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XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
and
CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Fixed-Rate and Adjustable-Rate Mortgage Loans
C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB4
Dated as of May 1, 2006
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
Section 1.01 Definitions.............................................. 1
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE............. 1
Section 2.01 Sale of Mortgage Loans................................... 1
Section 2.02 Obligations of Seller Upon Sale.......................... 2
Section 2.03 Payment of Purchase Price for the Mortgage Loans......... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH.......... 5
Section 3.01 Seller Representations and Warranties Relating to the
Mortgage Loans........................................... 5
Section 3.02 Seller Representations and Warranties.................... 14
ARTICLE IV SPONSOR'S COVENANTS........................................... 18
Section 4.01 Covenants of the Seller.................................. 18
ARTICLE V OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.................. 18
ARTICLE VI TERMINATION................................................... 19
Section 6.01 Termination.............................................. 19
ARTICLE VII MISCELLANEOUS PROVISIONS..................................... 19
Section 7.01 Amendment................................................ 19
Section 7.02 Governing Law............................................ 19
Section 7.03 Notices.................................................. 19
Section 7.04 Severability of Provisions............................... 20
Section 7.05 Counterparts............................................. 20
Section 7.06 Further Agreements....................................... 20
Section 7.07 Intention of the Parties................................. 20
Section 7.08 Successors and Assigns; Assignment of this Agreement..... 20
Section 7.09 Survival................................................. 21
Schedule I Mortgage Loan Schedule
Exhibit A Standard And Poor's Glossary For File Format For Levels(R)
Version 5.6(c) Revised
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of May 1, 2006 (the
"Agreement"), between CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC
("C-BASS" or the "Seller") and XXXXXXX XXXXX MORTGAGE INVESTORS, INC. (the
"Purchaser").
WITNESSETH:
WHEREAS, the Seller is the owner of either the notes or other evidence
of indebtedness (the "Mortgage Notes") or other evidence of ownership so
indicated on Schedule I hereto, and the other documents or instruments
constituting the Mortgage File (collectively, the "Mortgage Loans"); and
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the properties (the "Mortgaged Properties") securing such
Mortgage Loans, including rights (a) to any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise, and (b) to the proceeds of any
insurance policies covering the Mortgage Loans or the Mortgaged Properties or
the obligors on the Mortgage Loans; and
WHEREAS, the parties hereto desire that the Seller sell the Mortgage
Loans to the Purchaser and the Purchaser purchase the Mortgage Loans from the
Seller pursuant to the terms of this Agreement; and
WHEREAS, pursuant to the terms of a Pooling and Servicing Agreement,
dated as of May 1, 2006 (the "Pooling and Servicing Agreement"), among the
Seller, as sponsor, the Purchaser, as depositor, Xxxxxx Loan Servicing LP
("Xxxxxx"), as servicer and U.S. Bank National Association, as trustee (the
"Trustee"), the Purchaser will convey the Mortgage Loans to C-BASS Mortgage Loan
Asset-Backed Certificates, Series 2006-CB4.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. All capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 Sale of Mortgage Loans. The Seller does hereby agree to and
does hereby sell, assign, set over, and otherwise convey to the Purchaser,
without recourse, on the Closing Date, (i) all of its right, title and interest
in and to each Mortgage Loan and the related Cut-off Date Principal Balance
thereof, including any Related Documents, (ii) all payments on or collections in
respect of the Mortgage Loans due after the Cut-off
Date; (iii) all property which secured such Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest in any
insurance policies in respect of the Mortgage Loans; and (v) all proceeds of any
of the foregoing.
Section 2.02 Obligations of Seller Upon Sale.
(a) In connection with any transfer pursuant to Section 2.01 hereof,
the Seller further agrees, at its own expense, on or prior to the Closing Date,
(x) to indicate in its books and records that the Mortgage Loans have been sold
to the Purchaser pursuant to this Agreement and (y) to deliver to the Purchaser
and the Trustee a computer file containing a true and complete list of all the
Mortgage Loans specifying, among other things, for each Mortgage Loan, as of the
Cut-off Date, its account number and Cut-off Date Principal Balance. Such file
(the "Mortgage Loan Schedule") which is included as Exhibits D-1 and D-2 to the
Pooling and Servicing Agreement, shall also be marked as Schedule I to this
Agreement and is hereby incorporated into and made a part of this Agreement.
In connection with such transfer and assignment, the Seller, on behalf
of the Purchaser, does hereby deliver or cause to be delivered to, and deposit
with the Trustee, or the Custodian shall cause to be deposited, the following
documents or instruments with respect to each Mortgage Loan (a "Mortgage File")
so transferred and assigned:
(i) the original Mortgage Note and any riders thereto, endorsed
either (A) in blank or (B) in the following form: "Pay to the order of U.S. Bank
National Association, as Trustee under the Pooling and Servicing Agreement for
the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB4, without
recourse," or with respect to any lost Mortgage Note, an original lost note
affidavit stating that the original mortgage note was lost, misplaced or
destroyed, together with a copy of the related Mortgage Note;
(ii) the original Mortgage including any riders thereto, with
evidence of recording thereon, and the original recorded power of attorney, if
the Mortgage was executed pursuant to a power of attorney, with evidence of
recording thereon or, if such Mortgage or power of attorney has been submitted
for recording but has not been returned from the applicable public recording
office, has been lost or is not otherwise available, a copy of such Mortgage or
power of attorney, as the case may be, certified to be a true and complete copy
of the original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance
acceptable for recording. The Mortgage shall be assigned either (A) in blank or
(B) to U.S. Bank National Association, as Trustee under the Pooling and
Servicing Agreement for the C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2006-CB4, without recourse";
(iv) an original or a certified copy of any intervening
assignment of Mortgage showing a complete chain of assignments;
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(v) the original or a certified copy of the lender's title
insurance policy;
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vii) for each FHA Loan, the original mortgage insurance
certificate and for each VA Loan, the related VA guaranty.
