodian, a true
and correct copy of such Mortgage, together with (i) in the case of a delay
caused by the public recording office, a certification of the Originator, title
company, escrow agent or closing attorney stating that such original Mortgage
has been dispatched to the appropriate public recording official or (ii) in
the
case of an original Mortgage that has been lost, a certificate by the
appropriate county recording office where such Mortgage is recorded, and (B)
if
such HELOC is a MERS HELOC, the original Mortgage, noting the presence of the
“Mortgage Identification Number” of such MERS HELOC;
(iv) if
such
HELOC is not a MERS HELOC, if applicable, the original Intervening Assignments,
if any, with evidence of recording thereon, showing a complete chain of title
to
the related Mortgage from the Mortgagor to the related Originator (and endorsed
in blank in accordance with clause (ii) above) or, if any such original
Intervening Assignment has not been returned from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i)
in
the case of a delay caused by the public recording office, a certification
of
the Originator, title company, escrow agent or closing attorney stating that
such original Intervening Assignment has been dispatched to the appropriate
public recording official for recordation or (ii) in the case of an original
Intervening Assignment that has been lost, a certificate by the appropriate
county recording office where such Mortgage is recorded;
(v) either
a
Title Insurance Policy or guaranty title with respect to the related Mortgaged
Property;
(vi) the
original of any guaranty executed in connection with such HELOC;
(vii) the
original of each assumption, modification, consolidation or substitution
agreement, if any, relating to such HELOC; and
(viii) any
security agreement, chattel mortgage or equivalent instrument executed in
connection with the related Mortgage.
(c)
Upon
the occurrence of a Recordation Event, the Originator shall submit to the
appropriate recording offices Assignments of Mortgage to the Indenture Trustee
on behalf of the Trust, which may be blanket assignments if permitted by
applicable law, for the HELOCs. In lieu of recording any such Assignments of
Mortgage, the Originator may provide to the Indenture Trustee an Opinion of
Counsel in a form reasonably acceptable to the Indenture Trustee, to the effect
that recordation of an Assignment of Mortgage in the state where the related
Mortgaged Property is located is not necessary to protect the interests of
the
Owner Trustee, the Indenture Trustee or the Securityholders in the related
Mortgage. In the event that any such Assignment of Mortgage is lost or returned
unrecorded because of a defect therein, the Originator shall promptly prepare
a
substitute Assignment of Mortgage or cure such defect, as the case may be,
and
thereafter the Originator shall submit each such Assignment of Mortgage for
recording.
(d) With
respect to each MERS HELOC, the Servicer shall, at the expense of the Seller,
take such actions as are necessary to cause the Indenture Trustee to be clearly
identified as the owner of each such HELOC on the records of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
(e) In
instances where a Title Insurance Policy is required to be delivered to the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee under
clause (b)(v) above and is not so delivered, the Seller shall provide a copy
of
such Title Insurance Policy to the Indenture Trustee, or to the Custodian on
behalf of the Indenture Trustee, as promptly as practicable after the execution
and delivery hereof, but in any case within 180 days of the Closing
Date.
(f) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in whole
or
in part, to the Issuer or the Indenture Trustee, as may be required to effect
the purposes of the Indenture, without the consent of the Seller, and the
assignee shall succeed to the rights and obligations hereunder of the Purchaser.
Any expense reasonably incurred by or on behalf of the Purchaser, the Issuer
or
the Indenture Trustee in connection with enforcing any obligations of the Seller
under this Agreement will be promptly reimbursed by the Seller.
(g) Examination
of Mortgage Files.
(i)
The
Indenture Trustee, or the Custodian on behalf of the Indenture Trustee, shall
execute and deliver to the Purchaser, the Servicer, the Issuer, the Securities
Administrator and the Indenture Trustee on the Closing Date an Initial
Certification in the form annexed hereto as Exhibit A-1 (or in the form annexed
to the Custodial Agreement as Exhibit A-1, as applicable).
(ii) Within
45
days after the Closing Date, the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee, shall, for the benefit of the Purchaser, the Issuer
and
the Securityholders, review each Mortgage File to ascertain that all required
documents set forth in Section 4(b) have been received and appear on their
face
to contain the requisite signatures by or on behalf of the respective parties
thereto, and shall deliver to the Depositor, the Servicer and the Indenture
Trustee an Interim Certification in the form annexed hereto as Exhibit A-2
(or
in the form annexed to the applicable Custodial Agreement as Exhibit A-2, as
applicable) to the effect that, as to each HELOC listed in the Loan Schedule
(other than any HELOC prepaid in full or any specifically identified in such
certification as not covered by such certification) (i) all of the applicable
documents required by Section 4(b)(i)-(v) and, to the extent actually provided
to it, the documents in Section 4(b)(vi)-(vii) are in its possession and (ii)
such documents have been reviewed by it and appear to relate to such HELOC.
The
Indenture Trustee shall have no responsibility to determine whether the
documents in Section 4(b)(vi) and (vii) exist. The Indenture Trustee, or the
Custodian on behalf of the Indenture Trustee, shall determine whether such
documents are executed and with respect to the Intervening Assignments, endorsed
(as specified in Section 4(b)(iv)), but shall be under no duty or obligation
to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form
or
that they are other than what they purport to be on their face and makes no
representations as to the collectability, insurability, priority or perfection
of such HELOCs. Neither the Indenture Trustee nor any Custodian shall have
any
responsibility for verifying the genuineness or the legal effectiveness of
or
authority for any signatures of or on behalf of any party or
endorser.
(iii) If
in the
course of the review described in clause (ii) above the Indenture Trustee or
the
Custodian discovers any document or documents constituting a part of a Mortgage
File that is missing, does not appear regular on its face (i.e., is mutilated,
damaged, defaced, torn or otherwise physically altered) or appears to be
unrelated to the HELOCs identified in the Loan Schedule, as applicable (each,
a
“Material Defect”), the Indenture Trustee, or the Custodian on behalf of the
Indenture Trustee, upon discovering such Material Defect shall promptly identify
the HELOC to which such Material Defect relates in the Interim Certification
delivered to each of the Depositor and the Servicer and give notice thereof
to
the Originator and the Seller. Within 90 days of its receipt of such notice,
the
Originator shall cure such Material Defect (and, in such event, the Originator
shall provide the Indenture Trustee with an Officer’s Certificate confirming
that such cure has been effected). If the Originator does not so cure such
Material Defect, the Originator shall repurchase the related HELOC from the
Trust Estate at the Loan Repurchase Price. The Originator may, in lieu of
repurchasing a HELOC pursuant to this Section 4(g), substitute for such HELOC
a
Qualifying Substitute HELOC subject to the provisions of Section 7. The failure
of the Indenture Trustee or the Custodian to give the notice contemplated herein
within 45 days after the Closing Date shall not affect or relieve the Originator
of its obligation to repurchase any HELOC pursuant to this Section 4(g) or
any
other Section of this Agreement requiring the repurchase of HELOCs.
(iv) Within
180 days following the Closing Date, the Indenture Trustee, or the Custodian,
shall deliver to the Depositor, the Servicer and the Indenture Trustee a Final
Certification substantially in the form attached as Exhibit A-3 (or in the
form
annexed to the Custodial Agreement as Exhibit A-3, as applicable) evidencing
the
completeness of the Mortgage Files in its possession or control, with any
exceptions noted thereto.
(h) Convertible
Loans.
Subject to Section 11 hereof, National City Mortgage Co. shall repurchase any
Convertible HELOC.
(i) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Estate, the Indenture Trustee, the Custodian or the Securityholders of any
unsatisfied duty, claim or other liability on any HELOC or to any
Mortgagor.
(j) Notwithstanding
anything to the contrary contained herein, each of the parties hereto
acknowledges that the Custodian shall perform the applicable review of the
HELOCs and shall provide the respective certifications thereof as provided
in
Section 2(f) hereof.
(k) Within
sixty (60) days of the Closing Date, the Originator shall cause each original
Credit Line Agreement to be endorsed by the Originator in the following form:
“Pay to the order of ____________, without recourse.” Within 60 days following
the Closing Date, the Originator shall deliver to the Indenture Trustee (with
a
copy to the Depositor, the Servicer, the Securities Administrator and the
Insurer) an Officer’s Certificate evidencing the completeness of the
endorsements.
SECTION
5. Representations,
Warranties and Covenants of the Seller.
The
Seller, the Purchaser and the Originator, understand and acknowledge and agree
that, the representations and warranties set forth in this Section 5 are made
as
of the Closing Date or as of the date specifically provided herein.
