Exhibit 99.2
================================================================================
EXECUTION COPY
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
XXXXXXX XXXXX MORTGAGE LENDING, INC.
Purchaser
and
FIRST FRANKLIN FINANCIAL CORPORATION
Seller
Dated as of March 1, 2007
Conventional Fixed and Adjustable Rate Mortgage Loans
First and Second Liens
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. Definitions.................................................. 1
SECTION 2. Agreement to Purchase........................................ 15
SECTION 3. Final Mortgage Loan Schedules................................ 15
SECTION 4. Purchase Price............................................... 15
SECTION 5. Examination of Mortgage Files................................ 16
SECTION 6. Conveyance from Seller to Initial Purchaser.................. 16
SECTION 7. Representations, Warranties and Covenants of the Seller:
Remedies for Breach.......................................... 17
SECTION 8. Closing...................................................... 33
SECTION 9. [Reserved]................................................... 34
SECTION 10. Costs........................................................ 35
SECTION 11. [Reserved]................................................... 35
SECTION 12. Removal of Mortgage Loans from Inclusion under This Agreement
Upon a Whole Loan Transfer or a Securitization on One or More
Reconstitution Dates......................................... 35
SECTION 13. The Seller................................................... 41
SECTION 14. [Reserved]................................................... 42
SECTION 15. Financial Statements......................................... 42
SECTION 16. Mandatory Delivery; Grant of Security Interest............... 42
SECTION 17. Notices...................................................... 43
SECTION 18. Severability Clause.......................................... 43
SECTION 19. Counterparts................................................. 44
i
SECTION 20. Governing Law................................................ 44
SECTION 21. Intention of the Parties..................................... 44
SECTION 22. Successors and Assigns....................................... 44
SECTION 23. Waivers...................................................... 44
SECTION 24. Exhibits..................................................... 44
SECTION 25. Nonsolicitation.............................................. 45
SECTION 26. General Interpretive Principles.............................. 45
SECTION 27. Reproduction of Documents.................................... 45
SECTION 28. Further Agreements........................................... 45
SECTION 29. Protection of Confidential Information....................... 46
SECTION 30. Survival..................................................... 46
EXHIBITS
EXHIBIT 1 FORM OF WARRANTY XXXX OF SALE
EXHIBIT 2 CONTENTS OF EACH MORTGAGE FILE
SCHEDULE I FINAL MORTGAGE LOAN SCHEDULE
SCHEDULE II PREPAYMENT CHARGE SCHEDULE
ii
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This is a MASTER MORTGAGE LOAN PURCHASE AGREEMENT (the "Agreement"), dated
as of March 1, 2007, by and between Xxxxxxx Xxxxx Mortgage Lending, Inc., having
an office at 000 Xxxxx Xxxxxx, 4 World Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Initial Purchaser", and the Initial Purchaser or the
Person, if any, to which the Initial Purchaser has assigned its rights and
obligations hereunder as Purchaser with respect to a Mortgage Loan, and each of
their respective successors and assigns, the "Purchaser") and First Franklin
Financial Corporation, a Delaware corporation and subsidiary of Xxxxxxx Xxxxx
Bank and Trust Co., FSB (the "Seller"), having an office at 0000 Xx. Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, certain conventional fixed and
adjustable rate residential first and second lien mortgage loans (the "Mortgage
Loans") as described herein on a servicing-retained basis;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust or
other security instrument creating a first or second lien on a residential
dwelling located in the jurisdiction indicated on the Final Mortgage Loan
Schedule, which is to be annexed hereto on the Closing Date as Schedule I;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner of
the conveyance, and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the Seller,
the Purchaser desires to sell some or all of the Mortgage Loans to one or more
purchasers as a whole loan transfer in a whole loan or participation format or a
public or private mortgage-backed securities transaction;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller agree
as follows:
SECTION 1. Definitions. For purposes of this Agreement the following
capitalized terms shall have the respective meanings set forth below.
Adjustable Rate Mortgage Loan: A Mortgage Loan which provides for the
adjustment of the Mortgage Interest Rate payable in respect thereto.
Adjustment Date: With respect to each Adjustable Rate Mortgage Loan,
the date set forth in the related Mortgage Note on which the Mortgage Interest
Rate on such Adjustable Rate Mortgage Loan is adjusted in accordance with the
terms of the related Mortgage Note.
Agreement: This Master Mortgage Loan Purchase Agreement including all
exhibits, schedules, amendments and supplements hereto.
Appraised Value: With respect to any Mortgaged Property, the lesser of
(i) the value thereof as determined by an appraisal made for the originator of
the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac, or
pursuant to a value assigned by Seller's automated appraisal methodology in
accordance with Seller's underwriting guidelines, and (ii) the purchase price
paid for the related Mortgaged Property by the Mortgagor with the proceeds of
the Mortgage Loan, provided, however, in the case of a Refinanced Mortgage Loan,
such value of the Mortgaged Property is based solely upon the value determined
by an appraisal made for the originator of such Refinanced Mortgage Loan at the
time of origination of such Refinanced Mortgage Loan by an appraiser who met the
minimum requirements of Xxxxxx Mae and Xxxxxxx Mac, or pursuant to a value
assigned by Seller's automated appraisal methodology in accordance with Seller's
underwriting guidelines.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage to the Purchaser.
Balloon Loan: A Mortgage Loan identified on the Final Mortgage Loan
Schedule as a balloon mortgage loan.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the State of California or
the State of New York are authorized or obligated by law or executive order to
be closed.
Buydown Mortgage Loan: A Mortgage Loan in which buydown funds are used
to pay a portion of the interest payable on the Mortgage Loan for a specified
period of time.
Cash-Out Refinancing: A Refinanced Mortgage Loan where the proceeds
were in excess of the paid off principal balance of any existing mortgage(s) on
the related Mortgaged Property, paid off other debt (secured and unsecured) and
related closing costs, by an amount equal to the greater of $2000 and 2% of the
loan amount.
Closing Date: March 27, 2007.
Code: The Internal Revenue Code of 1986, or any successor statute
thereto.
Combined Loan-to-Value Ratio or CLTV: With respect to any Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the sum
of (a) the original principal balance of the Mortgage Loan, plus (b) the unpaid
principal balance of any related
2
subordinate mortgage loan or loans secured by the Mortgaged Property, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property by exercise of the
power of condemnation or the right of eminent domain.
Credit Score: The credit score of the Mortgagor provided by an
organization providing credit scores at the time of the origination of a
Mortgage Loan. If two credit scores are obtained, the Credit Score shall be the
lower of the two credit scores. If three credit scores are obtained, the Credit
Score shall be the middle of the three credit scores.
Custodial Account: One or more accounts that shall be held as a
special deposit by the depository institution maintaining such accounts in a
fiduciary capacity, separate and apart from its funds or general assets and
shall not be held in any capacity that would create a debtor-creditor
relationship between the depository institution maintaining the accounts and the
Seller or Purchaser.
Custodial Agreement: The agreement between the Initial Purchaser and
the Custodian, governing the retention of the originals of the Mortgage Loan
Documents.
Custodian: The custodian designated by the Initial Purchaser under the
Custodial Agreement, or its successor in interest or assigns, or any successor
to the Custodian under the Custodial Agreement.
Cut-off Date: March 1, 2007.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Qualified Substitute Mortgage Loan.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Due Date: With respect to each Remittance Date, the first day of the
calendar month in which such Remittance Date occurs, which is the day on which
the Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: Xxxxxx Xxx or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
3
Final Mortgage Loan Schedule: The schedule of Mortgage Loans to be
annexed hereto as Schedule I (or a supplement thereto) on the Closing Date in
both hard copy and floppy disk, such schedule setting forth the following
information with respect to each Mortgage Loan in the Mortgage Loan Package:
(1) the Seller's Mortgage Loan identifying number;
(2) the Mortgagor's first and last name;
(3) the street address of the Mortgaged Property including the state
and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied;
(5) the type of Residential Dwelling constituting the Mortgaged
Property;
(6) the original months to maturity;
(7) the original date of the Mortgage Loan and the remaining months
to maturity from the Cut-off Date, based on the original
amortization schedule;
(8) the Loan-to-Value Ratio at origination;
(9) the Mortgage Interest Rate in effect immediately following the
Cut-off Date;
(10) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(11) the stated maturity date;
(12) the amount of the Monthly Payment at origination;
(13) the amount of the Monthly Payment as of the Cut-off Date;
(14) the last Due Date on which a Monthly Payment was actually applied
to the unpaid Stated Principal Balance;
(15) the original principal amount of the Mortgage Loan;
(16) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
(17) with respect to each Adjustable Rate Mortgage Loan, the first
Mortgage Interest Rate Adjustment Date and the number of months
between each Adjustment Date thereafter;
4
(18) with respect to each Adjustable Rate Mortgage Loan, the number of
days prior to the origination date and each Adjustment Date
thereafter, whereby the Index is determined;
(19) with respect to each Adjustable Rate Mortgage Loan, the Gross
Margin;
(20) with respect to each Adjustable Rate Mortgage Loan, the Periodic
Rate Cap;
(21) with respect to each Adjustable Rate Mortgage Loan, the Initial
Rate Cap;
(22) a code indicating the purpose of the loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out Refinancing);
(23) with respect to each Adjustable Rate Mortgage Loan, the Maximum
Mortgage Interest Rate under the terms of the Mortgage Note;
(24) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Interest Rate under the terms of the Mortgage Note;
(25) the Mortgage Interest Rate at origination;
(26) with respect to each Adjustable Rate Mortgage Loan, the first
Adjustment Date immediately following the Cut-off Date;
(27) with respect to each Adjustable Rate Mortgage Loan, the Index and
the number of decimal places to which the Index is rounded;
(28) a code indicating whether the Mortgage Loan is an Adjustable Rate
Mortgage Loan or a Fixed Rate Mortgage Loan;
(29) a code indicating the documentation style (i.e., full,
alternative or reduced);
(30) a code indicating if the Mortgage Loan is subject to a Primary
Insurance Policy;
(31) a code indicating whether the Mortgage Loan is a Buydown Mortgage
Loan;
(32) a code indicating the product type of the Mortgage Loan (e.g.,
3/1, 5/1, 7/1, 10/1, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(33) a code indicating whether the Mortgage Loan is subject to a
Prepayment Charge and the term of such Prepayment Charge;
(34) the Appraised Value of the Mortgaged Property;
(35) the sale price of the Mortgaged Property, if applicable;
5
(36) a code indicating whether the Mortgaged Property is subject to a
First Lien or a Second Lien;
(37) the Credit Score of the Mortgagor;
(38) the Mortgagor's debt to income ratio;
(39) with respect to each Adjustable Rate Mortgage Loan, the date on
which the Monthly Payment is changed to the extent that it is
different than the Adjustment Date;
(40) with respect to each Adjustable Rate Mortgage Loan, to the extent
that such Mortgage Loan is an interest only loan, the number of
months/years whereby the scheduled payment payable by a Mortgagor
under the related Mortgage Note on each Due Date includes only
interest payments;
(41) the risk grade for each Mortgage Loan;
(42) points at origination, described in the aggregate;
(43) a code indicating whether the borrower is self-employed;
(44) the Mortgagor's monthly disposable income;
(45) the number of months from disposition of bankruptcy (use "999" to
indicate no bankruptcy);
(46) the number of months from disposition of foreclosure (use "999"
to indicate no foreclosure);
(47) the Combined Loan-to-Value Ratio (including all senior and junior
mortgage loans);
(48) the original balance on any mortgage loan senior in priority to
the Mortgage Loan;
(49) the original balance on any mortgage loan junior in priority to
the Mortgage Loan;
(50) the Mortgagor's social security number;
(51) the type of appraisal performed on the Mortgaged Property; and
(52) a code indicating the lien position of the Mortgage Loan.