If any of the documents referred to in Section 2.02(ii), (iii) or (iv)
above has as of the Closing Date been submitted for recording but either (x) has
not been returned from the applicable public recording office or (y) has been
lost or such public recording office has retained the original of such document,
the obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee or the Custodian no later than the
Closing Date, of a copy of each such document certified by the Seller in the
case of (x) above or the applicable public recording office in the case of (y)
above to be a true and complete copy of the original that was submitted for
recording and (2) if such copy is certified by the Seller, delivery to the
Trustee or the Custodian, promptly upon receipt thereof of either the original
or a copy of such document certified by the applicable public recording office
to be a true and complete copy of the original. If the original lender's title
insurance policy was not delivered pursuant to Section 2.02(v) above, the Seller
shall deliver or cause to be delivered to the Custodian, a written commitment or
interim binder or preliminary report of title issued by the title insurance or
escrow company, with the original to be delivered to the Custodian, promptly
upon receipt thereof. The Seller shall deliver or cause to be delivered to the
Trustee or the Custodian promptly upon receipt thereof any other documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 120 days to cure such defect or 150 days following the Closing Date,
in the case of missing Mortgages or Assignments or deliver such missing document
to the Trustee or the Custodian. If the Seller does not cure such defect or
deliver such missing document within such time period, the Seller shall either
repurchase or substitute for such Mortgage Loan in accordance with Section 3.01
hereof.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest to the Mortgage Loans and other property, now existing and
hereafter created, conveyed to it pursuant to Section 2.01.
The parties hereto intend that the transaction set forth herein be a
sale by the Seller to the Purchaser of all the Seller's right, title and
interest in and to the Mortgage Loans and other property described above. In the
event the transaction set forth herein is deemed not to be a sale, the Seller
hereby grants to the Purchaser a first priority perfected security interest in
all of the Seller's right, title and interest in, to and
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under the Mortgage Loans and other property described above, whether now
existing or hereafter created, to secure all of the Seller's obligations
hereunder; and this Agreement shall constitute a security agreement under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of the Pooling and Servicing Agreement.
(b) The Seller shall cause the Assignments of Mortgage which were
delivered in blank to be completed and shall cause all Assignments referred to
in Section 2.02(iii) hereof and, to the extent necessary, in Section 2.02(iv)
hereof to be recorded. The Seller shall cause the Servicer to deliver such
Assignments for recording within 30 days of the Closing Date. The Seller shall
cause the Servicer to furnish the Trustee, or its designated agent, with a copy
of each Assignment of Mortgage submitted for recording. In the event that any
such Assignment is lost or returned unrecorded because of a defect therein, the
Seller shall cause the Servicer to promptly have a substitute Assignment
prepared or have such defect cured, as the case may be, and thereafter cause
each such Assignment to be duly recorded. In the event that any Mortgage Note is
endorsed in blank as of the Closing Date, promptly following the Closing Date
the Seller shall cause the Servicer to cause to be completed such endorsements
in the following form: "Pay to the order of U.S. Bank National Association, as
Trustee under the Pooling and Servicing Agreement, for the C-Bass Mortgage Loan
Asset-Backed Certificates, Series 2006-CB4, without recourse."
Section 2.03 Payment of Purchase Price for the Mortgage Loans. In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to pay to the Seller on the Closing
Date by transfer of immediately available funds, as directed by the Seller, an
amount equal to $[____] in respect of the Mortgage Loans (the "Purchase Price"),
net of an expense reimbursement amount of $[____] (the "Expense Reimbursement
Amount"), and to transfer to the Seller or its designee on the Closing Date,
Class C-E, Class P, Class R, Class R-X and Residual Certificates (collectively,
the "Private Certificates"). The Expense Reimbursement Amount shall reimburse
the Purchaser for the Purchaser's Securities and Exchange Commission
registration statement fees and the Purchaser's registration statement
administration fees allocable to the Trust. In addition to the Expense
Reimbursement Amount, the Seller shall pay, and be billed directly for, all
reasonable expenses incurred by the Purchaser in connection with the issuance of
the Certificates, including, without limitation, printing fees incurred in
connection with the prospectus relating to the Certificates, blue sky
registration fees and expenses, fees and reasonable expenses of Purchaser's
counsel, fees of the rating agencies requested to rate the Certificates,
accountant's fees and expenses and the fees and expenses of the Trustee and the
Certificate Insurer and other out-of-pocket costs, if any. If the Purchaser
shall determine that the Expense Reimbursement Amount is not sufficient to
reimburse the Purchaser for all reasonable expenses incurred by it that are
subject to reimbursement by the Seller hereunder as described above, the Seller
shall promptly reimburse the Purchaser for such additional amounts upon written
notice by the Purchaser to the Seller.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller Representations and Warranties Relating to the Mortgage
Loans. The Seller hereby represents and warrants to the Purchaser, with respect
to the Mortgage Loans, that as of the Closing Date or as of such date
specifically provided herein:
(a) The information set forth in the Mortgage Loan Schedule is
complete, true and correct as of the Cut-off Date.