(a) The
Seller hereby represents and warrants to the Purchaser, the Issuer, the
Indenture Trustee and the Securities Administrator, as of the date hereof and
as
of the Closing Date, and covenants, that:
(i) The
Seller is duly organized, validly existing and in good standing as a corporation
under the laws of the State of New York with full corporate power and authority
to conduct its business as presently conducted by it to the extent material
to
the consummation of the transactions contemplated herein. The Seller has the
full corporate power and authority to own the HELOCs and to transfer and convey
the HELOCs to the Purchaser and has the full corporate power and authority
to
execute and deliver, engage in the transactions contemplated by, and perform
and
observe the terms and conditions of this Agreement.
(ii) 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 hereof 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, reorganization and other similar laws
relating to or affecting creditors’ rights generally and to general principles
of equity.
(iii) The
execution, delivery and performance of this Agreement by the Seller (x) does
not
conflict and will not conflict with, does not breach and will not result in
a
breach of and does not constitute and will not constitute a default (or an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the articles of incorporation or by-laws
of
the Seller, (B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Seller is a party or by which the Seller
or any of its property is bound or (C) to the Sellers’ best knowledge, any
material law, rule, regulation, order, judgment, writ, injunction or decree
of
any court or governmental authority having jurisdiction over the Seller or
any
of its property and (y) does not create or impose and will not result in the
creation or imposition of any lien, charge or encumbrance which would have
a
material adverse effect upon the HELOCs or any documents or instruments
evidencing or securing the HELOCs.
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of New York, for the
execution, delivery and performance by the Seller of, or compliance by the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Indenture; provided, however, that
the Seller makes no representation or warranty regarding federal or state
securities laws in connection with the sale or distribution of the
Notes.
(v) 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.
(vi) 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.
(vii) Immediately
prior to the sale of the HELOCs to the Purchaser as herein contemplated, the
Seller will be the owner of the related Mortgage
and the related Credit Line Agreement
and the
indebtedness evidenced by the related Mortgage Note, and, upon the payment
to
the Seller of the HELOC Purchase Price, in the event that the Seller retains
or
has retained record title, the Seller shall retain such record title to each
Mortgage, each related Mortgage Note and the related Mortgage Files with respect
thereto in trust for the Purchaser as the owner thereof from and after the
date
hereof.
(viii) 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 are not subject
to the bulk transfer or any similar statutory provisions.
(ix) The
Seller has not dealt with any broker, investment banker, agent or other person,
except for the Purchaser or any of its affiliates, that may be entitled to
any
commission or compensation in connection with the sale of the
HELOCs.
(x) There
is
no litigation currently pending, or to the best of the Seller’s knowledge
without independent investigation threatened, against the Seller that would
reasonably be expected to adversely affect the transfer of the HELOCs, the
issuance of the Notes or the execution, delivery, performance or enforceability
of this Agreement, or that would result in a material adverse change in the
financial condition of the Seller.
(xi) The
Seller is solvent and will not be rendered insolvent by the consummation of
the
transactions contemplated hereby. The Seller is not transferring any HELOCs
with
any intent to hinder, delay or defraud any of its creditors.
(b) The
Seller hereby represents and warrants to the Purchaser, as of the date hereof
and as of the Closing Date, and covenants, that:
(i) All
HELOCs were originated in compliance with all applicable laws, including, but
not limited to, all applicable anti-predatory lending laws.
(ii) No
HELOC
originated on or after October 1, 2002 through March 6, 2003 is governed by
the
Georgia Fair Lending Act.
(iii) No
HELOC
is a Covered Loan or a High Cost Loan (in the case of state or local law, as
determined without giving effect to any available federal preemption, other
than
any exemptions specifically provided for in the relevant state or local
law).
(iv) The
original principal balance of each HELOC underlying the Group 1 HELOCs is within
▇▇▇▇▇▇▇ Mac’s dollar amount limits for conforming HELOCs.
(v) With
respect to any subordinate lien mortgage loan underlying the Group 1 HELOCs,
such lien is on a one- to four-family residence that is the principal residence
of the borrower and the original principal balance of the first lien mortgage
loan plus the original principal balance of any subordinate lien mortgage loan
relating to the same mortgaged property does not exceed the applicable ▇▇▇▇▇▇▇
Mac loan limit for first lien mortgage loans for that property type.
(vi) No
mortgage loan underlying the Group
1
HELOCs
is “seasoned” more than 1 year.
SECTION
6. Representations,
Warranties and Covenants of the Originator.
The
Originator hereby represents and warrants to the Issuer, the Seller, the
Indenture Trustee, the Securities Administrator and the Purchaser that, as
to
each HELOC, as of the Closing Date:
(i) The
information set forth in the related Loan Schedule, including any diskette
or
other data tapes sent to the Purchaser is complete, true and
correct;
(ii) The
HELOC
is in compliance with all requirements set forth in the related Confirmation,
and the characteristics of the related HELOC Package as set forth in the related
Confirmation are true and correct, provided, however, that in the event of
any
conflict between the terms of any Confirmation and this Agreement, the terms
of
this Agreement shall control;
(iii) All
payments required to be made up to the close of business on the Closing Date
for
such HELOC under the terms of the Credit Line Agreement have been made; the
Originator has not advanced funds, or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
the
Credit Line Agreement or Mortgage; no HELOC is thirty (30) or more days
delinquent as of the Closing Date and there has been no delinquency, exclusive
of any period of grace, in any payment by the Mortgagor thereunder since the
origination of the HELOC;
(iv) 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;
(v) The
terms
of the Credit Line Agreement and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments, recorded
in
the applicable public recording office if necessary to maintain the lien
priority of the Mortgage, and which have been delivered to the Custodian; the
substance of any such waiver, alteration or modification has been approved by
the title insurer, to the extent required by the related policy, and is
reflected on the related HELOC Schedule. 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
title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Custodian and the terms of which are reflected in
the
related HELOC Schedule;
(vi) The
Credit Line Agreement and the Mortgage 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 Credit Line Agreement and
the
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 no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto. Each Prepayment Charge or penalty with respect to any HELOC
is
permissible, enforceable and collectible under applicable federal, state and
local law;
(vii) Prior
to
origination of the HELOC, if the Mortgaged Property is in an area identified
on
a Flood Hazard Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance
has
been made available), the Credit Line Agreement and/or Mortgage obligates the
Mortgagor to maintain a flood insurance policy meeting requirements of
applicable federal law and regulation then in effect at origination at the
Mortgagor’s cost and expense and allows Mortgagee to seek reimbursement therefor
from the Mortgagor should the Mortgagee force place said insurance, with all
such sums as may be advanced by the Mortgagee to be added to the Mortgage
indebtedness and secured by the Mortgage;
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of HELOCs of a type similar to the HELOCs have been complied with
in
all material respects;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission
or
release. The Originator has not waived the performance by the Mortgagor of
any
action, if the Mortgagor’s failure to perform such action would cause the HELOC
to be in default, nor has the Originator waived any default resulting, from
any
action or inaction by the Mortgagor;
(x) The
Mortgage is a valid, subsisting, enforceable and perfected first or second
lien
on the Mortgaged Property, including all buildings on the Mortgaged Property
and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems affixed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing securing the
Credit Line Agreement’s original principal balance. The Mortgage and the Credit
Line Agreement do not contain any evidence of any security interest or other
interest or right thereto. Such lien is free and clear of all adverse claims,
liens and encumbrances having priority over the first or second lien, as
applicable, of the Mortgage subject only to (1) the related First Lien, (2)
the
lien of non-delinquent current real property taxes and assessments not yet
due
and payable, (3) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and (A) are
referred to in the lender’s title insurance policy, or (B) do not adversely
affect the market value of the Mortgaged Property or the intended use of the
Mortgaged Property, and (4) 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. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with
the
HELOC establishes and creates a valid, subsisting, enforceable and perfected
second lien and second priority security interest on the property described
therein, and the Originator has the full right to sell and assign the same
to
the Purchaser;
(xi) The
Credit Line Agreement 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;
subject
to bankruptcy laws and similar laws of general applications affecting creditor’s
rights and subject to the application of the rule of equity, including those
affecting the availability of specific performance
none of
which shall affect the ultimate realization of the benefit of the Credit Line
Agreement and the Mortgage;
(xii) All
parties to the Credit Line Agreement and the Mortgage had legal capacity to
enter into the HELOC and to execute and deliver the Credit Line Agreement and
the Mortgage, and the Credit Line Agreement and the Mortgage have been duly
and
properly executed by such parties. The Mortgagor is a natural
person;
(xiii) Any
and
all requirements as to completion of any on-site or off-site improvement. All
costs, fees and expenses incurred in making or closing the HELOC and the
recording of the Mortgage have been paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due to the Mortgagee pursuant to the Credit
Line Agreement or Mortgage;
(xiv) The
Originator is the sole legal, beneficial and equitable owner of the Credit
Line
Agreement and the Mortgage and has full right to transfer and sell the HELOC
to
the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(xv) The
Originator and, to the best of Originator’s knowledge, all
parties
which have had any interest in the HELOC, whether as mortgagee, assignee,
pledgee or otherwise, are (or, during the period in which they held and disposed
of such interest, were) in compliance with any and all applicable “doing
business” and licensing requirements of the laws of the state wherein the
Mortgaged Property is located;
(xvi) Each
first lien HELOC with an original Credit Limit equal to $250,000 or more is
covered by an ALTA lender’s title insurance policy or short form title policy
acceptable in
the
secondary market for loans similar to the HELOCs (or, in jurisdictions where
ALTA policies are not generally approved for use, a lender’s title insurance
policy),
issued
by a title insurer acceptable in the secondary market for loans similar to
the
HELOCs and qualified to do business in the jurisdiction where the related
Mortgaged Property is located, insuring (subject to the exceptions contained
in
clauses (x)(3)(A) and (B) above) the Originator, its successors and assigns
as
to the lien priority specified on the HELOC Schedule with respect to the related
Mortgage in the original Credit
Limit
of such
HELOC.