With respect to the Mortgage Loans in the aggregate, the Final Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date:
(1) the number of Mortgage Loans;
6
(2) the current principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and
(4) the weighted average maturity of the Mortgage Loans.
First Lien: With respect to each Mortgaged Property, the lien of the
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on the Mortgaged Property.
Fixed Rate Mortgage Loan: A Mortgage Loan with respect to which the
Mortgage Interest Rate set forth in the Mortgage Note is fixed for the term of
such Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor thereto.
Gross Margin: With respect to any Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note and the related
Final Mortgage Loan Schedule that is added to the Index on each Adjustment Date
in accordance with the terms of the related Mortgage Note to determine the new
Mortgage Interest Rate for such Mortgage Loan.
HOEPA: The Home Ownership and Equity Protection Act of 1994 and its
implementing regulations, including 12 CFR Section 226.32(a)(1)(i) and (ii).
Index: With respect to any Adjustable Rate Mortgage Loan, the index
identified on the Final Mortgage Loan Schedule and set forth in the related
Mortgage Note for the purpose of calculating the interest rate thereon.
Initial Purchaser: Xxxxxxx Xxxxx Mortgage Lending, Inc., or any
successor.
Initial Rate Cap: With respect to each Adjustable Rate Mortgage Loan
and the initial Adjustment Date therefor, a number of percentage points per
annum that is set forth in the related Final Mortgage Loan Schedule and in the
related Mortgage Note, which is the amount by which the Mortgage Interest Rate
for such Adjustable Rate Mortgage Loan may increase.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
7
Liquidation Proceeds: Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received in connection with the liquidation of a
defaulted Mortgage Loan through trustee's sale, foreclosure sale or otherwise.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan as of
any date of determination, the ratio on such date of the outstanding principal
amount of the Mortgage Loan, to the Appraised Value of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Maximum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Final Mortgage Loan
Schedule and in the related Mortgage Note and is the maximum interest rate to
which the Mortgage Interest Rate on such Mortgage Loan may be increased on any
Adjustment Date.
MIN: The Mortgage Identification Number for any MERS Loan.
Minimum Mortgage Interest Rate: With respect to each Adjustable Rate
Mortgage Loan, a rate that is set forth on the related Final Mortgage Loan
Schedule and in the related Mortgage Note and is the minimum interest rate to
which the Mortgage Interest Rate on such Mortgage Loan may be decreased on any
Adjustment Date.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Payment: With respect to any Mortgage Loan, the scheduled
combined payment of principal and interest payable by a Mortgagor under the
related Mortgage Note on each Due Date.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien or second on Mortgaged Property securing the Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and the
successors and assigns of such mortgagee or beneficiary.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit 2 annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
8
Mortgage Interest Rate: With respect to each Fixed Rate Mortgage Loan,
the fixed annual rate of interest provided for in the related Mortgage Note and,
with respect to each Adjustable Rate Mortgage Loan, the annual rate that
interest accrues on such Adjustable Rate Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note.
Mortgage Loan: Each first or second lien, residential mortgage loan,
sold, assigned and transferred to the Purchaser pursuant to this Agreement and
identified on the Final Mortgage Loan Schedule annexed to this Agreement on the
Closing Date, which Mortgage Loan includes without limitation the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The following documents:
(1) The original Mortgage Note endorsed, "Pay to the order of
______________, without recourse" and signed in the name of the Seller by
an authorized officer of the Seller, together with all riders thereto. The
Mortgage Note shall include all intervening endorsements showing a complete
chain of the title from the originator of the Mortgage Loan to
[_________________];
(2) Except as provided below and for each Mortgage Loan that is not a
MERS Loan, the original recorded Mortgage together with all riders thereto,
with evidence of recording thereon, or, if the original Mortgage has not
yet been returned from the recording office, a copy of the original
Mortgage together with all riders thereto certified to be a true copy of
the original of the Mortgage that has been delivered for recording in the
appropriate recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Loan, the original
Mortgage together with all riders thereto, noting the presence of the MIN
of the Mortgage Loan and either language indicating that the Mortgage Loan
is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the
public recording office in which such Mortgage has been recorded;
(3) In the case of each Mortgage Loan that is not a MERS Loan, the
original Assignment of Mortgage, executed in blank. If the Mortgage Loan
was acquired by the Seller in a merger or other type of acquisition, the
assignment must be by "[Seller], successor [by merger to or in interest to,
as applicable] [name of predecessor]"; and in the event that the Mortgage
Loan was acquired or originated by the Seller while doing business under
another name, the assignment must be by "[Seller], successor in interest to
[previous name]";
(4) The original policy of title insurance (or a preliminary title
report, commitment or binder if the original title insurance policy has not
been received from the title insurance company);
9
(5) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon or, if the original intervening assignment
has not yet been returned from the recording office, a copy of such
assignment certified to be a true copy of the original of the assignment
which has been sent for recording in the appropriate jurisdiction in which
the Mortgaged Property is located;
(6) With respect to a Mortgage Loan that, according to the Final
Mortgage Loan Schedule is covered by a primary mortgage insurance policy,
the original or a copy of the policy of primary mortgage insurance;
(7) Originals of all assumption and modification agreements, if any;
and
(8) If in connection with any Mortgage Loan, the Seller cannot deliver
the Mortgage, Assignments of Mortgage or assumption, consolidation or
modification, as the case may be, with evidence of recording thereon, if
applicable, concurrently with the execution and delivery of this Agreement
solely because of a delay caused by the public recording office where such
Mortgage, Assignments of Mortgage or assumption, consolidation or
modification, as the case may be, has been delivered for recordation, the
Seller shall deliver or cause to be delivered to the Purchaser written
notice stating that such Mortgage or assumption, consolidation or
modification, as the case may be, has been delivered to the appropriate
public recording office for recordation. Thereafter, the Seller shall
deliver or cause to be delivered to the Purchaser such Mortgage,
Assignments of Mortgage or assumption, consolidation or modification, as
the case may be, with evidence of recording indicated thereon, if
applicable, upon receipt thereof from the public recording office. To the
extent any required endorsement is not contained on a Mortgage Note or an
Assignment of Mortgage, the Seller shall make or cause to be made such
endorsement.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor.
Mortgaged Property: The Mortgagor's real property securing repayment
of a related Mortgage Note, consisting of a fee simple interest or leasehold
interest in a single parcel of real property improved by a Residential Dwelling.
Mortgagor: The obligor on a Mortgage Note, the owner of the Mortgaged
Property and the grantor or mortgagor named in the related Mortgage and such
grantor's or mortgagor's successor's in title to the Mortgaged Property.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the
10
Secretary or one of the Assistant Treasurers or Assistant Secretaries of the
Person on behalf of whom such certificate is being delivered.
Opinion of Counsel: A written opinion of counsel, who may be salaried
counsel for the Person on behalf of whom the opinion is being given, reasonably
acceptable to each Person to whom such opinion is addressed.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage Loan
and any Adjustment Date therefor, a number of percentage points per annum that
is set forth in the related Final Mortgage Loan Schedule and in the related
Mortgage Note, which is the maximum amount by which the Mortgage Interest Rate
for such Adjustable Rate Mortgage Loan may increase (without regard to the
Maximum Mortgage Interest Rate) or decrease (without regard to the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage Interest Rate
in effect immediately prior to such Adjustment Date.
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Charge: With respect to any Mortgage Loan, the premiums,
fees, or charges, if any, due in connection with a full or partial prepayment of
such Mortgage Loan in accordance with the terms thereof.
Prepayment Charge Schedule: As of any date, the information on
Prepayment Charges on the Final Mortgage Loan Schedule on such date together
with the matrix of Prepayment Charge information prepared by the Seller which is
attached hereto as Schedule II. The Prepayment Charge Schedule shall be prepared
by the Seller and shall allow the identification of the following information
with respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first monthly payment was due on the
related Mortgage Loan;
(v) the term of the related Prepayment Charge;
(vi) the original principal balance of the related Mortgage Loan; and
(vii) the principal balance of the related Mortgage Loan as of the
Cut-off Date.
The Prepayment Charge Schedule shall be amended if necessary by the Seller and a
copy of such amended Prepayment Charge Schedule shall be furnished by the Seller
to the Purchaser or its designees.
11
Primary Insurance Policy: A policy of primary mortgage guaranty
insurance issued by a Qualified Insurer.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any Prepayment Charge, which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Purchase Price: The price paid on the Closing Date by the Purchaser to
the Seller in exchange for the Mortgage Loans purchased on the Closing Date as
calculated as provided in Section 4.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller. For the
avoidance of doubt, a "Qualified Correspondent" includes a "table broker" or
mortgage lender that originates loans underwritten and funded by the Seller or
an Affiliate of the Seller.
Qualified Insurer: Any insurer which meets the requirements of Xxxxxx
Xxx and Xxxxxxx Mac.
Qualified Substitute Mortgage Loan: A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the
date of such substitution, (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Interest Rate not
less than (and not more than one percentage point in excess of) the Mortgage
Interest Rate of the Deleted Mortgage Loan, (iii) have a net Mortgage Interest
Rate not less than (and not more than one percentage point in excess of) the net
Mortgage Interest Rate of the Deleted Mortgage Loan, (iv)
12
have a remaining terms to maturity not greater than (and not more than one year
less than) that of the Deleted Mortgage Loan, (v) have the same Due Date as the
Due Date on the Deleted Mortgage Loan, (vi) have a Loan-to-Value Ratio as of the
date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Mortgage Loan as of such date, (vii) conform to each representation and
warranty set forth in Subsection 7.02 of this Agreement and (viii) be the same
type of mortgage loan (i.e. fixed or adjustable rate with the same Gross Margin
and Index as the Deleted Mortgage Loan). In the event that one or more mortgage
loans are substituted for one or more Deleted Mortgage Loans, the amounts
described in clause (i) hereof shall be determined on the basis of aggregate
principal balances, the Mortgage Interest Rates described in clause (ii) hereof
shall be determined on the basis of weighted average Mortgage Interest Rates,
the Mortgage Rates described in clause (iii) hereof shall be satisfied as to
each such mortgage loan, the terms described in clause (iv) shall be determined
on the basis of weighted average remaining terms to maturity, the Loan-to-Value
Ratios described in clause (vi) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (viii) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate, as
the case may be.