(b) There are no delinquent taxes, ground rents, water charges, sewer
rents, assessments, including assessments payable in future installments, or
other outstanding charges affecting the related Mortgaged Property.
(c) The terms of the Mortgage Note 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 the interests of the
Certificateholders, and which have been delivered to the Trustee; 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
Mortgage Loan 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 Trustee and the terms of which are reflected in the Mortgage Loan
Schedule.
(d) The Mortgage Note 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 Mortgage Note 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.
(e) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located, pursuant to insurance policies conforming to the requirements of the
Pooling and Servicing Agreement. All such insurance policies contain a standard
mortgagee clause naming the Seller, its successors and assigns as mortgagee and
all premiums thereon have been paid. If upon origination of the Mortgage Loan,
the Mortgaged Property was 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) a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy
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conforms to the requirements of the Federal National Mortgage Association
("FNMA") and the Federal Home Loan Mortgage Corporation ("FHLMC"). The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. All acts required to be performed to preserve the rights and remedies
of the Trustee in any such insurance policies have been performed, including,
without limitation, any necessary notifications of insurers and assignments of
policies or interests therein.
(f) As of the date of origination of the Mortgage Loan, any and all
requirements of any federal, state or local law, including, without limitation,
usury, truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable to the
origination of the Mortgage Loans have been complied with. Any and all
requirements of any federal, state or local law, including, without limitation,
usury, truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable to the
servicing of the Mortgage Loans have been complied with.
(g) The Mortgage has not been satisfied, canceled, subordinated (other
than with respect to second lien loans, the subordination to the first lien
loan) 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.
(h) The Mortgage is a valid, existing and enforceable first or second
lien on the Mortgaged Property, including all improvements on the Mortgaged
Property subject only to (1) the lien of current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of the public record as of the date
of recording being acceptable to mortgage lending institutions generally, (3)
other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property and (4) with respect to any second lien mortgage loan, the
lien of the related first mortgage loan. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, existing and enforceable first or
second lien and first or second priority security interest on the property
described therein and the Seller has full right to sell and assign the same to
the Purchaser.
(i) The Mortgage Note and the related Mortgage are genuine and each is
the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms.
(j) The proceeds of the Mortgage Loan have been fully disbursed to or
for the account of the Mortgagor and there is no obligation for the mortgagee to
advance additional funds thereunder and any and all requirements as to
completion of any on-site
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or off-site improvement and as to disbursements of any escrow funds therefor
have been complied with. All costs, fees and expenses incurred in making or
closing the Mortgage Loan 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 Mortgage Note or Mortgage.
(k) Immediately prior to the transfer and assignment contemplated
herein, the Seller was the sole owner and holder of the Mortgage Loans and has
good and marketable title to each Mortgage Loan, free and clear of any and all
liens, pledges, charges, claims, participation interests, mortgages, security
interests or encumbrances or other interests of any nature and has full right
and authority to sell and assign the same.
(l) Each Mortgage Loan is covered by an ALTA mortgagee title insurance
policy acceptable to FNMA or FHLMC, issued by a title insurer acceptable to FNMA
and FHLMC, and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in (h)(1) and
(2) above) the Seller, its successors and assigns as to the first or second
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan and against any loss by reason of the invalidity or unenforceability of the
lien resulting from the provisions of the Mortgage providing for adjustment in
the mortgage interest rate and/or monthly payment including any negative
amortization thereunder. Additionally, such mortgagee title insurance policy
affirmatively insures ingress and egress to and from the Mortgaged Property, and
against encroachments by or upon the Mortgaged Property or any interest therein.
The Seller is the sole insured of such mortgagee title insurance policy, and
such lender's title insurance policy is in full force and effect and will be in
full force and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such mortgagee title insurance
policy, and no prior holder of the related Mortgage, including the Seller, has
done, by act or omission, anything which would impair the coverage of such
mortgagee title insurance policy.
(m) 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.
(n) The collection practices used by the Servicer with respect to each
Mortgage Note and Mortgage have been in all respects legal, proper, prudent and
customary in the mortgage servicing industry.
(o) The Mortgage and related Mortgage Note 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, including, (1) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (2) otherwise by
judicial foreclosure. 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 Seller and the Seller has no knowledge of any relief
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requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act
of 1940.
(p) The Mortgage Note 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.
(q) 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.
(r) No Mortgage Loan contains provisions pursuant to which monthly
payments are (1) paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, (2) paid by any source other than the Mortgagor or (3) contains any
other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature.