Additionally, either such lender’s title insurance policy affirmatively insures
that there is ingress and egress to and from the Mortgaged Property or the
Originator warrants that there
is
ingress and egress to and from the Mortgaged Property and the lender’
s
title
insurance policy affirmatively insures against encroachments by or upon the
related Mortgaged Property or any interest therein or any other adverse
circumstance that either is disclosed or would have been disclosed by an
accurate survey. The Originator 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 and will inure to the benefit of
the
Purchaser without any further act. No claims have been made under such lender’s
title insurance policy, neither the Originator, any prior holder of the related
Mortgage has done, by act or omission, anything that would impair the coverage
of such lender’s insurance policy, and there is no act, omission, condition, or
information that would impair the coverage of such lender’s insurance policy.
With respect to each HELOC which is not covered by a title insurance policy,
the
Originator has obtained a title search for such HELOC (a copy of which is in
the
related Servicing File) which indicates that there are no adverse circumstances
which may effect the priority, validity or enforceability of the lien with
respect to such HELOC;
(xvii) There
is
no material
default,
breach, violation or event of acceleration existing under the Mortgage or the
Credit Line Agreement and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material
default,
breach, violation or event of acceleration, and the Originator has not waived
any material
default,
breach, violation or event of acceleration. With respect to each HELOC which
is
a second lien, (i) the First Lien is in full force and effect, (ii) there is
no
material
default,
breach, violation or event of acceleration existing under such prior mortgage
or
the related Credit Line Agreement, (iii) no event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a
material
default,
breach, violation or event of acceleration thereunder, and either (A) the prior
mortgage contains a provision which allows or (B) applicable law requires,
the
mortgagee under the second lien HELOC to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(xviii) 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 coordinate with, the lien of the related
Mortgage;
(xix) 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;
(xx) The
HELOC
was originated by the Originator or by 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 by a mortgagee approved as such
by
the Secretary of HUD;
(xxi)
The
HELOC bears interest at the Mortgage Interest Rate as set forth in the HELOC
Schedule, and Minimum Monthly Payments under the Credit Line Agreement are
due
and payable on the Due Date specified in the related Credit Line Agreement.
No
HELOC includes a teaser rate with a term that exceeds six months. The Mortgage
contains the usual and enforceable provisions of the originator at the time
of
origination for the acceleration of the payment of the unpaid principal amount
of the HELOC if the related Mortgaged Property is sold without the prior consent
of the mortgagee thereunder;
(xxii) The
origination, servicing and collection practices used with respect to each Credit
Line Agreement and Mortgage since origination, have been in all material
respects
legal,
and
proper
and
in
accordance with Accepted Servicing Practices.
The
HELOC has been serviced in
all
material respects by
the
Originator and any predecessor servicer in accordance with the terms of the
Credit Line Agreement and Accepted Servicing Practices. No
payments
are
being held by the Originator for any work on a Mortgaged Property which has
not
been completed;
(xxiii) The
Mortgaged Property is free of damage and waste and there is no proceeding
pending for the total or partial condemnation thereof;
(xxiv) The
Minimum Monthly Payment with respect to any HELOC is not less than the interest
accrued at the applicable Mortgage Interest Rate on the average daily balance
during the Billing Cycle relating to the date on which such Minimum Monthly
Payment is due;
(xxv)
The
Originator intends for its sale of the HELOCs to be treated as a sale for
accounting purposes;
(xxvi) Each
HELOC has an original term to maturity of no
more
than 360
months.
Each HELOC has a Draw Period of 10 years (provided that, with respect to any
HELOC which is secured by a Mortgaged Property which
is
located in the State of Connecticut the
Draw
Period shall
be
9 years
and 10 months) followed by an Amortization Period of either
60
or 120 Minimum Monthly Payments, depending upon the Principal Balance of the
HELOC at the end of the Draw Period;
(xxvii) Each
HELOC has been serviced in all material respects in compliance with Accepted
Servicing Practices. No Mortgaged Property is located in the State of New
Jersey;
(xxviii) The
Mortgage and related Credit Line Agreement contain 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 which are customary in the secondary market,
including, (a) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (b) otherwise by judicial foreclosure. The Mortgaged
Property has not been subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. There is no homestead or 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. The Mortgagor has not
notified the Originator and the Originator has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers Civil Relief
Act;
(xxix) The
HELOC
was underwritten in accordance with the Underwriting
Standards
of the
Originator in effect at the time the HELOC was originated.
The
Credit
Line Agreement and Mortgage contain
covenants of the Mortgagor similar to those of mortgages and credit agreements
used for similar HELOCs in the secondary market;
(xxx) The
Credit Line Agreement is not and has not been secured by any collateral except
the lien of the corresponding Mortgage on the Mortgaged Property and the
security interest of any applicable security agreement or chattel mortgage
referred to in (x) above;
(xxxi) The
Mortgage File contains either an AVM which is acceptable to Standard and Poor’s
Ratings Group or an appraisal of the related Mortgaged Property which satisfied
the standards of lenders
who originate HELOCs similar to the HELOCs, was on appraisal form 1004 or form
2055 with an interior inspection and was made and signed, prior to the approval
of the HELOC application, by a qualified appraiser, duly appointed by the
Originator, who had no interest, direct or indirect in the Mortgaged Property
or
in any loan made on the security thereof, whose compensation is not affected
by
the approval or disapproval of the HELOC and who met the minimum qualifications
contained
in, and was made in accordance with, the relevant provisions of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989;
(xxxii) 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 Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxxiii) No
HELOC
contains provisions pursuant to which any payments are (a) paid or partially
paid with funds deposited in any separate account established by the Originator,
the Mortgagor, or anyone on behalf of the Mortgagor, (b) paid by any source
other than the Mortgagor or (c) contains any other similar provisions which
may
constitute a “buydown” provision. The
HELOC
does not have a shared appreciation or other contingent interest
feature;
(xxxiv) The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of fixed rate HELOCs in the case of Fixed Rate HELOCs,
and
adjustable rate HELOCs in the case of Adjustable Rate HELOCs and rescission
materials with respect to Refinanced HELOCs, and such statement is and will
remain in the Mortgage File;
(xxxv) No
HELOC
was made in connection with (a) the construction or rehabilitation of a
Mortgaged Property or (b) facilitating the trade-in or exchange of a Mortgaged
Property;
(xxxvi) The
Originator has no knowledge of any circumstances or condition with respect
to
the Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause the HELOC to be an
unacceptable investment, cause the HELOC to become delinquent, or adversely
affect the value of the HELOC;
(xxxvii)
No HELOC
has a CLTV, as applicable, in excess of 100% and no HELOC has an Equity LTV
in
excess of 100%;
(xxxviii)
Either
(a) no consent for the second lien HELOC is required by the holder of the
related First Lien or (b) such consent has been obtained and is contained in
the
Mortgage File;
(xxxix)
With
respect to any second lien HELOC and where required or customary in the
jurisdiction in which the Mortgaged Property is located, the original lender
has
filed for record a request for notice of any action by the senior lienholder
under the related First Lien, and the original lender has notified any senior
lienholder in writing of the existence of the related second lien HELOC and
requested notification of any action to be taken against the Mortgagor by the
senior lienholder;
(xl) The
Originator has not received a notice of default of a First Lien with respect
to
any HELOC which has not been cured;
(xli) The
Mortgaged Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities;
(xlii) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a HELOC has taken place on the part of the
Originator, or to the best of the Originator’s knowledge, any Person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the HELOC or in the application
of any insurance in relation to such HELOC;
(xliii) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(xliv) Any
Draws
made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
Principal
Balance secured by the Mortgage;
(xlv) No
Credit
Line Agreement for a HELOC
requires
a
balloon payment feature provided
that the Mortgagor makes all required Minimum Monthly Payments and further
that
any fees and charges which have not been paid prior to the maturity of the
HELOC
are due with the final payment. No HELOC
is
subject to negative amortization;
(xlvi) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements in the Underwriting Standards;
(xlvii) [Reserved];
(xlviii) Interest
on each HELOC is calculated on the basis of a 360-day year consisting of twelve
30-day months;
(xlix) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Originator nor, to the Originator’s knowledge, the
related Mortgagor, has received any notice of any violation or potential
violation of such law. There is no pending action or proceeding directly
involving the Mortgaged Property in which compliance with any environmental
law,
rule or regulation is an issue; there is no violation of any environmental
law,
rule or regulation with respect to the Mortgaged Property; and nothing further
remains to be done to satisfy in full all requirements of each such law, rule
or
regulation constituting a prerequisite to use and enjoyment of said property.