Rate/Term Refinancing: A Refinanced Mortgage Loan, where the proceeds
were not in excess of the paid off existing mortgage loan(s) on the related
Mortgaged Property, other paid off debt (secured and unsecured), and related
closing costs, and did not exceed the lesser of $2,000 and 2% of the loan
amount.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of each month, commencing
on the eighteenth day of the month next following the month in which the Cut-off
Date occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following such eighteenth (18th) day.
Repurchase Price: With respect to any Mortgage Loan, the price for
such repurchase shall be equal to par plus the premium paid, multiplied by the
outstanding principal balance of the Mortgage Loan to be repurchased as of the
date of the repurchase, plus accrued interest thereon at the Mortgage Interest
Rate on the Mortgage Loan from the last paid installment date through the last
day of the month in which such repurchase occurs. The Xxxxxxxxxx
00
Price shall also include any costs and damages incurred by the Purchaser or any
assignee of the Purchaser in connection with any violation by the repurchased
Mortgage Loan of any representation or warranty.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project which meets the eligibility
requirements of the Seller, or (iv) a detached one-family dwelling in a planned
unit development, none of which is a cooperative, mobile or manufactured home.
Second Lien: With respect to each Mortgaged Property, the lien of the
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a second lien on the Mortgaged Property.
Second Lien Mortgage Loan: A Mortgage Loan secured by the lien on the
Mortgaged Property, subject to one prior lien on such Mortgaged Property
securing financing obtained by the related Mortgagor.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller Information: As defined in Section 12.05(a).
Servicing File: With respect to each Mortgage Loan, the file retained
by the Seller consisting of originals of all documents in the Mortgage File
which are not delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan Documents.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
or its successor in interest.
Stated Principal Balance: As to each Mortgage Loan as of any date of
determination, (i) the principal balance of the Mortgage Loan as of the Cut-off
Date after giving effect to payments of principal received on or before such
date, minus (ii) all amounts previously distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
14
Third-Party Originator: Each Person, if any, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller and shall
not include a mortgage broker that does not fund loans.
Warranty Xxxx of Sale: A Warranty Xxxx of Sale with respect to the
Mortgage Loans purchased on the Closing Date in the form annexed hereto as
Exhibit 1.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Securitization Transfer.
SECTION 2. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase Mortgage Loans having an aggregate principal
balance on the Cut-off Date, or in such other amount as agreed by the Purchaser
and the Seller as evidenced by the actual aggregate principal balance of the
Mortgage Loans accepted by the Purchaser on the Closing Date. The obligation of
the Purchaser to purchase any Mortgage Loan from the Seller on the Closing Date
shall be subject to the satisfaction of the conditions precedent to the
Purchaser's obligation to purchase set forth in Section 8. The Purchase Price
will be paid with proceeds of the related Securitization Transaction.
SECTION 3. Final Mortgage Loan Schedule. The Seller shall deliver
the Final Mortgage Loan Schedule at least one (1) Business Day prior to the
Closing Date.
SECTION 4. Purchase Price. The Purchase Price for each Mortgage
Loan listed on the Final Mortgage Loan Schedule shall be the Purchase Price
Percentage, multiplied by its Stated Principal Balance as of the related Cut-off
Date.
In addition to the Purchase Price as described above, the Initial
Purchaser shall pay to the Seller, at closing, accrued interest on the Stated
Principal Balance of each Mortgage Loan as of the Cut-off Date at the Mortgage
Interest Rate from the Cut-off Date through the day prior to the Closing Date,
both inclusive.
The Purchaser shall own and be entitled to receive with respect to
each Mortgage Loan purchased, (1) all recoveries of principal collected after
the Cut-off Date and (2) all payments of interest on the Mortgage Loans due
after the Cut-Off Date.
15
SECTION 5. Examination of Mortgage Files. In addition to the rights
granted to the Initial Purchaser to underwrite the Mortgage Loans and review the
Mortgage Files prior to the Closing Date, prior to the Closing Date, the Seller
shall (a) deliver to the Custodian in escrow, for examination with respect to
each Mortgage Loan to be purchased on the Closing Date, the related Mortgage
File, including the Assignment of Mortgage, pertaining to each Mortgage Loan, or
(b) make the related Mortgage File available to the Initial Purchaser for
examination at the Seller's offices or such other location as shall otherwise be
agreed upon by the Initial Purchaser and the Seller. Such examination may be
made by the Initial Purchaser or its designee at any reasonable time before or
after the Closing Date. If the Initial Purchaser makes such examination prior to
the related closing date and identifies any Mortgage Loans that do not conform
to the Seller's underwriting standards, such Mortgage Loans may, at the Initial
Purchaser's option, be rejected for purchase by the Initial Purchaser. If not
purchased by the Initial Purchaser, such Mortgage Loans shall be deleted from
the Final Mortgage Loan Schedule and may be replaced by a Qualified Substitute
Mortgage Loan pursuant to Section 7. The Initial Purchaser may, at its option
and without notice to the Seller, purchase all or part of the Mortgage Loans
without conducting any partial or complete examination. The fact that the
Initial Purchaser has conducted or has determined not to conduct any partial or
complete examination of the Mortgage Files shall not affect the Initial
Purchaser's (or any of its successors') rights to demand repurchase or other
relief or remedy provided for in this Agreement.
SECTION 6. Conveyance from Seller to Initial Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans; Possession of Servicing
Files.
The Seller, simultaneously with the payment of the Purchase Price,
shall execute and deliver to the Initial Purchaser a Warranty Xxxx of Sale with
respect to the related Mortgage Loan Package in the form attached hereto as
Exhibit 1. The Servicing File retained by the Seller with respect to each
Mortgage Loan pursuant to this Agreement shall be appropriately identified in
the Seller's computer system to reflect clearly the sale of such related
Mortgage Loan to the Purchaser. The Seller shall release from its custody the
contents of any Servicing File retained by it only in accordance with this
Agreement, except when such release is required in connection with a repurchase
of any such Mortgage Loan pursuant to Subsection 7.03 or 7.04.
In addition, in connection with the assignment of any MERS Loan, the
Seller agrees that on or prior to the Closing Date it will cause, at its own
expense, the MERS System to indicate that the related Mortgage Loans have been
assigned by the Seller to the Purchaser in accordance with this Agreement by
including in such computer files the information required by the MERS System to
identify the Purchaser as owner of such Mortgage Loans.
Subsection 6.02 Books and Records.
Record title to each Mortgage and the related Mortgage Note as of the
Closing Date shall be in the name of the Seller, the Purchaser, the Custodian or
one or more designees of the Purchaser, as the Purchaser shall designate.
Notwithstanding the foregoing, beneficial ownership of each Mortgage and the
related Mortgage Note shall be vested solely in
16
the Purchaser or the appropriate designee of the Purchaser, as the case may be.
All rights arising out of the Mortgage Loans including, but not limited to, all
funds received by the Seller after the Cut-off Date on or in connection with a
Mortgage Loan as provided in Section 4 shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all such funds
received on or in connection with a Mortgage Loan as provided in Section 4 shall
be received and held by the Seller in trust for the benefit of the Purchaser or
the assignee of the Purchaser, as the case may be, as the owner of the Mortgage
Loans pursuant to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by the Seller and not a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. Consequently, the
sale of each Mortgage Loan shall be reflected as a sale on the Seller's business
records, tax returns and financial statements.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall from time to time in connection with the Closing
Date, at least five (5) Business Days prior to such Closing Date or such other
date as is mutually agreed to by the parties hereto, deliver and release to the
Custodian the Mortgage Loan Documents with respect to each Mortgage Loan to be
purchased and sold on the Closing Date and set forth on the Final Mortgage Loan
Schedule delivered with such Mortgage Loan Documents.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents for the related Closing Date, pursuant to an initial custody receipt
and initial certification of the Custodian.
The Seller shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with this Agreement within two weeks of
their execution, provided, however, that the Seller shall provide the Custodian
with a certified true copy of any such document submitted for recordation within
two weeks of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within one hundred twenty (120) days of its submission for recordation.
SECTION 7. Representations, Warranties and Covenants of the Seller:
Remedies for Breach.
Subsection 7.01 Representations and Warranties Respecting the Seller.
The Seller represents, warrants and covenants to the Purchaser as of
the date hereof the Closing Date or as of such date specifically provided herein
or in the applicable Warranty Xxxx of Sale:
(1) The Seller is duly organized, validly existing and in good
standing under the laws of the state of Delaware and is and will remain in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability
17
of each Mortgage Loan and the servicing of the Mortgage Loan in accordance with
the terms of this Agreement. No licenses or approvals obtained by the Seller
have been suspended or revoked by any court, administrative agency, arbitrator
or governmental body and no proceedings are pending which might result in such
suspension or revocation;
(2) The Seller has the full power and authority to hold each Mortgage
Loan, to sell each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate, all transactions contemplated by this Agreement. The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a legal, valid and binding obligation of the Seller, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(3) The execution and delivery of this Agreement by the Seller and the
performance of and compliance with the terms of this Agreement will not violate
the Seller's articles of incorporation or by-laws or constitute a default under
or result in a breach or acceleration of, any material contract, agreement or
other instrument to which the Seller is a party or which may be applicable to
the Seller or its assets;
(4) 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;
(5) 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;
(6) The Mortgage Loan Documents have been delivered to the Custodian.
With respect to each Mortgage Loan, the Seller is in possession of a complete
Mortgage File in compliance with Exhibit 2, except for such documents as have
been delivered to the Custodian;
(7) Immediately prior to the payment of the Purchase Price for each
Mortgage Loan, the Seller was the owner of record of the related Mortgage and
the indebtedness evidenced by the related Mortgage Note and upon the payment of
the Purchase Price by the Purchaser, in the event that the Seller retains 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 and only for the purpose of servicing and
supervising the servicing of each Mortgage Loan;
(8) There are no actions or proceedings against, or investigations of,
the Seller before any court, administrative agency or other tribunal (A) that
might prohibit its entering into this Agreement, (B) seeking to prevent the sale
of the Mortgage Loans or the consummation of
18
the transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement;
(9) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this Agreement
or the consummation of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date;
(10) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller pursuant to this Agreement are not subject to the bulk transfer or
any similar statutory provisions;
(11) The consideration received by the Seller upon the sale of the
Mortgage Loans constitutes fair consideration and reasonably equivalent value
for such Mortgage Loans;
(12) The Seller is solvent and will not be rendered insolvent by the
consummation of the transactions contemplated hereby. The Seller is not
transferring any Mortgage Loan with any intent to hinder, delay or defraud any
of its creditors; and
(13) The Seller is in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Loans for as long as such Mortgage Loans are registered with MERS.