(s) The Mortgage Note, the Mortgage, the Assignment and any other
documents required to be delivered with respect to each Mortgage Loan pursuant
to Section 2.02 hereof have been delivered to the Purchaser or its designee, all
in compliance with the specific requirements of Section 2.02 hereof.
(t) 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 FNMA's eligibility requirements.
(u) None of the Mortgage Loans are secured by a leasehold estate or
constitute other than real property under applicable state law.
(v) The rights with respect to each Mortgage Loan are assignable by
the Seller without the consent of any Person other than consents which will have
been obtained on or before the Closing Date.
(w) The Mortgage Loans are not being transferred by the Seller with
any intent to hinder, delay or defraud any creditors of the Seller.
(x) All parties which have had any interest in each Mortgage Loan,
whether as mortgagee, assignee, pledgee or otherwise, and including, without
limitation, the Seller, are (or during the period in which they held and
disposed such interest, were) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the property securing
the Mortgage is located to the extent that any noncompliance thereunder would
affect the value or marketability of the Mortgage Loans.
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(y) To the best of Seller's knowledge, the Mortgaged Property is free
from any and all toxic or hazardous substances and there exists no violation of
any local, state or federal environmental law, rule or regulation.
(z) The Mortgaged Property is free from material damage.
(aa) Each Mortgage Loan has been serviced by the Servicer in
accordance with the terms thereof and Applicable Regulations.
(bb) There is no proceeding pending for the total or partial
condemnation and no eminent domain proceedings pending affecting any Mortgaged
Property.
(cc) To the best of the Seller's knowledge, there was no fraud or
gross negligence involved in the origination of any Mortgage Loan by the
applicable mortgagee or Mortgagor, and to the best of the Seller's knowledge,
there was no fraud or gross negligence by the appraiser or any other party
involved in the origination of any such Mortgage Loan.
(dd) Each mortgage file contains an appraisal of or a broker's price
opinion regarding the related Mortgaged Property indicating an appraised value
equal to the appraised value identified for such Mortgaged Property on the
Mortgage Loan Schedule. Each appraisal has been prepared on FNMA or FHLMC forms.
(ee) No improvements on any Mortgaged Property encroach on adjoining
properties (and in the case of a condominium unit, such improvements are within
the project with respect to that unit), and no improvements on adjoining
properties encroach upon such Mortgaged Property unless there exists in the
applicable Mortgage File a title policy with endorsements which insure against
losses sustained by the insured as a result of such encroachments.
(ff) With respect to escrow deposits, if any, all such payments are in
the possession of, or under the control of, the Servicer and there exists no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or escrow advances or
other charges or payments due the Servicer have been capitalized under any
Mortgage or the related Note.
(gg) No Mortgage Loan, other than a Bankruptcy Plan Mortgage Loan, is
subject to any pending bankruptcy or insolvency proceeding. To the Seller's best
knowledge, no material litigation or lawsuit relating to any Mortgage Loan is
pending.
(hh) The Seller used no selection procedures that identified the
Mortgage Loans as being less desirable or valuable than other comparable
mortgage loans acquired by the Seller.
(ii) The sale, transfer, assignment and conveyance of Mortgage Loans
by the Seller pursuant to this Agreement will not result in any tax, fee or
governmental charge (other than income taxes and related taxes) payable by the
Seller, the Depositor or
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the Trustee to any federal, state or local government other than taxes which
have or will be paid by the Seller as due ("Transfer Taxes"). In the event that
the Depositor or the Trustee receives actual notice of any Transfer Taxes
arising out of the transfer, assignment and conveyance of the Mortgage Loans,
other than any taxes to be paid by the creditor, on written demand by the
Depositor, or the Trustee, or upon the Seller's otherwise being given notice
thereof by the Depositor or the Trustee, the Seller shall pay, and otherwise
indemnify and hold the Depositor and the Trustee harmless, on an after-tax
basis, from and against any and all such Transfer Taxes (it being understood
that the Certificateholders, the Trustee and the Depositor shall have no
obligation to pay such Transfer Taxes).
(jj) With respect to the Mortgage Loans, the Mortgaged Properties
securing repayment of the related Mortgage Note consist of a fee simple interest
in a single parcel or two contiguous parcels of real property (i) improved by a
(A) detached or semi-detached one-family dwelling, (B) detached or semi-detached
two-to four family dwelling, (C) one-family unit in a FNMA eligible condominium
project, (D) detached or semi-detached one-family dwelling in a planned unit
development, (E) multi-family dwelling or townhouse or (F) mobile home or
manufactured dwelling which constitutes real property or (ii) unimproved by any
residential dwelling.
(kk) Except for the Mortgage Loans identified on the Mortgage Loan
Schedule as delinquent, there is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and the Seller has not waived any default, breach, violation or
event of acceleration.
(ll) The Seller has no actual knowledge that with respect to any
Mortgage Loan (1) the Servicer has sent a notice of default to the related
Mortgagor which the Servicer is currently seeking to enforce, or (2) any
foreclosure proceedings have been commenced or acceleration been declared which
is currently pending. The Seller is not transferring any Mortgage Loan to the
Purchaser with the intention or knowledge that the Purchaser or the Trust will
acquire the related Mortgaged Property.