There does not exist on the related Mortgaged Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(l)
[Reserved];
(li) Each
HELOC is covered by a Flood Zone Service Contract which is assignable to the
Purchaser or its designee or, for each HELOC not covered by such Flood Zone
Service Contract, the Originator agrees to purchase such Flood Zone Service
Contract;
(lii) No
HELOC
is (a)(1) subject to the provisions of the Homeownership and Equity Protection
Act of 1994 as amended (“HOEPA”) or (2) has an APR or total points and fees that
are equal to or exceeds the HOEPA thresholds (as defined in 12 CFR 226.32
(a)(1)(i) and (ii)), (b) a “high cost” mortgage loan, “covered” mortgage loan,
“high risk home” mortgage loan, or “predatory” mortgage loan or any other
comparable term, no matter how defined under any federal, state or local law,
(c) subject to any comparable federal, state or local statutes or regulations,
or any other statute or regulation providing for heightened regulatory scrutiny
or assignee liability to holders of such mortgage loans, or (d) a High Cost
Loan
or Covered Loan, as applicable (as such terms are defined in the current
Standard & Poor’s LEVELS® Glossary Revised, Appendix E);
(liii) No
predatory, abusive or deceptive lending practices, including but not limited
to,
the extension of credit to a mortgagor without regard for the mortgagor’s
ability to repay the HELOC and the extension of credit to a mortgagor which
has
no apparent benefit to the mortgagor, were employed in connection with the
origination of the HELOC;
(liv) The
debt-to-income ratio of the related Mortgagor was not greater than 60% at the
origination of the related HELOC;
(lv) No
Mortgagor was required to purchase any credit insurance product (e.g., life,
mortgage, disability, accident, unemployment or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of credit.
No Mortgagor obtained a prepaid single premium credit life, mortgage,
disability, accident, unemployment or health insurance product in connection
with the origination of the HELOC. No proceeds from any HELOC were used to
purchase single premium credit insurance policies as part of the origination
of,
or as a condition to closing, such HELOC;
(lvi) The
HELOCs were not selected from the outstanding one to four-family HELOCs in
the
Originator’s portfolio at the related Closing Date as to which the
representations and warranties set forth in this Agreement could be made in
a
manner so as to affect adversely the interests of the Purchaser;
(lvii) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the HELOC in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the
mortgagee thereunder;
(lviii) The
HELOC
complies with all consumer credit statutes and regulations
applicable to such HELOC;
(lix) The
information set forth in the Loan Schedule with respect to each Prepayment
Charge is complete, true and correct in all material respects and each
Prepayment Charge is permissible, enforceable and collectable under applicable
federal and state law;
(lx) The
HELOC
was not prepaid in full prior to the Closing Date and the Originator has not
received notification from a Mortgagor that a prepayment in full shall be made
after the Closing Date. No HELOC contains any unconditional obligation requiring
the owner of such HELOC to offer a new loan to the related mortgagor to
refinance the principal balance of the HELOC or any portion thereof or to extend
the maturity date thereof;
(lxi) No
HELOC
is secured by cooperative housing, commercial property or mixed use
property;
(lxii) Each
HELOC is eligible for sale in the secondary market or for inclusion in a
Securitization Transaction without unreasonable credit enhancement
in
accordance with secondary market standards for Securitization Transactions
of
HELOCs having comparable characteristics to the HELOCs;
(lxiii) Except
as
set forth on the related HELOC Schedule, none of the HELOCs are subject to
a
prepayment penalty. For
any
HELOC originated on or following October 1, 2002 that is subject to a prepayment
penalty, such prepayment penalty does not extend beyond three years after the
date of origination. With respect to any HELOC that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (i)
prior to the HELOC’s origination, the Originator's
rate sheets provided a means for a Mortgagor
to
agree
to such
premium in exchange for a monetary benefit, including but not limited to a
fee
reduction, (ii) the
Originator has no knowledge that, prior
to
the HELOC’s origination, the Mortgagor was not
offered
the option of obtaining a HELOC that did not require payment of such a premium,
(iii) the prepayment premium is disclosed to the Mortgagor in the Credit
Line Agreement
pursuant
to applicable state and federal law, and (iv) notwithstanding
any state or federal law to the contrary, the Originator in
its
capacity as servicer shall
not
impose such prepayment premium in any instance when the mortgage loan is
accelerated or paid off in connection with the workout of a delinquent HELOC
or
as the result of the Mortgagor’s default in making the Minimum
Monthly Payments;
(lxiv) The
Originator is
in all
material aspects in compliance
with all
applicable anti-money laundering laws,
including the
relevant provisions of the Bank Secrecy Act as amended by
the USA
Patriot Act of 2001 (collectively, the "Patriot
Act");
the
Originator has established an anti-money laundering compliance program
and
with
respect to the Patriot Act has (a) developed internal policies, procedures
and
controls reasonably designed to prevent it from being used for money laundering
or the financing of terrorist activities; (b) designated a compliance officer;
(c) implemented an ongoing employee training program; and (d) developed an
independent audit function to test the compliance program; and the Originator
is
in all material respects in compliance with the implementing
regulations promulgated
and
administered
by
the
U.S.
Treasury Department's
Office
of Foreign Assets Control (“OFAC”),
and has established an OFAC compliance program;
(lxv) No
Mortgagor was encouraged or required to
select
a HELOC product offered by the HELOC’s
originator
which is
a higher cost product designed for less creditworthy borrowers, unless at the
time of the HELOC’s origination, such Mortgagor did not qualify taking into
account credit history and debt to income ratios for a lower cost credit
product then offered by the HELOC’s originator. With respect to any HELOC, the
Mortgagor was assigned the highest credit grade available with respect to a
mortgage loan product offered by such HELOC’s originator, based on a
comprehensive assessment of risk factors, including the Mortgagor’s credit
history. Additionally, the HELOC’s originator offered the Mortgagor mortgage
loan products offered by such HELOC’s originator for which the Mortgagor
qualified.
For the
purpose of this subsection, the term HELOC’s originator shall mean the
Originator’s National Home Equity Division;
(lxvi) The
methodology used in underwriting the extension of credit for each HELOC employs
objective mathematical principles which relate the Mortgagor’s income, assets
and liabilities to the proposed payment and such underwriting methodology does
not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the HELOC;
(lxvii) With
respect to each HELOC, the Originator has fully and accurately furnished
complete information (i.e., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
on a monthly basis and the Originator in
its
capacity as servicer
will
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information on its borrower credit files
to
Equifax, Experian, and Trans Union Credit Information Company, on a monthly
basis;
(lxviii) All
points and fees related to each HELOC were disclosed in writing to the related
Borrower in accordance with applicable state and federal law and regulations.