Subsection 7.02 Representations and Warranties Regarding Individual
Mortgage Loans.
(a) The Seller hereby represents and warrants to the Purchaser that,
as to each Mortgage Loan, as of the Closing Date for such Mortgage Loan:
(1) The information set forth in the related Final Mortgage Loan
Schedule is complete, true and correct;
(2) [Reserved].
(3) There are no defaults in complying with the terms of the Mortgage
as they relate to the holder thereof, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents or other outstanding charges affecting the Mortgaged Property which
previously became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed item which
remains unpaid and which has been assessed but is not yet due and payable. There
exist no deficiencies with respect to escrow deposits and payments, if escrows
are required, for which customary arrangements for repayment thereof have not
been made, and other than in connection
19
with a modification or work-out agreement contained in the Mortgage File, no
escrow deficits or payments of other charges or payments have been capitalized
under the Mortgage or the applicable Mortgage Note;
(4) The Seller has not waived, altered or modified the Mortgage or
Mortgage Note (except that a Mortgage Loan may have been modified by a written
instrument (a copy of which is in the Mortgage File and the terms of which are
reflected on the Final Mortgage Loan Schedule) which has been recorded or is in
the process of being recorded, if necessary to protect the validity and first
priority lien of the owner of such Mortgage Loan; the substance of any such
waiver, alteration or modification has been approved by the issuer of any title
insurance policy, to the extent required by the related policies); satisfied,
canceled, rescinded or subordinated such Mortgage in whole or in part; released
the applicable Mortgaged Property in whole or in part from the lien of such
Mortgage; or executed any instrument of cancellation, rescission or satisfaction
with respect thereto. No instrument of release or waiver has been executed in
connection with any Mortgage Loan, and no Mortgagor has been released, in whole
or in part from its obligations in connection with a Mortgage Loan;
(5) The Mortgage Note and the Mortgage are not subject to any valid
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 (subject to bankruptcy, insolvency, moratorium, reorganization and
similar laws or by equitable principles affecting the enforceability of the
rights of creditors, including those respecting the availability of specific
performance), in whole or in part, and to the Seller's knowledge no such right
of rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
(6) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer in accordance with the Seller's underwriting
guidelines against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located.
All such insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as mortgagee and all premiums thereon have
been paid or escrowed funds have been established in an amount sufficient to pay
the premium. 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) a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration is in effect which
policy conforms to the Seller's underwriting guidelines. 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 Mortgagor's cost and expense and to
seek reimbursement therefor from the Mortgagor;
(7) Any and all requirements of any applicable federal, state or local
law including, without limitation, laws governing prepayment penalties, usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, fair housing and disclosure laws applicable to the
origination (as such laws existed as of the date of origination) and servicing
of mortgage loans of a type similar to the Mortgage Loans have been
20
complied with and the consummation of the transactions contemplated hereby will
not involve the violation of any such applicable laws;
(8) 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;
(9) The related Mortgage is properly recorded and is a valid, existing
and enforceable (A) first lien and first priority security interest with respect
to each Mortgage Loan which is indicated by the Seller to be a First Lien (as
reflected on the Final Mortgage Loan Schedule), or (B) second lien and second
priority security interest with respect to each Mortgage Loan which is indicated
by the Seller to be a Second Lien (as reflected on the Final Mortgage Loan
Schedule), in either case, on the Mortgaged Property, including all improvements
on the Mortgaged Property subject only to (a) the lien of current real property
taxes and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not adversely
affect the Appraised Value of the Mortgaged Property, (c) other matters to which
like properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property and (d) with
respect to each Mortgage Loan which is indicated by the Seller to be a Second
Lien Mortgage Loan (as reflected on the Final Mortgage Loan Schedule) a First
Lien on the Mortgaged Property. 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 (A) first lien
and first priority security interest with respect to each Mortgage Loan which is
indicated by the Seller to be a First Lien (as reflected on the Final Mortgage
Loan Schedule) or (B) second lien and second priority security interest with
respect to each Mortgage Loan which is indicated by the Seller to be a Second
Lien Mortgage Loan (as reflected on the Final Mortgage Loan Schedule), in either
case, on the property described therein and the Seller has full right to sell
and assign the same to the Purchaser. The Mortgaged Property was not, as of the
date of origination of the Mortgage Loan, subject to a mortgage, deed of trust,
deed to secure debt or other security instrument creating a lien subordinate to
the lien of the Mortgage;
(10) Each Mortgage Note and the related Mortgage are genuine and each
is the legal, valid and binding obligations of the maker thereof, enforceable in
accordance with their terms subject to bankruptcy, insolvency, moratorium,
receivership, conservatorship, reorganization and similar laws on or hereafter
in effect of general application affecting creditors' rights generally and
subject to the application of the general principles of equity, including those
respecting the availability of specific performance (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(11) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage,
21
and the Mortgage Note and the Mortgage have been duly and properly executed by
such parties. The Mortgagor is a natural person;
(12) All Persons that have had any interest in the Mortgage Loan,
whether as originator, mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were): (A)
organized under the laws of such state, or (B) qualified to do business in such
state, or (C) federal savings and loan associations, national banks or national
bank operating subsidiaries or (D) not doing business in such state so as to
require qualification or licensing, or (E) not otherwise required to be licensed
in such state under laws applicable to such Person. All parties which have had
any interest in the Mortgage Loan were in compliance with any and all "doing
business" and licensing requirements of the laws of the state wherein the
Mortgaged Property is located applicable to such Person or were not required
under the laws applicable to such Person to be licensed in such state;
(13) The Mortgage Loan is covered by an ALTA lender's title insurance
policy (which, in the case of an Adjustable Rate Mortgage Loan has an adjustable
rate mortgage endorsement in the form of ALTA 6.0 or 6.1) acceptable to Xxxxxx
Xxx and Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae and
Xxxxxxx Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained above in
(ix)(a) and (b) and, with respect to each Mortgage Loan which is indicated by
the Seller to be a Second Lien Mortgage Loan (as reflected on the Final Mortgage
Loan Schedule) clause (d)) the Seller, its successors and assigns as to the
first priority lien of the Mortgage in the original principal amount of the
Mortgage Loan and, with respect to any Adjustable Rate Mortgage Loan, 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 Monthly Payment. Additionally, such lender's 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 lender's title
insurance policy, and such lender's title insurance policy is in full force and
effect and will be in full force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under such
lender's title insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would impair
the coverage of such lender's title insurance policy;
(14) 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 no
such default, breach, violation or event of acceleration has been waived. With
respect to each Mortgage Loan which is indicated by the Seller to be a Second
Lien Mortgage Loan (as reflected on the Final Mortgage Loan Schedule) (i) the
First Lien is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such First Lien mortgage or
the related mortgage note, (iii) 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 thereunder, and either (A)
the First Lien mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment in
full or otherwise under the First Lien mortgage;
22
(15) To the Seller's knowledge, there are no mechanics' liens or
similar liens or claims for work, labor or material affecting any Mortgaged
Property which have been filed (and no rights are outstanding that under law
could give rise to such liens), which are or may be a lien prior to, or equal
with, the lien of such Mortgage, except those which are insured against by the
title insurance policy with respect to the Mortgage Loan;
(16) 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 to the
Seller's knowledge, no improvements on adjoining properties encroach upon the
Mortgaged Property;
(17) The Mortgage Loan bears interest at the Mortgage Interest Rate.