(mm) With respect to any Mortgage Loan that is secured by a second
lien on the related Mortgaged Property, either (i) no consent for the Mortgage
Loan is required by the holder of any related senior lien or (ii) such consent
has been obtained and is contained in the Mortgage File.
(nn) In any case in which a Mortgage Loan is secured by a second lien
and a senior lien on the related Mortgaged Property provides for negative
amortization or deferred interest, the balance of such senior lien on the
related Mortgaged Property used to calculate the Combined Loan to Value Ratio
for the Mortgage Loan is based on the maximum amount of negative amortization
possible under such senior loan.
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(oo) With respect to a Mortgage Loan which is a second lien, as of the
date hereof, the Seller has not received a notice of default of a senior lien on
the related Mortgaged Property which has not been cured.
(pp) No Mortgage Loan is delinquent (other than Mortgage Loans subject
to a bankruptcy plan or forbearance plan). The Seller has not waived any
default, breach, violation or event of acceleration, and the Seller has not
taken any action to waive any default, breach, violation or event of
acceleration, with respect to any Mortgage Loan.
(qq) Each Mortgage Loan is a "qualified Mortgage" within the meaning
of Section 860 G(a)(3) of the Code.
(rr) With respect to any Adjustable-Rate Mortgage Loan, all rate
adjustments have been performed in accordance with the terms of the related
Mortgage Note or subsequent modifications, if any.
(ss) Each Mortgage Loan is directly secured by a Mortgage on a
residential property, and either (1) substantially all of the proceeds of the
Mortgage Loan were used to acquire, improve or protect the portion of the
residential property that consists of an interest in real property (within the
meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and the
interest in real property was the only security for the Mortgage Loan as of the
Testing Date (as defined below), or (2) the fair market value of the interest in
real property which secures the Mortgage Loan was at least equal to 80% of the
principal amount of the Mortgage Loan (a) as of the Testing Date, or (b) as of
the Closing Date. For purposes of the previous sentence, (1) the fair market
value of the referenced interest in real property shall first be reduced by (a)
the amount of any lien on the interest in real property that is senior to the
Mortgage Loan, unless the Mortgage Loan includes both a first lien loan and a
second lien loan on the same Mortgaged Property, in which case the 80% test
shall be applied in the aggregate, and (b) a proportionate amount of any lien on
the interest in real property that is on a parity with the Mortgage Loan, and
(2) the "Testing Date" shall be the date on which the referenced Mortgage Loan
was originated unless (a) the Mortgage Loan was modified after the date of its
origination in a manner that would cause "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.1001-3, and
(b) the "significant modification" did not occur at a time when the Mortgage
Loan was in default or when default with respect to the Mortgage Loan was
reasonably foreseeable.
(tt) With respect to each Mortgage Loan that is a mobile or
manufactured housing unit, such unit is a "single family residence" within the
meaning of Section 25(e)(1) of the Code, and has a minimum of 400 square feet of
living space, a minimum width of 102 inches and is of a kind customarily used at
a fixed location.
(uu) Any written agreement between the Mortgagor in respect of a
Mortgage Loan and the Servicer modifying such Mortgagor's obligation to make
payments under the Mortgage Loan (such modified Mortgage Loan, a "Modified
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Mortgage Loan") involved some assessment of the Mortgagor's ability to repay the
Modified Mortgage Loan.
(vv) No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 ("HOEPA") and no Mortgage Loan is in violation of any
state law or ordinance similar to HOEPA.
(ww) No proceeds from any Mortgage Loan were used to finance
single-premium credit insurance policies.
(xx) Any Mortgage Loan originated prior to October 1, 2002 will not
impose a Prepayment Charge in excess of five years.
(yy) The Servicer has fully furnished and will continue to fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
(zz) There is no Mortgage Loan in the Trust Fund that was originated
on or after October 1, 2002 and before March 7, 2003, which is secured by
property located in the State of Georgia.
(aaa) There is no Mortgage Loan in the Trust Fund that was originated
on or after March 7, 2003, which is a "high cost home loan" as defined under the
Georgia Fair Lending Act.
(bbb) (a) No Mortgage Loan is classified as a high cost mortgage loan
under HOEPA; and (b) no Mortgage Loan in the Trust Fund is a "high cost home,"
"covered" (excluding home loans defined as "covered home loans" pursuant to
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002), "high risk home" or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
(ccc) None of the Mortgage Loans are High Cost as defined by the
applicable
predatory and abusive lending laws or any federal, state or local law.
(ddd) No Mortgage Loans are subject to the Georgia Fair Lending act
("GFLA") effective from October 1, 2002 to March 6, 2003.
(eee) The Prepayment Charges included in the transaction are
enforceable and were originated in compliance with all federal, state and local
laws.
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(fff) All Mortgage Loans were originated in compliance with all
applicable laws, including, but not limited to all applicable anti-predatory
lending laws.
(ggg) Information provided to the rating agencies, including the loan
level detail, is true and correct according to the rating agency requirements.