No
related Borrower
was
charged “points and fees” (whether or not financed) in an amount greater than
(a)
$1,000 or (b) 5%
of the
principal
amount
of such
loan,
whichever is greater.
For
purposes of this representation, “points and fees” (a)
include origination, underwriting, broker and finder’s fees and other charges
that the lender imposed as a condition of making the loan, whether they are
paid
to the lender or a third party, and (b) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent (which shall not include
any
points or fees) of the Credit Limit. All points, fees and charges (including
finance charges) and whether or not financed, assessed, collected or to be
collected in connection with the origination and servicing of each such HELOC
were disclosed in writing to the related Mortgagor in accordance with applicable
state and federal laws and regulations;
(lxix) The
Originator in
its
capacity as servicer will
transmit full-file credit reporting data for each HELOC pursuant to ▇▇▇▇▇▇
▇▇▇
Guide Announcement 95-19 and for each HELOC, Originator agrees it shall report
one of the following statuses each month as follows: new origination, current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off;
(lxx) Except
to
the extent set forth in the related Confirmation, no HELOC is secured by
manufactured housing. With respect to any HELOC which is secured by manufactured
housing, such
housing will be the principal residence of the Mortgagor upon origination of
the
mortgage loan. With
respect to any second lien HELOC, such lien is on a one- to four-family
residence that is (or will be) the principal residence of the Mortgagor upon
the
origination of the second lien HELOC;
(lxxi) Each
HELOC constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of the Code
and Treasury Regulation Section 1.860G-2(a)(1);
(lxxii) No
HELOC
is secured by real property or secured by
a
manufactured home located in the state of Georgia unless (x) such HELOC was
originated prior to October 1, 2002 or after March 6, 2003, or (y) the property
securing the HELOC is not, nor will be, occupied by the Mortgagor as the
Mortgagor’s principal dwelling. No HELOC is a “High Cost Home Loan” as defined
in the Georgia Fair Lending Act, as amended (the “Georgia Act”). Each HELOC that
is a “Home Loan” under the Georgia Act complies with all applicable provisions
of the Georgia Act. No HELOC secured by owner occupied real property or an
owner
occupied manufactured home located in the State of Georgia was originated (or
modified) on or after October 1, 2002 through and including March 6,
2003;
(lxxiii) No
HELOC
is a “High-Cost” loan as defined under the New York Banking Law Section 6-1,
effective as of April 1, 2003;
(lxxiv) No
HELOC
(a) is secured by property located in the State of New York; (b) had an unpaid
principal balance at origination of $300,000 or less, and (c) has an application
date on or after April 1, 2003, the terms of which HELOC equal or exceed either
the APR or the points and fees threshold for “high-cost home loans”, as defined
in Section 6-1 of the New York State Banking Law;
(lxxv) No
HELOC
is a “High Cost Home Loan” as defined in the Arkansas Home Loan Protection Act
effective July 16, 2003 (Act 1340 or 2003);
(lxxvi) No
HELOC
is a “High Cost Home Loan” as defined in the Kentucky high-cost loan statute
effective June 24, 2003 (Ky. Rev. Stat. Section 360.100);
(lxxvii) No
HELOC
secured by property located in the State of Nevada is a “home loan” as defined
in the Nevada Assembly ▇▇▇▇ No. 284;
(lxxviii) No
HELOC
is a “manufactured housing loan” or “home improvement home loan” pursuant to the
New Jersey Home Ownership Act. No HELOC is a “High-Cost Home Loan” or a
refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et
seq.);
(lxxix) No
HELOC
is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity
protection Act;
(lxxx) No
HELOC
is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004 (N.M. Stat. ▇▇▇. §§ 58-21A-1 et seq.);
(lxxxi) No
HELOC
is a “High-Risk Home Loan” as defined in the Illinois High-Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.);
(lxxxii) No
Loan
that is secured by property located within the State of Maine meets the
definition of a (i) “high-rate, high-fee” HELOC under Article VIII, Title 9-A of
the Maine Consumer Credit Code or (ii) “High-Cost Home Loan” as defined under
the Maine House ▇▇▇▇ 383 ▇.▇. 494, effective as of September 13,
2003;
(lxxxiii) No
HELOC
is a “High Cost Home Mortgage Loan” as defined in the Massachusetts Predatory
Home Loan Practices Act, effective November 7, 2004 (Mass. ▇▇▇. Laws Ch. 183C).
No HELOC secured by a Mortgaged Property located in the Commonwealth of
Massachusetts was made to pay off or refinance an existing loan or other debt
of
the related borrower (as the term “borrower” is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
Massachusetts House ▇▇▇▇ 4880 (2004)) unless either (1) (a) the related Mortgage
Interest Rate (that would be effective once the introductory rate expires,
with
respect to Adjustable Rate HELOCs) did or would not exceed by more than 2.25%
the yield on United States Treasury securities having comparable periods of
maturity to the maturity of the related HELOC as of the fifteenth day of the
month immediately preceding the month in which the application for the extension
of credit was received by the related lender or (b) the HELOC is an “open-end
home loan” (as such term is used in the Massachusetts House ▇▇▇▇ 4880 (2004))
and the related Credit Line Agreement provides that the related Mortgage
Interest Rate may not exceed at any time the Prime rate index as published
in
The Wall Street Journal plus a margin of one percent, or (2) such HELOC is
in
the “borrower's interest,” as documented by a "borrower's interest worksheet"
for the particular HELOC, which worksheet incorporates the factors set forth
in
Massachusetts House ▇▇▇▇ 4880 (2004) and the regulations promulgated thereunder
for determining "borrower's interest," and otherwise complies in all material
respects with the laws of the Commonwealth of Massachusetts;
(lxxxiv) No
Loan
is a “High Cost Home Loan” governed by the Indiana Home Loan Practices Act, Ind.
Code ▇▇▇. §§ 24-9-1-1 et seq.;
(lxxxv) The
Mortgagee has not made or caused to be made any payment in the nature of an
“overage” or “yield spread premium” to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(lxxxvi) The
sale
or transfer of the HELOC by the Originator complies with all applicable federal,
state, and local laws, rules, and regulations governing such sale or transfer,
including, without limitation, the Fair and Accurate Credit Transactions Act
(“FACT Act”) and the Fair Credit Reporting Act, each as may be amended from time
to time, and the Originator has not received any actual notice
of
any identity theft, fraud, or other misrepresentation with
respect to any Mortgagor;
(lxxxvii) With
respect to each second lien HELOC, either no consent for the HELOC is required
by the holder of the first lien or such consent has been obtained and is
contained in the Mortgage File;
(lxxxviii) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the HELOC transaction. No HELOC is subject to any
mandatory arbitration; and
(lxxxix) Each
HELOC satisfies the eligibility requirements for inclusion in a mortgage backed
securities transaction rated by each of Standard & Poor’s Ratings Services,
▇▇▇▇▇’▇ Investors Service, Inc., Fitch Ratings and Dominion Bond Rating Service
without unreasonable credit enhancement as reasonably determined by the
Purchaser in accordance with secondary market standards for securitizations
of
HELOCs
having
comparable characteristics to the HELOCs.
| SECTION 7. |
Repurchase
Obligation for Defective Documentation and for Breach of Representation
and Warranty.
|
It
is
understood and agreed that the representations and warranties set forth in
Section 5(b) and Section 6 shall survive the sale of the HELOCs to the Purchaser
and shall inure to the benefit of the Purchaser, the Issuer and any assignee,
transferee or designee of the Issuer, including the Indenture Trustee for the
benefit of holders of the HELOC-Backed Securities evidencing an interest in
all
or a portion of the HELOCs, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment or the examination or lack of
examination of any Mortgage File. With respect to the representations and
warranties contained herein that are made to the knowledge or the best knowledge
of the Originator or the Seller, or as to which the Originator or the Seller
has
no knowledge, if it is discovered that the substance of any such representation
and warranty is inaccurate and the inaccuracy materially and adversely affects
the value of the related HELOC, or the interest therein of the Purchaser, the
Issuer or the Issuer’s assignee, designee or transferee, then notwithstanding
the Originator’s or the Seller’s, as applicable, lack of knowledge with respect
to the substance of such representation and warranty being inaccurate at the
time the representation and warranty was made, such inaccuracy shall be deemed
a
breach of the applicable representation and warranty and the Originator or
the
Seller, as applicable, shall take such action described in the following
paragraphs of this Section 7 in respect of such HELOC.