With respect to each Mortgage Loan other than a Mortgage Loan with an interest
only payment period, the Mortgage Note is payable on the first day of each month
in Monthly Payments, which, (A) in the case of a Fixed Rate Mortgage Loan, are
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate, (B) in
the case of an Adjustable Rate Mortgage Loan, are changed on each Adjustment
Date, and in any case, are sufficient to fully amortize the original principal
balance over the original term thereof and to pay interest at the related
Mortgage Interest Rate and (C) in the case of a Balloon Loan, are based on a
twenty (20), thirty (30), forty (40) or fifty (50) year amortization schedule,
as set forth in the related Mortgage Note, and a final monthly payment
substantially greater than the preceding monthly payment which is sufficient to
amortize the remaining principal balance of the Balloon Loan and to pay interest
at the related Mortgage Interest Rate. The Index for each Adjustable Rate
Mortgage Loan is as defined in the related Final Mortgage Loan Schedule;
(18) The origination practices used by the Seller with respect to each
Mortgage Note and Mortgage have been in all respects legal, proper, prudent and
customary in the mortgage origination and servicing industry for mortgage loans
similar to the Mortgage Loans. The Mortgage Loan has been serviced in accordance
with the terms of the Mortgage Note;
(19) The Mortgaged Property is free of damage and waste and there is
no proceeding pending or to the Seller's knowledge, threatened for the total or
partial condemnation thereof nor is such a proceeding currently occurring;
(20) 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, (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 is not subject to any bankruptcy
proceeding (or with respect to each Mortgage Loan for which the proceeds were
used to pay off a bankruptcy of the Mortgagor, the related Mortgaged Property is
no longer subject to any bankruptcy proceeding) or foreclosure proceeding, nor
are any such proceedings pending 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 Seller and the Seller has no knowledge of any
relief requested or allowed to the Mortgagor under the Servicemembers' Civil
Relief Act;
23
(21) The Mortgage Loan was underwritten in accordance with the Seller
underwriting guidelines in effect at the time the Mortgage Loan was originated;
and the Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Xxx or
Xxxxxxx Mac;
(22) The Mortgage File contains an appraisal of the related Mortgaged
Property which satisfied the standards of Uniform Standards of Professional
Appraisal Practice and was made and signed, prior to the approval of the
Mortgage Loan application, by a qualified appraiser, duly appointed by the
Seller, 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 Mortgage Loan. Each appraisal of the Mortgage
Loan was made in accordance with the relevant provisions of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989;
(23) 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;
(24) No Mortgage Loan contains provisions pursuant to which Monthly
Payments are paid or partially paid with funds deposited in any separate account
established by the Seller, the Servicer, the Mortgagor, or anyone on behalf of
the Mortgagor. 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;
(25) To the Seller's knowledge, 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 and fire underwriting
certificates, have been made or obtained from the appropriate authorities. To
the Seller's knowledge, no improvement located on or being part of any Mortgaged
Property is in violation of any applicable zoning law or regulation;
(26) Each original Mortgage was recorded and all subsequent
assignments of the original Mortgage (other than any intervening transfer to the
Purchaser) have been recorded, or are in the process of being recorded, in the
appropriate jurisdictions wherein such recordation is necessary to perfect the
lien thereof as against creditors of the Mortgagor. 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;
24
(27) Any principal advances made to the Mortgagor prior to the Cut-off
Date have been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having (A) first lien
priority with respect to each Mortgage Loan which is indicated by the Seller to
be a First Lien (as reflected on the Final Mortgage Loan Schedule), or (B)
second lien priority with respect to each Mortgage Loan which is indicated by
the Seller to be a Second Lien Mortgage Loan (as reflected on the Final Mortgage
Loan Schedule), in either case, by a title insurance policy, an endorsement to
the policy insuring the mortgagee's consolidated interest or by other title
evidence acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan;
(28) The Mortgaged Property is in material compliance with all
applicable environmental laws pertaining to environmental hazards including,
without limitation, asbestos, and neither the Seller nor, to the Seller's
knowledge, the related Mortgagor, has received any notice of any violation or
potential violation of such law;
(29) No selection procedures were used by the Seller to select those
mortgage loans originally offered for sale by the Seller to the Purchaser
(including the Mortgage Loans) that identified such mortgage loans as being less
desirable or valuable than comparable mortgage loans otherwise being offered for
sale by the Seller;
(30) Each Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G of the Code (as determined without regard to Treas. Reg. Section
1.860G-2(a)(3) or any similar rule that treats a defective obligation as a
qualified mortgage for a temporary period). Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loans;
(31) No Mortgage Loan provides for interest other than at either (i) a
single fixed rate in effect throughout the term of the Mortgage Loan or (ii) a
"variable rate" (within the meaning of Treas. Reg. Section 1.860G-1(a)(3)) in
effect throughout the term of the Mortgage Loan;
(32) With respect to each Second Lien Mortgage, (i) the related First
Lien does not permit negative amortization, and (ii) either no consent for the
Mortgage Loan is required by the holder of the First Lien or such consent has
been obtained and is contained in the Mortgage File;
(33) With respect to each Second Lien Mortgage Loan, where required or
customary in the jurisdiction in which the related 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
Second Lien Mortgage Loan and requested notification of any action to be taken
against the Mortgagor by the senior lienholder;
(34) The Mortgage Loan Documents with respect to each Mortgage Loan
subject to Prepayment Charges specifically authorizes such Prepayment Charges to
be collected;
25
the information set forth in the Prepayment Charge Schedule is complete, true
and correct in all material respects on the date or dates when such information
is furnished and each Prepayment Charge is permissible and enforceable in
accordance with the terms of the related Mortgage Loan Documents and applicable
law;
(35) The Mortgage contains a provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written consent
of the mortgagee thereunder at the option of the mortgagee and such provision is
enforceable (unless the transfer is permitted by applicable federal law without
the consent of the mortgagee thereunder);
(36) No predatory or deceptive lending practices, as defined by
applicable federal, state or local law applicable to the Seller in effect on the
origination date of the Mortgage Loan, including but not limited to, the
extension of credit to the mortgagor without regard for the mortgagor's ability
to repay the Mortgage Loan and the extension of credit to the mortgagor which
has no apparent benefit to the mortgagor, were employed by the originator of the
Mortgage Loan, or any Affiliate of the originator of the Mortgage Loan, in
connection with the origination of the Mortgage Loan;
(37) Each Mortgage Loan and related Prepayment Charge at the time it
was made complied in all material respects with applicable local, state and
federal laws, including, without limitation, usury, equal credit opportunity,
real estate settlement procedures, predatory, abusive and fair lending laws,
truth-in-lending and disclosure laws, and the consummation of the transactions
completed hereby will not involve the violation of any such laws. Any breach of
this representation shall be deemed to materially and adversely affect the value
of the Mortgage Loan and shall require a repurchase of the affected Mortgage
Loans;
(38) No Mortgage Loan is a "High Cost Loan" or "Covered Loan", as
applicable (as such terms are defined in the current Standard & Poor's LEVELS(R)
Glossary);
(39) No litigation is pending or, to the Seller's knowledge,
threatened with respect to the Mortgage Loan or Mortgaged Property;
(40) With respect to each Mortgage Loan, the Mortgagor was not
encouraged or required to select a Mortgage Loan product offered by the Seller
which is a higher cost product designed for less creditworthy Mortgagors, taking
into account such facts as, without limitation, the Mortgage Loan's requirements
and the Mortgagor's credit history, income, assets and liabilities;
(41) With respect to any Mortgage Loan originated on or after August
1, 2004, neither the related Mortgage nor the related Mortgage Note requires the
Mortgagor to submit to arbitration to resolve any dispute arising out of or
relating in any way to the Mortgage Loan transaction. Any breach of this
representation shall be deemed to materially and adversely affect the value of
the Mortgage Loan and shall require a repurchase of the affected Mortgage Loans;
26
(42) None of the Mortgage Loans are secured by liens on manufactured
housing units. Any breach of this representation shall be deemed to materially
and adversely affect the value of the Mortgage Loan and shall require a
repurchase of the affected Mortgage Loans;
(43) None of the Mortgage Loans are secured by a condominium unit that
is part of a condominium development that operates as, or holds itself out to
be, a condominium hotel ("condotel"). Any breach of this representation shall be
deemed to materially and adversely affect the value of the Mortgage Loan and
shall require a repurchase of the affected Mortgage Loans;
(44) If specified in the related Securitization Transaction, no First
Lien Mortgage Loan in a specified group of Mortgage Loans has an original
principal balance that exceeds the applicable Xxxxxxx Mac or Xxxxxx Xxx loan
limit. [Any breach of this representation shall be deemed to materially and
adversely affect the value of the Mortgage Loan and shall require a repurchase
of the affected Mortgage Loans];
(45) If specified in the related Securitization Transaction, no Second
Lien Mortgage Loan in a specified group of Mortgage Loans is a lien on a one- to
four-family residence that is the principal residence of the Mortgagor. Any
breach of this representation shall be deemed to materially and adversely affect
the value of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loans;
(46) If specified in the related Securitization Transaction, no Second
Lien Mortgage Loan in a specified group of Mortgage Loans has an original
principal balance that exceeds the applicable Xxxxxx Mae or Xxxxxxx Mac loan
limit. [Any breach of this representation shall be deemed to materially and
adversely affect the value of the Mortgage Loan and shall require a repurchase
of the affected Mortgage Loans];
(47) The original principal balance of the First Lien Mortgage Loan
plus the original principal balance of any subordinate lien Mortgage Loans
relating to the same Mortgaged Property does not exceed the applicable Xxxxxxx
Mac loan limit for First Lien Mortgage Loans for that property type. [Any breach
of this representation shall be deemed to materially and adversely affect the
value of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loans];
(48) Each Mortgage Loan is in compliance with the anti-predatory
lending eligibility for purchase requirements of Xxxxxx Mae's Selling Guide
(this representation and warranty shall be construed only to mean that none of
the representations and warranties specified in clauses (49) through (58) below
have been breached);
(49) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state and federal laws, including, but
not limited to, all applicable predatory or abusive lending laws. Any breach of
this representation shall be deemed to materially and adversely affect the value
of the Mortgage Loan and shall require a repurchase of the affected Mortgage
Loans;
(50) No borrower was encouraged or required to select a Mortgage Loan
product offered by the Seller which is a higher cost product designed for less
creditworthy borrowers, unless at the time of the Mortgage Loan's origination,
such borrower did not qualify
27
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Seller or any affiliate of the Seller. If, at
the time of loan application, the borrower may have qualified for a for a
lower-cost credit product then offered by any mortgage lending affiliate of the
Seller (other xxxx Xxxxxxx Xxxxx Credit Corporation), the Seller referred the
borrower's application to such affiliate for underwriting consideration. Any
breach of this representation shall be deemed to materially and adversely affect
the value of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loan;
(51)(a) The methodology used in underwriting the extension of credit
for each Mortgage Loan employs objective mathematical principles which relate
the borrower's income, assets and liabilities to the proposed payment and such
underwriting methodology does not rely on the extent of the borrower's equity in
the collateral as the principal determining factor in approving such credit
extension (other than no documentation Mortgage Loans). Such underwriting
methodology confirmed that at the time of origination (application/approval) the
borrower had a reasonable ability to make timely payments on the Mortgage Loan.
(b) The methodology used in underwriting the extension of credit for each
Mortgage Loan did not rely solely on the extent of the borrower's equity in the
collateral as the principal determining factor in approving such extension of
credit. The methodology employed objective criteria such as the borrower's
income, assets and liabilities, to the proposed mortgage payment and, based on
such methodology, the Mortgage Loan's originator made a reasonable determination
that at the time of origination the borrower had the ability to make timely
payments on the Mortgage Loan. Any breach of part (a) or part (b) of this
representation shall be deemed to materially and adversely affect the value of
the Mortgage Loan and shall require a repurchase of the affected Mortgage Loan;
(52) No Mortgage Loan is a balloon mortgage loan that has an original
stated maturity of less than seven (7) years.