(hhh) As of the Closing Date, no Mortgage Loan provides for interest
other than at either (x) a single fixed rate in effect throughout the term of
the Mortgage Loan or (y) a "variable rate" (within the meaning of Treasury
Regulations Section 1.860G 1(a)(3)) in effect throughout the term of the
Mortgage Loan.
(iii) No Mortgage Loan is a High Cost Loan or a Covered Loan, as
applicable (as such terms are defined in the then current Standard & Poor's
LEVELS Glossary, which is now Version 5.6(d), Appendix E).
(jjj) With respect to certain of the Mortgage Loans, the related
Mortgagor will not fail to make a Monthly Payment due following the Closing Date
by a date specified in the Pooling and Servicing Agreement.
With respect to the representations and warranties set forth in this
Section 3.01 that are made to the best of the Seller's knowledge or as to which
the Seller has no knowledge, if it is discovered by the Depositor, the Seller,
the Servicer or the Trustee, as set forth in Section 2.04 of the Pooling and
Servicing Agreement, that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser's assignee, transferee or designee for the benefit of the
Certificateholders then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
Upon discovery by the Depositor, the Seller, the Servicer, the
Purchaser or any assignee, transferee or designee of the Purchaser of a breach
of any of the representations and warranties contained in this Article III or
Section 2.04 of the Pooling and Servicing Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest therein of the
Purchaser or the Purchaser's assignee, transferee or designee for the benefit of
the Certificate Insurer or the Certificateholders, the party discovering the
breach shall give prompt written notice to the others and in no event later than
two Business Days from the date of such discovery. It is understood by the
parties that a breach of the representations and warranties made in this Xxxxxxx
0.00(x), (xx), (xx), (xx), (xxx), (xxx), (xxx), (xxx) and (ooo) will be deemed
to materially and adversely affect the value of any Mortgage Loan. (Within 90
days of the earlier of its discovery or its receipt of notice of any such breach
of a representation or warranty, the Seller shall promptly cure such breach in
all material respects, or in the event such defect or breach cannot be cured,
the Seller shall repurchase the affected Mortgage Loan or cause the removal of
such Mortgage Loan from the Trust Fund and substitute for it one or
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more Eligible Substitute Mortgage Loans, in either case, in accordance with
Section 2.03 of the Pooling and Servicing Agreement.
Upon discovery or receipt of written notice by the Seller of any
materially defective document in, or that a document is missing from, a Mortgage
File, the Seller shall have 120 days to cure such defect or 150 days following
the Closing Date, in the case of missing Mortgages or Assignments (or within 90
days of the earlier of the Seller's discovery or receipt of notification if such
defect would cause the Mortgage Loan not to be a "qualified mortgage" for REMIC
purposes), or in the event such defect cannot be cured, the Seller shall
repurchase the affected Mortgage Loan or cause the removal of such Mortgage Loan
from the Trust Fund and substitute for it one or more Eligible Substitute
Mortgage Loans, in either case, within such time periods and in accordance with
Section 2.03 of the Pooling and Servicing Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 3.01 shall survive delivery of the respective Mortgage
Files to the Trustee or its agent, on behalf of the Purchaser and shall inure to
the benefit of the Certificateholders notwithstanding any restrictive or
qualified endorsement or assignment.
It is understood and agreed that the obligations of the Seller set
forth in this Section 3.01 to cure, repurchase or substitute for a defective
Mortgage Loan constitute the sole remedies of the Purchaser, the
Certificateholders or the Trustee on their behalf respecting a missing or
defective document or a breach of the representations or warranties contained in
this Section 3.01.
Section 3.02 Seller Representations and Warranties. The Seller hereby
represents and warrants to the Purchaser that as of the Closing Date or as of
such date specifically provided herein:
(i) The Seller is duly organized, validly existing and in good
standing as a limited liability company under the laws of the State of Delaware
and has the power and authority to own its assets and to transact the business
in which it is currently engaged. The Seller is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires such
qualification and in which the failure to so qualify would have a material
adverse effect on (a) its business, properties, assets or condition (financial
or other), (b) the performance of its obligations under this Agreement, (c) the
value or marketability of the Mortgage Loans or (d) its ability to foreclose on
the related Mortgaged Properties.
(ii) The Seller has the power and authority to make, execute,
deliver and perform this Agreement and to consummate all of the transactions
contemplated hereunder and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the Seller's legal, valid and binding
obligations enforceable in accordance with its terms, except as enforcement of
such terms may be limited by (1)
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bankruptcy, insolvency, reorganization, receivership, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by the availability
of equitable remedies, (2) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) or (3) public
policy considerations underlying the securities laws, to the extent that such
policy considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from securities laws
liabilities.
(iii) The Seller holds all necessary licenses, certificates and
permits from all governmental authorities necessary for conducting its business
as it is presently conducted, except for such licenses, certificates and permits
the absence of which, individually or in the aggregate, would not have a
material adverse effect on the ability of the Seller to conduct its business as
it is presently conducted. It is not required to obtain the consent of any other
party or any consent, license, approval or authorization from, or registration
or declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations, or
registrations or declarations as shall have been obtained or filed, as the case
may be, prior to the Closing Date.