Upon
discovery by the Seller, the Originator, the Issuer or the Purchaser of a breach
of any of the foregoing representations and warranties made by the Seller or
the
Originator that materially and adversely affects the value of the HELOCs or
the
interest of the Issuer (or which materially and adversely affects the interests
of the Issuer in the related HELOC in the case of a representation and warranty
relating to a particular HELOC), the party discovering such breach shall give
prompt written notice to the other parties hereto.
Within
90
days of the earlier of either discovery by or notice to the Seller of any breach
of a representation or warranty made by the Seller that materially and adversely
affects the value of a HELOC or the interest therein of the Purchaser, the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall repurchase such
HELOC at the Loan Repurchase Price.
Within
60
days of the earlier of either discovery by or notice to the Originator of any
breach of a representation or warranty made by the Originator that materially
and adversely affects the value of a HELOC or Loans or the interest therein
of
the Purchaser, the Originator shall use its best efforts promptly to cure such
breach in all material respects and, if such breach cannot be cured within
60
days of the discovery of a breach of any such representation or warranty, the
Originator shall not later than the Business Day preceding the Payment Date
in
the month following the Collection Period in which any such cure period expired,
either (i) repurchase such HELOC or any property acquired in respect thereof
from the Issuer at the Loan Repurchase Price or (ii) substitute a Qualifying
Substitute HELOC for the affected HELOC in accordance with the procedures
described below (provided that substitution may only take place if the Payment
Date is within the two-year period following the Closing Date.
With
respect to any HELOC repurchased by the Originator pursuant to this Agreement,
the Originator shall remit the Loan Repurchase Price to the Servicer for deposit
into the Collection Account. The Indenture Trustee, upon (i) receipt of the
full amount of the Loan Repurchase Price for a Deleted HELOC, (ii) receipt
of a written certification from the Servicer that it has received the full
amount of the Loan Repurchase Price for a Deleted HELOC and has deposited such
amount in the Collection Account or (iii) notification from the related
Custodian of receipt of the Mortgage File for a Qualifying Substitute HELOC
substituted for a Deleted HELOC (and receipt by the Servicer of any applicable
Substitution Amount in the Collection Account, as certified to the Indenture
Trustee by the Servicer), shall release or cause to be released and reassign
to
the Depositor, the Seller or the Originator as applicable, the related Mortgage
File for the Deleted HELOC and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as shall be necessary to vest in such party or its designee or
assignee title to any Deleted HELOC released pursuant hereto, free and clear
of
all security interests, liens and other encumbrances created by this Agreement
and the Indenture, which instruments shall be prepared by the related Servicer
and the Indenture Trustee shall have no further responsibility with respect
to
the Mortgage File relating to such Deleted HELOC.
With
respect to each Qualifying Substitute HELOC to be delivered to the Indenture
Trustee (or its custodian) in exchange for a Deleted HELOC: (i) the Originator
shall deliver to the Indenture Trustee (or a Custodian) the Mortgage File for
the Qualifying Substitute HELOC containing the documents set forth in Section
2.01(b) along with a written certification certifying as to the delivery of
such
Mortgage File that such Qualifying Substitute HELOC complies with the definition
hereunder and containing the granting language set forth in Section 2.01(a);
and
(ii) the Originator will be deemed to have made as of the date of such transfer,
with respect to such Qualifying Substitute HELOC, each of the representations
and warranties made by it with respect to the related Deleted HELOC.
For
any
month in which the Originator substitutes one or more Qualifying Substitute
HELOCs for one or more Deleted HELOCs, the Servicer shall determine the amount
(the “Substitution Amount”), if any, by which the aggregate Loan Repurchase
Price of all such Deleted HELOCs exceeds the aggregate of, as to each such
Qualifying Substitute HELOC, the Principal Balance thereof as of the date of
substitution, together with one month’s interest on such Principal Balance at
the applicable Loan Rate. On the date of such substitution, the Originator
shall
deliver or cause to be delivered to the Servicer for deposit in the Collection
Account an amount equal to the Substitution Amount, if any,
As
soon
as practicable after the delivery of any Qualifying Substitute HELOC hereunder,
the Originator shall (i) with respect to a Qualifying Substitute HELOC that
is a Non-MERS HELOC, cause the Assignment of Mortgage to be recorded by the
Servicer if required pursuant to Section 4(c) or (ii) with respect to a
Qualifying Substitute HELOC that is a MERS HELOC, cause to be taken such actions
as are necessary to cause the Indenture Trustee (on behalf of the Issuer) to
be
clearly identified as the owner of each such HELOC on the records of MERS if
required pursuant to Section 4(c). The
Indenture Trustee (or a Custodian on behalf of the Indenture Trustee) shall
acknowledge receipt for such Qualifying Substitute HELOC or Loans and, within
ten Business Days thereafter, review such documents as specified in Section
4(g)
and deliver to the Depositor, the Originator, the Indenture Trustee, the
Securities Administrator and the Servicer, with respect to such Qualifying
Substitute HELOC or Loans, a certification substantially in the form attached
hereto as Exhibit A-1, with any applicable exceptions noted thereon. Within
one
year of the date of substitution, the Indenture Trustee shall deliver to the
Depositor, the Securities Administrator and the Servicer a certification
substantially in the form of Exhibit A-2 hereto with respect to such Qualifying
Substitute HELOC or Loans, with any applicable exceptions noted thereon. Monthly
payments due with respect to Qualifying Substitute HELOCs in the month of
substitution are not part of REMIC 1 and shall be retained by the Originator.
For the month of substitution, distributions to Securityholders shall reflect
the Monthly Payment due on such Deleted HELOC on or before the Due Date in
the
month of substitution, and the Originator shall thereafter be entitled to retain
all amounts subsequently received in respect of such Deleted HELOC
At
the
time of repurchase by the Seller or the Originator of any deficient HELOC,
the
Purchaser and the Seller or the Originator, as applicable, shall arrange for
the
reassignment of the repurchased HELOC to the Seller or the Originator, as
applicable, and the delivery to the Seller or the Originator, as applicable,
of
any documents held by the Indenture Trustee relating to the repurchased HELOC.
In the event the Loan Repurchase Price is deposited in the Collection Account,
the Seller or the Originator, as applicable, shall, simultaneously with such
deposit, give written notice to the Purchaser that such deposit has taken place.
Upon such repurchase, the HELOC Schedule shall be amended to reflect the
withdrawal of the repurchased HELOC from this Agreement.
It
is
understood and agreed that the representations and warranties set forth in
Sections 5 and 6 hereof shall survive delivery of the respective Mortgage Files
to the Indenture Trustee on behalf of the Purchaser.
It
is
understood and agreed that (i) the obligations of the Seller set forth in this
Section 7 to cure and repurchase for a defective HELOC and (ii) the obligations
of the Seller as provided in the next sentence constitute the sole remedies
of
the Purchaser respecting a missing or defective document or a breach of the
representations and warranties contained in Section 5. The Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the representations and warranties contained in Sections 5(a), (c), (d) and
(e)
this Agreement.
It
is
understood and agreed that (i) the obligations of the Originator set forth
in
this Section 7 to cure, repurchase or substitute for a defective HELOC and
(ii)
the obligations of the Originator as provided in the next sentence constitute
the sole remedies of the Purchaser respecting a missing or defective document
or
a breach of the representations and warranties contained in Section 6. The
Originator shall indemnify and hold harmless each of (i) the Purchaser, (ii)
the
Seller, (iii) Citigroup Global Markets Inc. (iv) the Indenture Trustee, (v)
the
Securities Administrator and (vi) each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act of 1933, as
amended (the “1933 Act”) ((i) through (vi) collectively, the “Indemnified
Party”) against any and all losses, claims, expenses, damages or liabilities to
which the Indemnified Party may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, expenses, damages or liabilities (or actions
in
respect thereof) arise out of, are based upon, or result from, a breach by
the
Originator of any of the representations and warranties contained in Section
6
of this Agreement, it being understood that the Purchaser has relied upon such
representations and warranties.
SECTION
8. Closing;
Payment for the HELOCs.
The
closing of the purchase and sale of the HELOCs shall be held at the New York
City office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp
at 10:00
AM New York City time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of
the representations and warranties of the Seller and the Originator under this
Agreement shall be true and correct in all material respects as of the date
as
of which they are made and no event shall have occurred which, with notice
or
the passage of time, would constitute a default under this
Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall have
received in escrow (to be released from escrow at the time of closing), all
Closing Documents as specified in Section 9 of this Agreement, in such forms
as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof;
(c) The
Seller shall have delivered or caused to be delivered and released to the
Purchaser or to its designee, all documents (including without limitation,
the
HELOCs) required to be so delivered by the Purchaser; and
(d) All
other
terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release by
the
Seller to the Indenture Trustee of all documents required pursuant to the
Indenture, the consideration for the HELOCs as specified in Section 3 of this
Agreement, by delivery to the Seller of the HELOC Purchase Price.