(53) No borrower was required to purchase any single premium credit
insurance policy (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 borrower obtained a prepaid single-
premium credit insurance policy (e.g., life, mortgage, disability, accident,
unemployment or health insurance policy) or debt cancellation agreement in
connection with the origination of the Mortgage Loan; No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies
(e.g., life, mortgage disability, accident, unemployment, or health insurance
product) or debt cancellation agreements as part of the origination of, or as a
condition to closing, such Mortgage Loan;
(54) With respect to each Mortgage Loan to be included in a
Securitization Transaction in which Xxxxxx Mae or Xxxxxxx Mac is purchasing a
security issued in such Securitization Transaction: All points and fees as such
terms are used in Xxxxxx Mae's Selling Guide related to each Mortgage Loan were
disclosed in writing to the borrower in accordance with applicable state and
federal law and regulation. No 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. Such 5% limitation is calculated in
accordance with Xxxxxx Mae's requirements as set forth in the Xxxxxx Mae Selling
Guide. For purposes of this representation, "points and fees" (x) include
origination, underwriting, broker and finder's fees and charges that the lender
imposed as a condition of making the Mortgage Loan, whether they
28
are paid to the lender or a third party; and (y) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the Mortgage Loan (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, which miscellaneous fees and charges, in total,
do not exceed 0.25 percent of the loan amount; any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loans. All points
and fees related to each Mortgage Loan are listed on the Final Mortgage Loan
Schedule and are complete, true and correct. Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loans;
(55) All 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 Mortgage Loan has been disclosed in writing to
the borrower in accordance with applicable state and federal law and regulation;
(56) No Mortgage Loan is subject to be the requirement of HOEPA and no
Mortgage Loan or Refinanced Mortgage Loan has an "annual percentage rate" or
"total points and fees" payable by the borrower (as each such term is defined
under HOEPA) that equal or exceed the thresholds defined under HOEPA (Section 32
of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii)) and no Mortgage
Loan is in violation of any comparable state or local law. Any breach of this
representation shall be deemed to materially and adversely affect the interests
of the owner of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loans;
(57) No Mortgage Loan was originated on or after October 1, 2002 and
prior to March 7, 2003, which is secured by property located in the State of
Georgia. No Mortgage Loan was originated on or after March 7, 2003 which is a
"high cost home loan" as defined under the Georgia Fair Lending Act. Any breach
of this representation shall be deemed to materially and adversely affect the
interests of the owner of the Mortgage Loan and shall require a repurchase of
the affected Mortgage Loan;
(58) No Mortgage Loan is a "High-Cost Home Loan" as defined in New
York Banking Law 6-1; No Mortgage Loan is a "High-Cost Home Loan" as defined in
the Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340 of
2003); No Mortgage Loan is a "High-Cost Home Loan" as defined in the Kentucky
high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100); No Mortgage Loan is a "High-Cost Home Loan" as defined in the New
Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.); No Mortgage Loan is a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx. Sections
58-21A-1 et seq.); No Mortgage Loan 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.); No Mortgage Loan is a "High-Cost Home Mortgage Loan" as
defined in the Massachusetts Predatory Home Loan Practices
29
Act, effective November 6, 2004 (Mass. Xxx. Laws Ch. 183C); None of the Mortgage
Loans that are secured by property located in the State of Illinois are in
violation of the provisions of the Illinois Interest Act; and No Mortgage Loan
is a "High Cost Home Loan" as defined in the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9);
(59) No borrower obtained a prepaid single-premium credit-life, credit
disability, credit unemployment or credit property insurance policy in
connection with the origination of the Mortgage Loan. Any breach of this
representation shall be deemed to materially and adversely affect the value of
the Mortgage Loan and shall require a repurchase of the affected Mortgage Loans;
(60) With respect to any Mortgage Loan to be included in a
Securitization Transaction in which Xxxxxx Mae is purchasing a security issued
in such Securitization Transaction that contains a provision permitting
imposition of a Prepayment Charge: (a) the Mortgage Loan provides some benefit
to the Mortgagor (e.g., a rate or fee reduction) in exchange for accepting such
Prepayment Charge; (b) prior to the Mortgage Loan's origination, the Mortgagor
was offered the option of obtaining a Mortgage Loan that did not require payment
of such Prepayment Charge; (c) the Prepayment Charge was adequately disclosed to
the Mortgagor pursuant to applicable state and federal law; (d) no Mortgage Loan
originated on or after October 1, 2002 will provide for Prepayment Charges for a
term in excess of three years and any loans originated prior to such date, and
any Mortgage Loans, will not provide for Prepayment Charges for a term in excess
of five years; unless the Mortgage Loan was modified to reduce the Prepayment
Period to no more than three years from the date of the note and the Mortgagor
was notified in writing of such reduction in Prepayment Period; and (e) such
Prepayment Charge shall not be imposed in any instance where the Mortgage Loan
is accelerated or paid off in connection with the workout of a delinquent
mortgage or due to the Mortgagor's default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition of such
penalty. Any breach of this representation shall be deemed to materially and
adversely affect the value of the Mortgage Loan and shall require a repurchase
of the affected Mortgage Loans;
(61) The Seller and any predecessor servicer has fully furnished and
will 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, on a monthly basis. Any breach of this
representation shall be deemed to materially and adversely affect the interests
of the owner of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loans;
(62) No Mortgage Loan is classified as a high cost mortgage loan under
HOEPA, and no Mortgage Loan 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 that were
originated between November 26, 2003 and July 7, 2004), "high risk home" or
"predatory" loan under any applicable state, federal or local law (or a
similarly classified loan using different terminology under an applicable law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees). Any
breach of this representation shall be deemed to
30
materially and adversely affect the interests of the owner of the Mortgage Loan
and shall require a repurchase of the affected Mortgage Loan;
(b) In the event, a net interest margin securitization transaction is
entered into by the Seller or any of its affiliates in which any of the
certificates issued therein serve as part or all of the collateral securing such
transaction, the Seller additionally represents and warrants as follows:
(1) The information set forth in the Prepayment Charge schedule
(including the Prepayment Charge summary attached thereto) is complete, true and
correct in all material respects on the date or dates when such information is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms (except to the extent that the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws affecting creditor's rights generally or the collectability thereof
may be limited due to acceleration in connection with a foreclosure) under
applicable federal, state and local law; and
(2) Either (a) The Seller shall ensure that the related Servicer will
not waive any Prepayment Charge or part of a Prepayment Charge unless such
waiver would maximize recovery of total proceeds taking into account the value
of such Prepayment Charge and related mortgage loan and doing so is standard and
customary in servicing mortgage loans similar to the mortgage loans (including
any waiver of a Prepayment Charge in connection with a refinancing of a mortgage
loan that is related to a default or a reasonably foreseeable default), and in
no event will it waive a Prepayment Charge in connection with a refinancing of a
mortgage loan that is not related to a default or a reasonably foreseeable
default; or (b)
The Seller shall ensure that the related Servicer will not waive
any part of any Prepayment Charge unless the waiver relates to a default or a
reasonably foreseeable default, the Prepayment Charge would cause an undue
hardship to the related borrower, the Mortgaged Property is sold by the
Mortgagor, the collection of any Prepayment Charge would violate any relevant
law or regulation or the waiving of the Prepayment Charge would otherwise
benefit the Trust Fund and it is expected that the waiver would maximize
recovery of total proceeds taking into account the value of the Prepayment
Charge and related Mortgage Loan and doing so is standard and customary in
servicing similar Mortgage Loans (including any waiver of a Prepayment Charge in
connection with a refinancing of a Mortgage Loan that is related to a default or
a reasonably foreseeable default). The related Servicer will not waive a
Prepayment Charge in connection with a refinancing of a Mortgage Loan that is
not related to a default or a reasonably foreseeable default.
Subsection 7.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 7.01 and 7.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or lack of examination of any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a breach of any of
the foregoing representations and warranties which materially and adversely
affects the value of the
31
Mortgage Loans or the interest of the Purchaser (or which materially and
adversely affects the interests of the Purchaser in the related Mortgage Loan in
the case of a representation and warranty relating to a particular Mortgage
Loan), the party discovering such breach shall give prompt written notice to the
other.
With respect to the representations and warranties described in this
Section 7.02 which are made to the best of the Seller's knowledge, if it is
discovered by either the Servicer or the Trustee 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 interests of the
Certificateholders therein, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation or warranty, such inaccuracy
shall be deemed a breach of the applicable representation or warranty.
Within sixty (60) days of the earlier of either discovery by or notice
to the Seller of any breach of a representation or warranty which materially and
adversely affects the value of a Mortgage Loan or the Mortgage Loans, 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, at the Purchaser's
option, repurchase such Mortgage Loan at the Repurchase Price. In the event that
a breach shall involve any representation or warranty set forth in Subsection
7.01 and such breach cannot be cured within sixty (60) days of the earlier of
either discovery by or notice to the Seller of such breach, all of the Mortgage
Loans shall, at the Purchaser's option, be repurchased by the Seller at the
Repurchase Price. The Seller shall, at the request of the Purchaser and assuming
that Seller has a Qualified Substitute Mortgage Loan, rather than repurchase the
Mortgage Loan as provided above, remove such Mortgage Loan and substitute in its
place a Qualified Substitute Mortgage Loan or Loans; provided that such
substitution shall be effected not later than one hundred twenty (120) days
after the Closing Date. If the Seller has no Qualified Substitute Mortgage Loan,
it shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage
Loan(s) pursuant to the foregoing provisions of this Subsection 7.03 shall occur
on a date designated by the Purchaser and shall be accomplished by wire transfer
of immediately available funds on the repurchase date to an account designated
by the Purchaser.
Notwithstanding the foregoing and solely with respect to Mortgage
Loans that are a part of a Securitization Transaction or net interest margin
security related to such Securitization Transaction, within 90 days of the
earlier of discovery by the Seller or receipt of notice by the Seller of the
breach of the representation or covenant of the Seller set forth in Section
7.02(34) which materially and adversely affects the interests of any holder of
any certificate representing the right to receive the Prepayment Charges in any
such Prepayment Charge, the Seller shall remedy such breach as follows: if the
representation made by the Seller in Section 7.02(34) is breached and a
Principal Prepayment has occurred in the applicable prepayment period, the
Seller must pay the amount of the scheduled Prepayment Charge, in accordance
with instructions provided by the Purchaser, net of any legally enforceable
Prepayment Charge applicable to such Mortgage Loan.
At the time of repurchase of any deficient Mortgage Loan, the
Purchaser and the Seller shall arrange for the reassignment of the repurchased
Mortgage Loan to the Seller and the delivery to the Seller of any documents held
by the Custodian relating to the repurchased Mortgage Loan. In the event the
Repurchase Price is deposited in the Custodial Account, the
32
Seller shall, simultaneously with such deposit, give written notice to the
Purchaser that such deposit has taken place. Upon such repurchase the related
Final Mortgage Loan Schedule shall be amended to reflect the withdrawal of the
repurchased Mortgage Loan from this Agreement.
As to any Deleted Mortgage Loan for which the Seller substitutes a
Qualified Substitute Mortgage Loan or Loans, the Seller shall effect such
substitution by delivering to the Purchaser for such Qualified Substitute
Mortgage Loan or Loans the Mortgage Loan Documents with the Mortgage Note
endorsed as required herein. The Seller shall deposit in the Custodial Account
the Monthly Payment due on such Qualified Substitute Mortgage Loan or Loans in
the month following the date of such substitution. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution will
be retained by the Seller. For the month of substitution, distributions to the
Purchaser will include the Monthly Payment due on such Deleted Mortgage Loan in
the month of substitution, and the Seller shall thereafter be entitled to retain
all amounts subsequently received by the Seller in respect of such Deleted
Mortgage Loan. The Seller shall give written notice to the Purchaser that such
substitution has taken place and shall amend the Final Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan. Upon
such substitution, such Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects, and the Seller shall be
deemed to have made with respect to such Qualified Substitute Mortgage Loan or
Loans, as of the date of substitution, the covenants, representations and
warranties set forth in Subsections 7.01 and 7.02.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller
will determine the amount (if any) by which the aggregate principal balance of
all such Qualified Substitute Mortgage Loans as of the date of substitution is
less than the aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after application of scheduled principal payments due in the month of
substitution). Accordingly, on the date of such substitution, the Seller will
deposit from its own funds into the Custodial Account an amount equal to such
amount.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 7.01 or
7.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with the
relevant provisions of this Agreement.