(iv) The execution, delivery and performance of this Agreement by
the Seller will not conflict with or result in a breach of, or constitute a
default under, any provision of any existing law or regulation or any order or
decree of any court applicable to the Seller or any of its properties or any
provision of its Limited Liability Company Agreement, or constitute a material
breach of, or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to any mortgage, indenture,
contract or other agreement to which it is a party or by which it may be bound.
(v) No certificate of an officer, written statement or report
delivered pursuant to the terms hereof by the Seller contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the certificate, statement or report not misleading.
(vi) The transactions contemplated by this Agreement are in the
ordinary course of the Seller's business.
(vii) The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Mortgage Loans, nor is the Seller aware of any
pending insolvency.
(viii) The Seller is not in violation of, and the execution and
delivery of this Agreement by it 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, which violation would
materially and adversely affect the Seller's
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condition (financial or otherwise) or operations or any of the Seller's
properties, or materially and adversely affect the performance of any of its
duties hereunder.
(ix) There are no actions or proceedings against, or
investigations of, the Seller pending or, to its knowledge, threatened, before
any court, administrative agency or other tribunal (i) that, if determined
adversely, would prohibit the Seller from entering into this Agreement and the
Pooling and Servicing Agreement, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (iii) that, if determined
adversely, would prohibit or materially and adversely affect the Seller's
performance of any of its respective obligations under, or the validity or
enforceability of, this Agreement and the Pooling and Servicing Agreement.
(x) The Seller is not transferring the Mortgage Loans to the
Purchaser hereunder with any intent to hinder, delay or defraud any of its
creditors.
(xi) The Seller acquired title to the Mortgage Loans in good
faith, without notice of any adverse claims.
(xii) The transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Seller pursuant to this Agreement are not subject
to the bulk transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction.
(xiii) The Seller understands that (a) the Private Certificates
have not been and will not be registered or qualified under the Securities Act
of 1933, as amended (the "Securities Act") or any state securities law, (b) the
Purchaser is not required to so register or qualify the Private Certificates,
(c) the Private Certificates may be resold only if registered and qualified
pursuant to the provisions of the Act or any state securities law, or if an
exemption from such registration and qualification is available, (d) the Pooling
and Servicing Agreement contains restrictions regarding the transfer of the
Private Certificates and (e) the Private Certificates will bear a legend to the
foregoing effect.
(xiv) The Seller is acquiring the Private Certificates for its
own account for investment only and not with a view to or for sale in connection
with any distribution thereof in any manner that would violate the Securities
Act or any applicable state securities laws.
(xv) The Seller is (a) a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters,
and, in particular, in such matters related to securities similar to the Private
Certificates, such that it is capable of evaluating the merits and risks of
investment in the Private Certificates, (b) able to bear the economic risks of
such an investment and (c) an "accredited investor" within the meaning of Rule
501 (a) promulgated pursuant to the Securities Act.
(xvi) The Seller has been furnished with such information
concerning the Private Certificates and the Purchaser as has been requested by
the Seller from the Purchaser and is relevant to the Seller's decision to
purchase the Private
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Certificates. The Seller has had any questions arising from such review answered
by the Purchaser or the Seller to the satisfaction of the Seller.
(xvii) The Seller has not and will not nor has it authorized or
will it authorize any person to (a) offer, pledge, sell, dispose of or otherwise
transfer any Private Certificate, any interest in any Private Certificate or any
other similar security to any person in any manner, (b) solicit any offer to buy
or to accept a pledge, disposition of other transfer of any Private Certificate,
any interest in any Private Certificate or any other similar security from any
person in any manner, (c) otherwise approach or negotiate with respect to any
Private Certificate, any interest in any Private Certificate or any other
similar security with any person in any manner, (d) make any general
solicitation by means of general advertising or in any other manner or (e) take
any other action, that (as to any of (a) through (d) above) would constitute a
distribution of any Private Certificate under the Securities Act, that would
render the disposition of any Private Certificate a violation of Section 5 of
the Securities Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not sell or
otherwise transfer any of the Private Certificates, except in compliance with
the provisions of the Pooling and Servicing Agreement.
(xviii) The Seller is not an employee benefit plan or other
retirement arrangement subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), (collectively, an "ERISA Plan"), and is not
acting on behalf of, as named fiduciary of, as trustee of, or investing the
assets of an ERISA Plan.
ARTICLE IV
SELLER'S COVENANTS
Section 4.01 Covenants of the Seller.
(a) The Seller hereby covenants that except for the transfer
hereunder, the Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any lien on any
Mortgage Loan, or any interest therein; the Seller will notify the Trustee, as
assignee of the Purchaser, of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trust, as assignee of the Purchaser, in, to and under the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided, however, that nothing in this Section 4.01 shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of the
Mortgage Loans any liens for municipal or other local taxes and other
governmental charges if such taxes or governmental charges shall not at the time
be due and payable or if the Seller shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(b) The Seller hereby covenants that neither it nor any affiliate of
the Seller will directly solicit any Mortgagor hereunder to refinance the
related Mortgage
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Loan. For the purposes of the foregoing, neither the Seller nor any affiliate of
the Seller shall be deemed to directly solicit any Mortgagor if the Seller
responds to a request from a Mortgagor regarding a refinancing or if the
Mortgagor receives marketing materials which are generally disseminated.