SECTION
9. Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject to
delivery of each of the following documents:
(a) An
Officers’ Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and Citigroup Global Markets Inc. (the “Underwriter”) may rely, in a
form acceptable to the Purchaser;
(b) A
Secretary’s Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and the Underwriter may rely, in a form acceptable to the Purchaser,
and attached thereto copies of the certificate of incorporation, by-laws and
certificate of good standing of the Seller;
(c) An
Opinion of Counsel of the Seller, with respect to the true sale of the HELOCs
and the enforceability of this Agreement, dated the Closing Date and addressed
to the Purchaser and the Underwriter, in a form acceptable to the
Purchaser;
(d) An
Opinion of Counsel of National City Mortgage Co., with respect to the
enforceability of this Agreement, dated the Closing Date and addressed to the
Purchaser and the Underwriter, in a form acceptable to the
Purchaser;
(e) An
Officers’ Certificate of the Originator, dated the Closing Date, upon which the
Purchaser and the Underwriter may rely, in a form acceptable to the
Purchaser;
(f) A
Secretary’s Certificate of the Originator, dated the Closing Date, upon which
the Purchaser and the Underwriter may rely, in a form acceptable to the
Purchaser, and attached thereto copies of the certificate of incorporation,
by-laws and certificate of good standing of the Originator;
(g) Such
opinions of counsel as the Rating Agencies or the Indenture Trustee may request
in connection with the sale of the HELOCs by the Seller to the Purchaser or
the
Seller’s execution and delivery of, or performance under, this
Agreement;
(h) Letters
from Deloitte & Touche L.L.P., certified public accountants, dated the date
hereof and to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Purchaser’s Prospectus
Supplement, dated May 22, 2006 agrees with the records of the
Seller;
(i) Letters
from Ernst& Young, LP, for the Originator, dated the date hereof and to the
effect that they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial
or
statistical nature set forth in the Purchaser’s Prospectus Supplement, dated May
22, 2006, under the subheading “The Originator and the Servicer” agrees with the
records of the Servicer; and
(j) Such
further information, certificates, opinions and documents as the Purchaser
or
the Underwriter may reasonably request.
SECTION
10. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to the
extent that the Purchaser or such other Person shall pay) all necessary and
reasonable costs and expenses incurred directly in delivering this Agreement,
the Indenture, the Notes, the prospectus, the free writing prospectus, the
prospectus supplement and private placement memorandum relating to the
Securities and other related documents, the initial fees, costs and expenses
of
the Securities Administrator and the Indenture Trustee set forth in an
engagement letter delivered to the Seller by the Securities Administrator,
the
fees and expenses of the Purchaser’s counsel in connection with the preparation
of all documents relating to the securitization of the HELOCs, the filing fee
charged by the Securities and Exchange Commission for registration of the Notes,
the fees charged by any rating agency to rate the Securities and the ongoing
expenses of the Rating Agencies. All other costs and expenses in connection
with
the transactions contemplated hereunder shall be borne by the party incurring
such expense.
SECTION
11. Obligations
of National City Mortgage Co. in Respect of Converted HELOCs.
(a)
National
City Mortgage Co. will
repurchase any Converted HELOC (without regard to whether the conversion was
optional or automatic and without regard to whether the Converted HELOC was
Delinquent or not), on the last day of the calendar month in which such HELOC
has become a Converted HELOC at a price equal to (i) the unpaid Principal
Balance of the HELOC plus (ii) interest on such unpaid Principal Balance at
the
Loan Rate from the date to which interest has been paid and distributed to
the
Purchaser to the first day of the month following repurchase plus (iii) any
unreimbursed
Servicing Advances.
Any
repurchase of a Converted HELOC pursuant to this Section 11 shall be accompanied
by deposit in the Custodial Account of the amount of the repurchase price set
forth above (after deducting therefrom any amounts received in respect of such
repurchased HELOC and being held in the Custodial Account for future
distribution). Upon the Custodian’s receipt of notice of the deposit of the
purchase price of the Custodial Account, the Custodian shall deliver the related
Mortgage File to National City Mortgage Co. and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Originator all right, title and interest in any
Converted HELOC pursuant to this Section.
(b)
Notwithstanding
that a HELOC becomes a Converted HELOC in any month, such Converted HELOC shall
remain subject to this Agreement and the Servicing Agreement until such
Converted HELOC is purchased by National City Mortgage Co. pursuant to Section
11(a) hereof.
SECTION
12. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the Closing Date of the HELOCs described on the Loan
Schedule in accordance with the terms and conditions of this Agreement is
mandatory. It is specifically understood and agreed that each HELOC is unique
and identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser in the event of the Seller’s failure to deliver the HELOCs on or
before the Closing Date. The Seller hereby grants to the Purchaser a lien on
and
a continuing security interest in the Seller’s interest in each HELOC and each
document and instrument evidencing each such HELOC to secure the performance
by
the Seller of its obligation hereunder, and the Seller agrees that it holds
such
HELOCs in custody for the Purchaser, subject to the Purchaser’s (i) right, prior
to the Closing Date, to reject any HELOC to the extent permitted by this
Agreement and (ii) obligation to deliver or cause to be delivered the
consideration for the HELOCs pursuant to Section 8 hereof. Any HELOCs rejected
by the Purchaser shall concurrently therewith be released from the security
interest created hereby. The Seller agrees that, upon acceptance of the HELOCs
by the Purchaser or its designee and delivery of payment to the Seller, that
its
security interest in the HELOCs shall be released. All rights and remedies
of
the Purchaser under this Agreement are distinct from, and cumulative with,
any
other rights or remedies under this Agreement or afforded by law or equity
and
all such rights and remedies may be exercised concurrently, independently or
successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth in
Section 8 hereof shall have been satisfied and the Purchaser shall not have
paid
or caused to be paid the HELOC Purchase Price, or any such condition shall
not
have been waived or satisfied and the Purchaser determines not to pay or cause
to be paid the HELOC Purchase Price, the Purchaser shall immediately effect
the
redelivery of the HELOCs, if delivery to the Purchaser has occurred and the
security interest created by this Section 12 shall be deemed to have been
released.
SECTION
13. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by telex or telegraph and
confirmed by a similar mailed writing, if to the Purchaser, addressed to the
Purchaser at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Mortgage Finance Group, or such other address as may hereafter be
furnished in writing by the Purchaser, if to the Seller, addressed to the Seller
at Seller at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Mortgage Finance Group, or such other address as may hereafter be
furnished in writing by the Seller; and if to the Originator, National
City Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇., Locator 01-2218, or
such
other address as may hereafter be furnished in writing by the
Originator.
SECTION
14. Severability
of Provisions.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any HELOC shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law,
the parties hereto waive any provision of law which prohibits or renders void
or
unenforceable any provision hereof.
SECTION
15. Agreement
of Parties.
The
Seller, the Originator and the Purchaser each agree to execute and deliver
such
instruments and take such actions as either of the others may, from time to
time, reasonably request in order to effectuate the purpose and to carry out
the
terms of this Agreement, the Servicing Agreement and the Indenture.
SECTION
16. Survival.
The
Seller and the Originator each agree that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the Purchaser,
notwithstanding any investigation heretofore or hereafter made by the Purchaser
or on its behalf, and that the representations, warranties and agreements made
by the Seller and the Originator herein or in any such certificate or other
instrument shall survive the delivery of and payment for the HELOCs and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the HELOCs and notwithstanding subsequent termination of this
Agreement, the Indenture or the Trust Fund.
SECTION
17. GOVERNING
LAW.
THIS
AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
(INCLUDING THE CHOICE OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW
YORK.
THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION
18. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the HELOCs by the
Seller to the Purchaser as provided in Section 4 hereof be, and be construed
as,
a sale of the HELOCs by the Seller to the Purchaser and not as a pledge of
the
HELOCs by the Seller to the Purchaser to secure a debt or other obligation
of
the Seller. However, in the event that, notwithstanding the aforementioned
intent of the parties, the HELOCs are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed
a
pledge of the HELOCs by the Seller to the Purchaser to secure a debt or other
obligation of the Seller and (b) (1) this Agreement shall also be deemed to
be a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code; (2) the conveyance provided for in Section 4 hereof
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller’s right, title and interest in and to the HELOCs
and all amounts payable to the holders of the HELOCs in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary,
of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account whether in the form of cash,
instruments, securities or other property; (3) the possession by the Purchaser
or its agent of Mortgage Notes, the related Mortgages and such other items
of
property that constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be “possession by the secured party” for purposes of
perfecting the security interest pursuant to Section 9-305 of the New York
Uniform Commercial Code; and (4) notifications to persons holding such property,
and acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to
Section 4(d) hereof shall also be deemed to be an assignment of any security
interest created hereby. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the HELOCs,
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 this Agreement and the Indenture.
IN
WITNESS WHEREOF, the Purchaser, the Seller and the Originator have caused their
names to be signed by their respective officers thereunto duly authorized as
of
the date first above written.
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CITIGROUP
MORTGAGE LOAN TRUST INC.
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇
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Title:
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Assistant
Vice President
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CITIGROUP
GLOBAL MARKETS REALTY CORP.
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By:
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Name:
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
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Authorized
Signatory
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NATIONAL
CITY BANK
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By:
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Name:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
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Title:
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Senior
Vice President
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Acknowledged
and Agreed to:
U.S.
BANK NATIONAL ASSOCIATION
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By:
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/s/
▇▇▇▇▇ ▇’▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇’▇▇▇▇▇
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Title:
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Vice
President
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For
purposes of Section 11:
NATIONAL
CITY MORTGAGE CO.
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By:
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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Title:
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President
and Chief Operating Officer
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EXHIBIT
A-1
TRUST
RECEIPT AND INITIAL CERTIFICATION
Trust
Receipt # _______________
Aggregate
Original Principal Balance of HELOCs $ _______________
Number
of
HELOCs _______________
May
23,
2006
U.S.
Bank
National Association
Corporate
Trust Services
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Re:
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The
Custodial Agreement (the “Custodial Agreement”), dated as of May 23, 2006
among Citigroup Mortgage Loan Trust Inc., U.S. Bank National Association
and NCB relating to Citigroup HELOC Trust 2006-NCB1, HELOC-Backed
Notes
and Certificates, Series 2006-NCB1
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Ladies
and Gentlemen:
In
accordance with the provisions of Section 1 and Section 3(c) of the Custodial
Agreement, the undersigned, as the Indenture Trustee, hereby certifies as to
each HELOC in the Loan Schedule (subject to any exceptions noted on the attached
exception report):
(i)
all
documents required to be delivered to the Indenture Trustee pursuant to Section
4(b) of the HELOC Purchase Agreement are in its possession;
(ii)
such
documents have been reviewed by it and have not been mutilated, damaged or
torn
and relate to such HELOC;
(iii)
based upon such examination and only as to the foregoing documents, the
information set forth in the Loan Schedule that corresponds to items 1, 2,
3, 5,
7 and 27 of the definition of Loan Schedule respecting such HELOC accurately
reflects the information set forth in the Custodial File with respect to such
HELOC; and
(iv)
based upon such review and examination and only as to the foregoing documents,
such documents appear regular on their face and relate to such
HELOC.
The
Indenture Trustee has made no independent examination of any documents contained
in each Custodial File beyond the review specifically contemplated in the
Indenture and required pursuant to the Custodial Agreement. The Indenture
Trustee makes no representations as to (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any of the
documents contained in each Custodial File or of any HELOC or (ii) the
collectability, insurability, effectiveness or suitability of any
HELOC.
The
Indenture Trustee hereby confirms that it is holding each document relating
to
each HELOC as to which it has certified above as to its possession of documents
as custodian for, for the exclusive use and benefit of, and subject to the
sole
direction of U.S. Bank National Association pursuant to the terms and conditions
of the Custodial Agreement.
The
Indenture Trustee will accept and act on instructions with respect to the HELOCs
subject hereto upon surrender of this Trust Receipt and Initial Certification
at
its office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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U.S.
BANK NATIONAL ASSOCIATION,
as
Indenture Trustee
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By:
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Name:
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Title:
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EXHIBIT
A-2
INTERIM
CERTIFICATION
[Date]
U.S.
Bank
National Association
Corporate
Trust Services
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Re:
|
The
Custodial Agreement (the “Custodial Agreement”), dated as of May 23, 2006
among Citigroup Mortgage Loan Trust Inc., U.S. Bank National Association
and NCB relating to Citigroup HELOC Trust 2006-NCB1, HELOC-Backed
Notes
and Certificates, Series 2006-NCB1
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 1 and Section 3(c) of the Custodial
Agreement, the undersigned, as the Indenture Trustee, hereby certifies as to
each HELOC in the Loan Schedule (subject to any exceptions noted on the attached
exception report):
(i)
all
documents required to be delivered to the Indenture Trustee pursuant to Section
4(b) of the HELOC Purchase Agreement are in its possession;
(ii)
such
documents have been reviewed by it and have not been mutilated, damaged or
torn
and relate to such HELOC; and
(iii)
based upon such examination and only as to the foregoing documents, the
information set forth in the Loan Schedule that corresponds to items 1, 2,
3, 5,
7 and 27 of the definition of Loan Schedule respecting such HELOC accurately
reflects the information set forth in the Custodial File with respect to such
HELOC; and
(iv)
based upon such review and examination and only as to the foregoing documents,
such documents appear regular on their face and relate to such
HELOC.
The
Indenture Trustee has made no independent examination of any documents contained
in each Custodial File beyond the review specifically contemplated in the
Indenture and required pursuant to the Custodial Agreement. The Indenture
Trustee makes no representations as to (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any of the
documents contained in each Custodial File or of any HELOC or (ii) the
collectability, insurability, effectiveness or suitability of any
HELOC.
The
Indenture Trustee hereby confirms that it is holding each document relating
to
each HELOC as to which it has certified above as to its possession of documents
as custodian for, for the exclusive use and benefit of, and subject to the
sole
direction of U.S. Bank National Association pursuant to the terms and conditions
of the Custodial Agreement.
The
Indenture Trustee will accept and act on instructions with respect to the HELOCs
subject hereto upon surrender of this Interim Certification at its office at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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U.S.
BANK NATIONAL ASSOCIATION,
as
Indenture Trustee
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By:
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Name:
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Title:
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EXHIBIT
A-3
FINAL
CERTIFICATION
[Date]
U.S.
Bank
National Association
Corporate
Trust Services
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Re:
|
The
Custodial Agreement (the “Custodial Agreement”), dated as of May 23, 2006
among Citigroup Mortgage Loan Trust Inc., U.S. Bank National Association
and NCB relating to Citigroup HELOC Trust 2006-NCB1, HELOC-Backed
Notes
and Certificates, Series 2006-NCB1
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 1 and Section 3(c) of the Custodial
Agreement, the undersigned, as the Indenture Trustee, hereby certifies as to
each HELOC in the Loan Schedule (subject to any exceptions noted on the attached
exception report):
(i)
all
documents required to be delivered to the Indenture Trustee pursuant to Section
4(b) of the HELOC Purchase Agreement are in its possession;
(ii)
such
documents have been reviewed by it and have not been mutilated, damaged or
torn
and relate to such HELOC; and
(iii)
based upon such examination and only as to the foregoing documents, the
information set forth in the Loan Schedule that corresponds to items 1, 2,
3, 5,
7 and 27 of the definition of Loan Schedule respecting such HELOC accurately
reflects the information set forth in the Custodial File with respect to such
HELOC; and
(iv)
based upon such review and examination and only as to the foregoing documents,
such documents appear regular on their face and relate to such
HELOC.
The
Indenture Trustee has made no independent examination of any documents contained
in each Custodial File beyond the review specifically contemplated in the
Indenture and required pursuant to the Custodial Agreement. The Indenture
Trustee makes no representations as to (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any of the
documents contained in each Custodial File or of any HELOC or (ii) the
collectability, insurability, effectiveness or suitability of any
HELOC.
The
Indenture Trustee hereby confirms that it is holding each document relating
to
each HELOC as to which it has certified above as to its possession of documents
as custodian for, for the exclusive use and benefit of, and subject to the
sole
direction of U.S. Bank National Association pursuant to the terms and conditions
of the Custodial Agreement.
The
Indenture Trustee will accept and act on instructions with respect to the HELOCs
subject hereto upon surrender of this Final Certification at its office at
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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U.S.
BANK NATIONAL ASSOCIATION,
as
Indenture Trustee
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By:
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Name:
|
|
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Title:
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