SECTION 8. Closing. The closing shall take place on the Closing Date.
At the Purchaser's option, the closing shall be either: by telephone, confirmed
by letter or wire as the parties shall agree, or conducted in person, at such
place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on the Closing
Date shall be subject to each of the following conditions:
33
(a) all of the representations and warranties of the Seller under
this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with notice
or the passage of time, would constitute a default under this
Agreement;
(b) the Seller shall have delivered and released the Mortgage Loan
Documents to the Custodian; and
(c) all other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, the Initial Purchaser shall pay
to the Seller on the related Closing Date the Purchase Price, plus accrued
interest pursuant to Section 4, by wire transfer of immediately available funds
to the account designated by the Seller.
SECTION 9. [Reserved]
34
SECTION 10. Costs. The Purchaser shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
Loans, including without limitation recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage and
the Seller's attorney's fees, shall be paid by the Seller.
SECTION 11. [Reserved]
SECTION 12. Securitization Transactions and Whole Loan Transfers.
Subsection 12.01 Removal of Mortgage Loans from Inclusion Under This
Agreement Upon a Whole Loan Transfer or a Securitization Transaction on One or
More Reconstitution Dates.
The Seller and the Initial Purchaser agree that with respect to some
or all of the Mortgage Loans, the Initial Purchaser may effect either:
(1) one or more Whole Loan Transfers; and/or
(2) one or more Securitization Transactions.
With respect to each Whole Loan Transfer or Securitization
Transaction, as the case may be, entered into by the Initial Purchaser, the
Seller agrees:
(1) to cooperate fully with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due
diligence procedures including
35
participating in meetings with rating agencies, bond insurers and
such other parties as the Purchaser shall designate and
participating in meetings with prospective purchasers of the
Mortgage Loans or interests therein and providing information
reasonably requested by such purchasers;
(2) to deliver to the Purchaser for inclusion in any prospectus or
other offering material such publicly available information
regarding the Seller, its financial condition or as is otherwise
reasonably requested by the Purchaser and which the Seller is
capable of providing without unreasonable effort or expense, and
to indemnify the Purchaser and its affiliates for material
misstatements or omissions contained (i) in such information and
(ii) on the Final Mortgage Loan Schedule;
(3) to deliver to the Purchaser and to any Person designated by the
Purchaser, at the Purchaser's expense, such statements and audit
letters of reputable, certified public accountants pertaining to
information provided by the Seller pursuant to clause 2 above as
shall be reasonably requested by the Purchaser; and
(4) to deliver to the Purchaser, and to any Person designated by the
Purchaser, such legal documents and in-house Opinions of Counsel
as are customarily delivered by originators or servicers, as the
case may be, and reasonably determined by the Purchaser to be
necessary in connection with Whole Loan Transfers or
Securitization Transactions, as the case may be, such in-house
Opinions of Counsel for a Securitization Transaction to be in the
form reasonably acceptable to the Purchaser, it being understood
that the cost of any opinions of outside special counsel that may
be required for a Whole Loan Transfer or Securitization
Transaction, as the case may be, shall be the responsibility of
the Purchaser.
Subsection 12.02 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose of
Section 12 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Seller acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings. Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
36
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller, any Third-Party Originator and the Mortgage
Loans, or the servicing of the Mortgage Loans, reasonably believed by the
Purchaser or any Depositor to be necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for information
under these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
Subsection 12.03 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to any
Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 12.04 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated)
against the Seller or any Third-Party Originator; and (ii) there are no
affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date following
the date on which information is first provided to the Purchaser or any
Depositor under Subsection 12.04, the Seller shall, within five Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
Subsection 12.04 Information to Be Provided by the Seller.
In connection with any Securitization Transaction occurring on or
after January 1, 2006, the Seller shall (i) within five Business Days following
request by the Purchaser or any Depositor, provide to the Purchaser and such
Depositor (or, as applicable, cause each Third-Party Originator to provide), in
writing and in form and substance reasonably satisfactory to the Purchaser and
such Depositor, the information and materials specified in paragraphs (a) and
(b) of this Section, and (ii) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this Section.
37
(a) If so requested by the Purchaser or any Depositor, the Seller shall
provide such information regarding (i) the Seller, as originator of the Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and how long
the originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator's experience
in originating mortgage loans of a similar type as the Mortgage Loans;
information regarding the size and composition of the originator's
origination portfolio; and information that may be material, in the good
faith judgment of the Purchaser or any Depositor, to an analysis of the
performance of the Mortgage Loans, including the originators'
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans and such other information as the Purchaser
or any Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each
Third-Party Originator; and
(D) a description of any affiliation or relationship between the
Seller, each Third-Party Originator and any of the following parties to a
Securitization Transaction, as such parties are identified to the Seller by
the Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor and to the extent
received by the Seller from various assignees of the Seller's mortgage loans,
the Seller shall provide (or, as applicable, cause each Third-Party Originator
to provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the Purchaser as
provided below) originated by (i) the Seller, if the Seller is an originator of
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static Pool
Information shall be prepared by the Seller (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(l)-(3) of Regulation AB. To the extent that there is reasonably
38
available to the Seller (or Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any Depositor
shall be entitled to specify whether some or all of such information shall be
provided pursuant to this paragraph. The content of such Static Pool Information
may be in the form customarily provided by the Seller, and need not be
customized for the Purchaser or any Depositor. Such Static Pool Information for
each vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no later than 135
days prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser or the Depositor, as applicable. The Seller shall in good faith use
its best efforts to obtain from its assignees data needed to prepare Static Pool
Information.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller.
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to the
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved].
(d) If so requested by the Purchaser or any Depositor for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to any
class of asset-backed securities, the Seller shall (or shall cause each
Third-Party Originator to) (i) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental proceedings pending against the
Seller or any Third-Party Originator and (B) any affiliations or relationships
that develop
39
following the closing date of a Securitization Transaction between the Seller or
any Third-Party Originator and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing by
the requesting party) with respect to such Securitization Transaction, and (ii)
provide to the Purchaser and any Depositor a description of such proceedings,
affiliations or relationships.
Subsection 12.05 Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided under this Section 12 by or on behalf of
the Seller, or provided under this Section 12 by or on behalf of any
Third-Party Originator (collectively, the "Seller Information"), or (B) the
omission or alleged omission to state in the Seller Information a material
fact required to be stated in the Seller Information or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification,
that clause (B) of this paragraph shall be construed solely by reference to
the Seller Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to whether
the Seller Information or any portion thereof is presented together with or
separately from such other information;
(ii) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 12; or
(iii) any breach by the Seller of a representation or warranty set
forth in Subsection 12.03(a) or in a writing furnished pursuant to
Subsection 12.03(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Seller of a representation
or warranty in a writing furnished pursuant to Subsection 12.03(b) to the
extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause (ii) of this
Section, the Seller shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person
40
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction, for all
costs reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' letter or other material not delivered as
required by the Seller or any Third-Party Originator.
(b) Any failure by the Seller or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other material when
and as required under this Section 12, or any breach by the Seller of a
representation or warranty set forth in Subsection 12.03(a) or in a writing
furnished pursuant to Subsection 12.03(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Subsection
12.03(b) to the extent made as of a date subsequent to such closing date, shall
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to the Seller under this Agreement and the
operative agreement pursuant to any applicable Reconstitution.
SECTION 13. The Seller.
Subsection 13.01 Merger or Consolidation of the Seller.
The Seller shall keep in full force and effect its existence, rights
and franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and shall obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans, and to enable the
Seller to perform its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall be an institution whose deposits are
insured by the FDIC or a company whose business is the origination and servicing
of mortgage loans and shall be a Xxxxxx Xxx- or Xxxxxxx Mac-approved
seller/servicer.
Subsection 13.02 Limitation on Liability of the Seller and Others.
Neither the Seller nor any of the officers, employees or agents of the
Seller shall be under any liability to the Purchaser for any action taken or for
refraining from the taking of any action in good faith in connection with the
servicing of the Mortgage Loans pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Seller or
any such person against any breach of warranties or representations made herein,
or failure to perform its obligations in strict compliance with any standard of
care set forth in this
41
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Seller and any
officer, employee or agent of the Seller may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Seller shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
obligation to sell or duty to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may result in its incurring any expenses or
liability; provided, however, that the Seller may, with the consent of the
Purchaser, undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities for which the
Purchaser shall be liable, and the Seller shall be entitled to reimbursement
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to the Seller's indemnification under Subsections
7.03 or 13.01.
SECTION 14. [Reserved].
SECTION 15. Financial Statements. The Seller understands that in
connection with the Purchaser's marketing of the Mortgage Loans, the Purchaser
shall make available to prospective purchasers financial statements of the
Seller and the Seller's parent company, if applicable, for the most recently
completed three fiscal years respecting which such statements are available. The
Seller also shall make available any comparable quarterly financial statements
and other interim statements to the extent such other interim statements have
been prepared by the Seller (and are available upon request to the public at
large). The Seller, if it has not already done so, agrees to furnish promptly to
the Purchaser copies of the statements specified above.
SECTION 16. Mandatory Delivery; Grant of Security Interest. The sale
and delivery of each Mortgage Loan on or before the Closing Date is mandatory,
it being specifically understood and agreed that each Mortgage Loan is unique
and identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Initial Purchaser for the losses and damages
incurred by the Initial Purchaser (including damages to prospective purchasers
of the Mortgage Loans) in the event of the Seller's failure to deliver (i) each
of the related
42
Mortgage Loans, (ii) one or more Qualified Substitute Mortgage Loans delivered
pursuant to Section 7, or (iii) one or more Mortgage Loans otherwise acceptable
to the Initial Purchaser on or before the Closing Date. The Seller
hereby grants to the Initial Purchaser a lien on and a continuing security
interest in each Mortgage Loan and each document and instrument evidencing each
such Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Initial Purchaser subject to the Initial Purchaser's (i) right to reject
any Mortgage Loan under the terms of this Agreement, and (ii) obligation to pay
the related Purchase Price for the Mortgage Loans. 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.
SECTION 17. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, by
registered or certified mail, return receipt requested, or, if by other means,
when received by the other party at the address as follows:
(i) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
(ii) if to the Seller:
First Franklin Financial Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Director, Capital Markets
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 18. Severability Clause. 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
be ineffective, as to such jurisdiction, 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 Mortgage Loan
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.
43
SECTION 19. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument.
SECTION 20. Governing Law. The Agreement shall be construed in
accordance with the laws of the State of New York without regard to any
conflicts of law provisions and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with the laws of the State
of New York, except to the extent preempted by Federal law.