(c) On the Closing Date, counsel for the Seller shall deliver an
opinion to the Purchaser and the Underwriters as to certain corporate matters
and as to the characterization of the transfer of the Mortgage Loans from the
Seller to the Purchaser.
ARTICLE V
OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS
(a) As to any Mortgage Loan which is Delinquent in payment by 120 days
or more or any REO Property, an Affiliate of the Seller may, at its option,
purchase such Mortgage Loan from the Trust Fund at the Purchase Price for such
Mortgage Loan provided that an Affiliate of the Seller may exercise the purchase
right during the period commencing on the first day of the calendar quarter
succeeding the calendar quarter in which the Initial Delinquency Date occurred
and ending on the last Business Day of such calendar quarter. The "Initial
Delinquency Date" of a Mortgage Loan shall mean the date on which the Mortgage
Loan first became 120 days Delinquent.
(b) If an Affiliate of the Seller does not exercise the purchase right
with respect to a Mortgage Loan during the period specified in the preceding
paragraph, such Mortgage Loan shall thereafter again become eligible for
purchase pursuant to the preceding paragraph only after the Mortgage Loan ceases
to be 120 days or more Delinquent and thereafter becomes 120 days Delinquent
again.
ARTICLE VI
TERMINATION
Section 6.01 Termination. The respective obligations and responsibilities
of the Seller and the Purchaser created hereby shall terminate upon the
termination of the Trust as provided in Section 8.01 of the Trust Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Agreement may be amended from time to time by
the Seller and the Purchaser, by written agreement signed by the Seller and the
Purchaser.
Section 7.02 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
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Section 7.03 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
if to the Seller:
Credit-Based Asset Servicing and Securitization LLC
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Finance
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Section 7.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.05 Counterparts. This Agreement may be executed in one or more
counterparts by the different parties hereto on separate counterparts, each of
which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
Section 7.06 Further Agreements. The Purchaser and the Seller each agree to
execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or reasonable and appropriate to effectuate the
purposes of this Agreement or in connection with the issuance of any Series of
Certificates representing interests in the Mortgage Loans.
Without limiting the generality of the foregoing, as a further
inducement for the Purchaser to purchase the Mortgage Loans from the Seller, the
Seller will cooperate with the Purchaser in connection with the sale of any of
the securities representing interests in the Mortgage Loans. In that connection,
the Seller will provide
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to the Purchaser any and all information and appropriate verification of
information, whether through letters of its auditors and counsel or otherwise,
as the Purchaser shall reasonably request and will provide to the Purchaser such
additional representations and warranties, covenants, opinions of counsel,
letters from auditors, and certificates of public officials or officers of the
Seller as are reasonably required in connection with such transactions and the
offering of investment grade securities rated by the Rating Agencies.
Section 7.07 Intention of the Parties. It is the intention of the parties
that the Purchaser is purchasing, and the Seller is selling, the Mortgage Loans
rather than pledging the Mortgage Loans to the Purchaser to secure a loan by the
Purchaser to the Seller. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes and all other purposes as a sale
by the Seller and a purchase by the Purchaser of the Mortgage Loans. The
Purchaser will have the right to review the Mortgage Loans and the related
Mortgage Files to determine the characteristics of the Mortgage Loans which will
affect the Federal income tax consequences of owning the Mortgage Loans and the
Seller will cooperate with all reasonable requests made by the Purchaser in the
course of such review.
Section 7.08 Successors and Assigns; Assignment of this Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee. The obligations of the Seller under this
Agreement cannot be assigned or delegated to a third party without the consent
of the Purchaser and which consent shall be at the Purchaser's sole discretion,
except that the Purchaser acknowledges and agrees that the Seller may assign its
obligations hereunder to any Person into which the Seller is merged or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party or any Person succeeding to the business of the Seller. The
parties hereto acknowledge that the Purchaser is acquiring the Mortgage Loans
for the purpose of contributing them to a trust that will issue a series of
certificates representing undivided interests in such Mortgage Loans. As an
inducement to the Purchaser to purchase the Mortgage Loans, the Seller
acknowledges and consents to the assignment by the Purchaser to the Trustee of
all of the Purchaser's rights against the Seller pursuant to this Agreement
insofar as such rights relate to Mortgage Loans transferred to the Trustee and
to the enforcement or exercise of any right or remedy against the Seller
pursuant to this Agreement by the Trustee. Such enforcement of a right or remedy
by the Trustee shall have the same force and effect as if the right or remedy
had been enforced or exercised by the Purchaser directly.
Section 7.09 Survival. The representations and warranties set forth in
Sections 3.01 and 3.02 hereof shall survive the purchase of the Mortgage Loans
hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Purchaser
By:
------------------------------------
Name:
Title:
CREDIT-BASED ASSET SERVICING AND
SECURITIZATION LLC,
as Seller
By:
------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
Available upon request at the offices of:
Dechert LLP
0000 Xxxx Xxxxxx
Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
EXHIBIT A
STANDARD AND POOR'S GLOSSARY FOR
FILE FORMAT FOR LEVELS(R) VERSION 5.6(c) REVISED
[INTENTIONALLY OMITTED]
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