SECTION 21. Intention of the Parties. It is the intention of the
parties that the Initial Purchaser is purchasing, and the Seller is selling, the
Mortgage Loans and not a debt instrument of the Seller or another security.
Accordingly, the parties hereto each intend to treat the transaction for Federal
income tax purposes as a sale by the Seller, and a purchase by the Purchaser, of
the Mortgage Loans. The Initial Purchaser shall have the right to review the
Mortgage Loans and the related Mortgage File to determine the characteristics of
the Mortgage Loans which shall affect the Federal income tax consequences of
owning the Mortgage Loans and the Seller shall cooperate with all reasonable
requests made by the Initial Purchaser in the course of such review.
SECTION 22. Successors and Assigns. This Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser and
the respective successors and assigns of the Seller and the Purchaser. The
Purchaser may assign this Agreement to any Person to whom any Mortgage Loan is
transferred whether pursuant to a sale or financing and to any Person to whom
the servicing or master servicing of any Mortgage Loan is sold or transferred.
Upon any such assignment, the Person to whom such assignment is made shall
succeed to all rights and obligations of the Purchaser under this Agreement to
the extent of the related Mortgage Loan or Mortgage Loans and this Agreement, to
the extent of the related Mortgage Loan or Loans, shall be deemed to be a
separate and distinct Agreement between the Seller and such Purchaser, and a
separate and distinct Agreement between the Seller and each other Purchaser to
the extent of the other related Mortgage Loan or Loans. In the event that this
Agreement is assigned to any Person to whom the servicing or master servicing of
any Mortgage Loan is sold or transferred, the rights and benefits under this
agreement which inure to the Purchaser shall inure to the benefit of both the
Person to whom such Mortgage Loan is transferred and the Person to whom the
servicing or master servicing of the Mortgage Loan has been transferred;
provided that, the right to require a Mortgage Loan to be repurchased by the
Seller pursuant to Subsection 7.03 or 7.04 shall be retained solely by the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the consent of the Purchaser.
SECTION 23. Waivers. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be enforced.
SECTION 24. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
44
SECTION 25. Nonsolicitation. The Seller covenants and agrees that it
shall not take any action to solicit the refinancing of any Mortgage Loan
following the date hereof or provide information to any other entity to solicit
the refinancing of any Mortgage Loan; provided that, the foregoing shall not
preclude the Seller from engaging in solicitations to the general public by
newspaper, radio, television or other media which are not directed toward the
Mortgagors or from refinancing the Mortgage Loan of any Mortgagor who, without
solicitation, contacts the Seller to request the refinancing of the related
Mortgage Loan.
SECTION 26. General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
SECTION 27. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, (b) documents received by any
party at the closing, and (c) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
SECTION 28. Further Agreements. The Seller and the Purchaser each
agree to execute and deliver to the other such reasonable and appropriate
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
45
SECTION 29. Protection of Confidential Information. The Seller agrees
that the Purchaser has or will introduce subsequent Purchasers to the Seller,
that purchasers of the Mortgage Loans are customers of the Purchaser and that
the relationships of the Purchaser to purchasers of the Mortgage Loans are
confidential. The Seller agrees that, for a period of two (2) years following
the Closing Date with respect to a subsequent Purchaser, the Seller will not,
for the purpose of purchasing and selling other Mortgage Loans, communicate with
or sell such other mortgage loans to such purchaser of the Mortgage Loans unless
such subsequent Purchaser is independently introduced to the Seller; provided,
however, that the foregoing shall not apply to a purchaser of the Mortgage Loans
that is Xxxxxx Xxx or Xxxxxxx Mac. The Seller will keep confidential and will
not, without the Purchaser's written consent, divulge to any party the Purchase
Price of the Mortgage Loans, except to the extent that it is appropriate to do
so in working with legal counsel, auditors, taxing authorities or other
governmental agencies.
Seller agrees and acknowledges that as to all nonpublic personal
information received or obtained by it with respect to any Mortgagor: (a) such
information is and shall be held by Seller in accordance with all applicable
law, including but not limited to the privacy provisions of the Xxxxx-Xxxxx-
Bliley Act of 1999; (b) such information is in connection with a proposed or
actual secondary market sale related to a transaction of the Mortgagor for the
purposes of 16 C.F.R., Section 313.14(a)(3); and (c) Seller is hereby prohibited
from disclosing or using any such information internally other than to carry out
the express provisions of this Agreement.
SECTION 30. Survival. The Seller agrees that the representations,
warranties and agreements made by the Seller 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 the Purchaser's behalf, and that the representations,
warranties and agreements made by the Seller herein or in any such certificate
or other instrument shall survive the delivery and payment for the Mortgage
Loans.
46
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
FIRST FRANKLIN FINANCIAL CORPORATION
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE LENDING, INC.
(Initial Purchaser)
By:
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
FFMER 2007-1
First Franklin Financial Corporation - Master Mortgage Loan Purchase Agreement
EXHIBIT 1
WARRANTY XXXX OF SALE
On this ____ day of ______ 20__, First Franklin Financial Corporation (the
"Seller") as the Seller under that certain Master Mortgage Loan Purchase
Agreement, dated as of March 1, 2007 (the "Agreement"), do hereby sell,
transfer, assign, set over and convey to Xxxxxxx Xxxxx Mortgage Lending, Inc.
(the "Purchaser") as the Purchaser under the Agreement, without recourse, but
subject to the terms of the Agreement, all rights, title and interest of the
Seller in and to the Mortgage Loans listed on the Final Mortgage Loan Schedule
attached hereto, together with the related Mortgage Files and all rights and
obligations arising under the documents contained therein. Pursuant to
Subsection 6.03 of the Agreement, the Seller has delivered to the Custodian the
documents for each Mortgage Loan to be purchased as set forth in the Agreement.
The contents of each related Servicing File required to be retained by the
Seller and thus not delivered to the Purchaser are and shall be held in trust by
such Seller for the benefit of the Purchaser as the owner thereof. The Seller's
possession of any portion of each such Servicing File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the related Mortgage
Loan pursuant to the Agreement, and such retention and possession by either
Seller shall be in a custodial capacity only. The ownership of each Mortgage
Note, Mortgage, and the contents of the Mortgage File and Servicing File is
vested in the Purchaser and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of either Seller shall immediately vest in the Purchaser and shall be
retained and maintained, in trust, by such Seller at the will of the Purchaser
in such custodial capacity only.
The Seller confirms to the Purchaser that the representations and
warranties set forth in Subsections 7.01 and 7.02 of the Agreement are true and
correct as of the date hereof, and that all statements made in the Seller's
Officer's Certificate and all Attachments thereto remain complete, true and
correct in all respects as of the date hereof, and makes the following
additional representations and warranties to the Purchaser, which additional
representations and warranties are hereby incorporated into Subsection 7.02 of
the Agreement:
(1) When measured by aggregate Stated Principal Balance as of the
Cut-off Date, no more than ____________% of the Mortgage Loans
are Rate/Term Refinancings and no more than ____________% of the
Mortgage Loans are Cash-Out Refinancings.
(2) When measured by aggregate Stated Principal Balance as of the
Cut-off Date, (i) no less than ______________% of the Mortgage
Loans are secured by detached one-family dwellings or detached
one-family dwellings in planned unit developments, (ii) no more
than ____________% of the Mortgage Loans are secured by attached
one-family dwellings in a planned unit development, (iii) no more
than ______% of the Mortgage Loans are secured by individual
condominium units, and (iv) no more than _______% of the Mortgage
Loans are secured by detached two-to-four family dwellings;
Exhibit 1-1
(3) When measured by aggregate Stated Principal Balance as of the
Cut-off Date, no more than ______% of the Mortgage Loans had
Loan-to-Value Ratio at origination in excess of 80%, and the
weighted average Loan-to-Value Ratio for all Mortgage Loans at
origination did not exceed ____%;
(4) With respect to all of the Mortgage Loans, at the time that the
Mortgage Loan was made, the Mortgagor represented that the
Mortgagor would occupy the Mortgaged Property as the Mortgagor's
primary residence, except as noted on the attached Final Mortgage
Loan Schedule;
(5) No Mortgage Loan had a principal balance at origination in excess
of $______ and the average principal balance of the Mortgage
Loans on the Cut-off Date was not in excess of $______. When
measured by the aggregate Stated Principal Balance as of the
Cut-off Date, no more than ________% of the Mortgage Loans had a
principal balance at origination in excess of $_________;
(6) Each Mortgage Loan has a Mortgage Interest Rate of at least
_________%. The Mortgage Loans have a weighted average Mortgage
Interest Rate of ______% as of the Cut-off Date; and
(7) When measured by aggregate Closing Date Principal Balance as of
the Cut-off Date, no more than ________% of the Mortgage Loans
are secured by Mortgaged Properties located in the same United
States postal zip code.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
FIRST FRANKLIN FINANCIAL CORPORATION
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit 1-2
EXHIBIT 2
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and which shall be retained by the Seller or delivered to the
Custodian:
(1) Mortgage Loan Documents.
(2) Residential loan application.
(3) Mortgage Loan closing statement.
(4) Verification of employment and income (other than with respect to
the No Income Verification and No Documentation Programs of the
Seller).
(5) Verification of acceptable evidence of source and amount of
downpayment.
(6) Credit report on Mortgagor.
(7) Residential appraisal report.
(8) Photograph of the Mortgaged Property.
(9) Survey of the Mortgaged Property.
(10) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title
policy, i.e., map or plat, restrictions, easements, sewer
agreements, home association declarations, etc.
(11) All required disclosure statements and statement of Mortgagor
confirming receipt thereof.
(12) If available, termite report, structural engineer's report, water
potability and septic certification.
(13) Sales Contract, if applicable.
(14) Hazard insurance policy.
(15) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files,
correspondence, current and historical computerized data files,
and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage loan file
and which are required to document the Mortgage Loan or to
service the Mortgage Loan.
Exhibit 2-1
(16) Amortization schedule, if available.
(17) Payment history for Mortgage Loans that have been closed for more
than ninety (90) days.
Exhibit 2-2
The undersigned, as Depository, hereby certifies that the
above-described account has been established as a Custodial Account pursuant to
the Agreement under Account Number ___________ at the office of the Depository
indicated above, and agrees to honor withdrawals on such account as provided
above. The full amount deposited at any time in the account will be insured by
the Federal Deposit Insurance Corporation through the Bank Insurance Fund
("BIF") or the Savings Association Insurance Fund ("SAIF").
----------------------------------------
Depository
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Exhibit 6-2
SCHEDULE I
FINAL MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
SCHEDULE II
PREPAYMENT CHARGE SCHEDULE
[Intentionally Omitted]
